Journal of Environmental Law & Litigation : Vol. 35 (2020)
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The Journal of Environmental Law and Litigation (JELL), has provided a national, unbiased forum for the discussion and presentation of new ideas and theories in environmental and natural resources law since 1985. JELL educates students for careers in environmental law, disseminates important information to the environmental community, and plays an integral role at the University of Oregon Law School's nationally and internationally recognized environmental law program. A print copy of this title is available through the UO Libraries under the call number: LAW LIB. K10 .O425
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Item Open Access Shed a Tier: An Analysis and Critique of Coastal States’ Ability to Oppose Trump’s 2019–2024 Offshore Oil and Gas Proposal(University or Oregon School of Law, 2020-07-01) Galloway, MariIn 2017, the Trump Administration announced a proposal to expand leasing offshore areas for oil and gas development as part of President Trump’s America-First Offshore Energy Strategy. The proposal allows new offshore oil and gas drilling in almost all coastal areas in the United States, contradicting former President Barack Obama’s drilling ban. The colossal expansion will allow oil and gas companies to lease off California’s shores for the first time in decades and make available over one billion acres in the Arctic and Eastern Seaboard for potential oil and gas production. This Article will analyze the opportunities for concerned coasts to oppose offshore oil and gas by exercising the powers reserved to the states throughout the phases of the process.Item Open Access The Plastic Pollution Crisis: Combating Single-Use Plastics Through NEPA Challenges to the FDA’s Food Contact Substance Regulations(University of Oregon School of Law, 2020-07-01) Grant, Zoe M.This Article will discuss the history and mechanics of the U.S. Food & Drug Administration’s (FDA) approval of plastic food contact substances, general obligations of federal agencies under the National Environmental Policy Act (NEPA), application of NEPA to the FDA, and it will outline potential arguments within a hypothetical NEPA challenge to the FDA’s approval of particularly concerning chemical compounds. The aim of this Article is to provide advocates with a roadmap for preparing impact litigation against the FDA (and perhaps other federal agencies) to curb the growing plastic pollution crisis.Item Open Access The Mexican-American Border Wall: Aftermath for Animals(University of Oregon School of Law, 2020-07-01) Boekeloo, MollyBorder walls have long been a source of division among citizens of any nation. While national security is important, many question whether a wall would, in fact, enhance national protection. In the United States, the proposed border wall between the United States and Mexico has been the subject of many dinner table conversations and continues to plague our media. Few of these conversations and media outlets, however, have considered the impact this wall might have on wildlife and the implications of such impact. While man-made infrastructure has existed since the dawn of civilization, this Article seeks to explore and analyze the impact a wall might have on wildlife and vegetation. Additionally, this Article seeks to analyze the legality of the wall in terms of immigration, state law, and federal law.Item Open Access The Case of Anticipating Changes in the North Korean Food Safety Regime(University of Oregon School of Law, 2020-07-01) Kim, Yi SeulThis Article aims to provide one of the world’s first analyses of the North Korean food safety regime. Very rarely has this regime been a subject of discussion, as much attention has been diverted to food security issues. However, food safety remains a critical problem for the people.Item Open Access The Doctrine of Positive Obligations as a Starting Point for Climate Litigation in Strasbourg: The European Court of Human Rights as a Hilfssheriff in Combating Climate Change?(University of Oregon School of Law, 2020-07-01) Braig, Katharina Franziska; Panov, StoyanClimate change is a severe threat to the realization of several fundamental human rights, such as the right to life, the right to private life, and the right to health. In order to guarantee that the protection of the European Court of Human Rights (ECtHR) remains effective, we might have to acknowledge that climate change also poses a threat to the rights protected under the European Convention on Human Rights (ECHR). Although the ECtHR has not yet explicitly developed case law on climate change-related cases, this Article discusses the applicability and suitability of the ECtHR in protecting the rights of individuals against the implications of climate change.Item Open Access A Trip to Lomonosov Ridge: The