The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) prohibits the sale or distribution of any pesticide without prior registration and approval by the Environmental Protection Agency (EPA).1 EPA may deny applications for pesticide registration when “necessary to prevent unreasonable adverse effects on the environment.”2 On September 10, 2015, the Ninth Circuit found EPA did not adequately research the effects of the chemical sulfoxaflor on bee populations in Pollinator Stewardship Council v. EPA.3 The court determined that EPA failed to follow its internal standard for data collection. Thus, the court vacated EPA’s registration, and remanded it to the agency for further review.4 In Part I, this In Brief analyzes the standard for data collection affirmed in Pollinator Stewardship. Then, Part II explores the potential application and limitations of the Ninth Circuit’s decision for future cases and agency decisions, both generally and for bees in particular. Pollinator Stewardship is a narrow victory that affirms EPA’s duty to comply with its own data collection standards for pesticide regulation, but it remains unclear if this outcome will be translated to pesticides affecting other species.
{"title":"Pollinator Stewardship Council v. EPA and the Duty to Research FIFRA Applications","authors":"A. Trabolsi","doi":"10.15779/Z38NP1WJ5J","DOIUrl":"https://doi.org/10.15779/Z38NP1WJ5J","url":null,"abstract":"The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) prohibits the sale or distribution of any pesticide without prior registration and approval by the Environmental Protection Agency (EPA).1 EPA may deny applications for pesticide registration when “necessary to prevent unreasonable adverse effects on the environment.”2 On September 10, 2015, the Ninth Circuit found EPA did not adequately research the effects of the chemical sulfoxaflor on bee populations in Pollinator Stewardship Council v. EPA.3 The court determined that EPA failed to follow its internal standard for data collection. Thus, the court vacated EPA’s registration, and remanded it to the agency for further review.4 In Part I, this In Brief analyzes the standard for data collection affirmed in Pollinator Stewardship. Then, Part II explores the potential application and limitations of the Ninth Circuit’s decision for future cases and agency decisions, both generally and for bees in particular. Pollinator Stewardship is a narrow victory that affirms EPA’s duty to comply with its own data collection standards for pesticide regulation, but it remains unclear if this outcome will be translated to pesticides affecting other species.","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":"45928134","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":"Better Than Net Benefits: Rethinking the FERC v. EPSA Test to Maximize Value in Grid-Edge Electricity Markets","authors":"Helen Aki","doi":"10.15779/Z382R3NX1C","DOIUrl":"https://doi.org/10.15779/Z382R3NX1C","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67386142","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}
Patrick Michaels, a former professor at the University of Virginia, has built a second career at the libertarian Cato Institute issuing data-laden reports against mainstream climate change science.1 In his latest book, Lukewarming: The New Climate Science that Changes Everything, Michaels joins Paul Knappenberger, the assistant director for the Cato Institute’s Center for the Study of Science, to introduce new arguments updating Michaels’ long-held thesis that man-made warming is a reality but that “[t]he atmosphere isn’t warming nearly as fast as is predicted in the forecasts . . . .”2 Forecasts of substantial warming are a problem, Michaels believes, because they “serve as the basis for some of the most onerous environmental regulations ever proposed (and adopted).”3 In Michaels’s view, reducing fossil fuel emissions to control the amount of carbon dioxide in the atmosphere not only involves introducing suspect regulations, but may in fact be impossible.4 “We simply don’t know,” Michaels asserts, “how to power or develop a modern economy either without emitting vast quantities of carbon dioxide and/or proliferating nuclear fusion worldwide. . . .”5 This review first summarizes the structure and content of Michaels’s argument in Lukewarming. It then considers the significance of Michaels’s ideas in relation to the climate policy of the current presidential administration. The review concludes with a comment on Lukewarming’s place in the progression of American attitudes towards climate change.
