Water Law Commons^™

Pacific Salmon Law And The Environment: Treaties, Endangered Species, Dam Removal, Climate Change, And Beyond (Tables And Preface), Michael Blumm

Books & Contributions to Books

The law and policy of salmon protection and restoration are complex, and matters surrounding salmon implicate topics as varied as Indian treaty fishing rights, dam management and removal, international treaties, predator con­trol, and climate change. Pacific Salmon Law and the Environment chronicles the diverse issues concerning salmon allocation, management, and restoration in the 21st century, providing the historical understanding necessary for an accurate perspective of the present-day problems salmon face. The book is a must-read for ecologists, biologists, attorneys, educators, activists, students, and others concerned about the fate of salmon in the Pacific Northwest in the climate-challenged 21st century. More …

Sacrificing The Salmon: A Legal History Of The Decline Of Columbia Basin Salmon (Full Text Part 2 Of 2), Michael Blumm

Books & Contributions to Books

Salmon remain the cultural and economic soul of the Pacific Northwest, a species whose very life cycle largely defines the region. At the center of the salmon region lies the Columbia River, which once supported the world's largest salmon runs and which now is home to the world's largest interconnected hydroelectric system. These massive federal and non-federal dams have devastated Columbia Basin salmon runs, some of which are now extinct, others are on life-support.

This book tells the story of the decline of the Columbia Basin salmon in the 20th century. But it begins earlier, with the signing of mid-19th …

Regulation Of Polyfluoroalkyl Chemicals In New York, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are two polyfluoroalkyl chemicals (PFAS) – a class of over 7,000 compounds with unique chemical structures that repel lipids and water. As a result, PFOA and PFOS have been used in numerous household products, such as nonstick cookware and stain-resistant carpets, and commercial applications such as firefighting foam. PFOS and PFOA are frequently referred to as “emerging contaminants,” a label with no precise regulatory definition but generally understood to refer to chemicals for which there are few published standards designed to protect human health and the environment from perceived hazards. Many PFAS compounds …

Land, Legacy, And Law: Amending Cercla To Account For Environmental Contamination Of Tribal Cultural Resources, Alexander Toke

Cardozo Journal of Equal Rights & Social Justice

The note advocates for amending the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to enable Native American Tribes to recover damages for injuries to cultural resources. It argues that Tribal lands are disproportionately affected by environmental contamination and that current legal frameworks fail to address the unique cultural and spiritual significance of these resources.

Comparing Experiences Of Constitutional Reforms To Enshrine The Right To Water In Brazil, Colombia, And Peru: Opportunities And Limitations, Lara Côrtes, Camila Gianella, Angela M. Páez, Catalina Vallejo Piedrahíta

Public Administration Faculty Research

In this paper we compare recent efforts towards the constitutionalization of the right to water in Brazil, Colombia, and Peru to understand the opportunities and limitations related to the attempts to enhance access to piped water to the highest normative level. Peru passed a constitutional amendment in 2017 while Brazil and Colombia have seen much right-to-water activism but have not succeeded in passing such reforms. We explore the role of the existing domestic legal frameworks on drinkable water provision and water management towards the approval of constitutional amendments. We find that all three countries have specialized laws, water governing institutions, …

Ute Indian Tribe Of The Uintah & Ouray Reservation V. U.S. Dep't Of Interior, Valan Anthos

Public Land & Resources Law Review

The Ute Indian Tribe of the Uintah & Ouray Reservation brought 16 claims against federal agencies and the State of Utah for alleged mismanagement of water resources held in trust and for alleged discrimination in water allocation. The United States District Court for the District of Columbia dismissed several of the claims as time-barred and others as lacking a proper statutory basis to create an enforceable trust duty. The remaining claims were transferred to the United States District Court of the District of Utah because the events occurred in Utah and most of the parties reside there.

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 …

Free Justice: A History Of The Public Defender In Twentieth-Century America, Kate Levine

Articles

Levine reviews Free justice: A history of the public defender in twentieth-century America. By Sara Mayeux. Chapel Hill, NC: University of North Carolina Press, 2020. 286 pp. $26.95 paperback.

Bahr V. Regan, Aspen B. Ward

Public Land & Resources Law Review

In June 2015, the Lake Fire burned through California’s San Bernardino National Forest. Three hundred miles east of the fire, six air quality monitors exceeded NAAQS in Phoenix, Arizona. Arizona’s Department of Environmental Quality petitioned the EPA to exclude those exceedances to avoid stricter regulatory burdens and the need for contingency measures. Applying the Exceptional Events Rule, the EPA permitted the petition to exclude the data therefore allowing Phoenix to successfully demonstrate attainment of the ozone NAAQS by the July 2018 deadline. Petitioners sought review of the EPA’s final decision and were denied their petition for review by the Ninth …

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.

