Natural Resources Law Commons^™

Flawlessly Strawless?, Marguerite Moloney

Fordham Environmental Law Review

No abstract provided.

Indian Country Post Mcgirt: Implications For Traditional Energy Development And Beyond, Elizabeth Kronk Warner, Heather Tanana

Utah Law Faculty Scholarship

The decision in McGirt v. Oklahoma is being heralded as the most important Indian law decision of the last 100 years, as it affirmed the reservation boundaries of the Muscogee (Creek) Reservation – an area long considered by many to be under Oklahoma’s jurisdiction. Yet, following release of the Court’s decision, the outcry from the oil and gas industry was almost instantaneous, as roughly twenty five percent of Oklahoma’s oil and gas well and sixty percent of its oil refineries are impacted by the Court’s decision. Additionally, the territory affected by the Court’s decision also includes pipelines crucial to the …

A Road Map To Net-Zero Emissions For Fossil Fuel Development On Public Lands, Jamie Pleune, John C. Ruple, Nada Culver

Utah Law Faculty Scholarship

Almost one quarter of all U.S. carbon dioxide (CO2) emissions come from fossil fuels extracted from public lands, and these resources are managed by the Bureau of Land Management (BLM). The BLM has a statutory duty set forth in the Federal Land Policy and Management Act (FLPMA) to coordinate management of various resources “without permanent impairment of the productivity of the land and the quality of the environment.” Continuing to permit fossil fuel development without adhering to a carbon budget violates this statutory duty. This Article argues that the BLM must address climate change in its decisions. It also proposes …

Unmuddying The Waters: Evaluating The Legal Basis Of The Human Right To Water Under Treaty Law, Customary International Law, And The General Principles Of Law, Ndjodi Ndeunyema

Michigan Journal of International Law

This article evaluates the existence of a freestanding, general human right to water under each of the three principal sources of international law: treaty, customary international law, and the general principles of law. To date, the right to water has been derived from treaty law, most prominently as part of the right to an adequate standard of living in article 11 of the International Covenant on Economic, Social and Cultural Rights (as implied by General Comment 15 to the ICESCR). The potential importance of a non-treaty based right to water––as a matter of customary international law or a general principle …

A Defense Of The Regulatory Takings Doctrine: A Historical Analysis Of This Conflict Between Property Rights And Public Good And A Prediction For Its Future, Andrew Parslow

William & Mary Environmental Law and Policy Review

Since man first left the state of nature and formed property rights, there have been issues when states desire to use the property of another for what they consider to be the greater good. In their wisdom, the Founding Fathers of the United States built on centuries of historical principles ranging from the Romans to the English and enshrined in the Fifth Amendment the common law notion that “private property [shall not] be taken for public use, without just compensation.” The rise of environmentalism has brought a new frontier to the ancient struggle between the rights of individuals and the …

Community-Driven Climate Solutions: How Public-Private Partnerships With Land Trusts Can Advance Climate Action, Jessica Grannis

William & Mary Environmental Law and Policy Review

In 2018 and 2019, several landmark developments demonstrated the failings of past efforts to address climate change and the need for new and more ambitious solutions. In October 2018, the Intergovernmental Panel on Climate Change (“IPCC”) released a dire report indicating that the window is rapidly closing for countries to dramatically reduce emissions in order to avoid the worst consequences of climate change and predicting dramatic consequences to the environment and public health if countries fail to take action; young activists started taking to the streets to demand more ambitious action to address climate change; and, at the 25th Conference …

Incorporating Free, Prior And Informed Consent (Fpic) Into Investment Approval Processes, Kelly Dudine, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Investment approval processes are the gateway through which governments set the agenda for their country’s investment environment. Yet too often these processes fail to incorporate meaningful requirements regarding participation in decision-making by Indigenous and other affected communities, increasing the risk of under-performing and conflict-ridden investments.

Enabling meaningful participation by rights holders and obtaining and maintaining their Free, Prior and Informed Consent (FPIC) throughout different investment approval processes can help governments to fulfill their legal obligations, mitigate financial and political risk, and, ultimately, attract more sustainable land-based investments.

Featuring concrete guidance and drawing on case studies from Kenya, Liberia, Mexico, Peru, …

Don’T Throw Caution To The Wind: In The Green Energy Transition, Not All Critical Minerals Will Be Goldmines, Perrine Toledano, Martin Dietrich Brauch, Solina Kennedy, Howard Mann

Columbia Center on Sustainable Investment Staff Publications

The green energy transition will be exceedingly mineral intensive. Manufacturing solar panels, wind turbine and batteries to power cleaner energies is set to significantly increase the demand for co-called “critical” minerals. Such a forecast prompts high expectations in mineral-rich countries and suggests promising opportunities for developing countries.

