Environmental Law Commons^™

Expanding The Good Samaritan Program: Cleaning Up The Colorado River, One Mine At A Time, Jordan Carlson

Wyoming Law Review

The headwaters of the Colorado River Basin supply nearly 90% of the river’s flow and are among the most hydrologically sensitive areas in the U.S. During the nineteenth and early twentieth centuries, westward expansion and the allure of gold and other valuable minerals drove thousands of miners into the basin. When the mining boom ended, the mines were left behind. Today, thousands of abandoned hardrock mine sites continue to leach acidity and heavy metals into streams, leaving a lasting impact on water quality. For decades, strict environmental liability laws made cleanup nearly impossible, creating a chilling effect that discouraged even …

Water Flowing Down Wall Street, Vanessa Casado-Pérez

Faculty Scholarship

Water scarcity is a perennial problem with dire consequences for the United States and governments around the world. A lack of adequate water resources is a systematic cause of environmental harm, economic damage, and societal division. Climate change has exacerbated these problems making water even more valuable and essential.

Financial actors have turned water into the new oil. These large financial actors profiteer from buying and selling water without any interest in its actual use as an input of production. Instead, they typically seek to hold these rights until dire situations, like droughts and fires, cause temporary, but large, spikes …

Frankel: Law Of Seashore, Waters And Water Courses: Maine And Massachusetts, Harriet Putnam Henry

Maine Law Review

The advance announcement of Law of Seashore, Waters and Water Courses: Maine and Massachusetts served to arouse a sense of anticipation among practitioners in Maine. The brochure foretold of a thorough analysis of the relationship of the colonial ordinances to the law pertaining to the land-sea interface, rivers, and great ponds. The book was described as "An Exhaustive Handbook on Water Rights in Maine and Massachusetts . . . valuable for lawyers, public officials and property owners." In the Frankel book, realization fell far short of anticipation.

Ransoming The Maine Environment, G. Graham Waite

Maine Law Review

The call for natural resource conservation is widely heard today. Purity of air and water are goals that most persons seem to endorse, at least in the abstract. The dollar costs of governmental programs for achieving relatively clean air and water doubtless are high, making questions of who bears them important. Some recent decisions of the Maine Supreme Judicial Court suggest that in Maine the major costs will be paid by taxpayers at large rather than by individual resource users.

Ransoming The Maine Environment, G. Graham Waite

Maine Law Review

The call for natural resource conservation is widely heard today. Purity of air and water are goals that most persons seem to endorse, at least in the abstract. The dollar costs of governmental programs for achieving relatively clean air and water doubtless are high, making questions of who bears them important. Some recent decisions of the Maine Supreme Judicial Court suggest that in Maine the major costs will be paid by taxpayers at large rather than by individual resource users.

Federal Evaluation Of Riparian Property: Section 111 Of The Rivers And Harbors Act Of 1970, Ronald C. Allen

Maine Law Review

Certain of our citizenry persist in their belief that the water resources of this nation are essentially a free good which necessitates very little, if any, governmental interference in the development or beneficial exploitation of these resources. Theirs is obviously a dream world which dangerously ignores evidence from much of our history as well as the obvious conditions of the present. The nation is confronted with too many people, and the promise of many more, making too many demands upon our existing and foreseeable supply of water to allow the perpetuation of a myth of rugged individualism. This attitude has …

Science-Based Policy Recommendations For Managing Emerging Pollutants: Protecting Water Quality For The Health Of People And The Environment, Sarantuyaa Zandaryaa, Ali Fares, Gabriel Eckstein, Regina M. Buono, Mary Trudeau, James E. Nickum, Xingui Xia, Atikur Rahman, Marijn Korndewal, Cassiana C. Montagner, Piero R. Gardinali, Robert Michael Di Filippo, Anoop Veettil

Faculty Scholarship

Emerging water pollutants are a growing global concern due to their ubiquitous presence in water resources worldwide and their potential adverse effects on human health and ecosystems. Limited scientific understanding of sources of emerging pollutants’ emissions to water bodies and their pathways, behaviour, and fate in aquatic environments, as well as human health and ecological effects, is a significant hindrance in managing emerging water pollutants. With exceptions concerning PFAS/PFOS and microplastic beads, there are few regulations for emerging pollutants in national water and environmental policies, which results in a critical gap in safeguarding human health and aquatic ecosystems through effective …

