Journal of Environmental Law & Litigation : Vol. 22, no. 2 (Fall 2007)
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Item Open Access Journal of Environmental Law & Litigation : Vol. 22, No. 2, p. 415-422 : New Books [book reviews](University of Oregon Law School, 2007)Reviews of the following books: European Environmental Law / by Jan H. Jans and Hans H.B. Vedder -- Wildfire Risk: Human Perceptions and Management Implications / edited by Wade E. Martin, Carol Raish and Brian Kent -- From the Corn Belt to the Gulf: Societal and Environmental Implications of Alternative Agricultural Futures / edited by Joan I. Nassauer, Mary V. Santelmann and Donald Scavia -- Biodiversity Conservation, Law and Livelihoods: Bridging the North-South Divide / edited by Michael I. Jeffrey, Jeremy M. Firestone and Karen Bubna-Litic -- Conservation and Biodiversity Banking: A Guide to Setting Up and Running Biodiversity Credit Trading Systems / edited by Ricardo Bayon, Jessica Fox and Nathaniel Carroll -- Global Climate Change and U.S. Law / edited by Michael B. GerrardItem Open Access Journal of Environmental Law & Litigation : Vol. 22, No. 2, p. 343-368 : National Association of Home Builders v. Defenders of Wildlife: Supreme Court's Endangered Species Act Decision Should Have Limited Impacts(University of Oregon Law School, 2007) Hasselman, JanItem Open Access Journal of Environmental Law & Litigation : Vol. 22, No. 2, p. 383-414 : Assimilation, Enclaves, and Take: How States Might Protect Wildlife on Federal Reservations(University of Oregon Law School, 2007) Miller, BenPart I of this Note briefly discusses the interrelationship between state and federal regulation of wildlife and the constitutional constraints. Part II provides a primer on federal enclave law. Part III discusses the background and application of the Assimilative Crimes Act. Part IV discusses exclusive and concurrent jurisdiction. Part V discusses state endangered species acts as criminal laws. Part VI walks through the assimilation of a state wildlife law. Finally, Part VII concludes with some of the challenges of enforcing state prohibitions. The goal of this Note is not to challenge federal authority over wildlife generally, but rather, to ensure there are alternatives available if the federal government is not living up to its stewardship responsibilities.Item Open Access Journal of Environmental Law & Litigation : Vol. 22, No. 2, p. 369-382 : Keynote Address: Government's Atmospheric Trust Responsibility(University of Oregon Law School, 2007) Wood, Mary ChristinaItem Open Access Journal of Environmental Law & Litigation : Vol. 22, No. 2, p. 313-342: United States v. Atlantic Research Corp.: The Supreme Court Restores Voluntary Cleanups Under CERCLA(University of Oregon Law School, 2007) Johnston, Craig N.United States v. Atlantic Research Corp.1 is easily the most important decision to date involving the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).2 In Atlantic Research, a unanimous Supreme Court restored CERCLA to its proper place in the environmental cleanup world, making it “comprehensive” once again. The opinion’s significance lies not in any earth-shaking pronouncements—indeed, the Court’s analysis is both straightforward and unadorned—but rather, in its context. As will be seen below, prior to this decision, the lower courts had taken a rather tortured path that, when combined with the Supreme Court’s 2004 decision in Cooper Industries v. Aviall Services, Inc. ,3 left CERCLA’s viability as a cost-spreading tool doubtful in most private party cleanup contexts. This doubt tended to discourage cleanup as landowners became nervous about their ability to bring to the table other entities who may have contributed to the relevant contamination.Item Open Access Journal of Environmental Law & Litigation : Vol. 22, No. 2, p. 301-312 : Massachusetts v. EPA(University of Oregon Law School, 2007) Heinzerling, LisaOn April 2, 2007, the United States Supreme Court issued its much-anticipated decision in Massachusetts v. Environmental Protection Agency (E.P.A.).1 By a vote of 5-4, the Court decided all of the issues presented in the case in favor of the states and other parties that had challenged the decision of the Environmental Protection Agency (EPA) refusing to regulate greenhouse gas emissions from motor vehicles.2 The Court held that: the states and other petitioners met the constitutional requirements for pursuing their claims in federal court;3 the federal Clean Air Act gives the EPA authority to regulate greenhouse gases;4 and the EPA could not refuse to exercise this authority by citing policy considerations not enumerated in the statute5 or by referring generally to the scientific uncertainty remaining with respect to climate change.6 On each issue, the Court broke new legal ground. The implications of the Court’s decision for other cases involving climate change are likely to be enormous.Item Open Access Journal of Environmental Law & Litigation : Vol. 22, No. 2, p. 267-300 : International Legal Avenues to Address the Plight of Victims of Climate Change: Problems and Prospects(University of Oregon Law School, 2007) Koivurova, TimoThis Article argues that the current structure of international law makes it unlikely that victims of climate change will find justice through international legal proceedings. Part I examines the various international legal proceedings that could provide recourse for victims of climate change. Part II focuses on the only case that has proceeded to the submission stage, the above-mentioned Inuit petition to the IACHR. Importantly, the Inuit’s human rights petition is currently the best possibility for success in international litigation since evidence already exists that climate change has caused clearly identifiable damage to the Arctic environment.22 The Article concludes by analyzing the likelihood of successfully combating climate change by utilizing the legal mechanisms discussed in Parts I and II.Item Open Access Journal of Environmental Law & Litigation : Vol. 22, No. 2, p. 231-266 : Fourth Amendment Privacy Rights at Sea and Systems: There's Something Fishy About This(University of Oregon Law School, 2007) Crance, Jason R.; Mastry, MikeIn early 2007, Congress passed, and the President subsequently signed into law, the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006.23 Included in the reauthorization were several amendments to the Act.24 Among those amendments is a requirement that the government improve the sharing of VMS data among relevant state and federal agencies.25 While the government’s use of VMS to protect marine resources has been generally applauded, the constitutionality of such 24-hour surveillance deserves further scrutiny. This Article examines the real-life situation unfolding within the Gulf of Mexico’s reef fish fishery in order to highlight the privacy issues arising from the government’s 24-hour surveillance of commercial vessels. Part I takes a historical look at the evolution of Fourth Amendment jurisprudence as it relates to technological advances employed by governmental entities over the past century. Part II explores the constitutionality of the government’s 24-hour VMS surveillance by analyzing a not-so-hypothetical scenario in the Gulf of Mexico. Parts III and IV analyze the scenario presented in Part II and conclude that the government’s current VMS requirements may already infringe upon the constitutionally protected privacy rights of commercial fishers.