Land Use Law Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Free, Prior Informed Consent And Extractive Industry: Indigenous Action Is The Past, Present, And Future Of Global Environmental Justice, Paige Bellamy

Environmental and Earth Law Journal (EELJ)

Free, Prior Informed Consent ("FPIC") from the UN Declaration on the Rights of Indigenous Peoples has been central to global Indigenous action against extractive industries’ harmful practices. Yet, it is often not fully recognized as a sovereign right, which hinders Indigenous peoples’ ability to use it to its full potential. Historically, FPIC has been deemed a consultation right, not a right to “veto” industry action on Indigenous land. Countries that have interpreted FPIC as a mere consultation right have allowed further exploitation of Indigenous peoples, usually leading to environmental and humanitarian disasters. However, when courts have respected the right to …

Soaps And Shampoos: Proposals To Reform Regulation In The United States Personal Care Market To Decrease Deforestation From Palm Oil Imports, Kelsey Weston

Environmental and Earth Law Journal (EELJ)

Palm oil is the world's most highly sought-after vegetable oil due to its multifaceted uses and cheap cost of production. However, producing this versatile oil comes at a high cost to one of the largest biodiversity on the planet. Over the last two centuries, Indonesia and Malaysia have become the main producers and exporters of palm oil but they are also home to the largest number of mammal species in the world that have seen a staggering decline in populations. Furthermore, palm oil production has caused excessive release of greenhouse gases, increased disruption of forestland, and economic poverty for smallholders …

Nuclear Powered International Commercial Shipping: A Note On The Greenest Solution And The Challenges Of International Regulation, Rebecca Mcreynolds

Environmental and Earth Law Journal (EELJ)

To meet the environmental demands imposed by the International Maritime Organization, the commercial shipping industry’s use of predominantly marine diesel fuel will need to change drastically. Current answers to these environmental concerns include the use of biofuels, battery packs, and liquified natural gas, but these are short-term solutions that will not fully meet environmental demands in the long run. Nuclear propulsion, however, is a tried-and-true resolution. The use of nuclear energy results in virtually no environmental impact and has successfully been used by the US Navy for the past 75 years. Unfortunately, the commercial use of nuclear propulsion is stalled …

Reversing Quiet Destruction: Florida's Attempt To Regulate Pfas Known As Forever Chemicals, A. Colleen Donald

Environmental and Earth Law Journal (EELJ)

Introduced by manufacturing companies in the 1940s, Per-and polyfluorinated substances (“PFAS”) which consist of a group of over 6,000 chemicals, have insidiously made their way into the bloodstream of humans and into the environment. These nearly indestructible, “forever chemicals” that were once thought to be safe for use in firefighting foams, cosmetics, food packaging, non-stick cookware, and water-resistant clothing, are now found to be toxic. PFAS have been found in animals, aquatic life, and natural resources, and are associated with illnesses in humans: PFAS have been linked to various cancers, reproductive issues in women, and birth defects in children. As …

Prioritizing Regional Wildlife Conservation By Rejuvenating The Western Hemisphere Convention On Nature Protection, Shade Streeter, David Hunter, William Snape Iii

Sustainable Development Law & Policy

Last year, parties to the Convention on Biological Diversity (“CBD”), representing nearly every nation, signed a milestone agreement committing, among other things, to conserve thirty percent of Earth’s lands and oceans to stave off the rapid diminution of the planet’s biodiversity. Implementing these global commitments will require not only strong domestic measures, but also enhanced regional cooperation targeting the conservation of the region’s migratory wildlife and shared resources. Although the United States is the sole major holdout from the CBD, it can still reassert its leadership in regional wildlife conservation by rejuvenating the Convention on Nature Protection and Wildlife Preservation …

Unclos, Undrip & Tartupaluk: The Grim Tale Of Hans Isle And Graense, Christopher Mark Macneill

Sustainable Development Law & Policy

“Inuit have lived in the Arctic from time immemorial.” The Arctic, in the face of climate change, has become a hot spot for exploration, resource extraction, and increased shipping and scientific activity. “[The] Inuit . . . have had a common and shared use of the sea area and the adjacent coasts” among their own communities, and contemporaneously with the world. This vast circumpolar Inuit Arctic region includes land, sea, and ice stretching from eastern Russia (Chukotka region) across the Berring Strait, to Alaska, the Canadian Arctic, and Greenland, representing an Inuit homeland known as Nunaat. Hans Isle, a small …