Water Reallocation In The West: Government And Markets, Vanessa Casado Pérez

Faculty Scholarship

Water is multifaceted: it is a human right, a production input, a sacred element, an investment asset, public property, and a fugitive resource. Its reallocation is inherently difficult because of its natural characteristics and its hybrid nature that combines public ownership with private rights. The future of the U.S. West necessitates the reallocation of water resources, even with potential new water supplies. As climate change intensifies, reallocation will take various forms—all involving government intervention to some degree, from eminent domain to competitive markets. For water markets to function effectively, they require robust institutional infrastructure to prevent issues like imperfect information …

Sackett V. Environmental Protection Agency, Meridian Wappett

Public Land & Resources Law Review

In 2007, the Sacketts began developing a property a few hundred feet from Priest Lake in Northern Idaho by filling their lot with gravel. The EPA determined the lot constituted a federally protected wetland under the WOTUS definition because the lot was near a ditch that fed into a creek flowing into Priest Lake, a navigable intrastate lake. The EPA halted the construction. The Sacketts sued the EPA, arguing the CWA did not apply to their property. The Supreme Court held that the CWA did not apply to the Sacketts property because the CWA only covers wetlands and streams that …

Calming The Waters: The International Atomic Energy Agency As A Viable Model To Address Water Weaponization, Jenna Beasley

Emory International Law Review

No abstract provided.

Water Challenges At The U.S.-Mexico Border: Learning From Community And Expert Voices, Kyle Haines, Owen Temby, Josiah Heyman, Mya J. Brown, Fonna Forman, Christopher Fuller, Dongkyu Kim, Alex S. Mayer, Alexis Racelis

Political Science Faculty Publications

We discuss the results of a multi-dimensional learning process (expert surveys, community workshops) addressing water challenges at the U.S.-Mexico border. The grand institutional and political framework of the international border, and the tensions and gaps in it, dominates the water literature and expert concerns. However, social inequality and spatial and temporal diversity on both sides of the border emerge as important considerations from community input. Our goal is to make planning for regional water sustainability more comprehensive, both spatially and temporally, and more community responsive in a context of important divisions and inequalities. This is because the “sustainability” frame, as …

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Fostering Resilience Within Ecological Civilization: Contributions Of Environmental Law, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

My presentation will examine water, to illustrate the questions that Ecological Civilization presents. I shall address five points: (1) Often proposals for attaining Ecological Civilization raise issues relevant to environmental law, but do not examine the roles that environmental law can serve; (2) environmental law is essential to resolving unsustainable water management issues; (3) scientific studies indicate that trends in global environmental degradation limit the time available for implementing reforms to attain Ecological Civilization; (4) environmental legal systems for environmental impact assessment (EIA) can accelerate efforts to attain Ecological Civilization; and (5) For Ecological Civilization to ensure a firm foundation …

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 …

Something Stinks: The Need For Stronger Agricultural Waste Regulations, Audrey Curelop

Washington and Lee Law Review

In the twentieth century, the American agricultural industry underwent significant changes—while most food animals were once raised on small family farms, now, over fifty percent are produced entirely inside concentrated animal feeding operations. These large‑scale farming operations house hundreds to thousands of cows, swine, or chickens, which collectively produce hundreds of millions of tons of waste per year. The primary method of waste disposal is land application, a process in which waste is sprayed or spread onto land with no required pretreatment. After land application, waste byproducts make their way into the surrounding air and waterways, posing significant threats to …

Regulation Weakness And Lack Of Public Awareness Has Impeded The Implementation Of Environmental Policies In Saudi Arabia, Nada Gurmalla Algamdy

