icon of a paper next to Apply online text
open door next to gray writing "Visit"
Small icon next to white bg says "Give"
plus sign and gray writing

About                          Scholarship                          Services                          People


 

Published Scholarship

 

This section is a repository of research conducted by the Division of Environmental Policy.  Below is an index of articles.  To help in searching through the articles, each title is followed by a brief abstract as well as keywords.

 

ARTICLE INDEX 

Coastal Planning, Federal Consistency, and Climate Change: A Recent Divergence of Federal and State Interests

Climate Adaptation and the Fifth Amendment of the U.S. Constitution: A Regulatory Takings Analysis of Adaptation Strategies in Coastal Development with Application to Connecticut’s Coastal Management Regime

Public Policy Frameworks in Environmental Settings: An Argument for New Policy Frameworks to Support New Policy Directions

Systems Thinking Applied to U.S. Federal Fisheries Management

Regulatory Takings Claims and Coastal Management of Sea Level Rise: Remembering Governments are More Than Regulators

A Framework for Analyzing Information Flows in Public Policy Decision-making: A Move Towards Building Sustainable Policy Instruments

A Review of Amendment 16 to the Northeast Multispecies Fishery Management Plan

Who Owns the Fish? Moving from the Commons to Federal Ownership of Our National Fisheries

Marine Mammals and International Trade: Balancing Social Conscience with Trade Obligations – A Summary and Update on the World Trade Organization Seal Products Dispute

The Nonexistence of Sustainability in International Maritime Shipping: Issues For Consideration

Some Back-Ended Legal and Political Issues in United States Fisheries Management

Climate Adaptation and the Fifth Amendment to the United States Constitution: How do adaptation strategies impact regulatory takings claims?

Sustainable Approaches to Managing Small-Scale Ecosystems: A Case Study of Vernal Pool Protection in the Commonwealth of Massachusetts, United States of America

A Case Study of Carbon Sequestration Potential of Land Use Policies Favoring Re-growth and Long-term Protection of Temperate Forests

Regulatory Takings and Rising Tides: Lessons from Lucas and background principles analysis as a way of justifying prohibitions on coastal development in response to climate change

Rights-Based Fisheries and Ecosystem-Based Management: Maybe Scientists and Fishermen Know the Way?

Ecosystem-Based Management and Traditional Property Rights: Some Legal and Policy Issues for Consideration

Operational Issues in U.S. Fisheries Management: What are some of the Major Scientific, Political, and Legal Hurdles to Implementing Ecosystem-Based Management

Ecosystem-Based Management of Terrestrial and Coastal Water Resources: Can Rapanos Teach Us Anything About the Future of Integrated Water Management

 

 Coastal Planning, Federal Consistency, and Climate Change: A Recent Divergence of Federal and State Interests

Journal: Natural Resources & Environment 27.1 (2012)

Abstract: The purpose of this article is to identify the contrasting policy approaches being undertaken at the state and federal levels with respect to climate change and offshore resource development respectively, noting how these respective approaches are leading to a divergence between state and federal priorities in the marine environment. The divergent approaches identified will be placed in the context of the CZMA, particularly the federal consistency requirement of that act, which helps to define the relationship between state and federal actions in ocean waters. Legal issues that arise from this divergence will be identified and analyzed. We begin with identification of current policy approaches undertaken by the federal and state governments in relation to resource development and climate change adaptation.

Keywords: Climate Change, Environmental Law, Environmental Policy, Ocean Law and Policy, Coastal Management

Back to Top

 

 Climate Adaptation and the Fifth Amendment of the U.S. Constitution: A Regulatory Takings Analysis of Adaptation Strategies in Coastal Development with Application to Connecticut’s Coastal Management Regime

Journal: Sea Grant Law and Policy Journal 5.1 (2012)

Abstract: As climate change impacts are realized at the governance level, states and local governments are moving towards adaptation strategies that include increasing restrictions on how land is used in coastal zones. The purpose of this article is to review state regulatory strategies that are attempting to adapt to climate change in light of limits placed on those strategies by the Fifth Amendment to the United States Constitution: the prohibition against the taking of private property by government action without a public purpose and just compensation. This article highlights the importance in identifying the roles governments can take beyond the role of “regulator” as a means of mitigating regulatory takings challenges. The analysis presented is then applied generally to Connecticut’s coastal management regime.

