Law Commons^™

Spirit Food And Sovereignty: Pathways For Protecting Indigenous Peoples' Subsistence Rights, Allison M. Dussias

Allison M Dussias

Abstract: SPIRIT FOOD AND SOVEREIGNTY: PATHWAYS FOR PROTECTING INDIGENOUS PEOPLES’ SUBSISTENCE RIGHTS

By Professor Allison M. Dussias

This article examines three pathways recently followed by Native American tribes and other Native communities in seeking protection of their rights to culturally valuable and legally protected subsistence resources – wild, renewable resources on which Native peoples have traditionally relied to sustain themselves. They have pursued their claims not only through litigation in U.S. courts, but also through claims to international bodies and through the regulatory process. The sources of law and rights on which they have relied as they followed these different …

Solar Energy Policy In Canada: An Overview Of Recent Legislative And Community-Based Trends Towards A Coherent Renewable Energy Sustainability Framework, Kamaal Zaidi

Kamaal Zaidi

This paper outlines solar energy policy in Canada, in the hopes of advancing renewable energy policy. More specifically, the most recent advances in public policy relating to renewable energy are examined in selected provinces to show how solar energy is on the rise in Canada. The technology behind solar energy is briefly analyzed, while the legal aspects of solar energy are covered to build upon the discussion in various provinces. Since much of Canadian solar energy policy draws from Germany, Japan, and the United States, these three jurisdictions are mentioned to show their solar energy policies. The paper ends with …

The Changing Of The Cattle Guard: Blm's New Approach To Grazing Qualifications, Hillary M. Hoffmann

Hillary M Hoffmann

This article traces the history of the four qualifications requirements for applicants seeking grazing permits on public domain lands under Bureau of Land Management jurisdiction: (1) citizenship/residency, (2) livestock ownership, (3) base property and (4) grazing preference. The article discusses the origins of these four requirements in the common grazing practices on the federal range in the early twentieth century, when grazing was unregulated, then discusses the extent to which they are explicitly or impliedly incorporated into the Taylor Grazing Act, and finally, explains the regulatory history of each requirement from 1934 to the present. The article concludes that BLM’s …

Review Of Mary Doyle And Cynthia A. Drew, Large-Scale Ecosystem Restoration (Island Press, 2008), Joel A. Mintz

Joel A. Mintz

This book review critically examines Mary Doyle and Cynthia A. Drew's, Large-Scale Ecosystem Restoration. The book is a set of case studies of five watershed-wide ecosystem restoration projects, written from the perspectives of institutional/political history, economics, and ecology. This review assays the work's strengths and shortcomings, both as a source of information about the restoration efforts it covers and as a guide to the evaluation of other similar attempts to restore degraded watersheds.

Meaningful Participation In A Global Climate Regime, Bryant Walker Smith

Bryant Walker Smith

An effective climate regime must be global rather than merely international and must contemplate the significant involvement of actors other than states. “Meaningful participation” in a global climate regime is already occurring in the Global South. That participation helps to satisfy the existing international legal obligations undertaken by developing states and merits greater recognition in future legal regimes. Moreover, that participation constitutes a form of global governance separate from the United Nations Framework Convention on Climate Change (UNFCCC) and, regardless of its legal status, deserves greater attention in practical efforts to address climate change.

The article has several parts. First, …

Corn, Carbon, And Conservation: Rethinking U.S. Agricultural Policy In A Changing Global Environment, Mary Jane Angelo

Mary Jane Angelo

ABSTRACT

CORN, CARBON AND CONSERVATION: RETHINKING U.S. AGRICULTURAL POLICY IN A CHANGING GLOBAL ENVIRONMENT

Mary Jane Angelo

In the past few years, the public has renewed its interest in ensuring that the food it eats is healthy and is grown in ways that are environmentally and economically sustainable. The immense popularity of books such as The Omnivore’s Dilemma, the widespread “locavore” movement, First Lady Michelle Obama’s White House lawn vegetable garden, concerns over genetically modified crops, rising food prices, growing concerns over the government’s misguided policy to promote corn ethanol, and the climate change crisis have refocused the public’s attention …

Rights, Rights Everywhere And Not A Fish To Fish: Considering Aboriginal And Treaty Rights In Canada As A Platform For Climate Change Litigation, Madeleine A. Sinclair

Madeleine A Sinclair

The very existence and identity of Aboriginal peoples is often tied inextricably to their lands and the natural resources they have depended on for so long are crucial not only for sustenance but also for cultural identity and spirituality. A complex legal regime and unique set of rights has resulted from efforts to reconcile this with the sovereignty of the Canadian crown. This paper aims to lay the foundations for an argument that, as holders of distinctive rights, Aboriginal peoples in Canada are uniquely positioned in a legal fight to force action on climate change.

