Natural Resources Law Commons^™

Note: Fracking Fluids: Regulatory Disclosure And Trade Secret Ingredients, Alison Ibendahl

Notre Dame Journal on Emerging Technologies

The Note reviews current law, policy, and politics that are part of the discussion around disclosing fracking fluid trade secrets. Part I of this paper provides a background of fracking, why it is valuable, and intellectual property regimes used by owners of fracking relating to intellectual property. Part II reviews the regulatory takings doctrine, trade secret law and the interaction between them. Current disclosure laws, the policy considerations of disclosure law, and political attitudes towards fracking are discussed in Part III. This review concludes with general comments on current disclosure and the potential changes to regulations.

Electric Load Flexibility Analysis For The Clean Energy Transition, Peter Alstone, Mary Ann Piette

Notre Dame Journal on Emerging Technologies

A clean energy transition on the electricity grid is underway with the addition of new renewable generation, improved capabilities for sensing and controls, and "distributed energy resources" (DER) that include efficiency, battery storage, flexible loads, and electrified heating and transportation. The complex interactions between these advances require new analytic techniques to support decisions by utilities, regulators, and enterprises developing and deploying new DER. In this paper, we describe an approach for estimating the potential of flexible loads (often also referred to as "demand response" (DR)) to contribute to the planning and operation of the grid. The analysis was developed in …

Moat Mentality: Onshore And Offshore Approaches To Wind Waking, K.K. Duvivier, Brendan T. Mooney

Notre Dame Journal on Emerging Technologies

Wind energy developers are becoming increasingly aware of the damaging impact of wakes from turbines. To deal with the issue on land, many terrestrial developers have adopted a "moat mentality," creating buffer zones around their wind plants' to protect them from neighboring wind developments. While these "moats" may protect the investment of a particular wind developer, they render large areas that could be generating electricity into unproductive waste zones. US offshore wind development is in its nascence. This article will explore ways that offshore wind developers are addressing waking issues and whether they can find more collaborative solutions to maximize …

Note: The Weakest Link In Greenhouse Gas Emissions Regulation: A Comparative Study Of Methane Waste Law In The United States, Vienna Bottomley

Notre Dame Journal on Emerging Technologies

In this comparative study, I will analyze the various methods employed by states for monitoring and curtailing methane leakage in comparison with approaches that have been employed at the federal level. I will juxtapose the regulatory regimes of Colorado, North Dakota, New York, Pennsylvania, New Mexico, and California with the Obama Administration methane leakage regulations, including the 2016 Bureau of Land Management (BLM) "methane waste rule" regulations that the Trump Administration formally rolled back in September 2018. Finally, I will consider what the failure of the Obama Administration methane leak regulations means for climate change law in the United States …

Foreword, Peter C. Burns

Notre Dame Journal on Emerging Technologies

There is still much work to do to ensure access to affordable, reliable, sustainable, and modern energy for all. Yet, we have made substantial progress in gaining a global understanding that using alternative energy sources will curb global warming and preserve Earth's resources. The hurdle of economic gain and political acceptance still remains a challenge. At the Center for Sustainable Energy at Notre Dame (ND Energy), we engage with faculty and associated researchers on these very issues and work to advance new technologies and energy systems in the hope of addressing these challenges and helping to attain the United Nations' …

Resource Nationalism And Zambia’S Oscillating Mining Taxation Regime, Edna Kabala, Rosemary Mapoma, John Lungu

Zambia Social Science Journal

The parcelling and privatisation of the large state-owned mining conglomerate Zambia Consolidated Copper Mines (ZCCM) involved the signing of Development Agreements (DAs) between the Zambian government and the new private investors. These DAs were concessionary to the new investors, offering low taxation rates, tax exemptions and deductions. But in 2008, under political pressure from the opposition, then President Mwanawasa abrogated the DAs with a new Mines and Minerals Act, removing exemptions and deductions and increasing taxation rates. This action set in motion a decade long period of contestation over mining taxation in Zambia, with the introduction and retraction of numerous …

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 …

Northern Plains Resource Council V. United States Army Corps Of Engineers, Liz M. Forster

Public Land & Resources Law Review

Environmental activist and indigenous rights groups have challenged the validity of the Keystone XL Pipeline since its initial approval in 2010. In April 2020, less than a month after crews broke ground, the opposing groups notched a major win when the United States District Court for the District of Montana revoked a key permit for the project on the grounds that the United States Army Corps of Engineers had inadequately assessed the pipeline’s impact on endangered species.

