Natural Resources Law Commons^™

Amici Curiae Brief Of Law Professors, Belk V. Commissioner, U.S. Court Of Appeals For The Fourth Circuit, Nancy Mclaughlin

Utah Law Faculty Scholarship

Amici Curiae Brief of five law professors filed in the U.S. Court of Appeals for the Fourth Circuit in support of affirming of the Tax Court's holding in Belk v. Commissioner, T.C. Memo 2013-154, and Belk v. Commissioner, 140 T.C. 1 (2013).

The Use And Preservation Of Grasslands: The Logic Of Hard Lessons, Irma S. Russell

Faculty Works

Planning for preservation of grasslands and all environmental resources is essential for the long-term well-being of the environment and humans. The interrelated nature of all resources of the physical world requires sustainable practices to maintain productivity and life. Recognition that the often-overlooked resource of grasslands is foundational to economic, environmental, and political stability of the region leads to the conclusion that planning for the long-range health of grasslands is essential to the economy as well as to the environment. Part II of this article explores the history of grasslands of the Midwest. It identifies the historical mismanagement of grasslands and …

Attaching Domestic Assets To Remedy High Seas Pollution: Rule B And Marine Debris, Jonathan M. Gutoff

Roger Williams University Law Review

No abstract provided.

The Big "Blue" Nation: Expanding Aquaculture In Kentucky, K. Cassandra Keck

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

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 …

Valuing Sacred Tribal Waters Within Prior Appropriation, Michelle Bryan

Faculty Law Review Articles

Throughout the world water plays a central role in the spirituality of indigenous peoples. Focusing on the American West, this article first describes how tribal water needs touch upon the sacred and then explains how both federal law and state prior appropriation doctrine fail to adequately protect these important sacred views of water. Pivoting away from the classic federal law arguments, the article then advocates for an evolution in state water law regimes to provide yet unrecognized protections for tribal sacred waters. Because international law plays an increasing role in this issue, the article also explores case studies from Ireland, …

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.

An Evaluation Of U.S. National Wildlife Refuge Planning For Off-Road Vehicle Use, Robert L. Fischman, Vicky J. Meretsky, Katie Freeman, Alexi Lamm, Leah Missik, Scott Salmon

Articles by Maurer Faculty

Off-road vehicles (hereafter, ORVs) rank high among public-land management challenges because they are popular, often impair environmental conditions, and may cause conflicts with other recreational users. Unit-level planning for federal lands increasingly translates broad, system-wide objectives, such as maintenance of ecological integrity, into place-based limitations on ORV use to minimize and mitigate adverse impacts on wildlife. We reviewed 176 planning documents covering 313 National Wildlife Refuges (hereafter, Refuges) to understand how planning supports or undermines ORV recreation management. These plans offer an important perspective on ORV management because the Refuges are a large, diverse system of conservation lands where recreation …

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

Faculty Publications

No abstract provided.

Picking Up The Pieces: Congress's Role In Combatting The Global Issue Of Marine Debris, Sheldon Whitehouse, Lisa Murkowski

Roger Williams University Law Review

No abstract provided.

Introduction To The 10th Marine Law Symposium, Julia Wyman

Roger Williams University Law Review

No abstract provided.

Bootlegging, Oysters, And Closed-To-Harvest Waters: Adding Teeth To The Coastal Zone Management Act To More Effectively And Efficiently Restore The Coastal Zone, Clare M. Harmon

Roger Williams University Law Review

No abstract provided.

Plastics In The Ocean: The Environmental Plague Of Our Time, Joan M. Bondareff, Maggie Carey, Carleen Lyden-Kluss

Roger Williams University Law Review

No abstract provided.

The Big Apple's Tiny Problem: A Legal Analysis Of The Microplastic Problem In The N.Y./N.J. Harbor, Sean Dixon, Zachary Lees, Andrea Leshak

Roger Williams University Law Review

No abstract provided.

Rising To The Level Of Climate Science: Rhode Island, The National Flood Insurance Program, And Sea Level Rise Projections, Nicole E. Rohr

Roger Williams University Law Review

No abstract provided.

