Natural Resources Law Commons^™

Groundwater Policy And Planning, Jenny Grönwall, Marianne Kjellén, Gabriel Eckstein, Kerstin Danert, Lesha Witmer, Rebecca Welling, Viviana Re, Katharina Davis, Lulu Zhang

Faculty Scholarship

Groundwater policy defines objectives, ambitions and priorities for managing groundwater resources, for the benefit of society. Planning translates policy into programmes of action. Both are often part of a wider water resource policy and planning framework, but the specific challenges pertaining to groundwater have traditionally received less attention than surface water.

The terms ‘policy,’ ‘strategy’ and ‘plans’ are used interchangeably in many countries and contexts.

Legal And Other Institutional Aspects Of Groundwater Governance, Jenny Grönwall, Marianne Kjellén, Alice Aureli, Stefano Burchi, Mohamed Bazza, Raya Marina Stephan, Gabriel Eckstein, Lesha Witmer, Margreet Zwarteveen, Aurélien Dumont, Danielle Gaillar-Picher, Rio Hada, Rebecca Welling, Maki Tsujimura

Faculty Scholarship

This chapter defines the linked concepts of groundwater governance and groundwater management, explaining how they differ from each other. Then, it describes the prevailing legal instruments for, and the institutional aspects of, groundwater management and governance.

Same As It Ever Was : The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Faculty Scholarship

Sewage—a scary mixture of human waste and industrial toxins—flows into the Tijuana River Valley, an environmentally sensitive watershed that straddles the United Mexican States ("Mexico") and the United States of America. Treatment plants, a deteriorating one in Punta Bandera with limited capacity south of the border, and another in San Diego County completed in 1997, are inadequate to process the volume of sewage. So much sewage made its way into the Tijuana River that CBS 60 Minutes broadcast a special report on the binational environmental disaster in 2020.

Border factories and a population spike contribute to the sewage. Maquiladoras, …

Legislature Expands State’S Jurisdiction Over Freshwater Wetlands, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Regulation of wetlands is one of the most significant ways that the government controls land use. While federal jurisdiction over wetlands is buffeted by the political and judicial winds, the New York Legislature has just expanded considerably the authority of the State Department of Environmental Conservation (DEC) to protect these areas and inhibit development there.

Lands, commonly labelled as bogs, swamps or marshes, which are inundated with water frequently enough to develop particular soils, hydraulic regimes or vegetative communities are generally classified as “wetlands” under certain environmental laws. The Tidal Wetlands Act and Freshwater Wetlands Act, added to the New …

Environmental Law, Disrupted By Covid-19, Rebecca Bratspies, Vanessa Casado-Pérez, Robin Kundis Craig, Lissa Griffin, Keith Hirokawa, Sarah Krakoff, Katrina Kuh, Jessica Owley, Melissa Powers, Shannon Roesler, Jonathan Rosenbloom, J.B. Ruhl, Erin Ryan, David Takacs

Faculty Scholarship

As we were in the final phases of editing a book on disruption in environmental law, a pandemic swept across the world disrupting daily life and the functioning of society to an extent unprecedented in living memory. The novel coronavirus known as COVID-19 was identified in China in late 2019 and by late February 2020, it had spread to every continent except Antarctica; as of April, 2021, the World Health Organization (WHO) estimated that over 148 million people had been infected worldwide with over 3 million deaths. Scientists and public health experts have raced to understand the virus—how is it …

Whose Water? Corporatization Of A Common Good, Vanessa Casado-Pérez

Faculty Scholarship

This chapter encourages readers to think of agricultural communities in the era of climate change-induced droughts and population growth similar to when western Pennsylvania’s steel industry collapsed in the 1980s. If water must flow uphill to money, it should not leave a dust bowl behind. While this chapter’s proposals to address the effects on community build on examples of water reallocation where those effects have been addressed, both the just-transition literature and the experiences of some of the towns successfully adapting to abrupt changes in their economic tissue can offer lessons for areas suffering big water losses. In addition, privatization …

The Case For Corporate Climate Ratings: Nudging Financial Markets, Felix Mormann, Milica Mormann

Faculty Scholarship

Capital markets are cast as both villain and hero in the climate playbill. The trillions of dollars required to combat climate change leave ample room for heroics from the financial sector. For the time being, however, capital continues to flow readily toward fossil fuels and other carbon-intensive industries. Drawing on the results of an empirical study, this Article posits that ratings of corporate climate risk and governance can help overcome pervasive information asymmetries and nudge investors toward more climate-conscious investment choices with welfare-enhancing effects.

