SJEL has partnered with the Washington Lawyers for Sustainability (WLS) and Washington Journal for Environmental Law & Policy to host a sustainability symposium on April 20, 2012, at Seattle University. The event will focus on making sustainability legal, economically viable, and socially just. Presenters and speakers will include professors, practitioners, and elected officials.
Bellwether - Spring 2009
THE DRUM BEATS FOR EVERYONE
By Billy Frank, Jr.
This short passage originally appeared in Indian Country Today in 2008. Frank appeals to all communities, regardless of race and ethnicity, to work together to conserve natural resources, eliminate pollution, and achieve environmental justice for all.
ENVIRONMENTAL JUSTICE AND THE UPPER COLUMBIA RIVER BASIN: HOW THE U.S. FAILED THE CONFEDERATED TRIBES OF THE COLVILLE INDIAN RESERVATION
By Connie Sue Manos Martin
This article discusses Teck Cominco in detail in examining the failure of the U.S. Environmental Protection Agency (EPA) to carry out its environmental justice mission in the Upper Columbia River Basin of Washington State, thereby leaving the enforcement of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the investigation of more than a century of transboundary contamination of the river to two members of the Confederated Tribes of the Colville Indian Reservation. Martin laments that although EPA called the outcome of the Teck Cominco case a success, fundamental questions crucial to the health of reservation communities in the Basin have not been answered – is it safe to swim in the river, play along the riverbanks, and eat the river's fish? She observes that, although an expression of commitment to environmental justice by the Obama Administration signals hope, the lessons from the last decade urge caution until the true measure of environmental justice can be assessed.
CLEAR PASSAGE: THE CULVERT CASE DECISION AS A FOUNDATION FOR HABITAT PROTECTION AND PRESERVATION
By Mason D. Morisset & Carly A. Summers
The authors observe that, while the tribes' treaty rights to fish are now well-established, the recognition of the State's attendant duty to protect fish habitat necessary to sustain fish runs and habitat has only recently been recognized. They argue that the recognition of that concomitant right to habitat protection may be the device through which treaty tribes can achieve the imperative habitat restoration and protection measures required to revitalize fish runs that continue to dwindle. The article focuses its discussion on treaty-based fishing rights cases in the context of the recent "Culvert Case" decision in Phase II of U.S. v. Washington, and its utility as a basis for tribes to remedy habitat degrading activities by the state and preserve treaty protected resources.
APPLICATION OF THE ENDANGERED SPECIES ACT TO TRIBAL ACTIONS: CAN AMBIGUITY BE A GOOD THING?
By David Spohr and Lara B. Fowler
This article considers the unresolved intersection of the Endangered Species Act and Indian tribes. Courts have not determined the degree to which the Act applies to tribes, given the unique status of Indian tribes which arises from the federal government's trustee relationship with the tribes, and the tribes retained sovereignty. The issue is whether the listing of a given species will result in a restriction on tribal lands or practices that were retained by a tribe as the result of treaty. The article considers Secretarial Order 3206, which was signed in 1997 and seeks to give tribes a voice in satisfying the purposes of the Act. The authors argue that, despite a lack of binding duties or rights, its creation, as the result of government to government negotiations between tribes and the federal government, has led to the exercise of tribal self-determination.
TRIBES AND DAMS: USING SECTION 4(E) OF THE FEDERAL POWER ACT TO PROTECT INDIAN TRIBES AND RESTORE RESERVATION RESOURCES
By Thane D. Somerville
This article describes the way in which the Federal Power Act provides a means of protecting tribal interests in the relicensing of hydroelectric dam projects. The context of the discussion is a Washington case where a tribe successfully argued that in order to protect tribal interests, the Secretary of Interior may impose conditions on the relicensing of a project, where a portion of the project is on tribal land. The article concludes by pointing out that these decisions have given the Secretary broad authority that may be used to protect tribal resources, and that authority should be recognized as a means of mitigating the impacts of hydroelectric projects on reservations.
