Natural Resources Law Commons^™

Partial Additionality: The Blunt Metric Distorting Carbon Market, Anthony L. Moffa, Joseph Newlen

Faculty Publications

The widespread recognition that climate change presents an existential threat to humanity has spurred the development of numerous technologies, regulatory structures, and voluntary actions aimed to mitigate the pending disaster.

President Trump, The New Chicago School And The Future Of Environmental Law And Scholarship, Sarah B. Schindler

Faculty Publications

Recent presidents including Bill Clinton, G. W. Bush, and Barack Obama have refined how environmental law has been enacted and carried out. Under President Trump, the scope of public environmental law will most certainly narrow. It seems likely that the future of environmental law will depend not upon traditional federal command-and-control legislation or executive branch maneuvering, but instead upon activating environmentalism through expanded substantive areas and innovative regulatory techniques that fall outside the existing, traditional norms of environmental law and legal scholarship. This chapter is an attempt to acknowledge this monumental change, recognizing that these barriers to traditional environmental regulation …

Water Governance In Haiti: An Assessment Of Laws And Institutional Capacities, Ryan Stoa

Faculty Publications

The Republic of Haiti struggles to sustainably manage its water resources. Public health is compromised by low levels of water supply, sanitation, and hygiene, and water resources are often contaminated and unsustainably allocated. While poor governance is often blamed for these shortcomings, the laws and institutions regulating water resources in Haiti are poorly understood, especially by the international community. This study brings together and analyzes Haitian water laws, assesses institutional capacities, and provides a case study of water management in northern Haiti in order to provide a more complete picture of the sector. Funded by the Inter-American Development Bank as …

Alienation And Reconciliation In Social-Ecological Systems, Ann M. Eisenberg

Faculty Publications

After rancher Ammon Bundy’s forceful occupation of the Malheur National Wildlife Refuge to protest federal “tyranny” in 2016, mainstream commentary dismissed Bundy and his supporters as crackpots. But the dismissal of the occupation as errant overlooked this event’s significance. This conflict: 1) involved a clash over scarce natural resources, of the type that will likely gain more frequency and intensity in the face of climate change; and 2) highlighted the popular idea that the federal government and federal environmental regulations are the enemy of the (white, rural, male) worker. This thread of antienvironmental, anti-federal alienation among many working people has …

Railroad Land Grants In An Incongruous System: Corporate Subsidies, Bureaucratic Governance, And Legal Conflict In The United States, 1850-1903, Sean Kammer

Faculty Publications

No abstract provided.

No-Analogue Future: Challenges For The World Of Nature In A World Without Precedent, Sean Kammer

Faculty Publications

No abstract provided.

Report And Recommendations Concerning Environmental Aspects Of The New York State Constitution, New York State Bar Association Environmental And Energy Law Section, Mary L. Lyndon

Faculty Publications

The purpose of the Report is to inform and enrich understanding of environmental issues which may be considered at a Constitutional Convention (should one occur) or with respect to proposals to amend the Constitution through the legislative process.

Weed And Water Law: Regulating Legal Marijuana, Ryan Stoa

Faculty Publications

Marijuana is nearing the end of its prohibition in the United States. Arguably the country’s largest cash crop, marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington DC. Between now and election day 2016, an additional 14 states may place marijuana legalization initiatives on their ballots. In addition, 23 states and Washington DC have legalized medical marijuana, with up to seven states pending legislation. The era of marijuana prohibition is rapidly coming to a close.

At the same time, traditional doctrines of water law are struggling to cope with the modern realities of water scarcity. …

Subsidiarity In Principle:Decentralization Of Water Resources Management, Ryan B. Stoa

Faculty Publications

No abstract provided.

Responsible, Renewable, And Redesigned: How The Renewable Energy Movement Can Make Peace With The Endangered Species Act, Kalyani Robbins

Faculty Publications

One of the most promising routes to a sustainable energy future, as well as climate change mitigation, is the development of renewable energy sources such as wind, solar energy, and hydropower. Indeed, scientists have proposed plans to move completely (100 percent!) to these energy sources within a couple of decades. Mark Z. Jacobson and M.A. Delucchi, scientists from Stanford and U.C. Davis, have outlined a plan to achieve this goal, thereby “eliminating all fossil fuels”. Hydroelectric power already provides almost one-fifth of the world's electricity, and wind and solar development is rapidly picking up as well. However, before we leave …

Conservative Principles For Environmental Reform, Jonathan H. Adler

Faculty Publications

The nation’s environmental regulatory architecture may not have changed significantly over the past few decades, but the range of environmental problems has. Regulatory measures designed to address the industrial pollution of the twentieth century are poorly suited to address the more complex and difficult challenges of the twenty-first.