In the absence of a meaningful price on carbon, three private ordering initiatives are trying to …

Binational Reflections On Pathways To Groundwater Security In The Mexico-United States Borderlands, Rosario Sanchez, Jose Agustin Brena-Naranjo, Alfonso Rivera, Randall T. Hanson, Antonio Hernandez-Espriu, Rick J. Hogeboom, Anita Milman, Jude A. Benavides, Adrian Pedrozo-Acuna, Julio Cesar Soriano-Monzalvo, Sharon B. Megdal, Gabriel Eckstein, Laura Rodriguez

Faculty Scholarship

Shared groundwater resources between Mexico and the United States are facing unprecedented stressors. We reflect on how to improve water security for groundwater systems in the border region. Our reflection begins with the state of groundwater knowledge, and the challenges groundwater resources face from a physical, societal and institutional perspective. We conclude that the extent of ongoing cooperation frameworks, joint and remaining research efforts, from which alternative strategies can emerge, still need to be developed. The way forward offers a variety of cooperation models as the future offers rather complex, shared and multidisciplinary water challenges to the Mexico–US borderlands.

When Drills And Pipelines Cross Indigenous Lands In The Americas, Guillermo J. Garcia Sanchez

Faculty Scholarship

From the Missouri River, passing through the Sonora Desert, all the way down to the Amazon Forest and the Andean Mountains, drills and pipelines are crossing over indigenous lands. In an energy-thirsty continent, there is no land left to spare, not even tribal land. Many of these energy infrastructure projects involve international investments that are protected by treaties and enforced by arbitral tribunals. At the same time, tribal communities have an internationally recognized right to receive prior and informed consultation before they are affected by projects of this nature. The Article focuses on the clash of rights between energy extraction …

Mandating Disclosure Of Climate-Related Financial Risk, Madison Condon, Sarah Ladin, Jack Lienke, Michael Panfil, Alexander Song

Faculty Scholarship

Climate change presents grave risk across the U.S. economy, including to corporations, their investors, the markets in which they operate, and the American public at large. Unlike other financial risks, however, climate risk is not routinely disclosed to the public. Insufficient corporate disclosures have persisted despite the Securities and Exchange Commission’s (“SEC”) issuance of regulatory guidance on the topic, the emergence of voluntary disclosure frameworks and standards, and growing calls from major investors for improved disclosure. Given the inadequacy of the current regime, the SEC should take further action to fulfill its statutory mandate to protect investors and promote efficiency, …

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Water Diplomacy And Shared Resources Along The United States-Mexico Border, Maria Elena Giner, Gabriel Eckstein

Faculty Scholarship

The United States and Mexico are geographic neighbors with high economic asymmetry, but also a shared history and intense social, cultural, economic, and security relations. Over 15 million people reside along the U.S.-Mexico border and share an environment that includes many watersheds and air basins transcending political boundaries. Pollution impacts on both sides of the border have required a coordinated response at the local, state, and federal level.

At the federal level, a joint institution was created in in 1889 as the International Boundary Commission and later renamed the International Boundary and Water Commission to provide binational solutions to issues …

Whither The Regulatory "War On Coal"? Scapegoats, Saviors, And Stock Market Reactions, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

Complaints about excessive economic burdens associated with regulation abound in contemporary political and legal rhetoric. In recent years, perhaps nowhere have these complaints been heard as loudly as in the context of U.S. regulations targeting the use of coal to supply power to the nation’s electricity system, as production levels in the coal industry dropped by nearly half between 2008 and 2016. The coal industry and its political supporters, including the president of the United States, have argued that a suite of air pollution regulations imposed by the U.S. Environmental Protection Agency during the Obama administration seriously undermined coal companies’ …

Litigating Epa Rules: A Fifty-Year Retrospective Of Environmental Rulemaking In The Courts, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

No abstract provided.

