Journal of Environmental Law & Litigation : Vol. 24, no. 2 (Fall 2009)
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Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 1, p. 455-494 : The Great Lakes Compact and the Public Trust Doctrine: Beyond Michigan and Wisconsin Common Law(University of Oregon School of Law, 2009) Donegan, BridgetPart I of this Comment examines the Great Lakes Compact and its effect in Michigan and Wisconsin. Part II provides background on the public trust doctrine and its evolution in Michigan and Wisconsin, including its scope, the obligations of the states as trustees, and the availability of citizen standing to enforce the trust. Part III explains how the Compact’s public trust is distinct from the states’ traditional public trust doctrines. The Comment concludes that judicial recognition of a distinct Compact trust, defined by the scope and purpose of the Compact itself, will best reconcile the Compact’s purposes with traditional state public trust doctrines.Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 1, p. 423-454 : Reauthorizing the Endangered Species Act in Favor of Wildlife and Wild Lands: An Inevitable Result of Narrative Changes in Twenty-First Century America?(University of Oregon School of Law, 2009) Hickey, ValerieThis Article explores how the shifting mosaic of interests, reacting to how the Endangered Species Act was implemented, crystallized into stark and opposing narratives in the public imagination during the debates over its reauthorization. This Article suggests that these narratives polarized in reaction to provisions in the ESA that appeared either to endanger nature or to abrogate property rights. This opposition of interests between groups loosely aligned in favor of nature, hereinafter the Environmentalists, and groups loosely associated to protect property rights, hereinafter the Rugged Individualists, led to intense policy debate but little movement in decision making. Focusing on appeals to different expertise, disparate case studies, and divergent narratives, this Article examines the availability cascades,13 mechanisms by which a singular perspective repeated often enough can become a widely held belief, that consolidated these opposing groups and resulted in a stalemate over reauthorization. This stalemate froze the ESA and has prevented its long overdue reauthorization. While the stalemate keeps the legislation on a short leash since it requires annual appropriations, something that suits each side to a certain extent, the legislation fails to insulate private property proponents or conservationists from longer-term decisions that would undermine current investments. As a result, both sides have attempted to bridge the divide. These stopgap measures succeeded in undoing the stalemate in some place-based problem sets. Nonetheless, the national debate remains in a deep freeze. Or does it?Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 1, p.367-422 : When Chemical Releases Occur at a Federal Facility: Navigating the Recovery Labyrinth(University of Oregon School of Law, 2009) Henkels, DianeThe purpose of this Article is to describe the legal options a local government, private individual, or business might pursue to recover from a chemical release at a federal facility caused by an emergency or disaster, as defined by law, or by the negligence of federal personnel, government contractors, or third parties.Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 1, p. 285-366 : Grizzly Bears, Gray Wolves, and Federalism, Oh My! The Role of the Endangered Species Act in De Facto Ecosystem-Based Management in the Greater Glacier Region of Northwest Montana(University of Oregon School of Law, 2009) Guercio, Lara D.; Duane, Timothy P.In this Article, we explore how (1) differences in the role of the ESA for the management of grizzly bear and gray wolf populations, and (2) changes in the legal regime associated with delisting of the gray wolf, both affect species conservation and transjurisdictional, ecosystem-based management efforts in the complex institutional landscape of the GGR of northwest Montana. We believe the ESA has played the central role in efforts to implement ecosystem-based management over the past two decades in a wide range of settings, so these differences and likely changes in the legal regime are likely to affect the success of such efforts. The experience of grizzly and wolf management in the GGR is therefore relevant for the conservation of wide-ranging predators and ecosystem-based management in other locations across the United States and within the West.Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 1, p. 243-284 : A Changing of the Cattle Guard: The Bureau of Land Management’s New Approach to Grazing Qualifications(University of Oregon School of Law, 2009) Hoffmann, Hillary M.This Article examines the traditional permit qualifications analysis, explains the role played by the regulations that created it, and argues that the BLM’s new approach to the qualifications issue has finally opened the door for nontraditional permittees to a degree not seen before in over seventy years of federal government regulation of livestock grazing on public lands. In Part I, this Article introduces the concept of federal lands ranches and discusses the exclusive club of federal lands ranchers, who, until recently, controlled the vast majority of grazing permits. Part II examines the history of livestock grazing on public domain lands prior to Congress’s passage of the Taylor Grazing Act in 19345 and the origins of the terminology contained in the past and present qualifications rules. Part III discusses the provisions of the Taylor Grazing Act under which the Secretary of the Interior asserts the authority to create qualifications regulations. Part IV traces the historical evolution of the qualifications regulations and discusses the BLM’s current requirements and approach. Part V analyzes one example of a modern, nontraditional permittee that became qualified and obtained grazing permits on environmentally sensitive allotments in Utah and Arizona under the new model and concludes that this model will allow the BLM to more easily implement its statutory obligations and will greatly benefit the federal range.Item Open Access Journal of Environmental Law & Litigation : Vol. 25, No. 1, p. 203-242 : Healthy Planet, Healthy People: Integrating Global Health into the International Response to Climate Change(University of Oregon School of Law, 2009) Wiley, Lindsay F.This Article argues that emphasis on climate change as a fundamental transformation of our environment that will have important consequences for human health has the potential to motivate and shape consensus on mitigation of climate change, while also improving our global health infrastructure as an adaptation to climate change impacts. Part II focuses on the global health burden currently attributable to environmental causes and the anticipated health impacts of climate change. Part III provides background on international climate governance under the UNFCCC and the current status of negotiations. Part IV sets forth an agenda for the integration of global health concerns into the negotiation of a series of key issues currently under debate in the international response to climate change and the national implementation of international obligations. Part V offers a conclusion emphasizing the importance of involving global health policymakers in the response to climate change.