Held V. State, Alec D. Skuntz

Public Land & Resources Law Review

On March 13, 2020, a group of 16 Montana children and teenagers filed a complaint in the First Judicial District, Lewis and Clark County against the State of Montana and several state agencies. These young Plaintiffs sought injunctive and declaratory relief against Defendants for their complicity in continuing to extract and release harmful amounts of greenhouse gases which contribute to climate change. Plaintiffs premised their argument on the Montana Constitution’s robust environmental rights and protections. The Defendants filed a motion to dismiss which the District Court granted in-part and denied in-part. Held provides a roadmap for future litigation by elucidating …

Turtles All The Way Down: A Clearer Understanding Of The Scope Of Waters Of The United States Based On The U.S. Supreme Court Decisions, Jesse J. Richardson Jr., Tiffany Dowell Lashmet, Gatlin Squires

William & Mary Environmental Law and Policy Review

The meaning of “waters of the United States” under the Clean Water Act (“CWA”) has been debated in Congress, federal agencies, and courtrooms across the country for almost fifty years. Despite the longstanding attention to the term, most consider the term even more unclear today than in 1972 when the CWA was adopted. However, a methodical examination of the statutory and regulatory history and the U.S. Supreme Court decisions on the issue reveal more consensus than previously understood. In addition, this focused examination shows that the debate centers on one problem that the arguments rarely acknowledge: wetlands adjacent to a …

Environmental Rights For The 21st Century: A Comprehensive Analysis Of The Public Trust Doctrine And Rights Of Nature Movement, Erin Ryan, Holly Parker Curry, Hayes Rule

Cardozo Law Review

This Article contrasts two theoretically distinct approaches to pursuing related objectives of environmental protection: the public trust doctrine and the rights of nature movement. It reviews the development of public trust and rights of nature principles in both domestic and international legal contexts, and explores points of theoretical commonality and contrast between the two, giving special attention to the opposing systems of environmental ethics from which the anthropocentric public trust and ecocentric rights of nature principles arise. The marked jurisdictional variation associated with both approaches suggests their evolving and inchoate nature as a guarantor of environmental rights. Moreover, both are …

Park County Environmental Council V. Montana Department Of Environmental Quality, 477 P.3d 288 (Mont. 2020), Holly Seymour

Public Land & Resources Law Review

The Montana Supreme Court held in 2020 that loopholes in the Montana Environmental Procedure Act ("MEPA") review process violate Montana's constitutional right to a clean and healthful environment. The holding sets a strong precedent requiring statutory protections to prevent harm to the environment before it occurs.

The Public Trust Doctrine And The Climate Crisis: Panacea Or Platitude?, Joseph Regalia

Michigan Journal of Environmental & Administrative Law

Over a year of shutting down the global economy during the COVID pandemic achieved about .01 degrees of improvement in global warming. Not even a drop in the bucket. We continue to face a monumental climate crisis. And of the many ways that crisis threatens our environment, winnowing water resources is one of the scariest. One solution that many scholars have turned to is the public trust doctrine. At first blush, this doctrine sounds like a panacea for water management problems: When our water resources are threatened enough that current and future citizen’s access to it is in peril, the …

Identifying Barriers In Usda Programs And Services; Advancing Racial Justice And Equity And Support For Underserved Communities At Usda, Anne Castle, Heather Tanana, Bidtah Becker, Chelsea Colwyn, Jaime Garcia, Ana Olaya

Utah Law Faculty Scholarship

On July 19, 2021, the U.S. Department of Agriculture (USDA) published a notice in the Federal Register seeking input from the public on how USDA can advance racial justice and equity for underserved communities as part of its implementation of Executive Order 13985. This letter responds to the agency’s request. The United States Department of Agriculture (USDA) provides a number of programs that could improve access to clean drinking water for Tribes. While these programs have improved conditions for some tribes, several barriers exist which prevent Tribes from fully realizing the benefits of these programs. Our comments recommend: (1) removing …

Vecinos Para El Bienestar De La Comunidad Costera V. Ferc, Malcolm M. Gilbert

Public Land & Resources Law Review

The D.C. Circuit Court remanded three Brownsville, TX LNG approval orders to FERC for failing to adequately explain conclusions around environmental justice and climate concerns. The Court ordered FERC to reevaluate whether the projects are in the public interest. The LNG terminals and pipeline will disproportionately impact low-income, minority communities, and substantial greenhouse gas emissions from production and export will contribute to anthropogenic climate change. This case note explores the role that environmental justice and climate change play in federal agency decision-making processes, analyzes the legal framework for the Court's decision, and discusses how the outcome of this litigation could …

The Role Of International Law In The Food–Energy–Water Nexus, Waseem Ahmad Qureshi

Buffalo Environmental Law Journal

The current relationship of water, food, and energy is deeply entangled as it functions within different sectors, such as industry and agriculture, the latter of which water is essential for irrigating crops. Similarly, adequate water storage facilities are also required for hydroelectricity generation. Moreover, in many regions, electrical energy is used to operate tube wells for extracting groundwater to irrigate crops for food. Within the intricate nature of the mutual relationship of water, energy, and food, each plays its role in ensuring the security of the others. For instance, both energy security and food security are dependent upon water security, …

Free, Prior, And Informed Consent: A Struggling International Principle, Emily M. Mcculloch

Public Land & Resources Law Review

No abstract provided.