Irena At 10: Post Paris Transitions And Energy Diplomacy Beyond Opec, The Energy Charter Treaty, And The Coronavirus, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Groundwater Management In The Borderlands Of Mexico And Texas: The Beauty Of The Unknown, The Negligence Of The Present, And The Way Forward, Rosario Sanchez, Gabriel Eckstein

Faculty Scholarship

Over the last decade, transboundary aquifers traversing the Mexico‐Texas border have generated growing interest of federal institutions on the Mexico side and state and federal institutions on the Texas side. Notwithstanding this, binational efforts to understand, assess, and manage shared groundwater resources remain limited and politically sensitive. On the Mexico side, long‐standing centralized groundwater governance structures have created institutional barriers at the local level to the expansion of knowledge and cooperation over these transboundary resources. On the Texas side, property rights related to groundwater resources limit the scope of options available for cooperative management of cross‐border aquifers. This paper examines …

Remaking Environmental Justice, Clifford Villa

Faculty Scholarship

From movements for civil rights in the 1960s and environmental protection in the 1970s, the environmental justice movement emerged in the 1980s and 1990s to highlight the disparate impacts of pollution, principally upon people of color and low-income communities. Over time, the scope of environmental justice expanded to address concerns for other dimensions of diversity. New and continuing challenges tell us that we need to reframe our understanding of environmental justice to ensure better protection for people going forward. One way to reframe this understanding may be to apply the heuristic of vulnerability analysis as proposed by legal theorist Martha …

Getting Past Possession: Subsurface Property Disputes As Nuisances, Joseph A. Schremmer

Faculty Scholarship

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracing). Property rights will need to continue adapting if they are to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass …

Crystal Gazing: Foretelling The Next Decade In Oil And Gas Law, Joseph A. Schremmer

Faculty Scholarship

This chapter attempts to predict the major issues oil and gas law will encounter in the 2020s. Yet even before the first draft could be completed, the industry landscape changed unexpectedly. As this chapter goes to press, the global and domestic economies are just starting to emerge from a sharp downturn brought on by the outbreak of COVID-19. Oil and natural gas prices collapsed to levels not seen in decades. Against this unforeseen backdrop, the legal changes facing oil and gas development in the United States look somewhat different. But one element of our new reality is consistent with this …

Conferring Legal Personality On The World's Rivers: A Brief Intellectual Assessment, Gabriel Eckstein, Ariella D'Andrea, Virginia Marshall, Erin O'Donnell, Julia Talbot-Jones, Deborah Curran, Katie O'Bryan

Faculty Scholarship

The following compilation is substantially reproduced and adapted from a series of essays that appeared in the blog of the International Water Law Project (www.inter nationalwaterlaw.org). The series was solicited in response to the unique recent phenomenon in which a number of courts and legislatures around the world have conferred legal personality on particular rivers. What resulted is a fantastic, thoughtprovoking and timely compilation.

In effect, various water bodies around the world have been accorded legal rights – some though legislative actions and others via judicial decisions – that in some jurisdictions, equate with those recognized in human beings. Although …

Clean Energy Equity, Felix Mormann

Faculty Scholarship

Solar, wind, and other clean, renewable sources of energy promise to mitigate climate change, enhance energy security, and foster economic growth. But many of the policies in place to promote clean energy today are marred by an uneven distribution of economic opportunities and associated financial burdens. Tax incentives for renewables cost American taxpayers billions of dollars every year, yet the tax code effectively precludes all but the largest banks and most profitable corporations from reaping the benefits of these tax breaks. Other policies, such as renewable portfolio standards that set minimum quota to create demand for renewable electricity require such …

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 …

Betting On Climate Policy: Using Prediction Markets To Address Global Warming, Gary M. Lucas Jr, Felix Mormann

Faculty Scholarship

Global warming, sea level rise, and extreme weather events have made climate change a top priority for policymakers across the globe. But which policies are best suited to tackle the enormous challenges presented by our changing climate? This Article proposes that policymakers turn to prediction markets to answer that crucial question. Prediction markets have a strong track record of outperforming other forecasting mechanisms across a wide range of contexts — from predicting election outcomes and economic trends to guessing Oscar winners. In the context of climate change, market participants could, for example, bet on important climate outcomes conditioned on the …

Book Review: Jonathan P. Thompson, River Of Lost Souls: The Science, Politics, And Green Behind The Gold King Mine Disaster (2018), Clifford J. Villa

