Environmental Law Commons^™

Uncharted Waters: Can Water Rights Principles Stem The Tide Of Ecosystem Services Loss?, Kalyani Robbins

Faculty Publications & Other Works

This article will explore the ways in which we might apply aspects of the conceptual framework developed through centuries of water law to the modern need for property interests in ecosystem services.

Water itself is a high-value ecosystem service, largely within the category of “provisioning” ecosystem services. We need access to water to survive, which has resulted in centuries of varying legal approaches to allocating rights to water. Although this right has traditionally been extractive, in the modern era we have developed increasing protections for in-stream benefits as well. While not uniform across jurisdictions, water law is now a highly …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Investment Bankers And Inclusive Corporate Leadership, Afra Afsharipour

Seattle University Law Review

Few major deals happen without the engagement and advice of investment bankers. Whether a company is undertaking an initial public offering or engaging in a large merger or acquisition deal, investment bankers play a central role in advising corporate executives. Successful investment bankers are devoted to cultivating relationships with executives. And these relationships place bankers in a position to earn tens of millions in fees for their advisory and service roles in connection with corporate dealmaking. Investment bankers’ constant endeavors to nurture relationships with executives, while also maximizing their own ability to enhance fees, commonly leads to allegations of double-dealing, …

Selective Patronage, Omari Scott Simmons

Seattle University Law Review

Contemporary academic corporate governance narratives have a blind spot. They focus on institutions, rules, regulations, processes, procedures, intermediaries, and market forces. Yet, missing in this narrative, is the impact of corporate leadership. Ignoring the “black box” of corporate leadership, particularly individual actors, renders an incomplete descriptive assessment as well as potential miscalculations. The examination of key historical figures and their corporate activism provides an important lens through which to identify potential challenges and opportunities related to the contemporary ESG movement.

Generally, this essay examines corporate leadership’s potential to address socio-political issues through the prism of Civil Rights Movement activism. Specifically, …

Reframing The Dei Case, Veronica Root Martinez

Seattle University Law Review

Corporate firms have long expressed their support for the idea that their organizations should become more demographically diverse while creating a culture that is inclusive of all members of the firm. These firms have traditionally, however, not been successful at improving demographic diversity and true inclusion within the upper echelons of their organizations. The status quo seemed unlikely to move, but expectations for corporate firms were upended after the #MeToo Movement of 2017 and 2018, which was followed by corporate support of the #BlackLivesMatter Movement in 2020. These two social movements, while distinct in many ways, forced firms to rethink …

Women In Shareholder Activism, Sarah C. Haan

Seattle University Law Review

Even a cursory review of the history of American environmental, social, and corporate governance (ESG) shareholder activism reveals the presence of women leaders. This Article sketches some of this history and interrogates the role of women in the shareholder activism movement. That movement typically has involved claims by minority shareholders to corporate power; activists are nearly always on the margins of power, though minority shareholders may, collectively, represent a majority interest. This Article ascribes women’s leadership in shareholder activism to their longstanding position as outsiders to corporate organization. Women’s participation in shaping corporate policy—even from the margins—has provided women with …

#Metoo And The Corporation In Popular Culture, Brenda Cossman

Seattle University Law Review

#MeToo’s initial virtual explosion in the fall of 2017 was very much about Hollywood, with famous actresses speaking out against famous producers, media moguls and celebrities, exposing the ubiquity of sexual harassment and sexual violence in and around the entertainment industry. Since then, #MeToo has made its way into Hollywood representations without much irony. Films and television shows have explicitly taken up the #MeToo themes, exploring issues of sexual harassment and violence and its afterlives. Many television shows, from the relaunched version of Murphy Brown to Brooklyn Nine-Nine to The Good Fight have incorporated #MeToo themes into episodes exploring the …

Woke Capital Revisited, Jennifer S. Fan

Seattle University Law Review

Inclusive corporate leadership is now at the forefront of discussions related to corporate governance. Two corporate theories help to explain the rise in prominence of diversity, equity, and inclusion (“DEI”) efforts in corporate leadership. First, an expanded definition of corporate purpose which elevated the idea of the importance of stakeholders, contributed to the momentum from business and legal quarters for broader corporate inclusion. Second, the increasing publicness of corporations—the social expectation of how large, typically public corporations should act given their position of power—also led to corporations becoming more active in the DEI space. It is against this backdrop that …

