Natural Resources Law Commons^™

Editor's Introduction & Front Pages, Jake Ware

Oil and Gas, Natural Resources, and Energy Journal

No abstract provided.

Brief Of Amici Curiae Law Professors In Support Of Defendants, Robert Abrams

Amicus Briefs

No abstract provided.

Preventing Wind Waste, K.K. Duvivier

American University Law Review

The United States has vast offshore wind resources—nearly double the total electricity consumption of the country—ideally located close to the largest population centers. This abundance has remained stubbornly untapped for over a decade, without a single commercial scale wind project built in federal waters as of early 2021.

In contrast to obstruction by the Trump administration, President Biden, in his first days in office, singled out offshore wind development as one of his priorities for tackling the climate crisis. As a result, the United States may soon see an offshore wind rush.

Onshore, the United States is a world leader …

Unbecoming Adversaries: Natural Resources Federalism In Wyoming, Tara Righetti, Robert B. Keiter, Jason Robison, Temple Stoellinger, Sam Kalen

Wyoming Law Review

No abstract provided.

The Blm’S Duty To Incorporate Climate Science Into Permitting Practices And A Proposal For Implementing A Net Zero Requirement Into Oil And Gas Permitting, John C. Ruple, Jamie Gibbs Please, Nada Wolff 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). This article argues that the BLM has a statutory duty to respond to climate change, which includes the duty to avoid exacerbating climate change. The article then moves the legal discussion from aspiration to action by proposing a legal strategy, using the existing legal framework, by which the BLM can achieve net zero emissions from all new mineral development activity. While the article focuses on oil and gas development, the …

Unbecoming Adversaries: Natural Resource Federalism In Wyoming, Tara Kathleen Righetti, Robert B. Keiter, Jason Robison, Temple Stoellinger, Sam Kalen

Utah Law Faculty Scholarship

Wyoming’s unique cultural and physical landscape fostered dynamic federalism relationships that have oscillated between adversarial and cooperative. Too often, though, the State and its federal and tribal counterparts have found themselves in the role of unbecoming adversaries. As current and former natural resources faculty members at the University of Wyoming (UW) College of Law, we are privileged to offer a retrospective on this subject upon the law school’s centennial. In 2021, the State is facing new and daunting challenges that are straining its core industries and budget, including economic changes associated with the COVID-19 global pandemic and rapidly transforming energy …

The Role Of Trust Law Principles In Defining Public Trust Duties For Natural Resources, John C. Dernbach

University of Michigan Journal of Law Reform

Public trusts for natural resources incorporate both limits and duties on governments in their stewardship of those natural resources. They exist in every state in the United States—in constitutional provisions, statutes, and in common law. Yet the law recognizing public trusts for natural resources may contain only the most basic provisions—often just a sentence or two. The purpose and terms of these public trusts certainly answer some questions about the limits and duties of trustees, but they do not answer all questions. When questions arise that the body of law creating or recognizing a public trust for natural resources does …

The Carbon Price Equivalent: A Metric For Comparing Climate Change Mitigation Efforts Across Jurisdictions, Gabriel Weil

Scholarly Works

Climate change presents a global commons problem: Emissions reductions on the scale needed to meet global targets do not pass a domestic cost-benefit test in most countries. To give national governments ample incentive to pursue deep decarbonization, mutual interstate coercion will be necessary. Many proposed tools of coercive climate diplomacy would require a one-dimensional metric for comparing the stringency of climate change mitigation policy packages across jurisdictions. This article proposes and defends such a metric: the carbon price equivalent. There is substantial variation in the set of climate change mitigation policy instruments implemented by different countries. Nonetheless, the consequences of …

Contracts On The Seabed, Christiana Ochoa

Articles by Maurer Faculty

Four million square kilometers of seabed within the sovereignty of Pacific Island nations are currently under contract for mineral exploration or exploitation. Over a million additional square kilometers of the non-sovereign seafloor are licensed for such use. Historically, these licenses have served to establish “squatters’ rights” in anticipation of a distant future when the industry would develop the machinery to exploit oceanic mineral wealth. That moment has arrived, with the first seafloor mining machines rolling off production lines in 2015-2016. Indeed, but for failed financing, the first seabed mine would now be operating in the territorial ocean waters of Papua …

This Permit Reform Already Works. Why Aren't More Mine Permit Applicants Using It?, Jamie Pleune, Edward Boling

Utah Law Faculty Scholarship

In January 2021, mining was added as a sector eligible for coverage under the FAST-41 permitting improvement program. The FAST-41 program was originally created in 2015, when Congress passed the Fixing America’s Surface Transportation (FAST) Act. Buried within the expanse of the FAST Act was the FAST-41 program, a pilot project designed to expedite federal permitting for complex infrastructure projects without compromising environmental standards or restricting public participation. FAST-41 seeks to achieve faster permitting timeframes through improved inter-agency coordination, shared data management, strategic permit sequencing that facilitates concurrent review, enhanced communication with the project sponsor, implementation of permitting best practices, …