Wringing Wonder From The Arid Landscape Of Law, Robert L. Fischman

Articles by Maurer Faculty

Charles Wilkinson’s estimable contribution to public land law scholarship is widely cited but only partly understood. From the mid-1970s to the mid-1980s he upended the field by elevating the diffuse public interest, displacing creation and adjudication of private property interests as the field’s focus. However, his subsequent scholarship grappled with an even more important challenge that has been far less noted. Beginning in the late 1980s, Wilkinson explored how legal institutions should determine the pluralistic, public interest. In trailblazing articles and books, he rose to the challenge with site-specific details, compelling narratives, and aspirational themes. This work undermined the dominance …

The Polycentric Turn: A Case Study Of Kenya's Evolving Legal Regime For Irrigation Waters, Daniel H. Cole, Stefan Carpenter, Elizabeth Baldwin

Articles by Maurer Faculty

Formal legal systems comprise a major part, but not the only part, of the “rules of the game” that structure social and social-ecological interactions. Throughout the twentieth century, centralization and consolidation of legal authority were dominant themes among many, if not all, legal systems. That process may have been successful in some cases, but in others the presumed economies of scale from consolidation and centralization either did not materialize or were offset by other social costs, including the failure to accommodate local knowledge, expertise, and preferences. In what could become a theme of the twenty-first century, many countries, including developing …

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.

A New Chapter In Natural Resource-Seeking Investment: Using Shared Decisions System Design ("Sdsd") To Strengthen Investor-State And Community Relationships, Mariana Hernandez Crespo Gonstead

Cardozo Journal of Conflict Resolution

The time is here. The Latin American region cannot wait any longer; there is simply too much at stake: too many lives, too much potential, and, ultimately, too much waste. The discourse must change from focusing on Investor-State Dispute Settlement ("ISDS") at the international level to addressing the structural and systemic issues at the local level. This shift will strengthen the investor-State relationship and lead not only to the retention, but also the expansion of the Foreign Direct Investment ("FDI").

Paradoxes Of “Decarbonization”, David B. Spence

Brooklyn Law Review

Scholars and policymakers continue to debate the shape of a post-carbon world, and how fast the United States can “decarbonize” its energy sector. Recent trends—including the reduced costs of renewables, regulatory and market pressure on coal-fired power, and successful integration of large amounts of wind power into the grid—have fed optimism about the possibility of rapid and “deep” decarbonization. Unfortunately, however, encouraging ever-more substitution of renewables for fossil fuels creates unintended consequences—paradoxes—that stem in part from two sometimes unavoidable and under-appreciated truths. First, the three attributes we value in the electricity system—cost, reliability and environmental performance—are in tension with one …

Environmental Injustice And The Pursuit Of A Post-Carbon World: The Unintended Consequences Of The Clean Air Act As A Cautionary Tale For Solar Energy Development, Shannon Elizabeth Bell

Brooklyn Law Review

Most policy decisions aimed at improving the environment have been conceived and implemented without attention to issues of environmental justice, creating what sociologist Julian Agyeman calls an “equity deficit” in the discourse and practice of environmental sustainability. This article presents the unintended consequences of the Clean Air Act (CAA) and its amendments as a cautionary tale for what can happen when environmental regulations are enacted without adequately considering environmental justice concerns. Although the CAA has been responsible for much good in the United States as a whole—including significant reductions in acid rain and health-harming pollutants—it has also brought significant harm …

Life Cycle Analysis And Transportation Energy, Alexandra B. Klass, Andrew Heiring

Brooklyn Law Review

As government actors and the private sector attempt to decarbonize the economy, the role of life cycle analysis (also know as life cycle assessment or LCA) has become increasingly important. In this essay, we explore the use of life cycle analysis in the transportation sector to assess its influence in federal and state policy efforts to move to a low-carbon energy future. We first define life cycle analysis and explain its use in evaluating the environmental impacts of all stages of a product from production, to use, to disposal. We then review the use of life cycle analysis in considering …

Stranded Costs And Grid Decarbonizaiton, Emily Hammond, Jim Rossi

Brooklyn Law Review

Energy law is well equipped to facilitate the transition to a decarbonized grid. Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each transition for the energy system. The current transition to …

Legal Pathways To Deep Decarbonization: Lessons From California And Germany, John C. Dernbach

Brooklyn Law Review

In the December 2015 Paris Agreement, nations of the world agreed to reduce their net greenhouse gas emissions to zero by the second half of the century. For developed countries, accomplishing that goal requires a reduction of carbon dioxide emissions by more than 80% from 1990 levels by 2050. As ambitious and even unachievable as that goal may seem, some developed countries have already made considerable progress in conceptualizing and even adopting legal approaches for achieving decarbonization. This paper describes the approaches being taken in two major developed country jurisdictions—California and Germany—and suggest lessons from that experience that could be …