There is an urgent need to debate the future of environmental protection in this country. If the debate is to be productive, it needs to span the political spectrum. Therein lies a problem: It is unclear whether many on the political right are prepared to engage in serious policy discussion about the …

Learning How To Fish: Catch Shares And The Future Of Fishery Conservation, Jonathan H. Adler, Nathaniel Stewart

Faculty Publications

The hard choices being made in an effort to save the Atlantic cod fishery today are all too common, as policymakers continue to employ and rely upon failed conservation policies, leaving fisheries the world over poorly managed and under stress. By some measures, a majority of exploited fisheries are depleted or in decline. Even more troubling, new research suggests that those fisheries about which scientists know the least may be in the worst shape. Yet all is not lost—perhaps not even for the great Atlantic cod. These same assessments conclude that, with proper management, fishery yields could double while remaining …

Wetlands, Property Rights, And The Due Process Deficit In Environmental Law, Jonathan H. Adler

Faculty Publications

In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands …

Water Rights, Markets, And Changing Ecological Conditions, Jonathan H. Adler

Faculty Publications

Conventional environmentalist thought is suspicious of private markets and property rights. The prospect of global climate change, and consequent ecological disruptions, has fueled the call for additional limitations on private markets and property rights. This Essay presents an alternative view. Specifically, this Essay briefly explains why environmental problems generally, and the prospect of changing environmental conditions such as those brought about by climate change in particular, do not counsel further restrictions on private property rights and markets. To the contrary, the prospect of significant environmental changes strengthens the case for greater reliance on property rights and market institutions to address …

Introduction: The Deepwater Horizon Incident, Charles H. Norchi

Faculty Publications

In this symposium, the contributors appraise the regulatory and institutional pathologies that contributed to the incident, offer projections based on current practices and legal frameworks, propose alternative institutional and regulatory approaches, and recommend policies to achieve a preferred future for marine ecosystems and dependent human activity.

Urban Green Uses: The New Renewal, Catherine J. Lacroix

Faculty Publications

As they confront dramatically reduced population and little prospect of significant near-term growth, several cities in the rust belt have turned to innovative tactics to put excess land to beneficial use. These measures include the creation of active land banks, downzoning for "green" uses such as urban agriculture, possible consolidation of population and abandonment of utility and public services, and installation of green infrastructure, such as stormwater retention and renewable power generation facilities, on publicly owned land. In the process, these cities face intriguing legal questions: What steps are needed to form an effective land bank? What is the liability …

Introduction: Twenty-Five Years Of The Gulf Of Maine Judgment, Charles H. Norchi

Faculty Publications

An overview and retrospective on the Gulf of Maine Maritime Boundary case. This decision is a milestone in oceans law, and it continues to effect fisheries, oil and gas exploration, alternative energy production, and other issues in Canadian-American relations and beyond.

The Public Order Of Ports, Charles H. Norchi

Faculty Publications

The OCLJ invited leading authorities to consider a range of maritime port law problems and policies. The ensuring articles treat port "incidents" that implicate and spawn international law including custom, conventions, and agreements and national or municipal law.

Freedom And Servitude In The Public Order Of The Oceans: A Review Of Navigational Servitudes: Sources, Applications, Paradigms By Ralph J. Gillis, Charles H. Norchi

Faculty Publications

A review of a work on navigation as a public right by Ralph J. Gillis.

Money Or Nothing: The Adverse Environmental Consequences Of Uncompensated Law Use Controls, Jonathan H. Adler

Faculty Publications

The conventional wisdom holds that requiring compensation for environmental land-use controls would severely limit environmental protection efforts. There are increasing reasons to question this assumption. Both economic theory and recent empirical research demonstrate that failing to compensate private landowners for the costs of environmental regulations discourages voluntary conservation efforts and can encourage the destruction of environmental resources. The lack of a compensation requirement also means that land-use regulation is underpriced as compared to other environmental protection measures for which government agencies must pay. This results in the "overconsumption" of land-use regulations relative to other environmental protection measures that could be …

Water Marketing As An Adaptive Response To The Threat Of Climate Change, Jonathan H. Adler

