Latest Articles

Sewing Up the Regulatory Hole: Preventing Winter Ozone in Utah's Uintah Basin

Jessica Lowrey

In 2011, Ozone levels in Utah’s Uintah Basin were observed at 185% of the levels the EPA considers safe for human health. Scientists, land managers, and the oil and gas industry are beginning to realize that the ozone problem is caused in part by extensive mineral development in the region. This article examines why four federal statutes and two federal agencies have not been able to solve the problem. Currently, EPA’s air quality regulation under the Clean Air Act and the BLM’s management of mineral development are not in sync, leaving a big hole in ozone regulation for natural gas development. But EPA and BLM are employing three new policies and regulations to sew up the regulatory hole: new regulations for capturing emissions from "fracking," additional monitoring and mitigation of air quality impacts, and more cooperation among the agencies. This article evaluates the new policies and concludes with recommendations on additional steps that must be taken to ensure basin-wide decreases in ozone levels.

Wasting Away: America's Dysfunctional System of Low-Level Radioactive Waste Disposal

Jacob Berman

Not all radioactive waste is green, glowing, and immediately lethal. In fact, the vast majority of radioactive waste is mostly harmless, at least when compared to other forms of hazardous waste, but the law doesn't feel the same way. Since the beginning of the Atomic Age, less dangerous forms of radioactive waste have been disposed of through a highly specialized framework that has now broken down.

This paper argues that large-scale reform in the low-level radioactive waste disposal system is necessary to adequately handle the volume of waste expected from further nuclear decommissioning. Between 1947 and 1980, low-level radioactive waste disposal was the sole responsibility of the federal government. The Low Level Radioactive Waste Policy Act of 1980 upended this system, devolving responsibility for civilian low-level radioactive waste disposal to the states. Devolution has been a disaster.

For the last thirty years, state governments have been beset by Not In My Back Yard syndrome, as project after project designed to handle additional low-level radioactive waste has been halted by local opposition, leaving the system vulnerable to meddling by state regulators eager to exclude out-of-state waste. This paper discusses the history of the country’s system to manage low-level radioactive waste, how it gradually became dysfunctional, and what reforms are necessary to fix it. This paper proposes two solutions. First, the Nuclear Regulatory Commission should change its rules to permit the least dangerous forms of low-level radioactive waste to be disposed of in hazardous waste landfills instead, leaving more capacity free for waste in existing disposal facilities. Second, Congress should revoke the Low Level Radioactive Waste Policy Act and return regulatory responsibility to the federal government.

Public Participation in Brownfield Redevelopment: A Framework for Community Empowerment in Zoning Practices

Jenny J. Tang

This paper discusses the importance of brownfield redevelopment in the context of the environmental justice movement. It emphasizes that the goals of environmental justice advocates and attorneys should include promoting the interests of the community in order to achieve environmental and procedural equity. This paper argues that the only way to adequately promote these goals is to allow for maximum public participation, which would include community empowerment practices and an eye towards the problems inherent in public participation. Because brownfield remediation provisions and programs rarely provide for adequate public participation, zoning practices can be employed as a vehicle for community participation. Traditional land-use law speaks to environmental justice issues, and it also provides the community with other avenues for involvement in brownfield redevelopment. This paper’s moderate framework for fostering adequate public participation should still be applied to zoning practices, by environmental justice advocates and attorneys alike.

Adopting the Principle of Equitable Relief in Clean Water Act Challenges

Archita Taylor

Citizen groups have historically had a huge impact in affecting legislation and pushing for just interpretations of the law. They have been key players in the realm of environmental law, and they will continue to play an important role as we move forward into an uncertain future with scarce resources and greater threats posed to our environment.