This article examines aboriginal and …

State Standards For Nationwide Products Revisited: Federalism, Green Building Codes, And Appliance Efficiency Standards, Alexandra B. Klass

Alexandra B. Klass

This Article considers the federal preemption of state standards for building appliances and places the issue within the ongoing federalism debate over the role of state standards for “nationwide products” such as automobiles, pharmaceuticals, and other consumer products. Notably, residential, commercial, and industrial buildings make up approximately 40 percent of total U.S. energy demand and the same percentage of U.S. carbon dioxide (CO2) emissions, while the appliances within those buildings are responsible for 70 percent of building energy use, making appliance efficiency a central component of any national effort to reduce energy use and greenhouse gas (GHG) emissions. For decades …

The Legal Challenge Of Protecting Animal Migrations, Robert L. Fischman

Robert L. Fischman

Animal migrations are as familiar as the sign of geese in the sky on a fall afternoon and as mysterious as the peregrinations of sea turtles across thousands of miles of open ocean. This article discusses the distinguishing attributes of animal migrations, why they are important to biodiversity conservation, and the legal challenges posed by migration conservation. In particular, the article focuses on those aspects of migration conservation that existing law, dominated by imperiled species protection, fails to address. It consequently suggests law reforms that would better conserve animal migrations. A step toward serious legal efforts to protect the process …

Trampling The Public Trust, Debra Donahue

Debra L. Donahue

Many ecological problems in the Greater Yellowstone Ecosystem can be traced to livestock production politics. Federal land managers and state wildlife agencies refuse to address the root causes of these problems and seek ecological solutions. They pursue management policies driven, not by science or law, but by an institutionalized relationship with livestock interests. This article describes three pressing ecological issues--predator control, elk and bison supplemental feeding, and climate change--and explains how public land grazing causes or contributes to each problem and frustrates solutions. The article argues that current management policies violate state duties as trustee for the people’s wildlife and …

Economic Impact Of California Greenhouse Gas Emissions Reduction Plan, Charles Edward Doering

Charles Edward Doering

ABSTRACT The California Global Warming Solutions Act of 2006 requires greenhouse gas emissions to be reduced to 1990 levels by 2020, and designates the Air Resources Board as lead agency of the program. The agency developed a Scoping Plan outlining 40 measures mandating: (a) increased energy efficiency in vehicles, buildings and appliances, (b) greater reliance on renewable electric generation, (c) enhanced industry operational efficiencies, (d) methane capture, and (e) an emissions cap-and-trade program. The agency projects the measures to generate these benefits: (a) a positive net cost/benefit of $16.1 billion, (b) increased economic output of $33 billion, (c) gross state …

An Unattainable Wedge: Four Limiting Effects On The Expansion Of Nuclear Power, Tanya K. Mortensen

Tanya K Mortensen

With a cap and trade system likely imminent, concerns about the costs of generating electricity and how electrical generators can best mitigate the effects of a carbon trade system are resurfacing. As a result, interests in nuclear power are resurging world-wide. Although, the purpose of this paper is aimed at national decision making, the problems and processes that confront decision makers internationally are effectively the same as those confronting decision makers in the United States. This paper examines the feasibility of using nuclear power as a wedge to reduce CO2 emissions, and puts forth four effects that may prevent or …

An Unattainable Wedge: Four Limiting Effects On The Expansion Of Nuclear Power, Tanya K. Mortensen

Tanya K Mortensen

With a cap and trade system likely imminent, concerns about the costs of generating electricity and how electrical generators can best mitigate the effects of a carbon trade system are resurfacing. As a result, interests in nuclear power are resurging world-wide. Although, the purpose of this paper is aimed at national decision making, the problems and processes that confront decision makers internationally are effectively the same as those confronting decision makers in the United States. This paper examines the feasibility of using nuclear power as a wedge to reduce CO2 emissions, and puts forth four effects that may prevent or …

A Comparative Guide To The Western States' Public Trust Doctrine: Public Values, Private Rights, And The Evolution Toward An Environmental Public Trust, Robin K. Craig

Robin K. Craig

This companion article to the Fall 2007 A Comparative Guide to the Eastern Public Trust Doctrines explores the state public trust doctrines – emphasis on the plural – in the 19 western states. In so doing, this Article seeks to make the larger point that, while the broad contours of the public trust doctrine, especially regarding state ownership of the beds and banks of navigable waters, have a federal law basis, the details of how public trust principles actually apply vary considerably from state to state. Public trust law, in other words, is very much a species of state common …

Curious Corners Of Louisiana Mineral Law: Cemeteries, School Lands, Erosion, Accretion, And Other Oddities, Ryan M. Seidemann