However, the projects to increase the primary extraction of critical minerals rest on bullish forecasts and uncertain terrain due to a number of factors explored in the paper that threaten to leave these investments obsolete and economically stranded.

Governments, international actors, and mining advocates seeking to optimize the value of green energy mineral …

Submission To Bonsucro Re Production Standard V5 (2019-21), Nami Patel, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In July 2020, CCSI made a formal submission to Bonsucro, an international multi-stakeholder initiative and certification scheme concerned with promoting sustainable sugar cane production. The submission formed part of consultations for Bonsucro’s draft Production Standard version 5. CCSI’s submission focused on challenges associated with implementing, and auditing for compliance with, three aspects of Bonsucro’s draft standard, namely:

• Obtaining the free, prior and informed consent (FPIC) of Indigenous and traditional communities when establishing or expanding sugar production operations
• Implementing transparent and participatory processes to assess, monitor, and evaluate the environmental and social impacts of new and existing projects; and
• Establishing accessible …

Restoring The Public Interest In Western Water Law, Mark Squillace

Utah Law Review

American Western states and virtually every country and state with positive water resources law are in perfect agreement about the wisdom of treating their water resources as public property. Not surprisingly, this has led most Western states to articulate a goal of managing these resources in the public interest. But the meaning of the term “public interest,” especially in the context of water resources management, is far from clear. This Article strives to bring clarity to that issue. It begins by exploring three theoretical approaches that might be used for defining the public interest in water resources law before urging …

Indigenous Rights And Climate Change: The Influence Of Climate Change On The Quantification Of Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely, Lucius K. Caldwell

Utah Law Review

The people indigenous to the Western portion of the lands now referred to as North America have relied on aquatic species for physical, cultural, and spiritual sustenance for millenia. Such indigenous peoples, referred to in the American legal system as Indian tribes, are entitled to water rights for fish habitat pursuant to the Winters Doctrine, which holds that the federal government impliedly reserved water rights for tribes when reservations were created. Recently, the methodology for quantifying these rights has been the Instream Flow Incremental Methodology (IFIM) and/or one of its major components, the Physical Habitat Simulation Model (PHABSIM). These models …

Mempertanyakan Pancasila Sebagai Grundnorm: Suatu Refleksi Kritis Dalam Perspektif Fondasionalisme, E. Fernando M. Manullang

Jurnal Hukum & Pembangunan

Legal scholars in Indonesia discuss whether Pancasila is grundnorm or not. Grundnorm according to Hans Kelsen is the basis for validity of legal norms. Kelsen is therefore considered a foundational scholar according to Luc J. Wintgens. Meanwhile, in the view of foundationalism, certain foundation can be accepted if such foundation becomes belief. Thus, saying that Pancasila is basic norm or not, in the view of foundationalism shall answer whether Pancasila is a belief or not. Instead of continuing the debates whether Pancasila is a grundnorm or not, this article instead takes the pre-debates stands, namely reflecting critically the question Pancasila …

Of Hatcheries And Habitat: Old And New Conservation Assumptions In The Pacific Salmon Treaty, Paul Stanton Kibel

Washington Journal of Environmental Law & Policy

The 1985 Pacific Salmon Treaty between Canada and the United States was negotiated to deal with evidence that Pacific salmon stocks originating in Canada and the United States were in decline. The Pacific Salmon Treaty sought to establish total annual fishing limits for Canada and the United States that were consistent with the sustainable conservation of Pacific salmon stocks, and to base the total allowable catch for Canadian fishermen on forecasts of the total abundance of salmon. As the Pacific Salmon Treaty has been implemented, however, there has been a re-occurring pattern of annual abundance forecasts overestimating the actual abundance …

Mechanisms For Consultation And Free, Prior And Informed Consent In The Negotiation Of Investment Contracts, Sam Szoke-Burke, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Investor-state contracts are regularly used in low-and middle-income countries to grant concessions for land-based and natural resource investments, such as agricultural, extractive industry, forestry, or renewable energy projects. These contracts are rarely negotiated in the presence of, or with meaningful input from, the people who risk being adversely affected by the project. This practice will usually risk violating requirements for meaningful consultation, and, where applicable, free, prior and informed consent (FPIC), and is particularly concerning when the investor-state contract gives the investor company rights to lands or resources over which local communities have legitimate claims.