Specifically, citizen groups have played a critical role in bringing challenges against various entities, including corporations and private businesses, under the Clean Water Act (CWA). In 1987, Congress amended the original legislation, adding a section limiting citizen actions against violators when an administrative enforcement action by the government has already commenced and is being diligently prosecuted. The question remains whether this civil penalty bar includes a ban on equitable relief for claims brought under the CWA. Equitable relief should not be included in the civil penalty bar because equitable relief is a cornerstone of citizen suit claims; without it, citizen suits would be rendered much less effective. Further, given the current precarious condition of environmental enforcement, a Supreme Court decision resolving the circuit court split on this issue would not only keep intact the strength of citizen suits, but would also signal to the environmental community and the country at large, the Court’s commitment to environmental protection.

Protecting Alaska's Coastal Ecosystems: The Story of the Cook Inlet Belugas

Rosemary Boelens

The state of Alaska has one of the most expansive and resource rich coastlines in the United States. It is home to the State’s most productive industries and three-fourths of the State’s population. Consequently, it is of vital importance to protect these areas and manage resource development responsibly.

Alaska’s coast is now unique in another way: it is the only state coastline not managed under the Federal Coastal Zone Management Act (CZMA). The CZMA was passed to provide comprehensive management of the nation’s coastal resources and to balance “economic development with environmental conservation.” This program called for state and federal cooperation, integrated planning, and cooperative development for all projects affecting the coastal zone.   When Alaska opted into the program it established the Alaska Coastal Management Plan (ACMP), which gave Alaska a voice in protecting the coastal zone’s communities, natural resources, and uniquely pristine ecosystems.

Unfortunately, Alaska did not renew its participation in the CZMA, and the coastal management plan was lost on July 1, 2011. This article, centered around the Cook Inlet Belugas, examines what was lost with the sunset of this program and what Alaska can do to effectively manage its coastal resources in the future.

Ecological Integrity in Protected Areas: Two Interpretations

Gordon Steinhoff

Federal environmental legislation and policy in the United States require that managers seek to maintain natural conditions or “naturalness” within national parks, wilderness, and other protected areas. In the recently published book, Beyond Naturalness, leading management experts strongly recommend changes in protected area law and policy to allow alternative goals. One goal recommended by these experts for many management situations is maintaining ecological integrity.

“Ecological integrity” has no uniformly accepted meaning, however. The expression has been interpreted in two different ways. In one interpretation, accepted by many biologists, an ecosystem has ecological integrity if it is either pristine, existing entirely free of human influence, or it has been only minimally influenced by humans. An ecosystem with ecological integrity may be used as a standard in assessing the degree of degradation of other ecosystems caused by human activities. In the second interpretation, accepted by authors of Beyond Naturalness, humans are considered an essential part of nature. An ecosystem is thought to have ecological integrity if it satisfies preferences within society concerning how that ecosystem should be structured and function. The focus here is on desired attributes.

In this article I argue that ecological integrity, understood in this second way, is at odds with the fundamental goal in protected areas of preserving native biodiversity. But the second interpretation has merit. I explore how the two interpretations properly fit together in the management of protected areas.

Abrogate the Acquiescence: Why Congress Should Take On the President Over the Keystone XL Pipeline

Jackson S. Kernpipeline01_resize

In the realm of large-scale infrastructure projects that span the international boundaries of the United States, the law presently fails to openly designate a body of government that bears the approval power. In the absence of definitive legislation in the area, the current executive exercise of this power at the presidential level likely falls within the bounds of constitutional permissibiliy that are established in congressional acquiesence.

However, even where Congress has previously acquiesced in the power of the President, it remains free to abrogate that earlier acquiesence. Congress is vested with the power to "regulate Commerce with foreign nations," and this clause of the Constitution grants to Congress a free hand in the area of cross-border infrastructure permitting.

Congress therefore maintains the unimpeachable power to dictate change by legislation, and indeed it should do so in order to establish a more consistent and transparent approval regime and to ensure adequate environmental review.

This article discusses how the current executive exercise of the approval power and the desirability of legislative intervention are evident in the ongoing case of the proposed Keystone XL pipeline.

