Journal of Environmental Law & Litigation : Vol. 26, no. 1 (Spring 2011)
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Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 1, p. 019-028 : Keynote Address: Reconsidering the Industrialization of Agriculture(University of Oregon School of Law, 2011) Schneider, Susan A.As we consider the food needs of an increased global population that is facing the effects of climate change and the reality of finite natural resources, it is imperative that all models of agricultural production be evaluated honestly and accurately. Environmental and social costs should be considered as parts of the cost of production, and sustainability—as opposed to short-term productivity—should be the measure of success. A sustainable system should work with, rather than against, natural processes. Technology should enhance, rather than replace, these processes. Government policies should favor only those models that meet these long-term tests. Industrialized agriculture has brought us short-term bounty and long-term concerns. Looking at its true costs with its benefits is the only way that its efficiency can truly be assessed. If industrialized agriculture is not assessed, in the long run environmental problems and limited natural resources may well provide their own limitations, much to our detriment.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 1, p.147-178 : International Law and Domestic Legislation in the Sustainable Management of Transboundary Watercourses: The Case of the Amazon River Basin(University of Oregon School of Law, 2011) Kofele-Kale, Ndiva; Gonzaga, Fausto MendanhaThe Article explores the intersection between positive international law and domestic legislation in the protection and management of transboundary water resources, with particular focus on the Brazilian Amazon.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 1, p. 109-130 : Raw Milk in Context(University of Oregon School of Law, 2011) Byrne, Donna M.The purpose of this Essay is to explore the societal forces that resulted in the transition from small, low tech, labor intensive raw milk to the commercially produced pasteurized homogenized, often low-fat milk available in grocery stores today. My goal is to shine the spotlight on the changes in society that created an apparent need for increasing the use of technology that became available at the turn of the twentieth century. The current tensions surrounding raw milk— and the adoption of technology and industrialization in milk production during the past century and a half—highlight changes in fundamental farming practices. There is a great tension in this area between corporate agriculture and private farms. This Essay begins by describing the current legal status of non-pasteurized milk and the controversy that surrounds it. Parts II and III then look back to where we’ve been. Part II adds a brief history of milk drinking in general, while Part III explores the social changes that led to adoption of pasteurization. In Part IV, I acknowledge there are no clear answers and identify areas ripe for further research.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 1, p. 131-146 : Innovative Use of the Law for Small-Scale Producers(University of Oregon School of Law, 2011) Miller, Kenneth; Prizio, AdamLegal services for small-scale farms need to be made accessible, affordable, up to date, and relevant. This Essay presents three ways in which a law practice can adapt to meet the complexity of needs of small-scale farmers. These include, first, offering services in a manner both accessible and affordable to farmers; second, developing agreements with terms that match the realistic needs of farmers— specifically, farm lease agreements; and, third, developing financing arrangements that strike a balance between debt and equity financing.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 1, p. 029-108 : Integrating Stakeholder Roles in Food Production, Marketing, and Safety Systems: An Evolving Multi-Jurisdictional Approach(University of Oregon School of Law, 2011) Endres, A. Brian; Johnson, Nicholas R.Evaluating prospects for reform require an understanding of the current system and its constituents—especially the agencies subject to change. Accordingly, Part I provides a brief overview of the historical development of the food safety system in the United States and an exploration of the split in regulatory authority between the two primary food safety agencies—the USDA and the Food and Drug Administration (FDA). This division of responsibility among government agencies adds to the difficulty of regulating the diverse food supply chain—an issue analyzed in Part I in greater detail and throughout this Article. Part II explores the first of this Article’s two discussions of recent examples of food safety failures within this multiagency jurisdictional environment—fresh-cut leafy greens contamination. In 2006, several hundred people fell ill after consuming bagged spinach contaminated with E. coli. In the prior ten years, there were twelve documented outbreaks of E. coli in leafy greens. But rather than addressing the structural issues leading to the food safety lapse, the FDA issued draft guidelines. Meanwhile, the processing industry organized a voluntary marketing agreement to safeguard against future outbreaks while retailers incorporated private “super-metrics” standards into their supply contracts. At the federal level, a group of large processors proposed the creation of a national marketing agreement, which would incorporate some disease-prevention measures. Although the USDA has not finalized the proposed marketing agreement, some aspects of the Food Safety Modernization Act may address safety issues in leafy green production and processing. In 2010, more than 1900 people were struck with Salmonella from shell eggs, prompting the largest egg recall in history. Unfortunately, this was not a new food safety issue, but one the government had grappled with for more than two decades without success. The lack of progress in addressing the issue stemmed from the failure of multiple government agencies—the Animal and Plant Health Inspection Service (APHIS), Agricultural Marketing Service (AMS), and the Food Safety and Inspection Service (FSIS) in the USDA, and the FDA in the Department of Health and Human Services (HHS)—to coordinate responsibilities to ensure the safety and quality of eggs and egg products. Accordingly, Part III analyzes the shell egg regulatory regime in light of the most recent food safety failure. This Article concludes with a comparative analysis of the government and private industry responses to the repeated instances of food borne illness in fresh-cut greens and shell eggs.