An Empirical Study Of The Impact Of The Renewable Fuel Standard (Rfs) On The Production Of Fuel Ethanol In The U.S., Jay P. Kesan, Hsiao-Shan Yang, Isabel F. Peres

Utah Law Review

The Renewable Fuel Standard (RFS) program, which mandates the commercialization of biofuels through 2022, is the United States’ most significant piece of legislation regarding renewable energy. It was first passed in 2005 and revised and expanded in 2007 in order to create a viable market for biofuels based on the policy goals of enhancing domestic U.S. energy security, reducing transportation-related greenhouse gas (GHG) emissions, and stimulating rural economic development.

The RFS requires minimum levels of consumption for different kinds of biofuels and requires increasing blending amounts of biofuels into gasoline and diesel fuels by producers and importers each year. Mandates …

Breaking Energy Path Dependencies, Amy L. Stein

Brooklyn Law Review

Of the many barriers to clean energy development discussed in the literature, the power of the status quo is not normally one of them. Yet beyond the need for more transmission lines, the need to decouple electricity sales from revenue, or the need to amend our environmental laws to more fully capture the externalities of energy, efforts to develop clean energy are faced with over a century of institutional “stickiness” associated with the legal and regulatory framework governing energy. This article explores how path dependency theories can inform the practical legal efforts to overcome such stickiness, identifying the troublesome approaches …

A Bird In The Hand: Shotguns, Deadly Oil Pits, Cute Kittens, And The Migratory Bird Treaty Act, Samuel J. Panarella

Faculty Law Review Articles

This Article is presented in three parts. Part I describes the modern application (and misapplication) of the MBTA and briefly sets out the history of the Act, including the widespread, indiscriminate killing of migratory birds for food and fashion in the 19th century that first spurred Congress to act. Building off this history and the clear Congressional intent behind the MBTA to criminalize industrial activities directed at killing birds, Part II sorts human-caused bird killing activities into three categories and proposes the appropriate MBTA liability treatment for each category based both on the original purpose of the Act and on …

Legal Challenges For "Leaving It In The Ground": Touchstone Development And Holdings, Steven Ferrey

Suffolk University Law School Faculty Works

Renewable technologies are proven as an alternative mechanism for power production and their costs are rapidly decreasing. This allows the U.S. deliberately to leave climate-changing fossil fuels in the ground. Utilities in several states are now attempting to extend the life of certain fossil-fuel generating assets and pull more fossil resources from the ground, often using federal ISO wholesale markets to try to cross-subsidize these older plants. However, law is not yet structured to accommodate a system where fossil fuel power generation remains in the ground as the nation switches to solar and wind power.

While able to store fossil …

Illicit Exploitation Of Natural Resources - Art. 28l Bis Of The Malabo Protocol, James G. Stewart, Daniëlla Dam

All Faculty Publications

Article 28A(1)(13) of the Protocol to the Statute of the African Court of Justice and Human Rights lists ‘Illicit exploitation of natural resources’ as a criminal offense within the Court’s jurisdiction. In conjunction with the new mandate of the African Court, which includes the exercise of jurisdiction over corporations for the first time in an international treaty, the prohibition of “illicit exploitation of natural resources” creates an offense with especially sharp teeth, for business people, their corporations, military actors and politicians. The crime constitutes an important innovation in international law, since it offers a distinct legal basis for prosecution of …

Presidents Lack The Authority To Abolish Or Diminish National Monuments, Mark Squillace, Eric Biber, Nicholas S. Bryner, Sean B. Hecht

Publications

By any measure, the Antiquities Act of 1906 has a remarkable legacy. Under the Act, 16 presidents have proclaimed 157 national monuments, protecting a diverse range of historic, archaeological, cultural, and geologic resources. Many of these monuments, including such iconic places as the Grand Canyon, Zion, Olympic, and Acadia, have been expanded and redesignated by Congress as national parks. While the designation of national monuments is often celebrated, it has on occasion sparked local opposition, and led to calls for a President to abolish or shrink a national monument that was proclaimed by a predecessor. This article examines the Antiquities …