Army Commander’S Role—The Judge, Jury, & Prosecutor For The Article 15, Anthony Godwin

Seattle University Law Review

Service members in the armed forces are bound by a different set of rules when compared to other U.S. citizens. Some of the normal safeguards and protections that civilians enjoy are much more restrictive for military service members, and this is generally for a good reason. Such restrictions are partly due to the complex demands and needs of the United States military. Congress and the President have entrusted military commanders with special powers that enable them to handle minor violations of law without needing to go through a full judicial proceeding. Non-judicial punishments (NJP), also known as Article 15s, are …

A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella

Seattle University Law Review

The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

Facing New Mexico's 21st Century Water Challenges; A Report Of The New Mexico Water Policy And Infrastructure Task Force, New Mexico Water And Infrastructure Task Force N/A

Publications

No abstract provided.

Public Lands In Public Hands: Analysis Of The Underpinnings Of Utah’S Public Trust Doctrine, Brittany Bunker Thorley

BYU Law Review

Utah Lake, the largest freshwater lake in the third driest state, is a vital, yet underappreciated natural resource. In 2018, the Utah State Legislature passed the Utah Lake Restoration Act in an attempt to restore and enhance the lake’s ecological and recreational value. Yet the new law has been met with strong public resistance because it leaves the lake vulnerable to exploitation and further ecological degradation, a concern made real by a proposed development plan that would build a city of islands on top of the lake. Community members cite specific concerns about threats to native species, disruption of water …

West Virginia V. Epa, Amanda Spear, Amanda Spear

Public Land & Resources Law Review

The EPA created the Clean Power Plan in an effort to reduce the amount of greenhouse gas emissions generated by coal-fired power plants. The EPA determined that the Best System of Emission Reduction for existing coal-fired power plants included generation shifting methods, meaning a shift from coal to cleaner sources. The Supreme Court held, under the major questions doctrine, that Congress had not intended for the EPA to use generation shifting methods for the Best System of Emission Reduction and that the EPA had exceeded its authority in doing so. This note will explore how the decision may impact administrative …

W. Org. Res. Councils, Et Al. V. U.S. Bureau Of Land Mgmt., Sawyer J. Connelly, Sawyer J. Connelly

Public Land & Resources Law Review

The United States District Court for the District of Montana granted Plaintiffs summary judgment against BLM and the State of Wyoming. The court ruled that BLM violated NEPA and the APA because it failed to consider alternative leasing programs and the broad downstream impacts of coal, oil, and gas leasing in two Powder River Basin resource management plans. This decision followed WORC I & II, in which the court remanded the same plans to BLM to correct deficiencies. Following BLM’s revisions, Plaintiffs again sued in this case, arguing the revisions were still deficient under NEPA.

Characterizing Legal Implications For The Use Of Transboundary Aquifers, Gabriel Eckstein

Faculty Scholarship

Groundwater resources that traverse political boundaries are becoming increasingly important sources of freshwater in international and intranational arenas worldwide. This is a direct extension of the growing need for new sources of freshwater, as well as the impact that excessive extraction, pollution, climate change, and other anthropogenic activities have had on surface waters. It is also a function of the growing realization that groundwater respects no political boundaries, and that aquifers traverse jurisdictional lines at all levels of political geography.

Due to this growing awareness, questions pertaining to responsibility and liability are now being raised in relation to the use, …

Do Not Put All Your Eggs In One Basket: Social Perspectives On Desalination And Water Recycling In Israel, Gretchen Sneegas, Lucas Seghezzo, Christian Brannstrom, Wendy Jepson, Gabriel Eckstein

Faculty Scholarship

Israel has set ambitious goals in terms of the widespread adoption of desalination and water recycling technologies. Policymakers in Israel consider these technologies as the key to improve urban water security but knowledge of stakeholder views on this policy approach is not well established. We deployed the Q-methodology, a qualitative–quantitative approach, to empirically determine social perspectives on desalination and water recycling across a wide range of stakeholders in the Israeli water sector. We identified the following four distinctive social perspectives: (1) desalination should be the option of last resort; (2) desalination is moving us to an infinite resource; (3) equating …