Keywords: Climate Change, Ecosystem Management, Environmental Law, Environmental Policy, Ocean Law and Policy, Coastal Management

Back to Top

 Public Policy Frameworks in Environmental Settings: An Argument for New Policy Frameworks to Support New Policy Directions

Journal: Environmental Management and Sustainable Development (2012)

Abstract: Environmental policy is about solving problems, not creating them. Policy frameworks are meant to be supportive of policy initiatives. Most environmental initiatives are impacted by new information, and as such, policy frameworks should be responsive to new information. Often existing policy frameworks limit the ability of information that suggests a change in policy direction. This article discusses some of the causes for this phenomenon and suggests that new policy frameworks should be considered in supporting new policy directions, rather than relying on the manipulation of existing policy frameworks.

Keywords: Environmental Policy

Back to Top

 Systems Thinking Applied to U.S. Federal Fisheries Management

Journal: Natural Resources & Environment 26.3 (2012): 3-6

Abstract: The goal of this article is to provide the reader with a kind of historical case study on how fisheries law and policy evolution has brought management of the resource to a more ‘systems-centered’ approach. In addition to this historical rendition, another goal of this article is to identify some areas of potential growth, specifically the development of legal instruments that are more adapted to systems principles.

Keywords: Ecosystem Management, Environmental Law, Environmental Policy, Ocean Law and Policy, Fisheries

Back to Top

 

 Regulatory Takings Claims and Coastal Management of Sea Level Rise: Remembering Governments are More Than Regulators

Journal: Marine Resources 15.1 (2012): 7-9

Abstract: The purpose of this article is to highlight some of the roles government can take on that exist outside the traditional regulatory powers of government. Two such nonregulatory roles include the rights of government as the property owner of submerged lands, and the rights/ obligations of government as trustee of the public trust under the public trust doctrine that exists at common law and also statutorily in many coastal states. The reasons these nonregulatory roles are important considerations is because of the reasonable argument that a government that is not acting in a regulatory capacity cannot be said to be “regulating,” and therefore cannot be subject to a regulatory takings claim. As such, it may be helpful to practitioners working with public coastal planning authorities to consider the importance of thinking about government’s nonregulatory rights in the coastal zone as a means of developing policy responses to sea-level rise that impact private property right expectations.

Keywords: Climate Change, Coastal Zone Management, Land Use

Back to Top

 A Framework for Analyzing Information Flows in Public Policy Decision-making: A Move Towards Building Sustainable Policy Instruments

Journal: Journal of Politics and Law 4.2 (2011): 25-35

Abstract: The purpose of this paper is to explain a framework that focuses on information flows as a means of understanding public policy decision-making, with a specific emphasis on information relating to sustainable development. The goal of this framework is to further aid in identifying and explaining the extent to which sustainability goals are being implemented in public policy decisions. The suggestion is that by focusing on the information flows directly related to sustainable information, instances can be isolated where specific pieces of information are not making their way to final decision-making processes, or alternatively, where new information interferes with sustainable information becoming part of the final decision-making process. This paper begins with an overview of the theoretical framework in the first part, and then gives an overview of how the framework can be applied to sustainability information. It concludes by suggesting the use of the framework can offer substantial insight into questions of sustainable policy development. While the approach described offers the potential to better understand organizational decision-making dynamics, the true value of the framework will lie in its future use to both predict and assess the relationship between sustainable outcomes and related decision-making processes.

Keywords: Environmental Policy, Public Policy, Sustainability

Back to Top

 A Review of Amendment 16 to the Northeast Multispecies Fishery Management Plan

Journal: Marine Resources 14.2 (2011): 12-15

Abstract: The purpose of this article is to review Amendment 16 to the Northeast Multispecies Fishery Management Plan, highlighting some of the legal and policy implications to the fishing community and regulatory bodies. Questions of impact are framed from the local fishing community perspective, while larger questions of regulatory implications, including statutory purpose, are identified where appropriate. The article concludes by identifying necessary policy questions that need to be resolved if we are to move toward a coherent strategy of national fisheries management that is both rational for the sake of the resource, and equitable to those who are most directly impacted.

