Environmental Law Commons^™

Ransoming The Maine Environment, G. Graham Waite

Maine Law Review

The call for natural resource conservation is widely heard today. Purity of air and water are goals that most persons seem to endorse, at least in the abstract. The dollar costs of governmental programs for achieving relatively clean air and water doubtless are high, making questions of who bears them important. Some recent decisions of the Maine Supreme Judicial Court suggest that in Maine the major costs will be paid by taxpayers at large rather than by individual resource users.

A State Approach To Effluent Charge, Orlando E. Delogu

Maine Law Review

Although the concept of effluent charge as a means of dealing with water pollution has been widely discussed in this country for more than a decade and widely used with documented success in parts of Europe for over fifty years, there is a surprising lack of specific material on methods of implementation. We are, after all, a complex society with overlaying levels of government and close working relationships between the public and private sectors of the economy. Furthermore, the statutory, constitutional, and institutional framework of the federal government and that of each state government are different in varying degree from …

Maine's Coastal Conveyance Of Oil Act: Jurisdictional Consideration, Maine Law Review

Maine Law Review

Maine's Coastal Conveyance of Oil Act is the most comprehensive oil discharge control law in the United States. Such broad regulatory legislation inevitably raises questions of constitutionality and, as expected, the oil industry has brought a challenge to the Maine statute. In American Oil Co. et al. v. Environmental Improvement Commission, a declaratory judgment action, the Maine act has been alleged to violate the commerce, due process, equal protection and admiralty clauses of the United States Constitution. Although each allegation of constitutional conflict raises substantial problems, the most troublesome attack is that based upon the admiralty clause. Here the basic …

Federal Evaluation Of Riparian Property: Section 111 Of The Rivers And Harbors Act Of 1970, Ronald C. Allen

Maine Law Review

Certain of our citizenry persist in their belief that the water resources of this nation are essentially a free good which necessitates very little, if any, governmental interference in the development or beneficial exploitation of these resources. Theirs is obviously a dream world which dangerously ignores evidence from much of our history as well as the obvious conditions of the present. The nation is confronted with too many people, and the promise of many more, making too many demands upon our existing and foreseeable supply of water to allow the perpetuation of a myth of rugged individualism. This attitude has …

A National Environmental Policy: Now You See It, Now You Don't, Edward S. Muskie, Eliot R. Cutler

Maine Law Review

The National Environmental Policy Act was born with a fanfare of rhetoric. Suddenly sensitive to the urgency of the environmental crisis, Congress passed the bill quickly, and President Nixon seized the opportunity to sign it on the first day of the new decade. During its early years, NEPA was hailed by environmental activists as nothing short of a panacea; the environmentalists were nearly unanimous in singing its praises. At the same time, industrialists warned that NEPA's provisions could stop growth and progress in their tracks. But in recent months the battle lines have begun to shift. When the subject of …

A National Environmental Policy: Now You See It, Now You Don't, Edward S. Muskie, Eliot R. Cutler

Maine Law Review

The National Environmental Policy Act was born with a fanfare of rhetoric. Suddenly sensitive to the urgency of the environmental crisis, Congress passed the bill quickly, and President Nixon seized the opportunity to sign it on the first day of the new decade. During its early years, NEPA was hailed by environmental activists as nothing short of a panacea; the environmentalists were nearly unanimous in singing its praises. At the same time, industrialists warned that NEPA's provisions could stop growth and progress in their tracks. But in recent months the battle lines have begun to shift. When the subject of …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

The New Reliability Override, Benjamin Rolsma

Connecticut Law Review

Section 202(c) of the Federal Power Act grants the Secretary of Energy a sweeping authority to exempt electric generation and transmission facilities from any federal, state, or local environmental laws. When Congress first adopted § 202(c) in 1935, it designed the provision as an emergency power that federal regulators could use to force fractious utilities to work together to preserve electricity reliability in times of war or natural disaster. But in the last decade things changed.

This Article, drawing on a novel catalog of all § 202(c) emergencies from the provision’s nearly ninety-year history, is the first to comprehensively describe …

Regulation Of Sargassum Removal And Sinking In Florida, Ashwin Murthy, Korey Silverman-Roati, Romany M. Webb

Sabin Center for Climate Change Law

Carbon dioxide removal is increasingly recognized as a necessary component of global climate mitigation efforts. One emerging method involves the deep-sea sinking of plant biomass to sequester carbon. Sargassum, a free-floating brown seaweed, has been identified as a promising candidate for this approach due to its natural buoyancy and decomposition process, which enables it to sink and potentially store carbon in the deep ocean. With sargassum blooms growing dramatically in the Atlantic since 2011 — posing ecological, economic, and public health risks when they wash ashore — there is growing interest in offshore removal and sinking as a climate solution. …