{"title":"Slowly Warming to Climate Change","authors":"J. Hannon","doi":"10.15779/Z38JQ0SV4Z","DOIUrl":"https://doi.org/10.15779/Z38JQ0SV4Z","url":null,"abstract":"Patrick Michaels, a former professor at the University of Virginia, has built a second career at the libertarian Cato Institute issuing data-laden reports against mainstream climate change science.1 In his latest book, Lukewarming: The New Climate Science that Changes Everything, Michaels joins Paul Knappenberger, the assistant director for the Cato Institute’s Center for the Study of Science, to introduce new arguments updating Michaels’ long-held thesis that man-made warming is a reality but that “[t]he atmosphere isn’t warming nearly as fast as is predicted in the forecasts . . . .”2 Forecasts of substantial warming are a problem, Michaels believes, because they “serve as the basis for some of the most onerous environmental regulations ever proposed (and adopted).”3 In Michaels’s view, reducing fossil fuel emissions to control the amount of carbon dioxide in the atmosphere not only involves introducing suspect regulations, but may in fact be impossible.4 “We simply don’t know,” Michaels asserts, “how to power or develop a modern economy either without emitting vast quantities of carbon dioxide and/or proliferating nuclear fusion worldwide. . . .”5 This review first summarizes the structure and content of Michaels’s argument in Lukewarming. It then considers the significance of Michaels’s ideas in relation to the climate policy of the current presidential administration. The review concludes with a comment on Lukewarming’s place in the progression of American attitudes towards climate change.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67491130","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 the Deepwater Horizon oil spill of 2010, one of the worst environmental man-made disasters and the largest ever oil spill in the United States, scholars and government investigators analyzed the offshore regulatory regime and its implementation in search of failures that led to the accident and possible solutions. Relatively few critiques of the regulatory regime discussed strict liability for environmental damages from oil spills. Enacted in the Oil Pollution Act of 1990, this regime is a part of the solution, but is not a complete answer. One issue not addressed by this liability regime is the judgment-proof problem — some injurers are unable to pay the full amount for which they have been found legally liable because they simply do not have the economic assets. The judgment-proof problem significantly reduces deterrence and undercuts the protection that the strict liability regime seeks to implement. British Petroleum’s wealth and ability to repay tens of billions of dollars after the Deepwater Horizon spill obscured this issue. But the judgment-proof problem may arise in future oil spills if the operating company’s total assets are worth less than the actual amount of damages. The likelihood of this occurring increases in times of decreasing oil prices, when the value of some drilling companies is dramatically diminished. A number of policy tools used in combination could mitigate the judgment-proof problem: compulsory liability insurance, vicarious liability,minimum asset requirements, special tax, and criminal liability. Currently, a requirement for both financial responsibility and criminal liability has been incorporated into both U.S. and European legal regimes. To minimize the risk of judgment-proof parties, however, the United States should utilize a clearer requirement of minimum assets combined with liability insurance and additional vicarious liability for parties who have some control over the injurer’s behaviour (i.e. lenders). As practical difficulties may prevent the implementation of all these tools, additional policies should be explored to address the problem during this time of diminishing oil company values, such as a requiring that operating companies pay part of their dividends into a compensation fund and encouraging small companies to merge and create an entity with higher total assets.