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 1, p. 001-018 : Keynote Address: Farms, Food, and the Future: Legal Issues and Fifteen Years of the “New Agriculture”(University of Oregon School of Law, 2011) Hamilton, Neil D.I will discuss a series of current legal and policy developments now underway in the United States which are shaping America’s farm and food future, continuing our movement toward the New Agriculture predicted fifteen years ago; I will also describe some of the examples and opportunities for how lawyers and law students can use the law to help influence the direction and impact of these social movements. The critical lesson of the last fifteen years is that while the mechanisms of law and justice may appear to move slowly, when they are measured over time our progress toward a more just, progressive, and democratic society is inexorable.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 1, p. 287-350 : Smart Growth and Green Building: An Effective Partnership to Significantly Reduce Greenhouse Gas Emissions(University of Oregon School of Law, 2011) Leerssen, Anika E.This Article analyzes the aggressive, creative strategies of promoting sustainable growth illustrated in the proposed federal surface transportation bill, Oregon’s new law, and California’s recent anti-sprawl legislation. This Article also reviews Portland, Oregon’s green building policy as well as California’s statewide policy, and concludes that strategies that reform the permitting process to provide an incentive for infill green building development are ideally suited to fulfill the mandate of Oregon’s S.B. 1059—or any state’s respective goal to achieve sustainable growth and consequently reduce green house gas (GHG) emissions. Specifically, this Article advocates adoption of form-based codes for infill development that incorporate green building elements as a method to spur construction within city centers and along transit corridors. Due to the inherent flexibility of green building rating systems, this technique allows a community to tailor infill building projects to adhere to a particular standard form11 and yet still include desirable compact, mixed-use, and connectivity components that have been proven to significantly reduce GHG emissions. Importantly, this Article proposes to modify the traditional building permitting process to allow for approval through a state council if a particular project conforms to the local government’s form-based code and includes certain smart-growth characteristics. In this way, the very nonlocal impacts of GHG emissions from lowdensity car-dependent development can be redressed by the state, while at the same time ensuring the local community’s concerns are addressed in the first instance. This balanced approach provides local governments the continued ability to control their community’s sense of place and also effectively reduces GHG emissions.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 1, p. 259-286 : Lessons from Oregon’s Battle over Measure 37 and Measure 49: Applying the Reserved Powers Doctrine to Defend State Land Use Regulations(University of Oregon School of Law, 2011) Blodgett, Abigail D.Part I provides a brief introduction to Oregon’s expansive land use system. Part II then discusses the revolt against Oregon’s system that resulted from the state’s approach to private land use regulation. One way that voters expressed their frustration towards state land use regulations was by passing Measure 37. However, the public quickly realized the massive ramifications associated with Measure 37 and passed Measure 49. Part III explores both Citizens for Constitutional Fairness v. Jackson County decisions, introduces the Contract Clause of the United States Constitution, and describes how the district and appellate courts applied the Contract Clause to formulate their conclusions. Citizens I concluded that the land use regulation waivers granted pursuant to Measure 37 were binding, irrevocable contracts that could not be subsequently altered by Measure 49, while Citizens II interpreted these waivers to be fully revocable. Finally, Part IV discusses the reserved powers doctrine as alternative grounds for limiting the scope of Measure 37 and similar state initiatives across the country. The reserved powers doctrine, a common law tool crafted by the Supreme Court of the United States to protect a state’s ability to enact legislation necessary to preserve the public welfare, allows a state to modify or rescind existing contracts that interfere with its ability to exercise essential sovereign responsibilities. Since enacting legislation that ensures proper land use is an essential state responsibility, the reserved powers doctrine is a powerful, yet unexplored, method for protecting important state land use regulations—and ultimately, the public interest.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 1, p. 179-258 : “Preserving Forest Lands for Forest Uses”— Land Use Policies for Oregon Forest Lands(University of Oregon School of Law, 2011) Sullivan, Edward J.; Solomou, AlexiaForest lands are central to the identity and economy of Oregon. Though both public and private forest lands contribute to the health and stability of Oregon, this Article focuses on public and private forest lands not owned by the federal government for which Oregon has forest management responsibilities, land use jurisdiction, and established land use policies. These policies evolved from a generalized combination of forest management and land use laws intended to protect forest lands for forest use, and from conversion to nonforest development, to a system where land use and forest management laws are split between land use and forest agencies with precise regulations designed to preserve and sustain private forest lands necessary for the future of Oregon.