The Carbon Price Equivalent: A Metric For Comparing Climate Change Mitigation Efforts Across Jurisdictions, Gabriel Weil

Dickinson Law Review (2017-Present)

Climate change presents a global commons problem: Emissions reductions on the scale needed to meet global targets do not pass a domestic cost-benefit test in most countries. To give national governments ample incentive to pursue deep decarbonization, mutual interstate coercion will be necessary. Many proposed tools of coercive climate diplomacy would require a onedimensional metric for comparing the stringency of climate change mitigation policy packages across jurisdictions. This article proposes and defends such a metric: the carbon price equivalent. There is substantial variation in the set of climate change mitigation policy instruments implemented by different countries. Nonetheless, the consequences of …

Regulatory Agency Capture: How The Federal Energy Regulatory Commission Approved The Mountain Valley Pipeline, Aakshi Agarwal

Harvey M. Applebaum ’59 Award

The FERC’s history of approving nearly 100% of pipelines and divisive pipeline cases like the Atlantic Coast Pipeline and Mountain Valley Pipeline have driven landowners’ long-standing claims of regulatory agency capture of the FERC. The present research substantiates the claim of capture with a case study of the Mountain Valley Pipeline and uncovers that the FERC is both culturally and corrosively captured. This research also suggests that the capture of the FERC began at its conception during the natural gas crisis and subsequent natural gas bubble, which caused the FERC to follow the industry’s lead. These findings indicate that the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Doctrine Untethered: “Passage Along The Shore” Under The Rhode Island Public Trust Doctrine, Sean Lyness

Roger Williams University Law Review

No abstract provided.

Pore Space Property, Joseph Schremmer

Faculty Articles

Through modern technology, we can use the void pore space of underground rock formations for a growing number of socially beneficial purposes. These run the gamut from unconventional oil and gas production to climate change mitigation. The common law of property and tort, however, has struggled to keep up. Significant questions remain about the nature of property rights in pore space. Of particular interest are the limits, if any, on an owner’s right to use pore space for beneficial purposes when it extends beneath the land of another. For example, may A hydraulically fracture an oil well on her property …

Anem: A Simple Web-Based Platform To Build Stakeholder Understanding Of Groundwater Behavior, Bruce Huber

Journal Articles

Groundwater supports essential societal and ecological functions by acting as a reservoir that buffers against natural variability. Increasing water scarcity and climate variability have resulted in more intensive management of groundwater resources, but groundwater often remains difficult to understand and manage. With this in mind, we develop a simple platform that provides a straightforward, web-based user interface applicable to a wide variety of end-user scenarios. Groundwater behavior is modeled using the method of images in a new R package, anem, which serves as the engine for the web platform, anem-app, produced using R Shiny. Both tools allow users to define …

Collaborative Governance Under The Endangered Species Act: An Empirical Analysis Of Protective Regulations, Robert L. Fischman, Vicky J. Meretsky, Matthew P. Castelli

Articles by Maurer Faculty

Recent conservation and administrative law scholarship emphasizes the need for potential legal adversaries to work together. Stakeholders and regulators can pool their political capital, money, property, expertise, and legal leverage to achieve more than could be accomplished through mere mechanical implementation of statutory commands. Most commentators associate collaboration with programs promoting fuzzy objectives to engage the public and advisory groups.

The Endangered Species Act (ESA) is a polarizing statute that imposes seemingly uncompromising mandates. But this Article demonstrates that the ESA actually provides rich opportunities for collaborative governance. In exploring this underappreciated success story, we document how conservation collaboration adapts …

Richard Stewart's Perennial Question: "How's This Going To Work?", David Schoenbrod

Articles & Chapters

No abstract provided.

International Working Group On Polar Shipping: Report To The Executive Council And Assembly Of The Comité Maritime International, Aldo Chircop

Reports & Public Policy Documents

This report covers the reporting period from 1 November 2020 to 31 May 2021. The IWG Chair acknowledges updates provided by the subgroup chairs. The IWG continues to operate through three subgroups, namely on Antarctic Shipping (chaired by David Baker), COLREGS in Polar Environments (chaired by Stefanie Johnston) and Cruise Passengers’ Rights (chaired by Lars Rosenberg Overby). While progress has been made, unfortunately the prolonged COVID-19 pandemic has continued to affect aspects of the IWG’s work.

Establishing State Responsibility In Mitigating Climate Change Under Customary International Law, Vanessa S.W. Tsang

LL.M. Essays & Theses

As acknowledged in the Paris Agreement’s Preamble, climate change is a “common concern of humankind.” To tackle the anthropogenic greenhouse gases (GHGs) at source, State governments played a pivotal role in implementing climate change policies. It thus justifies the approach of looking into the solutions to climate change from a state responsibility perspective. As mentioned by James Crawford, “[a]ny system of law must address the responsibility of its subjects for breaches of their obligations.” The finding of state responsibility in mitigating climate change will complement the treaty-based climate change regime, providing grounds for climate change litigations and policy formulation.

