{"title":"Jurisdictional Determinations: An Important Battlefield in the Clean Water Act Fight","authors":"J. Finkle","doi":"10.15779/Z38PN8XF5D","DOIUrl":"https://doi.org/10.15779/Z38PN8XF5D","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42017296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"ICG Hazard: Permitting Away the Clean Water Act","authors":"Mae Manupipatpong","doi":"10.15779/Z385M6269H","DOIUrl":"https://doi.org/10.15779/Z385M6269H","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45737856","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
After over a decade of controversy and litigation, the Ninth Circuit finally shielded the Tongass National Forest from road construction and timber harvest. In Organized Village of Kake v. U.S. Department of Agriculture, the court’s en banc panel struck down the Forest Service’s decision to exempt the Tongass from the extensive protections granted to all other national forests via the Roadless Rule. Though many welcomed the decision as an environmental victory, the heart of the Ninth Circuit’s analysis focused on the court’s interpretation of a procedural issue; the opinion sidestepped any discussion of substantive environmental law, despite the fact that the case would decide the fate of the nation’s largest, largely undeveloped, forest. This Note examines the court’s analysis, rooting the opinion in the history of the Forest Service as an agency with extensive discretion, and the relationship that agency has had with the Tongass and its timber. Given this history, this Note argues that the Ninth Circuit should have decided the case based on environmental law and not administrative procedure, ideally resulting in a clearer, more environmentally protective holding.
{"title":"Alternative Reasoning: Why the Ninth Circuit Should Have Used NEPA in Setting Aside the Tongass Exemption","authors":"Katherine c. Reynolds","doi":"10.15779/Z38F47GT7D","DOIUrl":"https://doi.org/10.15779/Z38F47GT7D","url":null,"abstract":"After over a decade of controversy and litigation, the Ninth Circuit finally shielded the Tongass National Forest from road construction and timber harvest. In Organized Village of Kake v. U.S. Department of Agriculture, the court’s en banc panel struck down the Forest Service’s decision to exempt the Tongass from the extensive protections granted to all other national forests via the Roadless Rule. Though many welcomed the decision as an environmental victory, the heart of the Ninth Circuit’s analysis focused on the court’s interpretation of a procedural issue; the opinion sidestepped any discussion of substantive environmental law, despite the fact that the case would decide the fate of the nation’s largest, largely undeveloped, forest. This Note examines the court’s analysis, rooting the opinion in the history of the Forest Service as an agency with extensive discretion, and the relationship that agency has had with the Tongass and its timber. Given this history, this Note argues that the Ninth Circuit should have decided the case based on environmental law and not administrative procedure, ideally resulting in a clearer, more environmentally protective holding.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46628220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Foreword to the 2016-17 Annual Review","authors":"H. Doremus, Robert Infelise","doi":"10.15779/Z382V2C95W","DOIUrl":"https://doi.org/10.15779/Z382V2C95W","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47969294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Grand Canyon Trust v. Williams: Tribal Land Protection and the Battle for Red Butte","authors":"Natalie C. Winters","doi":"10.15779/Z38HX15R0Q","DOIUrl":"https://doi.org/10.15779/Z38HX15R0Q","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48137590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Gulf Restoration Network v. McCarthy: The Necessity Determination Mechanism to Ensure Government Accountability","authors":"William C. Mumby","doi":"10.15779/Z38SF2MB98","DOIUrl":"https://doi.org/10.15779/Z38SF2MB98","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47255051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Clean Water Rule was the latest attempt by the Environmental Protection Agency and the Army Corps of Engineers to define “waters of the United States” under the Clean Water Act. While both politics and scholarship around this issue have typically centered on the jurisdictional status of rural waters, like ephemeral streams and vernal pools, the final Rule raised a less discussed issue of the jurisdictional status of urban waters. What was striking about the Rule’s exemption of “stormwater control features” was not that it introduced this urban issue, but that it highlighted the more general challenges of regulating stormwater runoff under the Clean Water Act, particularly the difficulty of incentivizing multibenefit land use management given the Act’s focus on pollution control. In this Note, I argue that urban stormwater runoff is more than a pollution-control problem. Its management also dramatically affects the intensity of urban water flow and floods, local groundwater recharge, and ecosystem health. In light of these impacts on communities and watersheds, I argue that the Clean Water Act, with its present limited pollutioncontrol goal, is an inadequate regulatory driver to address multiple stormwater-management goals. I recommend advancing green infrastructure as a multibenefit solution and suggest that the best approach to accelerate its adoption is to develop decision-support tools for local government agencies to collaborate on green infrastructure projects.