The Great Climate Migration: A Critique Of Global Legal Standards Of Climate-Change Caused Harm, Mariah Stephens

Sustainable Development Law & Policy

Approximately 2.4 billion people, or about forty percent of the global population, live within sixty miles (one hundred kilometers) of a coastline. The United Nations (“U.N.”) determined that “a sea level rise of half a meter could displace 1.2 million people from low-lying islands in the Caribbean Sea and the Indian and Pacific Oceans, with that number almost doubling if the sea level rises by two metres.” The U.N. also reports that “sudden weather-related hazards” have internally displaced an annual average of 21.5 million people since 2008. Within the next few decades, this number is likely to continue to increase. …

The Future Of Crypto-Asset Mining: The Inflation Reduction Act And The Need For Uniform Federal Regulation, Liz Guinan

Sustainable Development Law & Policy

Crypto-asset mining is energy-intensive and environmentally harmful, presenting challenges and opportunities for federal, state and local governments, regulators, and society as a whole. As of December 2021, the United States has thirty-eight percent of the global crypto network hash rate, which is the total amount of computational power used to mine and process crypto transactions, making the United States the world’s largest crypto-asset mining industry. The total electricity consumption of crypto-asset mining in the United States is estimated to be around 121.36 terawatt-hours (“TWh”) per year, which is equivalent to the electricity consumption of approximately 10.9 million households in the …

Editors' Note, Rachel Keylon, Meghen Sullivan

Sustainable Development Law & Policy

For more than two decades, the Sustainable Development Law and Policy Brief (“SDLP”) has published works analyzing emerging legal and policy issues within the fields of environmental, energy, sustainable development, and natural resources law. SDLP has also prioritized making space for law students in the conversation. We are honored to continue this tradition in Volume XXIII.

Minnesota Dep’T Of Nat. Res. V. Manoomin, Anna Belinski

Public Land & Resources Law Review

In 2021 manoomin (wild rice), a legally recognized person in White Earth Band tribal law, brought a case in White Earth Band of Ojibwe Tribal Court against the Minnesota Department of Natural Resources. Wild rice brought this case against the Minnesota Department of Natural Resources’ over its issuance of a water permit to Enbridge Inc. for the construction of the Line 3 oil pipeline. Though ultimately ruling that the Tribal Court did not have subject matter jurisdiction because the activity at issue occurred by non-Indians outside of the reservation boundaries, this case still brings a novel consideration in the tribal …

Ysleta Del Sur Pueblo V. Texas, Sawyer J. Connelly

Public Land & Resources Law Review

The United States Supreme Court ruled in favor of the Ysleta Del Sur Pueblo and Alabama and Coushatta Indian Tribes. The Court’s decision settles a conflict around bingo stemming from a long series of conflicts between Ysleta del Sur Pueblo and Texas gaming officials dating back to the 1980s. The court held the Texas Restoration Act bans only gaming on tribal lands that is also banned in Texas. This decision upholds previous caselaw that states cannot bar tribes from gaming that is not categorically banned in the state.

Environmental Defense Center V. Bureau Of Ocean Energy Management, Eliot M. Thompson

Public Land & Resources Law Review

The United States Court of Appeals for the Ninth Circuit upheld the district court’s grants of summary judgment and injunctive relief against BOEM for violating the ESA and CZMA. The Ninth Circuit found BOEM violated NEPA, CZMA, and the APA by failing to adequately consider the environmental impacts of well stimulation treatments. The Ninth Circuit also reversed the lower court’s grant of summary judgment against the Environmental Defense Center for their NEPA claims.

Metlakatla Indian Community V. Dunleavy, Elizabeth L. Orvis

Public Land & Resources Law Review

The United States Court of Appeals for the Ninth Circuit reversed the District Court of Alaska’s judgment that dismissed the Metlakatla Indian Community’s suit against Alaska’s limited entry program. On appeal, the Ninth Circuit addressed whether and to what extent the 1891 Act preserved an implied off-reservation fishing right for members of the Metlakatla Indian Community. The Ninth Circuit ruled in favor of the Metlakatla Indian Community but remanded to the district court to determine the boundaries of the traditional off-reservation fishing grounds. Motions for rehearing and rehearing en banc were denied.