{"title":"Liability for Environmental Damages from the Offshore Petroleum Industry: Strict Liability Justifications and the Judgment-Proof Problem","authors":"Tamara Lotner Lev","doi":"10.15779/Z38X34MR9G","DOIUrl":"https://doi.org/10.15779/Z38X34MR9G","url":null,"abstract":"After the Deepwater Horizon oil spill of 2010, one of the worst environmental man-made disasters and the largest ever oil spill in the United States, scholars and government investigators analyzed the offshore regulatory regime and its implementation in search of failures that led to the accident and possible solutions. Relatively few critiques of the regulatory regime discussed strict liability for environmental damages from oil spills. Enacted in the Oil Pollution Act of 1990, this regime is a part of the solution, but is not a complete answer. One issue not addressed by this liability regime is the judgment-proof problem — some injurers are unable to pay the full amount for which they have been found legally liable because they simply do not have the economic assets. The judgment-proof problem significantly reduces deterrence and undercuts the protection that the strict liability regime seeks to implement. British Petroleum’s wealth and ability to repay tens of billions of dollars after the Deepwater Horizon spill obscured this issue. But the judgment-proof problem may arise in future oil spills if the operating company’s total assets are worth less than the actual amount of damages. The likelihood of this occurring increases in times of decreasing oil prices, when the value of some drilling companies is dramatically diminished. A number of policy tools used in combination could mitigate the judgment-proof problem: compulsory liability insurance, vicarious liability,minimum asset requirements, special tax, and criminal liability. Currently, a requirement for both financial responsibility and criminal liability has been incorporated into both U.S. and European legal regimes. To minimize the risk of judgment-proof parties, however, the United States should utilize a clearer requirement of minimum assets combined with liability insurance and additional vicarious liability for parties who have some control over the injurer’s behaviour (i.e. lenders). As practical difficulties may prevent the implementation of all these tools, additional policies should be explored to address the problem during this time of diminishing oil company values, such as a requiring that operating companies pay part of their dividends into a compensation fund and encouraging small companies to merge and create an entity with higher total assets.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67581471","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}
In AquAlliance v. United States Bureau of Reclamation, the United States Court of Appeals for the District of Columbia Circuit upheld the United States Bureau of Reclamation’s (Bureau) decision to withhold information about the construction and location of water wells from Freedom of Information Act (FOIA) requests.1 However, the court did not overturn the District Court’s ruling required the agency to disclose the names and addresses of various water transfer program participants.2 The data withheld in these FOIA requests, including a groundwater well’s location, construction, and depth, help the public assess the environmental impacts associated with water transfer programs utilizing groundwater substitution. By withholding this information, the Bureau did not allow the public to independently assess the cumulative impacts of a proposed water transfer program, nor verify the Bureau’s environmental impact findings in the project’s National Environmental Protection Act (NEPA) documents. Without this information, concerned citizens have two options: (1) accept the agency’s explanation regarding why this information is unnecessary to assess the environmental impacts, or (2) legally challenge the agency for using an inadequate model in its Environmental Assessment (EA), without any guarantee that the environmental effects will be considered.
{"title":"AquAlliance v. United States Bureau of Reclamation: The Impact of Withholding Information from the Public","authors":"T. Wetzel","doi":"10.15779/Z38S756K2M","DOIUrl":"https://doi.org/10.15779/Z38S756K2M","url":null,"abstract":"In AquAlliance v. United States Bureau of Reclamation, the United States Court of Appeals for the District of Columbia Circuit upheld the United States Bureau of Reclamation’s (Bureau) decision to withhold information about the construction and location of water wells from Freedom of Information Act (FOIA) requests.1 However, the court did not overturn the District Court’s ruling required the agency to disclose the names and addresses of various water transfer program participants.2 The data withheld in these FOIA requests, including a groundwater well’s location, construction, and depth, help the public assess the environmental impacts associated with water transfer programs utilizing groundwater substitution. By withholding this information, the Bureau did not allow the public to independently assess the cumulative impacts of a proposed water transfer program, nor verify the Bureau’s environmental impact findings in the project’s National Environmental Protection Act (NEPA) documents. Without this information, concerned citizens have two options: (1) accept the agency’s explanation regarding why this information is unnecessary to assess the environmental impacts, or (2) legally challenge the agency for using an inadequate model in its Environmental Assessment (EA), without any guarantee that the environmental effects will be considered.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67547301","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":"A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act","authors":"Emma Hamilton","doi":"10.15779/Z38QF8JJ8J","DOIUrl":"https://doi.org/10.15779/Z38QF8JJ8J","url":null,"abstract":"","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67533300","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}