We Want Our Lives Back Too: Expanding Absolute Liability to Include a Recovery for the Victims of Ecological Catastrophes

Prentice L. White

No one could have anticipated that the worst ecological disaster in history would take place near Louisiana’s coastline. The morning of April 20, 2010, started like any other spring day, but less than ten hours after the sun rose that morning there would be an explosion that would kill 11 oil workers. The first from the explosion would be seen from outer space and millions of gallons of crude oil would spew into the crystal blue waters of the Gulf of Mexico. Like many other Louisiana residents, this Author stared at the news reports and other media coverage about this disaster. But just as shocking as the oil spill was the economic turmoil that was slowly crept onto our shorelines with the crude oil. Louisiana residents were losing their businesses and their livelihoods. Many of them had sunk into unimaginable depression. The State of Louisiana was ill-equipped to handle the large number of residents suffering from depression coming from lost businesses that took generations to develop. Teenagers were dropping out of school to provide financial support for their parents. Husbands were committing suicide because they could no longer provide for their families. Their dignity and self-worth were shattered and they found it difficult to explain to their families that there was no hope for their survival. To add insult to injury, the Chief Executive Officer for BP, Tony Hayward, told news reporters that “I just want my life back,” when he was questioned about the public’s disapproval of BP’s reaction to the spill. Hayward’s comment not only resulted in his termination, but it also became the catalyst by which this Author began reviewing Louisiana’s absolute liability statute for answers. Because oil drilling is a hybrid of the two activities generally associated with absolute liability (i.e., blasting with explosives and pile driving), this Author proposes that an amendment to the statute is warranted and could provide future relief to our residents who may, unfortunately, find themselves to be victims of ecological disasters in the future.

Mitigation of Impacts from Large-Scale Hardrock Mining in Bristol Bay Watersheds

Thomas G. Yocom and Rebecca L. Bernard

The potential impacts of large-scale hardrock mining projects, such as the proposed Pebble Mine, to the world-class fisheries of Alaska’s Bristol Bay are the subject of considerable controversy. The U.S. Environmental Protection Agency (EPA) has evaluated these potential impacts in its 2012 draft Bristol Bay Watershed Assessment (BBWA). The draft BBWA, however, did not examine whether there are practicable compensatory mitigation measures that could adequately offset the impacts of such a mining project to streams, open-water habitats, and adjacent wetlands, as would be required to satisfy permitting requirements under Section 404 of the Clean Water Act (CWA). This article examines that question, evaluating how the compensatory mitigation rules adopted by the EPA and the U.S. Army Corps of Engineers (Corps) in 2008 would apply during the Section 404 permitting process for a large-scale mining project within the Bristol Bay region -- specifically the Pebble Mine, a massive gold and copper mine proposed for development in the sensitive headwaters of two of the region’s most productive salmon streams.

This article focuses exclusively on compensatory mitigation for impacts to wetland and aquatic sites, and we conclude that the loss of such habitats resulting from mine development and operation could not be offset sufficiently to qualify for a Section 404 permit. The wetland and aquatic habitats in the Bristol Bay watersheds are generally pristine. There are no approved mitigation banks that serve the areas where hardrock mining is likely, and there are no in-lieu fee sponsors with projects in these areas that could adequately offset mining impacts. The thousands of acres of wetland and aquatic impacts that would need to be offset, moreover, would overwhelm whatever credits such mitigation vehicles might provide. There may be some limited opportunities for permittee-responsible mitigation through restoration of degraded areas associated with past mining, and some similarly limited opportunities to improve fish passage around or through man-made obstructions, but these options would satisfy only a small fraction of the mitigation burden and would likely entail perpetual maintenance that would make them undesirable to project sponsors and agencies alike.

On the Fence: Sustaining National Security and Defending Environmental Laws at the U.S.-Mexico Border

Vanessa Jimenez

For decades, politicians, pundits, and citizens have debated the most effective and efficient way to secure the United States border from unauthorized crossings.  In particular, commentators continually question the effectiveness and value of the U.S. Border Patrol’s operations along the southern United States border.  More commonly, lawmakers are targeting restrictive endeavors at the locus of illegal immigration: the United States-Mexico border region.  In its efforts to curb illegal immigration the government is not only impacting potential immigrants, it is also directly affecting the environment by implementing border security tactics and building more infrastructure, while waiving environmental laws and shirking international responsibility.