Vertical Farming: A Bottom-Up Approach, Michael Martinez

Seattle Journal of Technology, Environmental, & Innovation Law

The twenty-first century will require innovative solutions to address the effects of climate change. Vertical farming is one solution that could help conserve a significant amount of freshwater and reduce the agricultural industry’ s overuse of pesticides and intensive tilling practices, which contributes to soil erosion and pesticide runoff. There has been significant investment in vertical farming in every region of the United States; however, the cost to produce foods with vertical farming remains more costly than traditional farming, which is in large part due to the substantial amount of electricity needed to power all the technology required to grow …

Opposition To Renewable Energy Facilities In The United States: May 2023 Edition, Matthew Eisenson

Sabin Center for Climate Change Law

Achieving lower carbon emissions in the United States will require developing a very large number of wind, solar, and other renewable energy facilities, as well as associated storage, distribution, and transmission, at an unprecedented scale and pace. Although host community members are often enthusiastic about the economic and environmental benefits of renewable energy facilities, local opposition often arises. This report updates and considerably expands two previous Sabin Center reports, published in September 2021 and March 2022, and documents local and state restrictions against, and opposition to, siting renewable energy projects for the period from 1995 to May 2023. Importantly, the …

Ctr. For Biological Diversity V. United States Fish & Wildlife Serv., Ali Stapleton

Public Land & Resources Law Review

The Ninth Circuit Court of Appeals affirmed the District Court of Arizona’s decision to deny a proposed mining plan becuase the operations exceeded the boundaries of a valid mining claim. The issue the court addressed is whether a permanent occupancy of waste rock and tailings on land, absent the discovery of valuable minerals, is a reasonable use related to mining activities. The Ninth Circuit decision effectively prevented mining companies from amending the 1872 Mining Law on the administrative record. Motions for a rehearing and a rehearing en banc were denied.

Rural Bashing, Kaceylee Klein, Lisa R. Pruitt

University of Richmond Law Review

Anti-rural sentiment is expressed in the United States in three major threads. The first is a narrative about the political structure of our representative democracy—an assertion that rural people are over-represented thanks to the structural features of the U.S. Senate and the Electoral College. Because rural residents are less than a fifth of the U.S. population, complaints about this situation are often framed as “minority rule.”

The second thread is related to the first: rural people and their communities get more than their fair share from federal government coffers. The argument, often expressed in terms of “subsidies,” is that rural …

With A Wink And A Nod: How Politicians, Regulators, And Corrupt Coal Companies Exploited Appalachia, Patrick C. Mcginley

University of Richmond Law Review

Environmental regulators treated America’s leading coal companies like Wall Street’s mismanaged banks leading to the “Great Recession”—big coal companies that produced millions of tons of coal were simply too big to fail. With a wink and a nod, federal and state regulators ignored a core provision of federal law that was intended to prevent coal companies from continuing their past practices of plundering Appalachia’s mineral wealth while ravaging her environment.

This Article examines how the coal industry successfully evaded compliance with that law. The consequences of this evasion include mass bankruptcies, thousands of acres of mined land laying unclaimed, …

Rural America As A Commons, Ann M. Eisenberg

University of Richmond Law Review

With many ready to dismiss non-urban life as a relic of history, rural America’s place in the future is in question. The rural role in the American past is understandably more apparent. As the story of urbanization goes in the United States and elsewhere, the majority of the population used to live in rural places, including small towns and sparsely populated counties. A substantial proportion of those people worked in agriculture, manufacturing, or extractive industries. But trends associated with modernity—mechanization, automation, globalization, and environmental conservation, for instance—have reduced the perceived need for a rural workforce. Roughly since the industrial revolution …

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

An update on American Indian case law from September 2021-October 2022.

Oil, Indifference, And Displacement: An Indigenous Community Submerged And Tribal Relocation In The 21st Century, Jared Munster

American Indian Law Journal

Coastal land loss driven by erosion and subsidence, and amplified by climate change, has forced the abandonment and resettlement of the remote Louisiana Indigenous community of Isle de Jean Charles. This relocation, to a relatively ‘safer’ site inland has led to division among the residents and will inevitably cause irreparable damage to the culture and traditions of the Houma and Biloxi Chitimacha Confederation of Muskogees peoples who called this small, isolated island home. Driven to the water’s edge by European colonization of south Louisiana, this community developed a dynamic subsistence lifestyle based on agriculture, hunting, and fishing which survived undisturbed …

Endnotes

Sustainable Development Law & Policy

No abstract provided.