Ryan M Seidemann

Although the legal issues discussed herein are varied, they can be reduced to a few cautionary principles. Do not disturb the dead. Make sure that any mineral activities that might impact cemeteries comply fully with Title 8 of Louisiana’s Revised Statutes. Watch out for school lands. Sixteenth section lands, generally, are not that confusing, but be aware of them when conducting title searches to ensure that leases are taken from and royalties are paid to proper parties. Be aware of water movements. The impact of natural and anthropogenic changes in waterways can affect ownership of mineral rights. Know who can …

The Alaska Gasline Inducement Act: Commercial Issues/Public Exposure, Rogmarks@Gmail.Com Roger Marks

rogmarks@gmail.com Roger Marks

The Alaska Gasline Inducement Act (AGIA) was enacted by the State of Alaska in 2007 to attempt to progress the construction of a natural gas pipeline from the Alaska North Slope to North American markets. The Act conveys monetary inducements from the state to the exclusive licensee in exchange for certain performance requirements. The financing of any pipeline requires the contractual commitment from the shippers (producers) to pay to ship the gas over an extended period of time. However, many of the performance requirements of AGIA are antithetical to the commercial interests of the shippers. Moreover, a flawed financial analysis …

The Alaska Gasline Inducement Act: Commercial Issues/Public Exposure, Rogmarks@Gmail.Com Roger Marks

rogmarks@gmail.com Roger Marks

The Alaska Gasline Inducement Act (AGIA) was enacted by the State of Alaska in 2007 to attempt to progress the construction of a natural gas pipeline from the Alaska North Slope to North American markets. The Act conveys monetary inducements from the state to the exclusive licensee in exchange for certain performance requirements. The financing of any pipeline requires the contractual commitment from the shippers (producers) to pay to ship the gas over an extended period of time. However, many of the performance requirements of AGIA are antithetical to the commercial interests of the shippers. Moreover, a flawed financial analysis …

The International Tropical Timber Organization And Conservationist Forestry Norms: A Bridge Too Far, Gerry J. Nagtzaam

Gerry J Nagtzaam

This article explores the attempts to create an global tropical timber regime and examines its underlying competing environmental norms of exploitation, conservation and preservation. It outlines a history of forestry exploitation over time and tracks the stilted development of a global tropical timber regime. It further examines the development of the International Tropical Timber Agreement and its concomitant Organisation. Legro’s test of the robustness of a norm is applied to the tropical timber regime to determine when and why, and through whose agency, normative change has not been effected within the International Tropical Timber Organisation where conservationist norms have failed …

Waste Not, Want Not: Economic And Legal Challenges Of Regulation-Induced Innovation In Waste Technology And Management, Molly Macauley

Molly Macauley

Regulation to protect public health and the environment has transformed the “town dump” into large, regional state-of-the art waste disposal facilities managed by a nationwide industry with revenues of over $40 billion annually. Responsibility for waste regulation rests with state and local authorities, however, and their intervention in price, quantity, and location attributes of the market has prompted legal challenges under the dormant commerce clause. This article reviews the regulation-induced changes in the market, its subnational governmental oversight, and protection of interstate commerce when new technology restructures a local service into a national business.

The New International Law-Makers? Conferences Of The Parties To Multilateral Environmental Agreements, Annecoos Wiersema

Annecoos Wiersema

What do Conferences of the Parties (COPs) to multilateral environmental agreements contribute to international legal obligation? Much of the activity of COPs does not require the consent of every state party to the treaty to come into effect and does not provide for any form of opt-out for dissenting states; nevertheless, COPs frequently pass agreements that alter the application and scope of their treaties. This article discusses the significance of this activity – what I term consensus-based COP activity – for our understanding of the international legal system and its touchstone of state consent. Conventional categories for the sources of …

"Stationarity Is Dead" -- Long Live Transformation: Five Principles For Climate Change Adaptation Law, Robin K. Craig

Robin K. Craig

While there is no question that successful mitigation strategies remain critical in the quest to avoid worst-case climate change scenarios, we’ve passed the point where mitigation efforts alone can deal with the problems that climate change is creating. Because of “committed” warming – climate change that will occur regardless of mitigation measures, a result of the already-accumulated greenhouse gases in the atmosphere – what happens to social-ecological systems over the next decades, and most likely over the next few centuries, will largely be beyond human control. The time to start preparing for these changes is now, by making adaptation part …

Climate Change, Carbon Sequestration, And Property Rights, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

This Article considers the role of property rights in efforts to transport, inject, and store underground hundreds of million of tons of carbon dioxide (CO2) per year from power plants and other industrial facilities in order to combat dangerous climate change. This technology, known as carbon capture and sequestration (CCS), could provide deep emission cuts, particularly from coal power generation, on a worldwide basis. In order to implement CCS, private operators and state and federal governments must be able to access hundreds of millions of acres of “pore space” roughly a kilometer below the earth’s surface in which to store …

