Volume 39, Issue 1

ARTICLES

Taking Congress’s Words Seriously: Towards a Sound Construction of NEPA’s Long Overlooked Interpretation Mandate

Joel A. Mintz

This Article analyzes subsection 102(1) of the National Environmental Policy Act (NEPA) which directs that “to the fullest extent possible, the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter . . . .” After a discussion of the plain language and the (pithy) legislative history of this often overlooked yet nonetheless significant Congressional mandate, the Article examines the substantive policies that NEPA sets forth as a guidepost for regulatory and statutory interpretation and implementation. It also focuses on whom the subsection applies to and the likely meaning of the phrase “to the fullest extent possible.” Finally, drawing for illustration on a recently decided United States Supreme Court case, National Ass’n of Home Builders v. Defenders of Wildlife, the Article explores the rich potential of this portion of NEPA as a mechanism for illuminating and harmonizing the requirements of federal environmental statutes.

Rethinking Recycling

Jeffrey M. Gaba

The United States Environmental Protection Agency (EPA) has created a complex and somewhat incoherent set of requirements that apply the Resource Conservation and Recovery Act (RCRA) hazardous waste regulatory program to recycled materials. This Article evaluates EPA’s current regulatory requirements and suggests an alternative approach to regulating hazardous recycled materials under RCRA.

Property Pieces in Compensation Statutes: Law’s Eulogy for Oregon’s Measure 37

Keith H. Hirokawa

In this Article, Professor Hirokawa attributes the demise of Oregon’s Measure 37 to tension between the rights granted in compensation statutes and the systemic needs of property. Drawing upon the doctrine of capture, he argues that the Measure excused claimants from the duty to acquire a right in property uses. Looking to the correlative basis of property rights, he also argues that Measure 37 allowed claimants to piece apart property duties from property rights, effectively reallocating property expectations throughout the property system. This Article concludes that the damage caused by Measure 37 to property may have been too difficult for the legal system to bear.

Wind Power, Wildlife, and the Migratory Bird Treaty Act: A Way Forward

Meredith Blaydes Lilley and Jeremy Firestone

We begin this paper by discussing the rapid domestic growth of wind power and the implications for turbine-related avian and bat impacts, and then examine other anthropogenic sources of avian mortality. Next, we provide a broad overview of the U.S. wildlife laws most pertinent to the conservation of bats and migratory birds, before moving on to provide a detailed account of the legistlative history and judicial interpretation of liability for incidental take under the Migratory Bird Treaty Act (MBTA). We then broaden our view and consider the take of migratory birds by wind turbines in context—that is, we compare the effects of wind turbines on wildlife to the impacts caused by other means of electricity generation. Finally, we suggest a way forward.

Courts and the EPA Interpret NPDES General Permit Requirements for CAFOs

Terence J. Centner

To abate and control the emission of water pollutants from concentrated animal feeding operations (CAFOs), the United States Environmental Protection Agency adoped a federal CAFO rule. Several provisions of the Rule have been challenged, leading to judicial directives for agencies to do more in overseeing point-source pollution from CAFOs. Prior to issuing permits under the National Pollutant Discharge Elimination System program, permitting authorities need to meaningfully review nutrient management plans and discharge rates.

A Train Without Tracks: Rethinking the Place of Law and Goals in Environmental and Natural Resources Law

Annecoos Wiersema

This Article discusses and analyzes the response of environmental and natural resources lawyers to the work of ecosystem management and new governance writers and the institutional models that have arisen from that response. Exploring two case studies in detail, the Chesapeake Bay Program and the Ramsar Convention on Wetlands, the Article argues that the models as currently implemented are missing an important role for law that is necessary if we want to ensure more effective long-term environmental protection.

COMMENTS

Overly Restrictive Administrative Records and the Frustration of Judicial Review

James N. Saul

Recent agency efforts to unilaterally define the contents of administrative records through improper claims of priviledge only serve to hamper judicial review. But an increasing number of courts have rejected these efforts by requiring agencies to complete administrative records from which key documents are omitted, and by requiring agencies to justify claims of privilege and produce a privilege log of withheld documents.

Protecting Water Quality and Salmon in the Columbia Basin: The Case for State Certification of Federal Dams

Jane G. Steadman

Although many runs of Pacific salmon in the Northwest have been listed under the Endangered Species Act for decades, their population levels are still dangerously low. One of the reasons for their imperiled status is water quality impairment caused by federal dams on the mainstream Columbia and Snake Rivers. This Comment explores the novel theory that federal dams are subject to section 401 certification under the Clean Water Act because the incidental take statements (ITSs) under which they operate amount to a “Federal license or permit” within the meaning of section 401. The author asserts section 401 certification of federal dam operations by Pacific Northwest states could result in alterations to ITSs’ terms and conditions that would lead to improved water quality in the Columbia Basin, and thus increased salmon populations.