Wise Practices: Indigenous-Settler Relations In Laurentian Great Lakes Fishery Governance And Water Protection, Kate J. Mussett, Susan Bell Chiblow, Deborah Mcgregor, Rod Whitlow, Ryan Lauzon, Kaitlin Almack, Nicholas Boucher, Alexander T. Duncan, Andrea J. Reid

Articles & Book Chapters

Ongoing tensions between Indigenous and non-Indigenous communities working in support of the protection and management of fish and water in North America have necessitated a shift from current structures towards relationships built upon and driven by respect, relevance, reciprocity, and responsibility. Similarly, the cumulative and evolving effects of climate change, industrialization, resource extraction, and displacement of Indigenous Peoples from their traditional and contemporary lands and waters requires purposeful application of decolonizing methods in aquatic systems management and protection, which in turn aids in the re-establishment of agency to Indigenous Peoples. This article endeavors to outline critical differences in ‘best …

Wishing To Be Part Of That Court: How The Supreme Court's Decision In Bp P.L.C. V. Mayor Of Baltimore Lets Energy Companies Wander Free And Drown The Shore Up Above, Natalie Poirier

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Clean Water Act: Wading Back Into Muddy Interpretations, Kord Wilkerson

MC Law Review

“Fresh water: everything that lives on land, animal or plant, depends upon it.” A necessity to our very livelihood, our nation’s waters must be protected. As concern grows over Earth’s stability, and environmental issues in particular, clean water has been at the forefront of this Gordian knot. To mitigate our nation’s impact on water cleanliness, state organizations, environmental activists, and the Environmental Protection Agency have joined forces in an effort to create and enforce environmental protection.

These water quality efforts, however, have not come without struggle. The creation, enforcement, and efficiency of legislation to mitigate water pollution in certain water …

Zaagtoonaa Nibi (We Love The Water): Anishinaabe Community-Led Research On Water Governance And Protection, Nicole Latulippe, Deborah Mcgregor

Articles & Book Chapters

This paper presents Indigenous community-led, collaborative, and community-engaged water governance research with a First Nations community in the Georgian Bay and Lake Huron region in northeastern Ontario, Canada. The methodology draws on Indigenous approaches to understanding and developing knowledge and is designed to build community capacity in research and in water protection and governance. This approach recognizes existing community strengths, including traditional knowledge, experiences, perspectives, and associated cultural perspectives and values, laws, responsibilities and lived experience in relation to water. Results identify and contextualize community-held responsibilities and legal principles pertaining to water that support culturally relevant water governance and strategic …

Current Challenges In The Rio Grande/Río Bravo Basin: Old Disputes In A New Century, Regina M. Buono, Gabriel Eckstein

Faculty Scholarship

The Rio Grande River traverses 2000 kilometres of the international border between Mexico and the United States. The river and its tributaries are governed by a series of border treaties and institutions, as well as under the domestic laws of each nation. Often lauded for enabling innovative and collaborative governance, in recent years the complicated regime has come under pressure as domestic and international water governance institutions struggle under the strain of climate change, population growth, and other stressors on water supply and demand in the region. This chapter considers three of the major challenges currently facing the Rio Grande …

Measuring The Benefits Of Power Plant Effluent Regulation, David A. Keiser, Bethany A. Daviss Noll, Catherine L. Kling, Rachel Rothschild

Other Publications

This report reviews the Economic Analysis (EA) that supported the 2020 Revisions of the Effluent Limitation Guidelines (ELGs) and Standards for the Steam Electric Power Generating Point Source Category (“2020 Rule” or “Rule”). We review the economic framework, literature, and analyses performed to support these revisions. Our report builds on Davis Noll and Rothschild (2021). In that report, Davis Noll and Rothschild detailed numerous impacts of the 2020 Rule that EPA neglected to examine in the EA, such as the health impacts from bromide, lead, and mercury emissions, harms to threatened and endangered species, and forgone climate benefits related to …

Treaty-Based Climate Change Claims: Litigation Pathways In The Face Of Cultural Devastation, Kirsten D. Gerbatsch

Public Land & Resources Law Review

No abstract provided.

Do It For The Kids: Protecting Future Generations From Climate Change Impacts And Future Pandemics In Maryland Using An Environmental Rights Amendment, Johanna Adashek

Public Land & Resources Law Review

No abstract provided.