Arctic, UNCLOS, and “Off the Shelf” Sovereignty Claims(University of Oregon School of Law, 2020-07-01) Macneill, Christopher MarkThis Article explores the substantive merit of Russia’s sovereignty claims over the extension of its 200-nautical-mile continental shelf limit via the Lomonosov Ridge to include an additional 150 nautical miles reaching almost to the North Pole. In particular, the issue is whether Russia’s claims are justified and what legal premises support its position. In view of counter claims by Canada, Denmark (Greenland), and the littoral states in the region, this Article also attempts to identify the inherent conflict within the competing sovereignty claims and potential alternatives for amicably resolving an appropriate international legal framework for the region.Item Open Access Burden of Proof: Real Burden in Environmental Litigation for the Niger-Delta of Nigeria(University of Oregon School of Law, 2020-07-01) Odong, Nsikan-AbasiThe Niger-Delta is the oil- and gas-rich region of Nigeria, which has been described as an epitome of the resource curse—poverty, squalor, illiteracy, and environmental degradation exist adjacent to the unspeakable wealth taken from the region. However, a judicial approach to addressing the environmental degradation in the region has not yielded the desired result because, among other reasons, Nigerian law places the burden of proof in environmental litigation on the plaintiff. The plaintiff has to show on a balance of probabilities that the defendant’s action or omission was the cause of the environmental harm that resulted in injury to either the plaintiff or the plaintiff’s interest. With pervasive poverty in the Niger-Delta, discharging the burden of proof becomes a herculean task.Item Open Access Space Horizons: An Era of Hope in the Geostationary Orbit(University of Oregon School of Law, 2020-07-01) Balleste, RoyThis article centers on the geostationary orbit, its future management, and the challenges associated with its inherent scarcity. The equitable access under the law to this orbit is in direct conflict with the realization that it is congested and limited in orbital slots.Item Open Access The War on Trees: How to Diffuse Neighborly Feuds over View Rights(University or Oregon School of Law, 2020-07-01) Kisiel, EdwinView rights litigation is fairly uncommon in most of the United States because, in the common law, there simply is no right to a view. However, in hilly coastal areas, like Southern California’s beach cities, view rights litigation has become a boutique practice area driven by residents who want neighbors’ trees chopped down or trimmed to maintain a valuable ocean view. In response, several cities, such as the city of Laguna Beach, have created legislation that gives homeowners a right to maintain their property’s ocean view and provides for mediation to facilitate the resolution of disputes. While this has yielded some positive results, there are still stories of neighbors deliberately poisoning trees in an attempt to create ocean views. Unfortunately, it is also difficult to bring to justice the perpetrators of these crimes because it is hard to prove that a particular neighbor committed the crime.Item Open Access Japan’s Resumption of Commercial Whaling and Its Duty to Cooperate with the International Whaling Commission(University of Oregon School of Law, 2020-07-01) Wold, ChrisOn July 1, 2019, Japan resumed commercial whaling after withdrawing from the International Convention for the Regulation of Whaling (ICRW) and the International Whaling Commission (IWC). In announcing its withdrawal from the ICRW and IWC, Japan stated that it would allow commercial whaling within its territorial seas and exclusive economic zones. Although Japan has withdrawn from the ICRW and IWC, it is still bound by customary international law and treaties, including the U.N. Convention on the Law of the Sea (UNCLOS), to which it is a party. In particular, Japan must implement its duty to cooperate, an international obligation found in both customary international law and UNCLOS.Item Open Access Federalism Fails Water: A Tale of Two Nations, Two States, and Two Rivers(University of Oregon School of Law, 2020-07-01) Babie, Paul T.; Leadbeter, Paul; Nikias, KyriacoIn this Article, we consider the deployment of public power over the water resource. Federalism, like property, fragments control by dividing and separating power. While fragmentation might work to some extent for relatively discrete aspects of public power, such as those with respect to going to war, entering treaties, issuing money, and raising and maintaining armed forces, when applied to water, questions immediately arise: which unit of government gets to decide about the allocation of private power—property. Which unit of government can deal with those challenges that transcend formal boundaries, such as the environment?