AIR PROGRAM OPTIONS FOR TRIBES IN THE PACIFIC NORTHWEST
By Rich McAllister
This article provides a broad description of the options Indian tribal governments may consider in addressing the air quality on their reservations and other Indian country areas within their jurisdiction, with particular emphasis on options available to tribes in the Pacific Northwest. McAllister concludes that, as air quality and climate change become more prominent, and as tribes continue to develop their environmental programs and regulatory capacity, the Clean Air Act offers opportunities for tribes to exercise in concert with the EPA their sovereign authority to improve environmental quality.
SELJ – April 2010
FORWARD: ENVIRONMENTAL CHANGE YOU CAN BELIEVE IN
By Dennis McLerran, Regional Administrator, EPA Region X
In the forward to the edition, Mr. McLerran articulates the seven major priorities for the EPA recently adopted by Administrator Jackson. These priorities include tackling climate change, improving air quality, cleaning up local communities, assuring product safety, protecting national waters, expanding the discussion on environmental justice, and building partnerships between states and tribal governments. In addition, Mr. McLerran describes his priorities for the Region and the Pacific Northwest. Finally, Mr. McLerran introduces the other pieces in the edition.
BUSH V. OBAMA: THE FIGHT FOR THE SOUL OF SCIENCE IN ENVIRONMENTAL POLICYMAKING.
By Mark A. Latham, Associate Professor of Law, Vermont Law School:
Professor Latham's article compares the use of science in environmental policymaking under the Bush and Obama administrations. He argues that Bush administration appointees suppressed sound science and further, both rejected and manipulated sound science in making environmental policy decisions at agencies including the EPA, NASA, and the Department of the Interior. Professor Latham also argues that, thus far, the Obama administration has stuck to its campaign pledge of returning science to its rightful position in environmental policymaking. He examines Obama executive appointments and recent policy decisions by the EPA under the Obama administration.
PRESERVING PUGET SOUND: THE SCIENCE OF ENVIRONMENTAL LAW
By Dow Constantine, King County Executive
Mr. Constantine's article argues that more deference should be given to scientific information during agency environmental reviews in order to protect the environment. As a case study, the article examines the August 2009 decision in Preserve Our Islands v. U.S. Army Corps of Engineers, which concerned the Army Corps' failure to consider the environmental impacts of a massive proposed gravel loading dock on Maury Island in the Puget Sound. Mr. Constantine examines the potential political implications of the events that led to the litigation, and the fall out from stemming from the decision. The article underlines the importance of considering all of the relevant and available scientific data in order to promote environmental protection, which although is required with the current regulatory scheme, is not currently being fully enforced.
A MAYORAL VIEW: THE GAP BETWEEN POLICY AND FUNDING
By Mike McGinn, Seattle Mayor
In his piece, Mayor McGinn calls for action to meet the problems facing society, including increased funding and better programs to meet the goal of increasing vehicle efficiencies that have been mandated at the national level.
ENVIRONMENT AND ENERGY: CHALLENGES TO BALANCE
By Scott L. Montgomery, Geologist and part-time faculty member at the University of Washington.
Mr. Montgomery's article examines the political and fiscal challenges facing the Obama administration's approach to green energy and nuclear energy, as well as the challenges to the administration arising from energy policies at the state level. The article emphasizes the importance of energy issues to environmental protection and suggests that energy transformation will require political and environmental compromise.
BEING SMART (GROWTH) ABOUT JUSTICE: CAN THE OBAMA ADMINISTRATION UNDO DECADES OF ENVIRONMENTAL INJUSTICE VIA SMART GROWTH?
By Jamie Baker Roskie, Managing Attorney, UGA Land Use Clinic
Ms. Roskie's article focuses on the Obama administrations' potential impact on EJ issues, particularly through the Smart Growth program and its partners. The article will also consider whether the new emphasis at EPA might be helpful in local communities, including UGA Land Use Clinic client Newtown Florist Club of Gainesville, Georgia.
REMOVING THE IMPASSE: ALTERNATIVE AVENUES TO ASSERTING TRIBAL INTERESTS IN FISH PASSAGE
By R. Drew Miller, Seattle University School of Law, Class of 2010
Mr. Miller's article explores how native tribes have turned to the Federal Energy Regulatory Commission's relicensing process for hydroelectric dams as a vehicle to assert their interests in fish conservation, and how tribes in the Pacific Northwest, through consultation with federal agencies, have successfully enforced fishing rights and other environmental protections in the Columbia River basin.