Faculty Publications

Demographic changes and existing water use patterns have placed tremendous pressures upon water supplies, particularly in the West. Global climate change will exacerbate pressures on water resources. The gradual warming of the atmosphere is certain to change the distribution and availability of water supplies, with potentially severe consequences for freshwater supplies. While climate change will have a significant impact on water resources through changes in the timing and volume of precipitation, altered evaporation rates, and the like, the precise nature, magnitude, timing, and distribution of such climate-induced changes are unknown. This uncertainty complicates the task of water managers who are …

Anti-Conservation Incentives, Jonathan H. Adler

Faculty Publications

Several recent empirical studies have indicated that the Endangered Specifies Act (ESA) discourages species conservation on private land. This is because the law encourages landowners to shoot, shovel and shut up before federal authorities discover the species are present or may move onto the land. Most worrisome, the studies suggest that the net effect of the ESA on private land could be negative. Habitat loss and fragmentation represent the greatest threat to endangered species because private land is indispensable to environmental conservation.

Warming Up To Water Markets, Jonathan H. Adler

Faculty Publications

Water policy experts contend that the United States is heading toward a water scarcity crisis in the coming years. Global climate change is likely to make water scarcity much worse in the long run. This article argues that demands of current and projected water management challenges can best be met through a greater reliance on water markets. To facilitate this, water management must shift toward recognition of transferable rights in water that facilitate voluntary exchanges and the market pricing of water resources.

A Windfall For The Magnates: The Development Of Woodland Ownership In Denmark, Eric Kades

Faculty Publications

No abstract provided.

Reckoning With Rapanos: Revisiting "Waters Of The United States" And The Limits Of Federal Wetland Regulation, Jonathan H. Adler

Faculty Publications

Rapanos v. United States is the latest episode in the serial effort to identify the precise meaning of "waters of the United States." Federal courts have struggled to define the scope of federal regulatory jurisdiction under the Clean Water Act ("CWA") since the law was adopted.

Although no single opinion in Rapanos commanded a majority of the Court, the Court delivered a discernible holding. Specifically, the Court held that CWA jurisdiction over private lands is limited...and reaffirmed that federal regulatory authority only extends to those wetlands that have a "significant nexus" to navigable waters of the United States. Nonetheless, the …

Conservation Through Collusion: Antitrust As An Obstacle To Marine Resource Conservation, Jonathan H. Adler

Faculty Publications

Although it is not a new environmental problem, overfishing is arguably one of the most serious environmental problems today. Despite decades of government regulation, fisheries are in trouble the world over.

With little doubt, the federal fishery regulations adopted in the last twenty-five years have failed to ensure sustainable utilization of U.S. fisheries. The existing regulatory framework is "a failed experiment that has led to the destruction of United States coastal fisheries." At the same time that the federal government adopted an elaborate regulatory structure, federal law has impeded the development of cooperative fishery management institutions that may have helped …

Public Trust & Distrust: Theoretical Implications Of The Public Trust Doctrine For Natural Resource Management, Erin Ryan

Faculty Publications

This Comment reviews the theoretical underpinnings of the public trust, a doctrine originating in Roman common law and now constitutionalized by many states, and explores its contentious reception by green legal theorists. Since Professor Joseph Sax's revival of the doctrine as a vehicle for environmental legal advocacy in the early 1970s, it has been haJled by many. as the most powerful tool available for protecting natural resource commons and attacked by others who argue that use of the property rights-based doctrine will reify an ownership approach to natural resources and obstruct the development of more stewardship-oriented legal theories of natural …

The Cartagena Protocol And Biological Diversity; Biosafe Or Bio-Sorry, Jonathan H. Adler

Faculty Publications

In January 2000, delegates from over 100 nations completed negotiations on an international treaty for the regulation of biotechnology, the Cartagena Protocol on Biosafety. The stated purpose of this protocol is to enhance the protection of biological diversity. Despite its good intentions, there is a mismatch between the protocol's substantive provisions and present threats to biological diversity. The protocol endorses "precautionary" regulation of transboundary shipments of genetically engineered organisms, including crops, so as to reduce the environmental risks that such organisms may pose. The greatest threat to biological diversity is habitat loss, largely driven by the conversion of land for …

Book Review Of Natural Resources Policy And Law: Trends And Directions, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Federal And State Water Quality Regulation And Law In Missouri, Peter N. Davis

Faculty Publications

This article discusses that law in two parts. The first part examines the federal and Missouri waste discharge regulatory system. The second part analyzes common law rights and remedies related to water pollution.