Keywords: Ecosystem Management, Environmental Law, Environmental Policy, Ocean Law and Policy, Fisheries

Back to Top

 Who Owns the Fish? Moving from the Commons to Federal Ownership of Our National Fisheries

Journal: Marine Resources 14.2 (2011): 3-7

Abstract: The purpose of this article is to explore a premise that fishery management at the federal level would be more effective if the U.S. government simply charged for the privilege to commercially harvest fish. This argument is supported by a mix of historical fact-finding and legal precedent, brought together in an attempt to identify a basic economic principle of property rights. The goal is to allow both practitioners and policy makers an opportunity to view fishery management options through a lens of government property rights, and show how a rational distribution of those rights through advancing market mechanisms may provide for a more sustainable fisheries management scheme.

Keywords: Ecosystem Management, Environmental Law, Environmental Policy, Ocean Law and Policy, Fisheries

Back to Top

 Marine Mammals and International Trade: Balancing Social Conscience with Trade Obligations – A Summary and Update on the World Trade Organization Seal Products Dispute

Journal: International Environmental Law 13.2 (2011): 13-17

Abstract: The purpose of this article is to provide a summary of the current debate surrounding the proposed European Union expansion of barriers to trade in seal products. This article will also identify some of the potential legal issues at the heart of the ban. Finally, some policy considerations that may arise depending on how this case ultimately resolves itself will be highlighted. What is reinforced in this case study is the notion that the interaction between domestic policy and international law can often create unique frustrations where seemingly independent goals can lead to legal conflicts. This case study is an example of how these legal conflicts can arise, how such conflicts may be resolved, and the impact of such resolutions for the international community.

Keywords: Environmental Law, Environmental Policy, Ocean Law and Policy, International Law

Back to Top

   

 The Nonexistence of Sustainability in International Maritime Shipping: Issues For Consideration

Journal: Journal of Sustainable Development 4.1 (2011): 72-78

Abstract: There is an ongoing practice in the international shipping community that impacts fundamental notions of sustainability as defined in the peer-reviewed literature (WCED, 1987; Gladwin, Kennelly & Krause, 1995; McManus, 1996, Naess, 2003; McGregor, 2004). The practice is based in discounting the true costs of maritime shipping through a system of open registries. By engaging in such practices, there is an inherent failure by the international community to internalize the true costs (environmental, social, labor, etc.) associated with shipping. The result is a practice that artificially keeps the international costs of maritime shipping low at the expense of environmental and labor concerns. This paper will identify the methods by which this generalized unsustainable practice is carried out, and link the practices to environmental policy failures at both domestic and international scales. While the main purpose of the paper is to serve as a scoping piece to identify the unsustainable practices of the international maritime industry, some general insights are also offered to suggest research directions that may aid in ensuring our global maritime shipping industry better internalizes generally accepted principles of sustainability. Work beyond this paper should focus on in-depth analyses and case studies to further develop the general principles discussed herein.

Keywords: Environmental Policy, Ocean Law and Policy

Back to Top

 Some Back-Ended Legal and Political Issues in United States Fisheries Management

Journal: Journal of Politics and Law 3.2 (2010)

Abstract: In response to over-exploitation and ecosystem degradation, United States federal fisheries policy is shifting from species-based to ecosystem-based management. In addition, the reauthorized Magnuson-Stevens Fisheries Conservation and Management Reauthorization Act of 2006 identifies the following goals to be achieved by 2011: end over-fishing, create market-based incentives, strengthen enforcement mechanisms, and improve cooperative conservation efforts. We refer to these goals (including the “status quo”) as front-ended policy objectives. Left unresolved are what we term back-ended policy and legal issues, specifically including issues involving the legal limitations that inhibit full consideration of ecosystem-based management principles through the adopting of scientific information. In this paper, we identify and examine some of these legal limitations, including the standard of review used in judicial proceedings. In addition, we also suggest some potential solutions to these major governance obstacles. We believe the ultimate value of this paper is the identification of recurring framework issues in United States fisheries management if, left unresolved, will continually limit the conservation-related goals such as those identified in the Magnuson-Stevens Fisheries Conservation and Management Reauthorization Act of 2006. As such, these legal obstacles should be a primary focus of policy makers who wish to achieve fishery conservation goals in-line with scientific research.