This article explores how consultation …

Best Practices In Data Driven Development Planning In Mining Regions, Nicolas Maennling, Josefina Correa

Columbia Center on Sustainable Investment Staff Publications

Strategic development planning has long been used by private and public sectors to guide actions that will lead to a determined goal in the medium- to long-term. The SDG framework has helped to create a common language of what development means, what the global objectives are by 2030, and how progress can be measured. With the world entering an era in which data is generated and used at an unprecedented scale, data and ICT systems should be used to better inform policy decision making and help evaluate progress to hold stakeholders accountable to their promises and performance. This report outlines …

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

Faculty Scholarship

No abstract provided.

Regulation Of Lobster Bait Alternatives In New England, Victoria Rosa, Read Porter

Sea Grant Law Fellow Publications

No abstract provided.

The Road To Paris Runs Through Delaware: Climate Litigation And Directors’ Duties, Lisa Benjamin

Utah Law Review

As political and regulatory battles over climate change rage in the United States, and the Trump Administration unwinds regulation on climate change, the directors of some of the largest, fossil fuel corporations, often referred to as “carbon-majors”, are facing a barrage of climate litigation claims. This is the second time directors of these corporations have faced litigation. The first wave of litigation against carbon majors failed for a number of reasons, including judicial reluctance to engage with the complex issue of climate change. However, climate litigation is evolving. In this second wave of litigation judges have started to engage more …

Financing Our Future’S Health: Why The United States Must Establish Mandatory Climate-Related Financial Disclosure Requirements Aligned With The Tcfd Recommendations, Colin Myers

Pace Environmental Law Review

No abstract provided.

All Dogs Get Regulatory Protection—And This Means Wolves Too: Extending Species- Specific Animal Welfare Act Protections, Megan Edwards

Pace Environmental Law Review

No abstract provided.

Come Hell Or High-Water: Challenges For Adapting Pacific Northwest Water Law, Robert T. Caccese, Lara B. Fowler

Pace Environmental Law Review

The Pacific Northwest region of the United States has been recognized as a leader in crafting water laws that work to balance human needs and ecological considerations. However, this region is experiencing changing dynamics that test the strength of existing water policies and laws. Such dynamics include increasing populations, new and exempt uses, quantification of tribal treaty rights, species protection, renegotiation of the Columbia River Treaty, and the impacts of a changing climate. Together, these dynamics are stressing the legal framework, which remains vital to ensuring sustainable water supplies now and into the future. The history behind water resources management …

Bringing Animal Protection Legislation Into Line With Its Purported Purposes: A Proposal For Equality Amongst Non-Human Animals, Jane Kotzmann, Gisela Nip

Pace Environmental Law Review

The United States has a strong history of enacting laws to protect animals from the pain and suffering inflicted by humans. Indeed, the passage of the Massachusetts’ Body of Liberties in 1641 made it the first country in the world to pass such laws. Nevertheless, contemporary animal protection laws in all jurisdictions of the United States are limited in their ability to adequately realize their primary purpose of protecting animals from unnecessary or unjustifiable pain and suffering. This is a result of limited statutory definitions of ‘animal’ and far-reaching exclusions commonly found in animal protection legislation. These exclusions frequently apply …

Appeal No. 0960: Faith Ranch & Farms Fund, Inc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2018-101 & 2018-108 (McBride East & Central Units; EAP Phioo. LLC)

Appeal No. 0979: John F. Williams Oil Field Services, Inc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2019-247

Appeal No. 0976: Energy Exploration & Development, Inc. V. Division Of Oil & Gas Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2019-104

Appeal No. 0961: Faith Ranch & Farms Fund, Inc. V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Orders 2018-101 & 2018-108 (McBride East & Central Units; EAP Phioo. LLC)

Appeal No. 0980: C. David Snyder V. Divison Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2019-343

Appeal No. 0982: Wheeling & Lake Eries Railway Company V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission

Ohio Oil & Gas Commission Decisions

Review of Chief's Order 2020-01 (Gulfport Appalliachia, LLC; Angelo Unit)

Pakootas V. Teck Cominco Metals, Ltd., Connlan W. Whyte

Public Land & Resources Law Review

Throughout the twentieth century, Teck Cominco Metals leaked metal pollutants into the Upper Columbia River that ultimately entered the United States and the Colville Indian Reservation. In 2004, after almost a decade of working with the United States Environmental Protection Agency, the Colville Tribes initiated a citizen suit under CERCLA against Teck for damaging the ecosystem of the Upper Columbia River. In 2018, the Ninth Circuit affirmed judgment against Teck for recovery costs and attorney’s fees.

Set The Controls For The Heart Of The Moon: Is Existing Law Sufficient To Enable Resource Extraction On The Moon?, Mark J. Sundahl, Jeffrey A. Murphy

Georgia Journal of International & Comparative Law

No abstract provided.