Wilderness And The Judiciary, Peter A. Appel

Peter A. Appel

This Article examines how the decisions of four land management agencies governing wilderness areas under the Wilderness Act fare in the federal courts. Agencies normally prevail in the majority of their cases before the federal courts because courts employ doctrines of deference to agencies’ decisions. In the context of wilderness management, however, the success rates of the agencies varies drastically depending on the type of challenge brought. The Article provides a historical overview of different schemes for wilderness protection, from administrative regulatory schemes to the adoption of the 1964 Wilderness Act and subsequent enactments. It then examines specific case studies …

The Environmental Deficit: Applying Lessons From The Economic Recession, Christine Klein

Christine A. Klein

In 2007, the nation entered a financial downturn unprecedented since the Great Depression of the 1930s. A period of national introspection followed, including memorable moments such as Federal Chairman Alan Greenspan’s gut-wrenching admission that his “whole intellectual edifice” had collapsed during the summer of 2007. Although prescriptions for financial rescue varied widely in the details, a surprisingly-broad consensus began to emerge as to the underlying pathology of the crisis. This Essay focuses on three underlying errors: rejecting rules through deregulation, trivializing risk through overly-optimistic analyses, and recklessly borrowing and lending money. Those powerful lessons, accepted by a stunned nation in …

Probabilities, Planning Failures, And Environmental Law, David R. Owen

David R Owen

Environmental laws often mandate specific environmental outcomes and require agencies to adopt plans designed to achieve those outcomes. But because of pervasive uncertainties, agencies are often unsure whether their plans will succeed. That uncertainty creates important dilemmas; decision-makers must decide how to balance risks of plan failure against the costs of possible over-regulation. This article explores and evaluates legal responses to those dilemmas. I find that planning uncertainties recur throughout existing environmental laws and will likely have important consequences for legal responses to climate change. I also find that environmental statutes and regulations use a patchwork of measures to manage …

Air Pollution As An Asset: China's Use Of The Kyoto Protocol's Clean Development Mechanism, Bryant Walker Smith

Bryant Walker Smith

This article, which examines the use of the Kyoto Protocol's Clean Development Mechanism (CDM) in the People's Republic of China, has two purposes. First, it places both China and the CDM in the larger context of international environmental law. Second, it analyzes and assesses China’s use of the CDM.

The article has six parts. Following a brief note about Taiwan, Part 3 discusses climate change and China. Part 4 tracks the global response to climate change, including the CDM. Part 5 examines the relationship between the CDM and China, and Part 6 concludes with a consideration of additional challenges present …

Breaking Ground On The New Green Deal, Erin Ryan

Erin Ryan

This op-ed urges reluctant members of Congress to act on stimulus proposals to invest in a renewable energy economy.

Resource Taxation As A Tool For Development, Oladiran Ajayi

Oladiran Ajayi

ABSTRACT Development is a topical issue. The question of how to bring it about often attracts different answers. An answer for countries rich in natural resources is to use wealth from resources to fund development initiatives. The thinking is that revenues from natural resources should translate into a higher standard of living for the people living in these countries. This, however, has not been the case for many resource rich countries. They have been plagued by a phenomena referred to as the “resource curse”. Large resource endowments appear to move development in a backward direction. This study will attempt to …

The Unbearable Cost Of Skipping The Check: Property Rights, Takings Compensation & Ecological Protection In The Western Water Law Context, Scott A. Shepard

Scott A. Shepard

Western-state non-riparian water-law regimes remain legally vital and highly useful in the age of increased scarcity and ecological concern. Claims that the property rights central to these regimes can be revoked without Fifth-Amendment takings implications – as a result of applying various doctrines or of limitations inherent in the rights as granted – are historically and legally unsound, and doctrinally unwise. Declaring water rights non-compensable would require accepting a maxim of legal interpretation that could not be limited to the water-rights (or even property-rights) context, and would render all constitutional guarantees liable to negation without constitutional process. Moreover, such a …

Why Have Developers Been Powerless To Develop Ocean Power?, Sarah Mcquillen Tran

Sarah Tran

This Article suggests that regulation by the Federal Energy Regulatory Commission (FERC) offers a robust alternative to regulation by the Mineral Mining Service (MMS) for those alternative energy projects located between three to twelve nautical miles from the U.S. shore. The paper briefly illustrates the ocean’s immense potential to provide this nation with clean, sustainable, and cost-effective energy from ocean waves, tides, and currents. The paper then shows how a heated territorial dispute between FERC and MMS for control over these green energy projects obstructed the research and development necessary to make them viable as the administrative conflict generated immense …