Keywords: Ecosystem Management, Environmental Law, Environmental Policy, Ocean Law and Policy, Fisheries

Back to Top

 Climate Adaptation and the Fifth Amendment to the United States Constitution: How do adaptation strategies impact regulatory takings claims?

Conference Proceeding: The Coastal Society 22nd International Costal Conference: Shifting Shorelines, Adapting to the Future (2010)

Abstract: As the impacts and potential of climate change are realized at the governance level, states are moving towards adaptation strategies that include greater regulatory restrictions on development within coastal zones. The purpose of this paper is to outline the impacts of existing and planned regulatory mechanisms on the Fifth Amendment to the United States Constitution, which prevents the government taking of private property for public use without just compensation. A short history of regulatory takings is explained, and the potential legal issues surrounding mitigation and adaptation measures for coastal communities are discussed. The goal is to gain an understanding of the legal issues that must be resolved by governments to effectively deal with regulatory takings claims as coastal mitigation and adaptation plans are implemented.

Keywords: Environmental Law, Environmental Policy, Ocean Law and Policy

Back to Top

 Sustainable Approaches to Managing Small-Scale Ecosystems: A Case Study of Vernal Pool Protection in the Commonwealth of Massachusetts, United States of America

Journal: Journal of Sustainable Development 3.2 (2010)

Abstract: This paper reviews the current management scheme used by Massachusetts to protect vernal pools, which represent small-scale ecosystems, and analyzes its relative strengths and weaknesses from an overall sustainability standpoint by looking at the frameworks developed for management. The frameworks are analyzed to determine if the objectives of vernal pool protection are being met. The initial impression is the outcomes are not meeting the objective of overall vernal pool protection, because there are failures in the drivers (mainly the certification requirement), which limits the number of verbal pools actually protected. An expansion of the current Massachusetts program is suggested to allow for proper consideration of all vernal pools resources regardless of their physical location, proximity to priority habitat, or their legal status at the time of review. Such an expansion would allow for the quantifiable ecosystem services provided by vernal pools to be more readily protected. However, such an expansion also raises important legal questions regarding the extent to which private property can be regulated in the United States. Although this question is not analyzed within the context of this paper, it may limit the application of certain solutions proposed.

Keywords: Ecosystem Management, Environmental Law, Environmental Policy, Water Law

Back to Top

 A Case Study of Carbon Sequestration Potential of Land Use Policies Favoring Re-growth and Long-term Protection of Temperate Forests

Journal: Journal of Sustainable Development 3.1 (2010): 11-16

Abstract: There is a traditional view suggesting forests remove carbon dioxide from the atmosphere (Pregitzer & Euskirchen, 2004), but they cease to serve as a carbon sink as they fully mature (Odum, 1969). Recent modeling of old-growth forest carbon sequestration indicate they continue to serve as a “net sink” of carbon even after maturity (Carey, Sala, Keane, & Callaway, 2001; Zhou et al., 2006) - sequestering an average of 2.4 +/- 0.8 tC ha-1 yr-1 (tC = metric tons of carbon; ha = hectare; yr =year), and yielding a ratio of heterotrophic respiration (Rh) to net primary production (NPP) of approximately 0.65 +/- 0.02 (Luyssaert et al., 2008). These figures show the strongest correlation amongst temperate forest regions.Two calculations are made using this carbon sequestration average. One is made identifying the amount of carbon sequestered through a small-scale land protection organization, yielding a net carbon sequestration of approximately 224 metric tons of carbon per year. The other is based on the amount of land required to offset current anthropogenic emissions of carbon in the global carbon budget, showing approximately 235 million hectares of new forest growth would be required to offset current global anthropogenic emissions. One implication of these calculations is the traditional assumption of carbon neutrality increasing with age (Magnani et al., 2007) is incorrect, suggesting mature forest protection may be a favored policy choice for carbon sequestration strategies.

