Law Commons^™

Rebuttal In Defense Of The Klamath Hydroelectric Settlement Agreement, Michael A. Swiger, Sharon L. White

Washington Journal of Environmental Law & Policy

This article rebuts certain assertions made by Mr. Thomas Schlosser in a recent article entitled Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration Agreements. The Klamath hydroelectric dams are not causing degrading fish disease conditions in the Klamath Basin. Dewatering Trust Responsibility overlooks the effects of water diversions for agriculture, pollution from pesticides and industrial operations and habitat degradation from timbering, ranching and other human activities on current Basin conditions. Under the Klamath Hydroelectric Settlement Agreement and the Federal Energy Regulatory Commission license, PacifiCorp is taking extensive measures to protect aquatic resources in the Basin prior to …

Beyond The Blaze: Strategies For Improving Forest Service Fire Suppression Policies, Aurora R. Janke

Washington Journal of Environmental Law & Policy

Current Forest Service fire management policies restrict NEPA’s application to fire suppression actions and contribute to a lack of detailed information about the effectiveness and environmental impact of suppression efforts. Decisions by the U.S. District Court for the District of Montana in the Forest Service for Environmental Ethics v. U.S. Forest Service litigation suggest that NEPA review applies to commonly used fire suppression tactics and that the Forest Service should conduct this review before fires occur. Other recent federal district court decisions and congressional concern with current fire suppression efforts support the need for NEPA review in the fire suppression …

Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers Jr., Jason Derosa, Sarah Reyneveld

Washington Journal of Environmental Law & Policy

The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible …

Creating An Environmental No-Man's Land: The Tenth Circuit's Departure From Environmental And Indian Law Protecting A Tribal Community's Health And Environment, Claire R. Newman

Washington Journal of Environmental Law & Policy

When Congress set aside reservations as permanent homelands for American Indian people, it intended that the reservations remain “livable environments.” When resource conflicts arise in “checkerboard” areas outside Indian reservations—where land ownership alternates between a tribe, state, the federal government and private, non-Indian landowners—disputes over regulatory jurisdiction and environmental protection intensify. Two recent Tenth Circuit opinions determining the next generation of uranium mining in the checkerboard area of the Navajo Nation, depart from the intent of environmental laws and fail to uphold federal agencies’ trust responsibilities to the Tribe. These cases illustrate the legal vulnerabilities tribal communities in checkerboard areas …

Beyond Absurdity: Climate Regulation And The Case For Restricting The Absurd Results Doctrine, Katherine Kirklin O'Brien

Washington Law Review

The absurd results doctrine of statutory interpretation allows courts to depart from clear legislative text when a literal reading would be “absurd.” Traditionally, courts defined an absurd result as one that offends fundamental social values. Over time, however, courts have expanded the concept of legal absurdity to include outcomes that do not violate moral principles, but instead present regulatory burdens deemed too onerous to reflect congressional intent. In June 2010, the U.S. Environmental Protection Agency (EPA) invoked this expansive reading of the absurd results doctrine to support a regulation known as the “Tailoring Rule,” which the agency promulgated as part …

Global Law And The Environment, Robert V. Percival

Washington Law Review

This Article explores three areas in which globalization is profoundly affecting the development of a global environmental law. First, countries increasingly are borrowing law and regulatory innovations from one another to respond to common environmental problems. Although this is not an entirely new phenomenon, it is occurring at an unprecedented pace. Second, lawsuits seeking to hold companies liable for environmental harm they have caused outside their home countries are raising new questions concerning the appropriate venue for such transnational liability litigation and the standards courts should apply for enforcement of foreign judgments. Third, nongovernmental organizations are playing an increasingly important …

Rough Seas For Renewable Energy: Addressing Regulatory Overlap For Hydrokinetic Projects On The Outer Continental Shelf, Amanda Righi

Washington Journal of Environmental Law & Policy

Hydrokinetic energy harnesses the power of the oceans and generates renewable energy with a low carbon footprint. Because wave and tidal energy projects have not yet been initiated for the Outer Continental Shelf (OCS) and scientific knowledge of the effects on the ocean environment is uncertain, analysis under the National Environmental Policy Act is particularly important. However, overlapping jurisdiction on the OCS creates an inhospitable regulatory environment for hydrokinetic energy developers and marine ecosystem protection. This comment will analyze these overlapping and duplicative regulations and will make recommendations to streamline the environmental review process. Programmatic environmental impact statements, adaptive management …

A Breath Of Fresh Air: Methods And Obstacles For Achieving Air Pollution Reduction In Washington Factory Farm Communities, Linda M. Thompson

Washington Journal of Environmental Law & Policy

“Animal feeding operations (AFOs),” or, if large enough, “concentrated animal feeding operations (CAFOs),” have become increasingly concentrated in ownership, location, and quantity of animals since the 1950s. The Yakima Valley of central Washington is one area that has been subject to an influx of these industrial farms, raising health and environmental concerns for residents. Despite scientific evidence of potential harm, citizens have had difficulty enforcing air emissions regulation. The problem is twofold: the EPA is still working with the industry to develop a methodology for emission monitoring––the effectiveness of which remains unclear––and, assuming monitoring methods existed, the statutory framework provides …