The Public Trust Doctrine In The 21st Century, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

In this Symposium's initial lecture, I will (a) provide a glimpse into life in Medieval England to explain the context from which Magna Carta arose, (b) describe the evolution of environmental rights from Magna Carta to the Forest Carter, (c) explore in a case study how “liberties of the forest” functioned for 800 years in England's Royal Forest of Dean, ultimately sustaining the ecological systems of Dean, (d) discuss the “liberties of the forest” in light of Elinor Ostom's common pool analyses, and (e) offer some views on the question just posed. I shall start by describing the English environment …

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

Northwestern Journal of International Law & Business

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 …

Acknowledgement, Melanie Mcnett, Julia Shaver

Natural Resources Journal

No abstract provided.

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

George Perkins Marsh: Anticipating The Anthropocene, Robin Kundis Craig

Utah Law Faculty Scholarship

This chapter, part of the forthcoming volume PIONEERS OF ENVIRONMENTAL LAW, explores the vision of humanity's influence on social-ecological systems that George Perkins Marsh provided to the world in his 1964 work, MAN AND NATURE, OR PHYSICAL GEOGRAPHY AS MODIFIED BY HUMAN ACTION, republished in 1874 as THE EARTH AS MODIFIED THROUGH HUMAN ACTION. In addition to tracing how Marsh and these publications influenced nature resources and environmental law in the United States well into the 20th century, this chapter also argues that Marsh anticipated, in many respects, the environmental legal and policy issues of the Anthropocene by tracing clearly …

Ferc's Tether Tantrum: Why Suppressing State Support For Renewable Energy Violates The Federal Power Act And Threatens U.S. Climate Leadership, Philip N. Killeen

American University Law Review

The United States’ role as a proactive leader on combatting climate change reached its high-water mark during the presidency of Barack Obama. At the United Nation’s 2015 Paris Climate Conference, the United States acknowledged the scientifically observed link between anthropogenic greenhouse gas (GHG) emissions and global warming and negotiated a deal with other nations to adapt to and prevent its consequences. Among the commitments that emerged from this deal was the United States’ ambitious but achievable target to reduce economy-wide GHG emissions 26 to 28% below 2005 levels by 2025. The most consequential effort to meet this goal was the …

Water Law And Climate Change In The United States: A Review Of The Scholarship, Robin Kundis Craig

Utah Law Faculty Scholarship

Climate change’s effects on water resources have been some of the first realities of ecological change in the Anthropocene, forcing climate change adaptation efforts even as the international community seeks to mitigate climate change. Water law has thus become one vehicle of climate change adaptation. Research into the intersections between climate change and water law in the United States must contend with the facts that: (1) climate change affects different parts of this large country differently; and (2) United States water law is itself a complicated subject, with each state having its own laws for surface water and groundwater and …

Second Amici Curiae Brief Of Law Professors Et Al., Pine Mountain Preserve, Llp V. Commissioner, Filed In The U.S. Court Of Appeals For The Eleventh Circuit, Nancy Mclaughlin

Utah Law Faculty Scholarship

Second Amici Curiae Brief of Law Professors et al., filed in support of the government in the U.S. Court of Appeals for the Eleventh Circuit in Pine Mountain Preserve, LLP v. Commissioner, on appeal from U.S Tax Court No. 8956-13, 151 T.C. 247 (2018).

Amici Curiae Brief Of Law Professors Et Al., Pine Mountain Preserve, Llp V. Commissioner, Filed In The U.S. Court Of Appeals For The Eleventh Circuit, Nancy Mclaughlin

Utah Law Faculty Scholarship

Amici Curiae Brief of Law Professors et al., filed in support of the government in the U.S. Court of Appeals for the Eleventh Circuit in Pine Mountain Preserve, LLP v. Commissioner, on appeal from U.S Tax Court No. 8956-13, 151 T.C. 247 (2018).

Plugging Problems: How States In The Ohio River Basin Can Address Orphan Oil And Gas Wells, Connor Hicks

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Chumash Heritage National Marine Sanctuary: An Exploration Of Changing The Discourse On Conservation, Arielle Ben-Hur

Pitzer Senior Theses

In 2015, the Northern Chumash Tribal Council submitted a National Marine Sanctuary Nomination to establish the Chumash Heritage National Marine Sanctuary– a means by which to ensure the protection of one of the most culturally and biologically diverse coastlines in the world. On October 5, 2015, John Armor of the National Oceanic and Atmospheric Administration (NOAA) responded to the nomination, adding it to the inventory of areas NOAA may consider in the future for national marine sanctuary designation.

In my thesis, I explore how the nomination of the Chumash Heritage National Marine Sanctuary acts as a platform from which Traditional …

Contingent Delisting, Justin R. Pidot

University of Colorado Law Review

No abstract provided.