In People v. Rinehart, the California Supreme Court unanimously upheld a gold miner’s criminal conviction for using a suction dredge to mine the riverbed of a waterway on federal land in violation of a state moratorium on that mining method.1 The court reversed the California Court of Appeal’s holding that the federal Mining Act of 1872 (Mining Act) preempts state regulations that render mining on federal land “commercially impracticable.”2 Focusing primarily on the text and history of the Mining Act, the California Supreme Court determined that Congress did not intend to preempt state environmental regulations on mining.3 Yet in its close examination of the Mining Act, the court avoided engaging substantially with California Coastal Commission v. Granite Rock Co., the principal U.S. Supreme Court precedent regarding state regulation of mining on federal land.4 Part I of this In Brief provides factual and legal background contextualizing Rinehart and describes the U.S. Supreme Court’s decision in Granite Rock. Part II then analyzes the Rinehart opinion, looking in particular at the California Supreme Court’s interpretation of the Mining Act and its cursory treatment of Granite Rock. Granite Rock left open significant ambiguities regarding the scope of state regulatory authority over federal lands, and Rinehart’s intense focus on the Mining Act allowed the court to circumvent Granite Rock’s difficult questions while still protecting California’s environmental regulations from the threat of federal preemption.
{"title":"People v. Rinehart: No Preemption of State Environmental Regulations under the Mining Act of 1872","authors":"J. Rosenthal","doi":"10.15779/Z38X05XC6X","DOIUrl":"https://doi.org/10.15779/Z38X05XC6X","url":null,"abstract":"In People v. Rinehart, the California Supreme Court unanimously upheld a gold miner’s criminal conviction for using a suction dredge to mine the riverbed of a waterway on federal land in violation of a state moratorium on that mining method.1 The court reversed the California Court of Appeal’s holding that the federal Mining Act of 1872 (Mining Act) preempts state regulations that render mining on federal land “commercially impracticable.”2 Focusing primarily on the text and history of the Mining Act, the California Supreme Court determined that Congress did not intend to preempt state environmental regulations on mining.3 Yet in its close examination of the Mining Act, the court avoided engaging substantially with California Coastal Commission v. Granite Rock Co., the principal U.S. Supreme Court precedent regarding state regulation of mining on federal land.4 Part I of this In Brief provides factual and legal background contextualizing Rinehart and describes the U.S. Supreme Court’s decision in Granite Rock. Part II then analyzes the Rinehart opinion, looking in particular at the California Supreme Court’s interpretation of the Mining Act and its cursory treatment of Granite Rock. Granite Rock left open significant ambiguities regarding the scope of state regulatory authority over federal lands, and Rinehart’s intense focus on the Mining Act allowed the court to circumvent Granite Rock’s difficult questions while still protecting California’s environmental regulations from the threat of federal preemption.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67580776","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 California Global Warming Solutions Act of 2006 (“AB 32”) set statewide goals for greenhouse gas (GHG) emissions reductions.1 On November 30, 2015, the Supreme Court of California held in Center for Biological Diversity v. California Department of Fish and Wildlife that the California Department of Fish and Wildlife (CDFW) could use AB 32 to set the standard for GHG emissions in an Environmental Impact Report (EIR) for the Newhall Ranch Project.2 However, the court held that the administrative record lacked substantial evidence to support its finding that emissions would not be “significant.”3 This was the first case in California that dealt with the interplay of GHG and California Environmental Quality Act (CEQA) compliance. CEQA requires all local agencies to prepare an EIR for any project that they intend to carry out or approve that might have a significant effect on the environment.4 Neither AB 32 nor the California Air Resources Board’s scoping plan set out a method for CEQA analysis of GHG emissions.5 Thus, the court held that in the absence of local standards, CDFW properly adopted AB 32’s state reduction targets for GHG emissions as the threshold-of-significance standard in an EIR.6 This holding introduced more uncertainties about how public agencies can estimate the significance of GHG emissions, as the court failed to provide a local standard or any specific guidelines for project-level GHG emissions. This In Brief will first provide an overview of CEQA and AB 32. Then, it will introduce the Newhall Ranch Project. Finally, it will discuss the relevant court holdings and analyze their impacts.