Dissertations & Theses

This research aimed to substantially illustrate that the weakness of environmental regulations and lack of public participation in urban planning alongside poor public awareness in Saudi Arabia has inhibited the implementation of environmental policies across this region. To study these issues, this research compared the Kingdom of Saudi Arabia (“KSA”) to the United States (“US”) building on numerous studies to illustrate how the identified weaknesses correlate with weak or ineffective environmental policies. It is well known that it would be better to use a European country “because it's known that the EU has tough environmental measures" as a model for …

Climate Gentrification: An Imminent Threat To Oceanfront Cities, Marcel Apple

Sustainable Development Law & Policy

Overview

Traditionally, gentrification occurs when real estate prices appreciate, leading to significant cultural change in low-income communities and involuntary displacement of low-income residents. In recent years, Miami, Florida is beginning to feel the impacts of “climate gentrification.” High-income buyers, who historically develop property close to the ocean, are affected by rising sea levels and increasingly look inland to develop areas on higher ground. The influx of real estate investments in these is expected to lead to spiking home prices and property taxes, forcing many longtime community members to abandon their homes.

Homeowners in these communities already report approaches from developers …

Addressing Interstate Ground Water Ownership: Mississippi V. Tennessee, Alec Sweet

Duke Journal of Constitutional Law & Public Policy Sidebar

Contemporaneous with significant climate change and heightened environmental concerns, the Supreme Court has seen an increasing number of water-related lawsuits between states. These lawsuits include disputes over water storage and water compacts as well as disputes over water usage affecting aquaculture. Scientists predict that in the future, the United States could face rising temperatures, droughts, and natural disasters. If states cannot cooperate to conserve the water they share, these catastrophes could cause immense suffering and numerous conflicts between states. The Supreme Court needs a consistent doctrine to apply in water disputes.

In prior disputes over surface water, the Court has …

Consumer Perceptions Of The Right To Repair, Aaron Perzanowski

Indiana Law Journal

Part I of this Article details the strategies upon which device makers rely to frustrate repair. Part II considers legislative interventions intended to push back on existing barriers to repair, with a particular focus on the set of bills introduced in state legislatures across the United States. Part III describes the results of a survey of more than 800 U.S. consumers, focusing on their expectations of and experiences with the repair of electronic devices. The legal and policy implications of those results are discussed in Part IV.

Fish Don't Litter In Your House: Is International Law The Solution To The Plastic Pollution Problem?, Taylor G. Keselica

Pace International Law Review

This article addresses the complex issue of plastic pollution—focusing on ocean plastics. Specifically, this article examines the ocean plastics problem, critiques current binding and non-binding international environmental law surrounding ocean plastics, hazardous wastes, and pollution, and proposes a more effective solution to the ocean plastics problem. Section I provides a basic history of the creation of plastics and discusses plastics as they are used today. Section II considers the concerns surrounding ocean plastics, focusing on impacts of plastic on marine ecosystems as well as human health effects. Section III, IV, and V discuss the ongoing attempts to address the ocean …

North Carolina's Dueling Property Rights Interests: Water And Hydraulic Fracturing, Rupa Russe

NCCU Environmental Law Review

No abstract provided.

Natural Resources And Natural Law Part Ii: The Public Trust Doctrine, Robert W. Adler

Michigan Journal of Environmental & Administrative Law

Natural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those individuals advocated their position in part through civil disobedience and armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, and …

Water, Water, Anywhere?: Protecting Water Quantity In State Water Quality Standards, Julie F. Youngman

Indiana Law Journal

Although much of the earth’s surface is covered with water, less than one percent of water is available for human use. Water is becoming progressively scarcer worldwide, as demand increases and pollution, drought, and climate change jeopardize access to clean water. The United States is no exception to that trend. Effective regulation of water supplies can blunt the impacts of water scarcity. This Article suggests that states can—and should—regulate instream flows and lake levels in their federally-mandated water quality standards, with an eye toward conserving scarce water resources. Regulating water quantity as an element of water quality is not only …

Borderless Commons Under Attack? Reconciling Recent Supreme Court Decisions With Watershed Scale Management, Mike Pease, Olen Paul Matthews