More …

Wolastoqiyik And Mi’Kmaq Grandmothers - Land/Water Defenders Sharing And Learning Circle: Generating Knowledge For Action, Sherry Pictou, Janet Conway, Angela Day

Reports & Public Policy Documents

This report is a summary of the Grandmothers/Defenders’ stories and are interwoven with corresponding news articles, press releases, and other public documents. This is followed by an overview of some of the critical common issues and importantly, strategies for moving forward proposed by the Grandmothers/Defenders.

The Grandmother’s Report is a collection of stories told by Wolastoqiyik Grandmother/Defenders against the Sisson Mine in New Brunswick and Mi’kmaq Grandmothers against the Alton Gas project in Nova Scotia at the event, Indigenous Grandmothers Sharing and Learning Circle: Generating Knowledge for Action, held at the Tatamagouche Centre in Nova Scotia, January 26 to 27, …

Integrating Climate Change Into Environmental Impact Assessments: Key Design Elements, Meinhard Doelle

Articles, Book Chapters, & Popular Press

This paper explores the integration of climate mitigation into the environmental impact assessment processes. The focus here is on the much neglected mitigation element (which is defined to include GHG emissions as well as impacts on natural sinks such as forests, soils, grasslands and oceans). To this end, the paper considers how to integrate the GHG emission and sinks impacts of projects at five critical stages of the assessment process: triggering, information gathering, analysis, the project decision, and post-approval follow-up.

Regulating Wave, Tidal And Ocean Thermal Energy, Meinhard Doelle, Theodore Nsoe Adimazoya

Articles, Book Chapters, & Popular Press

Ocean renewable energy sources hold the potential to contribute to the options of low-carbon energy sources and enhance the efforts by the global community to slow down climate change. In this Chapter, we provide a brief background on the current state of technology and development of wave, tidal and ocean thermal energy and consider their potential as forms of renewable energy as well as the potential negative environmental footprints of ocean renewable energy installation and development. Secondly, we examine the relevant international legal and policy framework governing ocean energy, highlighting in particular, the absence of a global legal instrument that …

Canada And Transboundary Fisheries Management In Changing Oceans: Taking Stock, Future Scenarios, U.R. Sumaila, David Vanderzwaag

Articles, Book Chapters, & Popular Press

This article is the Introduction to the Special Feature entitled: Canada and Transboundary Fisheries Management in Changing Oceans: Taking Stock, Future Scenarios. We summarize the research context of the four papers in the Special Feature.

Opportunities For Public Comments On Pending Trap/Pot Fishery Regulations To Protect The North Atlantic Right Whale, Catherine Schluter

Marine Affairs Institute Staff Publications

No abstract provided.

Harry Potter And The Gluttonous Machine, Jason A. Beckett

Faculty Journal Articles

In this paper, I outline the colonial structure of international law, and examine the short decline or suppression of its coloniality in the so-called ‘era of decolonisation’, then illustrate its resurgence in the modern neo-colonial order. PIL has split into two separate systems. One includes, and is justified by, the heroic tales of human rights and ‘Humanity’s Law’. The other is the actualised system of International Economic Law (IEL), an order driven by the need of the over-developed states to plunder the under-developed states’ resources and labour, to subsidise the luxury to which we have grown accustomed. One purports to …

Null Climate Federalism: State Frustration Of Federal Renewable Energy Entitlements, Steven Ferrey

Suffolk University Law School Faculty Works

Arresting rapid climate change is considered one of the most challenging issues of this century. To do so successfully, the U.S. must rapidly convert its electric power sector to operate on renewable energy. The Biden Administration pledged that the U.S. will have only clean/renewable electricity by 2035 – in these next 13 years U.S. federal tax incentives for renewable energy are scheduled to be substantially diminished or eliminated. Notwithstanding, there is one fundamental federal entitlement of rights for renewable power development.

The Public Utilities Regulatory Policies Act (“PURPA”) statute was enacted by President Carter as the U.S. response to an …

Best Regulatory Practices For Deep Seabed Mining: Lessons Learned From The U.S. Surface Mining Control And Reclamation Act, Mark S. Squillace

Publications

Mining operations around the globe are responsible for significant environmental problems. These problems often stem from poor planning, inadequate regulatory standards, and a failure of regulatory oversight, particularly with respect to inspection and enforcement regimes. Mining regulators are often hamstrung, however, by inadequate information about potential impacts before operations commence. This problem is particularly daunting when considering mining on ocean floors where information about the environment is limited, and the impacts of mining are poorly understood.

As the International Seabed Authority (ISA) develops a comprehensive regulatory program for deep seabed mining, they should draw on the experience gained in regulating …

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.