SJEL, Vol. 1 2010–2011
A Tale of Two Carbon Sinks: Can Forests Carbon Management Serve as a Framework to Implement Ocean Iron Fertilization As a Climate Change Treaty Compliance Mechanism?
By Randall S. Abate
This article considers the use of Ocean Iron Fertilization (OIF) as an emerging source of carbon mitigation, and a tool that could help nations comply with post-Kyoto climate change mitigation obligations. The article compares and contrasts OIF with reducing emissions from deforestation and degradation (REDD) and explores the challenges both carbon-mitigation options face.
Global Warming and the Permanent Dry: How Heat Threatens Human Security in a Warmer World
This article explores the effects of climate change on human populations, especially in the Global South. As the globe considers adaptation to climate change, the world must consider the human toll of longer and more-intense droughts. These effects are likely to create patterns in human immigration and lead to waves of climate refugees. The article explores the effects of climate change on already-arid regions and outlines likely refugee patterns.
Seattle's Green Building Initiative and Housing Retrofits: How Seattle Can Overcome the Obstacles that Face Effective Energy Conservation in the Building Sector
By Mike O'Brien and Sahar Faith
Written by an elected member of the Seattle City Counsel and a local law school graduate, this article explores the regulatory environment surrounding the Emerald City's Green Initiative and the conflict of the initiative and state law. The author's make the case for legislation to clear the way for building owners in Washington to improve the energy efficiency of their buildings.
Wind Energy Law And Ethics: A Meeting Of Kant, Leopold And Cultural Relativism
By Victoria Sutton
This article identifies ethical and legal issues that have become important in the emerging field of wind energy, evaluates these from a theoretical ethical foundation, and examines areas where laws and ethics are at the forefront of resolution of wind energy issues. Finally, the importance of an energy policy as an important role of government in an ethical government, is examined.
Our Blue Water Navy Goes Green
By Tom Spahn
This article, authored by a United States Navy Reserve Lieutenant and third year law student at Stanford Law School, considers the Navy's new focus on the environment. The author considers the Navy’s pursuit of efficient and sustainable technologies for maritime propulsion, the implementation of initiatives to protect ecosystems and threatened marine species, and the Navy’s efforts to field renewable and alternative fuel technologies. The article concludes that the military is on the right track to fulfilling its promise of environmental stewardship while maintaining national defense.
The Endangered Species Act and Its Role in Land Use Planning: Lessons Learned from the Pacific Northwest
By Eric S. Laschever
The Pacific Northwest has been operating to protect fragile species at the intersection of federal and local laws for more than a decade, and has experimented with different approaches to use land use regulations to offer such protection. The author, Eric Laschever, a partner at K&L Gates with a practice focus on land use, environmental and hazardous waste law, first provides a primer on the intersection of land use planning and the ESA's action forcing sections in the context of the listing of salmonid species in Washington State. The article considers lessons learned from this case study, including the importance of a strong consensus for action and the development of a strong scientific base, the challenge of creating permitting processes that provide both political acceptability and sufficient protection, the ineffectiveness of municipal take liability, and the willingness to engage in complex litigation.
A Modest Proposal: A Dialogue to Implement the Human Right to Water
By Derrick Howard
Although water is undeniably essential for human survival, over 1 billion people lack access to clean drinking water. Globally, more than 5 million people die every year from water-related illnesses and the United Nations anticipates that by 2040, demand for water will exceed the world's supply by more than 30 percent. Derrick Howard, Assistant Professor at the Appalachian School of Law, evaluates the current position of human right to water, recently affirmed by the United Nations, in domestic law and policy. Recognizing the large role that corporate players have in both water use and water distribution, Professor Howard concludes that they must be part of a dialogue on regulation if the human right to water is to have effect.
Point and Counterpoint: Climate Change
By John Charles Kunich and John B. Kirkwood
In a pair of articles, these two legal experts argue the expediency and urgency of taking steps to halt climate change. Professor Kunich, in his article Open-Eyes Environmentalism, argues that a cost-benefit analysis, given the uncertainty of climate science, must be conducted before society invests substantially in restricting carbon emissions.
John Kirkwood, in A Prudent Approach to Climate Change, argues that the science in certain, and that society must take some steps now to stem the expected increase in global temperature.