Ecosystem Services And Federal Public Lands: A Quiet Revolution In Natural Resources Management, J.B. Ruhl, James Salzman

University of Colorado Law Review

The major federal public land management agencies (the Forest Service, Bureau of Land Management, Park Service, Fish & Wildlife Service, and Department of Defense) have increasingly adopted a language that did not exist twentyfive years ago-the language of ecosystem services. Ecosystem services are the range of benefits that ecological resources provide to humans, from water purification and pollination to carbon sequestration and wildlife habitat. The scientific discipline advancing the ecosystem services framework arose in the mid-1990s and quickly became a central strategy for fusing ecology and economics research. Despite its ascendance in research communities, the recognition and conservation of ecosystem …

Governance Of Arctic Shipping: Rethinking Risks, Human Impacts And Regulation, Aldo Chircop, Floris Goerlandt, Claudio Aporta, Ronald Pelot

OER Texts

This open access book is a result of the Dalhousie-led research project Safe Navigation and Environment Protection, supported by a grant from the Ocean Frontier Institute’s the Canada First Research Excellent Fund (CFREF). The book focuses on Arctic shipping and investigates how ocean change and anthropogenic impacts affect our understanding of risk, policy, management and regulation for safe navigation, environment protection, conflict management between ocean uses, and protection of Indigenous peoples’ interests. A rapidly changing Arctic as a result of climate change and ice loss is rendering the North more accessible, providing new opportunities while producing impacts on the Arctic. …

Dust In The Wind: Regulation As An Essential Component Of A Sustainable And Robust Wind Program, Warigia M. Bowman

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Environmental Injustice: How Treaties Undermine Human Rights Related To The Environment, Lisa E. Sachs, Lise Johnson, Ella Merrill

Columbia Center on Sustainable Investment Staff Publications

Growing cries for action to effectively address the climate and other environmental crises hold important implications for the governance of cross-border investments. Policymakers and environmental advocates have often overlooked how provisions granted by states in international investment agreements (IIAs) have been used by investors to challenge government measures taken in the public interest to protect the environment and advance environmental justice.

This 2019 paper, published in the Sciences Po Legal Review issue devoted to the climate crisis, explains how the investor-state dispute settlement (ISDS) mechanism, made available to investors in thousands of bilateral and multilateral trade and investment agreements, may …

The Fragile Future Of Aquifer Storage And Recovery, Zachary A. Bray

Law Faculty Scholarly Articles

Buda, Texas-a small town that lies between Austin and San Antonio,

on the banks of Onion Creek and above the Edwards Aquifer-is perhaps

best known, though it is not particularly well known, as the "Wiener Dog

Capital of Texas." Buda's claim to this title is based upon its annual

dachshund races, which are opposed by the Dachshund Club of America

but lauded by locals, tourists, and the international press as an "event that

combines the pageantry of the Kentucky Derby and the excitement of

NASCAR with dachshunds, animals known for their small stature." Buda

is certainly unusual in relying so …

After Juliana: A Proposal For The Next Atmospheric Trust Litigation Strategy, Kacie Couch

William & Mary Environmental Law and Policy Review

The cliffs of California are dissolving.2 Glaciers in Colorado and Montana are dissolving.3 Islands in Louisiana and Alaska are dissolving.4 America as we know it is dissolving; twenty-one youth plaintiffs that face a future with less liberty and independence than generations before them claim that federal government inaction in the face of climate change is to blame.5 Those plaintiffs, in the landmark case Juliana v. United States, sought judicial declaration of a federal public trust and substantive due process right to a stable climate system.6 In proceedings, Judge Anne Aiken of the District Court of Oregon declared a newly …

Species Conservation & Recovery Through Adequate Regulatory Mechanisms, Sandra B. Zellmer, Sam J. Panarella, Oliver Finn Wood

Faculty Journal Articles & Other Writings

The world is experiencing its sixth episode of mass extinction of life. In rhetoric typically used by bloggers rather than scientists, the National Academy of Sciences reports that this "biological annihilation" is more dire than previously believed,' and that the decimation of biodiversity and of the ecosystem services resulting from it is nothing less than a "frightening assault on the foundations of human civilization."2

Unlike previous episodes of mass extinction, this one is caused by human overpopulation, overconsumption, and anthropogenic climate change. The United States has been a world conservation leader for over a century, but its commitment to supporting …

Raising The Meter In Rhode Island: A Better Approach To Rhode Island’S Net Metering Laws, Alyssa Lauren Lemire

Roger Williams University Law Review

No abstract provided.