{"title":"Center for Biological Diversity v. Department of Fish & Wildlife and the Uncertainties in Project-Level Greenhouse Gas Emissions Analysis","authors":"Dan Bai","doi":"10.15779/Z38DZ03203","DOIUrl":"https://doi.org/10.15779/Z38DZ03203","url":null,"abstract":"The California Global Warming Solutions Act of 2006 (“AB 32”) set statewide goals for greenhouse gas (GHG) emissions reductions.1 On November 30, 2015, the Supreme Court of California held in Center for Biological Diversity v. California Department of Fish and Wildlife that the California Department of Fish and Wildlife (CDFW) could use AB 32 to set the standard for GHG emissions in an Environmental Impact Report (EIR) for the Newhall Ranch Project.2 However, the court held that the administrative record lacked substantial evidence to support its finding that emissions would not be “significant.”3 This was the first case in California that dealt with the interplay of GHG and California Environmental Quality Act (CEQA) compliance. CEQA requires all local agencies to prepare an EIR for any project that they intend to carry out or approve that might have a significant effect on the environment.4 Neither AB 32 nor the California Air Resources Board’s scoping plan set out a method for CEQA analysis of GHG emissions.5 Thus, the court held that in the absence of local standards, CDFW properly adopted AB 32’s state reduction targets for GHG emissions as the threshold-of-significance standard in an EIR.6 This holding introduced more uncertainties about how public agencies can estimate the significance of GHG emissions, as the court failed to provide a local standard or any specific guidelines for project-level GHG emissions. This In Brief will first provide an overview of CEQA and AB 32. Then, it will introduce the Newhall Ranch Project. Finally, it will discuss the relevant court holdings and analyze their impacts.","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67462272","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 idea of nature as a stable and predictable counterpoint to the disruptive energy and change of human societies is at the heart of one of the most enduring environmental writing traditions, the pastoral.1 Moreover, a related rhetorical convention, the pastoral elegy, distinguishes the nature writing and environmental philosophy of postcolonial settler societies “marked by the death and/or dispossession of their original inhabitants.”2 In his fifth book, After Nature: A Politics for the Anthropocene,3 Duke Law Professor Jedediah Purdy invokes the pastoral mode as he meditates on the uneasy inheritance of early American approaches to nature and politics. As a pastoral elegy inquiring into environmental change and loss, Purdy’s book incorporates facets of different types of critical environmental analysis. However, it is not an environmental activist’s handbook,4 a treatise on environmental justice and the politics of environmental racism in the United States,5 a casebook of American environmental law and policy,6 or a complex philosophical study of how the “objective” use of nature most often leads to oppressive social and gender divisions.7 Rather, Purdy traces the historical lineage of our present moment in the ultimate expression of human disruption, the Anthropocene, through a historical classification of American attitudes towards nature.8 The Anthropocene is a recent, albeit contested, designation that marks the indelible human imprint on the world.9 In Part I, this Review briefly discusses Purdy’s categorization of the founding principles of early
{"title":"Requiem for American NaturePhilosophy","authors":"A. K. Athens","doi":"10.15779/Z38PG1HN8P","DOIUrl":"https://doi.org/10.15779/Z38PG1HN8P","url":null,"abstract":"The idea of nature as a stable and predictable counterpoint to the disruptive energy and change of human societies is at the heart of one of the most enduring environmental writing traditions, the pastoral.1 Moreover, a related rhetorical convention, the pastoral elegy, distinguishes the nature writing and environmental philosophy of postcolonial settler societies “marked by the death and/or dispossession of their original inhabitants.”2 In his fifth book, After Nature: A Politics for the Anthropocene,3 Duke Law Professor Jedediah Purdy invokes the pastoral mode as he meditates on the uneasy inheritance of early American approaches to nature and politics. As a pastoral elegy inquiring into environmental change and loss, Purdy’s book incorporates facets of different types of critical environmental