Faculty Scholarship

On August 5, 2015, contractors for the U.S. Environmental Protection Agency (EPA) investigating the Gold King Mine in southwestern Colorado accidently released some three million gallons of contaminated water into the Animas River, triggering weeks of front-page headlines, months of congressional hearings, and now years of litigation. River of Lost Souls: The Science, Politics, and Greed Behind the Gold King Mine Disaster, a new book by Jonathan P. Thompson, suggests by its title a human folly behind this “disaster” much broader and deeper than one tragic accident wrought by EPA contractors. On this thesis, Thompson certainly delivers. However, what …

The Fine Print Of The Mexican Energy Reform, Guillermo J. Garcia Sanchez

Faculty Scholarship

Five years ago, when Mexico transformed its energy sector, most commentators were worried about the government’s capacity to implement the reform. What would the upstream contracts look like? Would the auctions be transparent? How would international companies react? After two successful auction rounds, 107 signed contracts, and the creation of viable regulatory agencies to manage and monitor the reform agenda, the questions have changed. Today, Mexico’s capacity to implement energy reforms and attract foreign investment is no longer in doubt. Today, the most pressing questions about the reform concern its long-term sustainability. Can it survive the Mexican electoral cycles? Will …

Mexico's Energy Reform And The 2012 U.S.-Mexico Transboundary Agreement. An Opportunity For Efficient, Effective And Safe Exploitation Of The Gulf Of Mexico, Guillermo J. Garcia Sanchez

Faculty Scholarship

Nature knows no legal boundaries. Resources cannot be stopped by walls with barbwire; no matter how high some people want to build them. They cross- national territories and expand under their logic. They belong to many nations, and they are there for the responsible exploitation of their communities. The Gulf of Mexico (Gulf) and its rich hydrocarbon deposits are no exceptions. The implication of this is that for the development of this enclosed sea area to be efficient, effective, and safe it requires not only the cooperation of government officials but also the inclusion of other actors, such as academic …

Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine

Faculty Scholarship

The joint operating agreement (JOA) in the oil and gas industry helps coordinate joint operation efforts that facilitate exploration and unitization of tracts, and conservation of a depleting resource. Professor Conine’s 1988 article expanded, limited, and defined the property interests of the parties both inside and outside the contract area. This article is an update to those prior works with greater emphasis on the 1989 Form JOA, cases and developments since its publication, and the implications of the revisions to the JOA in the new 2015 Form JOA published by the American Association of Professional Landmen (AAPL).

The purposes of …

Brief For The Kansas Independent Oil & Gas Association As Amicus Curiae, Joseph A. Schremmer

Faculty Scholarship

Is the letter of the rule against perpetuities (the Rule) more important than its public policy? The Appellants in this case recklessly petition the Court to apply the Rule to a commonly used form of mineral reservation for the first time in the reservation’s nearly 100 years of use. They contend the Rule should apply even though it would cloud or nullify the property interests of countless unrepresented parties, spur a spate of litigation, remove a useful form of mineral ownership from commerce, and disrupt oil and gas development across Kansas—all in contravention of the Rule’s policy of making land …

Imputing Regulatory Failures In Oil And Gas Licensing: A Discussion And Proposal, Joseph A. Schremmer, Charles C. Steincamp

Faculty Scholarship

This Article argues that the Commission's legitimate interest in enforcing its oil and gas regulations, especially including well-plugging regulations, does not justify absolute imputation of regulatory liability to third-party operators under Kan. Stat. Ann. § 55-155(c)(4). But, under certain circumstances, the state's interest may justify imputing personal liability on the individual constituents of a license applicant where the individual is culpable for the underlying regulatory violation or the applicant has a business connection with the operator primarily responsible for the violation, and the competing public policies of groundwater protection and limited liability justify the imputation. This Article proposes a procedural …

New Mexico’S Renewable Portfolio Standard: Analysis Of Existing Policy Design Elements And Compliance Obligations Beyond 2020, Gabriel Pacyniak

Faculty Scholarship

This white paper analyzes two elements of New Mexico’s current Renewable Portfolio Standard (RPS) in advance of the state legislature’s consideration of an RPS expansion in the 2019 legislative session. First, the paper surveys key policy design elements of the current RPS, compares those elements to other state RPSs, and identifies “policy considerations” that may inform legislative or regulatory action. Among the findings from this part of the analysis are that: 1) other states have set much higher RPS targets; 2) that New Mexico’s RPS has uniquely restrictive cost-containment measures that limit cost impacts but also prohibit the full RPS …