Using Federal Public Lands To Model A New Energy Future: Why The Biden Administration Should Prioritize Renewable Energy Development On Public Lands, Meghen Sullivan

Sustainable Development Law & Policy

Oil and gas extraction on public lands and waters is responsible for twenty percent of U.S. greenhouse gas emissions. If American public lands were their own country, they would be the fifth-largest greenhouse gas emitter in the world. As of 2020, only twenty percent of total U.S. electricity generation came from renewable energy sources. While renewable energy development on public lands has increased, most renewable energy comes from private lands. However, public lands contain immense renewable energy potential; for example, it is estimated that half of this country’s geothermal resources are found on public lands. Despite underutilized renewable energy potential …

Crumbling Crown Jewels: Addressing The Impact Of Recreational Overuse In America's National Parks, Ellen Spicer

Sustainable Development Law & Policy

National Parks are the “crown jewels” of America. However, in recent years they have become subjected to rampant overcrowding and overuse, so much so that they are being loved to death. The 1916 National Park Service (“NPS”) Organic Act calls for the conservation of “the scenery and the natural and historic objects and the wild life . . . and to provide for the enjoyment of the same in such manner and by such means as will leave [park sites] unimpaired for the enjoyment of future generations.” Due to increased visitation, one of the mandates of the NPS is being …

Pedal Into The Future, Elliot Wiley

Sustainable Development Law & Policy

Congress severely weakened the Electric Bicycle Incentive Kickstart for the Environment Act (E-Bike Act) when the bill was absorbed into the Build Back Better Bill. Electricity is the future, yet Congress has defanged a bill that could create significant progress in making bicycling a more accessible option for commuters.

Making Room For The Past In The Future: Managing Urban Development With Cultural Heritage Preservation, Kubra Guzin Babaturk

Sustainable Development Law & Policy

Few would disagree that art and architecture are indispensable aspects of the collective human experiences. But can there be “too much” of it? How much is “too much?” Could art and cultural heritage be a hindrance to progress, urbanization, and sustainability? Which art is worth saving? A growing question is how to balance and reconcile expanding urban needs with efforts to preserve cultural heritage. Many cities across the global face this fresh moral dilemma. Cities like Istanbul, Rome, and Cairo––heirs to great empires, with history and art cursing through every alley, are still modern-day metropolises, with ever-burgeoning populations and social …

Toward A Utah Intentionally Created Surplus Program, Devin Stelter

Sustainable Development Law & Policy

The Colorado River Basin continues to face a now two decade-long drought sparked by the drastic effects of climate change on the region. Climate forecasting predicts that the adverse effects of climate change will only increase in severity in years to come. These effects have led federal, state, tribal, and private actors operating in the basin to search for innovative and effective solutions to the significant water scarcity problems that will persist into the future. A closely linked threat stemming from Colorado River water scarcity is the prospect of a “Compact call” on Upper Basin water by the Lower Basin …

About Sdlp, Sdlp

Sustainable Development Law & Policy

The Sustainable Development Law & Policy Brief (ISSN 1552-3721) is a student-run initiative at American University Washington College of Law that is published twice each academic year. The Brief embraces an interdisciplinary focus to provide a broad view of current legal, political, and social developments. It was founded to provide a forum for those interested in promoting sustainable economic development, conservation, environmental justice, and biodiversity throughout the world.

Editor's Note, Juliette Jackson, Bailey Nickoloff

Sustainable Development Law & Policy

The Sustainable Development Law and Policy Brief (“SDLP”) is celebrating twenty-two years of legal scholarship on issues related to environmental, energy, natural resources, and international development law. SDLP continues to provide cutting-edge solutions to these legal issues in the face of the global COVID-19 Pandemic, while also transitioning back into a “new normal.” This issue is no different, as we published articles challenging our lawmakers and policy heads to address the impending needs of our communities to develop more sustainable infrastructure—needs that are only exacerbated by man-made climate change. We are proud of the work published, and we are forever …