The Problem Of Enforcing Nature's Rights Under Ecuador's Constitution: Why The 2008 Environmental Amendments Have No Bite, Mary Elizabeth Whittenmore

Washington International Law Journal

In 2008, Ecuador became the first nation to give rights to nature when it ratified constitutional amendments (new articles 71-74) that grant the environment the inalienable right to exist, persist, and be respected. Environmentalists hope Ecuador’s amendments will lead to improvement in a country devastated by resource exploitation, and that other countries will follow. Yet, many wonder whether the amendments will be enforced. This comment argues that—all things considered—successful execution of the amendments is unlikely. Ecuador’s President has not demonstrated a sincere intention or ability to implement the amendments. Further, plaintiffs who sue under the amendments face significant legal barriers, …

Incentives For Change: China's Cadre System Applied To Water Quality, Wyatt F. Golding

Washington International Law Journal

The Chinese government has struggled to enforce environmental law, due in part to local protectionism. In an attempt to overcome local protectionism, the 2008 Law on the Prevention and Control of Water Pollution uses the cadre system to incentivize local officials to enforce national water quality standards. This comment argues that the cadre system presents a pragmatic means of attaining enforcement of quantified environmental standards because it implements the already existing Chinese Communist Party’s system of vertical hierarchy that has proven relatively successful in achieving other social goals. The cadre system, however, will only produce clean water over the long-term …

Unjust Enrichment: An Alternative To Tort Law And Human Rights In The Climate Change Context?, Aura Weinbaum

Washington International Law Journal

It is generally accepted within the scholarly international community that global climate change is occurring and is due at least in part to anthropogenic activity. Strategies to mitigate climate change harms and adapt to inevitable climate change-induced consequences are influencing legal, political, and human rights frameworks. Thus far, international litigation attempts to hold emitters accountable have been unsuccessful: Tuvalu’s threat to sue the United States and Australia at the International Court of Justice, and the Inuit’s petition to the Inter-American Commission on Human Rights were both hampered by procedural and substantive legal issues. Perhaps in response, the United Nations and …

Victoria's Window Dressing: How The Environment Effects Act Of 1978 Failed At Bastion Point, Taylor K. Wonhoff

Washington International Law Journal

In 1978, Victoria’s Parliament enacted the Environment Effects Act 1978 (“EEA”), creating procedures by which the state could call for environmental impact assessments prior to beginning work on proposed construction projects. The EEA, however, is significantly flawed, in that it authorizes the Planning Minister, an elected official, the power not only to promulgate guidelines for the administration of the environmental assessment process, but also the power to determine whether the environmental effects of a project are outweighed by the economic or social benefits of the project’s completion. A case study involving Bastion Point offers a prime example of the effect …

The Deepwater Horizon Oil Spill And The Limits Of Civil Liability, Ronen Perry

Washington Law Review

This Article uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act. This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The Article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as …

The Deepwater Horizon Oil Spill And The Limits Of Civil Liability, Ronen Perry

Washington Law Review

This Article uses the unprecedented disaster in the Gulf of Mexico as an opportunity to critically evaluate the law pertaining to civil liability for oil pollution before and after the enactment of the Oil Pollution Act. This topic is analyzed as a derivative of a more general concern, namely the internal harmony of civil liability regimes. The Article unveils a general incongruity in American land-based and maritime tort law that surfaced through the Exxon Valdez litigation, and examines whether subsequent statutory reform has eliminated the problem in the limited context of marine oil pollution, using the Deepwater Horizon incident as …

Death By A Thousand Cuts: Incorporating Cumulative Effects In Australia's Environment Protection And Biodiversity Conservation Act, Jessica T. Dales

Washington International Law Journal

The Environment Protection and Biodiversity Conservation Act 1999 (“EPBCA” or “the Act”) is the Australian government's keystone piece of environmental legislation. The EPBCA provides a legal framework to protect and manage nationally and internationally important flora, fauna, ecological communities, and heritage places—defined in the Act as matters of National Environmental Significance (“NES”). The Act comes into play when a proposed action has the potential to have a significant impact on a matter of national environmental significance. Although it has played a vital role in protecting Australia’s environment, the EPBCA does not explicitly address the cumulative impact of multiple actions on …

Stranger Than Fiction: An "Inside" Look At Environmental Liability And Defense Strategy In The Deepwater Horizon Aftermath, William H. Rodgers, Jr., Jason Derosa, Sarah Reyneveld

Articles

The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible …

The Environmental Laws Of The 1970s: They Looked Good On Paper, William H. Rodgers, Jr.

Articles

This article looks at the "top ten" environmental laws enacted in the 1970s, including the Clean Air Act, the Endangered Species Act, the National Environmental Policy Act, and the Resource Conservation and Recovery Act. It asks: What were the pin-up qualities that made these laws look good on paper? What were the features sponsors bragged about or critics deplored? How were they understood and described at the time of legislative birth? What was thought to be new, different, and better?

We know some of these things about all of these laws. I’ll exercise editorial judgment and declare four common features …