analysis. However, it is not an environmental activist’s handbook,4 a treatise on environmental justice and the politics of environmental racism in the United States,5 a casebook of American environmental law and policy,6 or a complex philosophical study of how the “objective” use of nature most often leads to oppressive social and gender divisions.7 Rather, Purdy traces the historical lineage of our present moment in the ultimate expression of human disruption, the Anthropocene, through a historical classification of American attitudes towards nature.8 The Anthropocene is a recent, albeit contested, designation that marks the indelible human imprint on the world.9 In Part I, this Review briefly discusses Purdy’s categorization of the founding principles of early","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67523773","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}
Recklessly gambling with Kansas’s water rights to the Republican River, Nebraska used 17 percent more water than it was allocated by the interstate Republican River Compact during a drought in 2005–06. Kansas sued Nebraska for this breach of compact in the Supreme Court. While the Court ultimately found that Nebraska breached the Republican River Compact, the remedy was only damages for Kansas’s loss and partial disgorgement of Nebraska’s profits. By failing to require complete disgorgement of profits, the Court arguably failed to disincentivize future breaches of other interstate water compacts. This lack of disincentive is especially concerning given climate change predictions in the arid western United States. These predictions forecast higher temperatures and longer dry spells for this region. These impacts will make it increasingly difficult for states to comply with interstate water compacts unless the compacts themselves are adaptable to the impacts or there is a heavy penalty for noncompliance. As the Court has effectively taken the heavy penalty off the table through its ruling in Kansas v. Nebraska, it is important to understand the specific climate change impacts threatening the river basins and how adaptable the interstate water compacts are to these impacts. This Note discusses the Court’s decision in Kansas v. Nebraska, explains why a breach of compact is not desirable even when the water might have a higher market value in the states that breach, and then examines both the Republican River Compact and basin and the Rio Grande Compact and basin
{"title":"Climate Change and Compact Breaches: How The Supreme Court Missed an Opportunity to Incentivize Future Interstate-Water-Compact Compliance in Kansas v. Nebraska","authors":"Caitlin Brown","doi":"10.15779/Z38Z31NP0D","DOIUrl":"https://doi.org/10.15779/Z38Z31NP0D","url":null,"abstract":"Recklessly gambling with Kansas’s water rights to the Republican River, Nebraska used 17 percent more water than it was allocated by the interstate Republican River Compact during a drought in 2005–06. Kansas sued Nebraska for this breach of compact in the Supreme Court. While the Court ultimately found that Nebraska breached the Republican River Compact, the remedy was only damages for Kansas’s loss and partial disgorgement of Nebraska’s profits. By failing to require complete disgorgement of profits, the Court arguably failed to disincentivize future breaches of other interstate water compacts. This lack of disincentive is especially concerning given climate change predictions in the arid western United States. These predictions forecast higher temperatures and longer dry spells for this region. These impacts will make it increasingly difficult for states to comply with interstate water compacts unless the compacts themselves are adaptable to the impacts or there is a heavy penalty for noncompliance. As the Court has effectively taken the heavy penalty off the table through its ruling in Kansas v. Nebraska, it is important to understand the specific climate change impacts threatening the river basins and how adaptable the interstate water compacts are to these impacts. This Note discusses the Court’s decision in Kansas v. Nebraska, explains why a breach of compact is not desirable even when the water might have a higher market value in the states that breach, and then examines both the Republican River Compact and basin and the Rio Grande Compact and basin","PeriodicalId":45532,"journal":{"name":"Ecology Law Quarterly","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67590656","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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