 The reality is that lawmakers are focusing far too much on drafting new legislation to expand the discretion of the Department of Homeland Security as an effort to fix the problem when the crux of the dilemma exists internally, the gaps in communication and organization between the agencies that interoperate in the border region.  Recent Government Accountability Office reports point to the division in communication between the agencies that operate along the border and how the communication and operation system currently in place leads to ineffective use of resources and, in some regions, causes a rift in border security’s ability to immediately respond to dangers at the border.  Increased interagency infrastructure could mend most of the divisions that border patrol faces in relation to protected lands, without the necessity for an overbroad Department of Homeland Security waiver authority.

The Prosecutor's Vulture: Inconsistent MBTA Prosecution, its Clash with Wind Farms, and How to Fix it

Scott W. Brunner

U.S. wind-farm development has exploded in the last two decades.  But so have birds—literally.  Wind farms are incidentally causing deaths to migratory birds and at an increasing rate each year (the most recent USFWS estimates suggest over 400,000 annually).  As a result, the Migratory Bird Treaty Act (MBTA), a nearly 100-year-old U.S. environmental statute, potentially makes wind-farm operators white collar criminals even if they were acting without intent.

 Controversially, wind-farm operators are not being prosecuted for bird deaths, whereas other industry-types incidentally causing bird deaths have been prosecuted under the MBTA and even convicted on certain occasions.  Notable is the 2012 case United States v. Brigham Oil & Gas, where seven oil companies were federally prosecuted for causing a combined twenty-seven bird deaths.  These seven companies survived prosecution in North Dakota federal court; however, in light of Brigham Oil and similar cases, the lack of wind-farm prosecution certainly begs the question: Why should some industry-types face prosecution for incidentally killing birds while another industry-type gets a free pass? And regardless of that answer, why are wind-farms being allowed to develop and prosper despite posing increasingly grave threats to U.S. Wildlife?

 This Article analyzes the lack of wind-farm prosecution, addresses the upheaval surrounding it, and argues that the century-old MBTA is due for an update.  Alternatively, this Article puts forth that prosecutors’ approaches to MBTA prosecution are in dire need of rethinking: guidance pushing usage of prosecutorial agreements—with DPAs and NPAs—may be a temporary solution.  Ultimately, the MBTA represents an unforeseen clash between clean energy and wildlife conservation.  Past scholarship has focused on how the MBTA’s text encompasses wind-farm operators; this Article builds on that by identifying the most appropriate solutions to this conundrum.  Reworked statutory language that invokes an incidental-take exception for all industry-types could set the MBTA back to its wildlife-conservation purpose while also ensuring fairer prosecutorial practices and keeping otherwise-innocent wind-farm operators from becoming white collar criminals.

Upcoming Articles

Square Pegs in Round Holes: The Misapplication of Federal Takings Law and of State Taxing Authority in the Review of Land Use Legislation

Jeffrey Eustis

In his upcoming article, Square Pegs in Round Holes: The Misapplication of Federal Takings Law and of State Taxing Authority in the Review of Land Use Legislation, Adjunct Professor Jeffrey Eustis argues that Washington's analysis of regulatory takings under the Fifth Amendment is inconsistent with that of the U.S. Supreme Court, is less protective of property rights and therefore must be changed to conform to federal law. With respect to another aspect of regulatory takings, the so-called Nollan and Dolan tests, Washington's analysis also departs from federal law, but in a way that offers broader protection than under federal law. However, in the absence of an analysis under State v. Gunwall, the state does not offer a constitutionally defensible application of Nollan and Dolan, either. Further, Mr. Eustis argues that cases construing the statutory limitations on development taxes as creating limits on land use legislation in general go beyond express statutory terms and legislative intent. The paper concludes by urging that the scope of land use legislation would be more appropriately reviewed under limits of the police power and not through the misapplication of federal takings jurisprudence or state tax law.

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