{"title":"Rained Out: Problems and Solutions for Managing Urban Stormwater Runoff","authors":"R. Subramanian","doi":"10.15779/Z389C6S134","DOIUrl":"https://doi.org/10.15779/Z389C6S134","url":null,"abstract":"The Clean Water Rule was the latest attempt by the Environmental Protection Agency and the Army Corps of Engineers to define “waters of the United States” under the Clean Water Act. While both politics and scholarship around this issue have typically centered on the jurisdictional status of rural waters, like ephemeral streams and vernal pools, the final Rule raised a less discussed issue of the jurisdictional status of urban waters. What was striking about the Rule’s exemption of “stormwater control features” was not that it introduced this urban issue, but that it highlighted the more general challenges of regulating stormwater runoff under the Clean Water Act, particularly the difficulty of incentivizing multibenefit land use management given the Act’s focus on pollution control. In this Note, I argue that urban stormwater runoff is more than a pollution-control problem. Its management also dramatically affects the intensity of urban water flow and floods, local groundwater recharge, and ecosystem health. In light of these impacts on communities and watersheds, I argue that the Clean Water Act, with its present limited pollutioncontrol goal, is an inadequate regulatory driver to address multiple stormwater-management goals. I recommend advancing green infrastructure as a multibenefit solution and suggest that the best approach to accelerate its adoption is to develop decision-support tools for local government agencies to collaborate on green infrastructure projects.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42684114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Through the doctrine of constitutional standing, federal courts have consistently attempted to limit their jurisdiction to claims in which they can redress the plaintiff’s injury. This determination becomes more complicated when a third party asserts that it would “replace” the defendant’s role and cause the same injury to the plaintiff that the defendant would have caused. Courts have generally responded by assessing if this replacement will actually occur. However, courts have neither clearly articulated nor consistently applied the standards that govern this replaceability inquiry. The replaceability approach also elides more fundamental questions of whether defendants should be able to escape judicial review simply because other parties might also commit the same harm. This Note addresses the third-party-replacement issue in the context of the National Environmental Policy Act, which requires federal agencies to conduct an environmental analysis prior to acting. Courts have adopted a special approach to standing for procedural statutes like the National Environmental Policy Act, which does not impose substantive restrictions once agencies have complied with its environmental review procedures. This Note reviews how courts have dealt with the interaction of replaceability and standing under the National Environmental Policy Act, focusing on cases where federal agencies provide funding and other services for wildlife management and energy projects. It concludes that the current replaceability approach is too uncertain for courts to rely on, and is systematically weighted against plaintiffs. The result is that federal programs involving third parties can evade judicial review for reasons that are unrelated to the Act’s purposes.
{"title":"Standing in a Federal Agency's Shoes: Should Third-Party Action Affect Redressability under the National Environmental Policy Act?","authors":"A. Tom","doi":"10.15779/Z38JW86N13","DOIUrl":"https://doi.org/10.15779/Z38JW86N13","url":null,"abstract":"Through the doctrine of constitutional standing, federal courts have consistently attempted to limit their jurisdiction to claims in which they can redress the plaintiff’s injury. This determination becomes more complicated when a third party asserts that it would “replace” the defendant’s role and cause the same injury to the plaintiff that the defendant would have caused. Courts have generally responded by assessing if this replacement will actually occur. However, courts have neither clearly articulated nor consistently applied the standards that govern this replaceability inquiry. The replaceability approach also elides more fundamental questions of whether defendants should be able to escape judicial review simply because other parties might also commit the same harm. This Note addresses the third-party-replacement issue in the context of the National Environmental Policy Act, which requires federal agencies to conduct an environmental analysis prior to acting. Courts have adopted a special approach to standing for procedural statutes like the National Environmental Policy Act, which does not impose substantive restrictions once agencies have complied with its environmental review procedures. This Note reviews how courts have dealt with the interaction of replaceability and standing under the National Environmental Policy Act, focusing on cases where federal agencies provide funding and other services for wildlife management and energy projects. It concludes that the current replaceability approach is too uncertain for courts to rely on, and is systematically weighted against plaintiffs. The result is that federal programs involving third parties can evade judicial review for reasons that are unrelated to the Act’s purposes.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46981517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"No Relief: How the Ninth Circuit's New Standard for Injunctions Threatens the Precautionary Nature of the Endangered Species Act","authors":"E. Kennedy","doi":"10.15779/Z38TB0XV6C","DOIUrl":"https://doi.org/10.15779/Z38TB0XV6C","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42403526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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