ERRATA

Errata

Volume 39, Issue 1

ARTICLES

United States v. Abrogar: Did the Third Circuit Miss the Boat?

David P. Kehoe

In United States v. Abrogar, the Third Circuit held that the sentencing enhancements under the U.S. Sentencing Guidelines for the discharge of a pollutant to the environment did not apply to a chief engineer of a foreign-flagged vessel who came into a U.S. port and presented a false document to the United States Coast Guard that covered up the fact that the vessel had dumped oily wastes into international waters in violation of the Act to Prevent Pollution from Ships (APPS). The court held that the Guideline enhancements did not apply to the false document charge under APPS, in part because the discharges occurred outside U.S. waters before the vessel came into port. This Article argues that the Third Circuit's reasoning was flawed, because, among other things, the discharges were an element of the offense for the APPS false document violation charged, and then goes on to explore alternative charging mechanisms and Guideline provisions available to authorize jail time in these cases.

Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations (Part I): Ecological Realism and the Need for a Paradigm Shift

Mary Christina Wood

Society’s industrial base has demolished natural systems and has pushed the planet to the brink of irrevocable climate heating. These new conditions of Nature present immense challenges for the law. Transformational legal change is inevitable, either because society will choose a sustainable path, or because the present legal institutions will collapse from economic and social disintegration following ecological chaos. This Article, Part I of a two-part work, points to the stunning failure of modern environmental law, which authorizes agencies to issue permits and take actions that destroy the environment. It argues that only an encompassing vision of sovereign obligation carries hope of turning governmental conduct away from disastrous outcomes. The Article draws upon the venerable public trust doctrine to present a fundamental paradigm shift in natural resources and environmental law, advancing the ancient doctrine into today’s world through a framework called Nature’s Trust.

Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations (Part II): Instilling a Fiduciary Obligation in Governance

Mary Christina Wood

This Article, Part II of the work, presents the Nature’s Trust framework as it relates to the modern regime of statutory and administrative law. It draws upon the essential doctrinal purposes underlying the public trust doctrine to extend government’s fiduciary duty of protection in holistic manner to all natural assets, including air, forests, and soils. The Article maps out the trust obligation as an interstitial duty that finds expression through the statutory procedural edifice, and discusses the role of judicial enforcement. It considers the impact of a Nature’s Trust approach on private property rights and concludes with a discussion of specific initiatives to infuse the public trust into governmental institutions.

Borders and the Environment

Andrew P. Morriss & Roger E. Meiners

Environmental policy is usually national policy. This Article argues that focusing on the environment within a single country is problematic because it can produce high-marginal-cost, low-marginal-benefit domestic measures while low-marginal-cost, high-marginal-benefit measures are ignored. Applying the principles of marginal analysis from economics, this Article demonstrates that current domestic policy methodology produces less total environmental quality and treats residents of rich and poor countries differently in a morally unacceptable way.

Counting Every Drop: Measuring Surface and Ground Water in Washington and the West

Stephanie Lindsay

Western states, notoriously plagued by water shortages, have traditionally resisted adopting laws requiring measurement of water diversions. Washington, however, statutorily adopted a measurement plan which has helped manage the state’s water and alleviate water shortages. If other western states followed suit, the West could better manage its scarce water resources and would have an effective mechanism for coping with water shortages in a climate-changing world.

COMMENTS

Warm is the New Cold: Global Warming, Oil, UNCLOS Article 76, and How an Arctic Treaty Might Stop a New Cold War

Brent Carpenter

Several countries have claimed sovereignty over the seabed of the Arctic Ocean under Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS) and at least two of these claims could succeed. Sovereignty would allow those countries to develop the region’s considerable oil and gas reserves, which would have adverse affects on the Arctic. This Comment argues that the existing nonbinding agreements are insufficient to protect the fragile region and that the Arctic deserves a hard law treaty similar to the treaty that protects Antarctica.

Lessons from the Montreal Protocol: Guidance for the Next International Climate Change Agreement

Bryan A. Green

With its effective application of international environmental legal principles, the Montreal Protocol has been remarkably successful in addressing stratospheric ozone depletion. The Kyoto Protocol, on the other hand, utilized altered interpretations of those principles in its ineffective response to climate change. A return to the lessons from the Montreal Protocol can drive the formulation of a more effective international response to climate change.

ERRATA

Errata