Localizing Energy Independence: How Purpa And Community Power Legislation Can Drive Development Of Resilient And Reliable Local Clean Energy Projects, Lowell J. Chandler

Public Land & Resources Law Review

No abstract provided.

Science Under Assault - Reflections On "The War On The Epa: America's Endangered Environmental Protections", Sara A. Colangelo

Public Land & Resources Law Review

No abstract provided.

Bridges To A New Era: A Report On The Past, Present, And Potential Future Of Tribal Co-Managment On Federal Public Lands, Monte Mills, Martin Nie

Public Land & Resources Law Review

No abstract provided.

The Public Trust Doctrine Fifty Years After Sax And Some Thoughts On Its Future, Michael C. Blumm, Zachary A. Schwartz

Public Land & Resources Law Review

No abstract provided.

Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely

Washington Law Review

Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and …

Climate Change, Competition & Conflict Along The River Nile: The Great Ethiopian Renaissance Dam & Shifting Customary International Water Law, Salma Shitia

Fordham Environmental Law Review

Decade-long negotiations between the Arab Republic of Egypt and the Federal Democratic Republic of Ethiopia surround the decision to build the hydroelectric power plant along the River Nile. For much of Ethiopia, the Grand Ethiopian Renaissance Dam represents a beacon of prosperity. For countless Egyptians, the structure embodies a potential catastrophe. Grounded in threats of displacement for Egyptian agricultural communities, some have compared the Grand Ethiopian Renaissance Dam crisis to disasters culminating in mass migration.

This battle for natural resource access has intensified as climate change exacerbates the region’s dire conditions. Specifically, exhaustible resource allocation amid climate change indicates that …

A Paper Tiger? Prosecutorial Regulators In China’S Civil Environmental Public Interest Litigations, Chunyan Ding, Huina Xiao

Fordham Environmental Law Review

In July 2015, China’s national legislature brought in prosecutor-led civil environmental public interest litigation (“EPIL”) for thirteen selected provincial areas of the country. After a two-year legal experiment, this prosecutor-led civil EPIL system was then established nationwide in July 2017. Yet, can it be said that prosecutorial regulators in China are in fact a paper tiger? Drawing upon content analysis of the 655 prosecutor-led civil EPILs and in-depth interviews with twelve frontline prosecutors and judges, this article examines the dynamics of regulatory practice and the motivation of the Chinese prosecutorial organs to engage in environmental regulation through litigation. Based upon …

The Yoga Analogy: Scaling-Up The U.S.’S Renewable Energy Sector Mindfully With New Technologies, Evolving Standards, Public Buy-In, Data Sharing, And Innovation Clusters, Kimberly E. Diamond

Fordham Environmental Law Review

This paper focuses on innovative renewable energy devices, exploring how scientifically-based industry standards that continuously evolve with engineering design technology, the public’s buy-in and feeling of connectedness with groundbreaking devices, and innovation clusters that accelerate device development through data sharing and public-private partnerships can all help advance the U.S.’s domestic renewable energy industry.

Part I analyzes challenges inherent to scaling- up novel renewable energy technologies while simultaneously developing the industry standards regulating them. Part II uses the Block Island Wind Farm, an offshore wind demonstration project, and Pavegen’s globally-deployed arrays of piezoelectric smart flooring tiles as examples illustrating the importance …

Environmental Racism: Using Environmental Planning To Lift People Out Of Poverty, And Re-Shape The Effects Of Climate Change & Pollution In Communities Of Color,, William C.C. Kemp-Neal

Fordham Environmental Law Review

In the mid-1900s the United States began to see a rise in concern for environmental awareness issues. In the early days the movement focused on things like clean air, water and pollution but by the 1970s-1990s many prominent environmental awareness groups began to form focused on the idea that in order to avert climate change the principal goal needed to be to reduce global greenhouse gas emissions. In 1987 a report was released called Toxic Waste and Race, which outlined an intimate link between the placement of environmental hazardous waste sites in communities of color, and greater instances of polluted …

Beyond Equity: Shared Natural Resources And Human Rights, Criminal Law, And The Use Of Force, Eian Katz

Fordham Environmental Law Review

Transboundary resource disputes are often analyzed by reference to two nebulous and conflicting principles that have emerged in international environmental law: “equitable and reasonable utilization” and “no significant harm.” Frequently overlooked in this context is the potential value of other canons of international law—especially human rights law, criminal law, and the rules governing the use of force—in adding definition to the muddled contours of these foundational precepts. This Article therefore undertakes an assessment of sovereign rights and obligations regarding shared natural resources which arise from these other bodies of law. In doing so, it offers new lenses through which to …