Seattle Journal of Environmental Law

Water managers have long called for management at watershed scales, instead of using hydrologically arbitrary boundaries like political borders. Considerable effort has been made in recent years to manage watersheds more holistically, but efforts to transfer water across state boundaries have been problematic, thwarted by legal and political obstacles. In Tarrant Regional Water District v. Herrmann the transferability of water across state boundaries has been reviewed by the Supreme Court. Tarrant, a water district in Texas, attempted to reallocate water from Oklahoma. The U.S. Supreme Court interpreted the case narrowly, focusing on the wording of the Compact, and determined Congress …

Something’S In The Water: A Look At How Creativity And Innovation Can Prevent Future Water Crises, Tristan Holiday-Nowden

Creativity and Change Leadership Graduate Student Master's Projects

The purpose of this project is to raise awareness and create a level of consciousness about water, unlike anything we have seen in the past. This project presents a synthesis of current writings and ideologies from the fields of Environmental Science and Water Research. As well as think pieces and informative news articles from various publications.

To illustrate the damaging effects of water contamination, water pollution, and water scarcity; Flint, Michigan will serve as a case study. After diagnosing and defining the problem using the Creative Problem Solving (CPS) framework. This project will explore the challenge and look at the …

Kloker V. Fort Peck Tribes, Hallee Kansman

Public Land & Resources Law Review

Kloker v. Fort Peck Tribes investigates and deciphers the application of the Indian canons of construction to the congressional formation and establishment of the Fort Peck reservation in Montana. In general, courts interpret congressional acts creating reservations through the lens of the tribal-federal government trust relationship. Although this case examines different substantive models of legal interpretation and theories of water law, the ultimate dispute is textual in nature—questioning the plain language of the establishment legislation itself.

Specialization Trend: Water Courts, Vanessa Casado-Pérez

Faculty Scholarship

Definition of property rights is not useful unless there is an enforcement system, either public or private, that backs it up. While the definition of property rights as a solution to the tragedy of the commons has been carefully analyzed in the literature, the enforcement piece has been somewhat overlooked. Water is becoming scarcer and conflict is rising. As a result, the need for an efficient and fair enforcement system is more necessary than ever due to climate change.

Given the complexity of water law and the backlog in the judicial system, introducing specialization in the resolution of water cases …

Advancing The Aquaculture Industry Through The Federal Crop Insurance Program, Matthew H. Bowen

Ocean and Coastal Law Journal

In recent times, the aquaculture industry has experienced dramatic growth. The growth of the industry is a direct result of an increase in demand for seafood, and a decrease in supply from wild fisheries. The industry, however, is also experiencing growing pains. Aquaculture species, compared to their wild counterparts, are at a higher risk of catastrophic loss from a variety of different perils. These perils make investment in the aquaculture industry significantly risky. The federal crop insurance program could be a tool that mitigates these risks, but the program was designed around terrestrial agriculture, and while aquaculture may be covered …

The Oil & Gas Industry: Failing To Properly Regulate Hydraulic Fracturing & Placing Profits Over Safety, Ellery Gordon

The Journal of Business, Entrepreneurship & the Law

This Note will evaluate the regulations and environmental implications surrounding hydraulic fracturing, or “fracking,” on state, federal, and Indian lands, focusing on the recent and still undecided case of Wyoming v. United States Dep’t of the Interior. Additionally, it will address the regulatory gap in federal regulations governing hydraulic fracturing, the current issues the industry faces, and advocate for a more stringent set of regulations that ought to be applied on a uniform basis throughout the United States. In the aforementioned case, Wyoming, Colorado, North Dakota, Utah, and the Ute Indian Tribe brought suit against the Bureau of Land Management …

The Semicommons And Wisconsin Water Quality, David A. Strifling

Marquette Intellectual Property Law Review

From the Great Lakes to pristine northern streams, Wisconsin boasts a plentiful and valuable array of water resources. Yet water stress analyses show that this natural capital is deeply threatened in a variety of ways. The pressure results primarily from human activity, ranging from general overuse to colonization by anthropogenically introduced non-native species. Some of the greatest water quality problems, however, are caused by land use practices that lead to polluted runoff from farm fields and urban settings. The onset of climate change has the potential to further exacerbate all of this. These issues, coupled with the failure of existing …