Keywords: Ecosystem Management, Environmental Policy

Back to Top

 Regulatory Takings and Rising Tides: Lessons from Lucas and background principles analysis as a way of justifying prohibitions on coastal development in response to climate change

Journal: Marine Resources 13.1 (2010): 9-12

Abstract: The purpose of this article is to focus on how background principles of law, as explained in Lucas and seen in the light of climate change mitigation and adaptation, may be used as a defense to regulatory takings claims. This article points out the factors required to support the background principles exclusion to a regulatory takings claim by examining the connections between climate change regulation and traditional public safety concerns.

Keywords: Ecosystem Management, Environmental Law, Environmental Policy, Ocean Law and Policy, Water Law

Back to Top

 Rights-Based Fisheries and Ecosystem-Based Management: Maybe Scientists and Fishermen Know the Way?

Journal: Marine Resources 12.1 (2008): 5-7

Abstract: The authors recently attended an International Symposium on current developments in Fisheries Ecology hosted by Florida State University at the Mote Marine Laboratory in Sarasota Florida (http://www.bio.fsu.edu/mote/current.html). At this symposium, the authors presented a view of U.S. fisheries management aimed at identifying “legal” issues involved with implementing ecosystem-based management principles. Some of the legal issues presented by the authors are summarized below. More importantly, some legal implications of the scientific discussions presented, as viewed by the authors, are highlighted, and their potential effects on future fisheries management policy, including rights-based management to achieve sustainable fisheries, is discussed.

Keywords: Ecosystem Management, Ocean Law and Policy, Fisheries

Back to Top

 Ecosystem-Based Management and Traditional Property Rights: Some Legal and Policy Issues for Consideration

Journal: Climate Change, Sustainable Development, and Ecosystems 11.3 (2008)

Abstract: Ecosystem-based management has become a recurring theme in the pursuit of sustainable practices, especially considering common resources. While science has developed strong disciples of ecology and conservation biology to arm resource managers with better information on where priorities should be set, our legal and policy institutions need to develop management tools that better resemble ecosystem principles. One such legal institution in need of analysis is the manner in which we define property rights. Much of traditional property rights have focused on the notion of human entitlement, looking at property interests as a means of satisfying some human use. This article suggests we being to review ecosystem management through the legal lens of human requirement to better incorporate how ecosystems function, and the value they serve to human well-being. A human requirement perspective would take a broader view of property “value,” and expand the regulatory capacity to include more objectives, including those aimed at maximizing ecosystem management without invoking constitutional protections.

Keywords: Ecosystem Management, Environmental Law

Back to Top

 Operational Issues in U.S. Fisheries Management: What are some of the Major Scientific, Political, and Legal Hurdles to Implementing Ecosystem-Based Management

Journal: Marine Resources 11.8 (2008)

Abstract: The purpose of this article is to identify a number of issues regarding U.S. fisheries management that are currently being explored by the authors. The main categories of issues, from a legal context, are as follows: (1) Can ecosystem-based management be operationally implemented in a scientifically-sound manner under current regulatory practice?; (2) Is the current scope of judicial review constructive in furthering ecosystem-based management goals?; and (3) Is there a need to consider ecosystem-based property interests in order to properly protect fishery resources? The hope in identifying these perceived issues to a wider legal audience is to obtain input from academics and practitioners in the legal field.

Keywords: Ecosystem Management, Ocean Law and Policy, Fisheries

Back to Top

 Ecosystem-Based Management of Terrestrial and Coastal Water Resources: Can Rapanos Teach Us Anything About the Future of Integrated Water Management

Journal: Water Quality and Wetlands 7.2 (2007)

Abstract: The purpose of this article is to describe aspects of the Rapanos decision, focusing on the Kennedy concurrence, and then suggesting its connection to the ongoing policy debate regarding coastal resource management, and how it may offer a sign of the judicial will to accept an expanding federal role over centralized water management, regardless of spatial location.

Keywords: Ecosystem Management, Water Law

Back to Top

Center for Policy Analysis > Division of Environmental Policy > Scholarship > Publications > Published Scholarship


QuickLinks

x

myUMassD

x

myCoursesmyCourses myAlertmyAlert LibraryLibrary
COINCOIN HRDirectHR Direct umasspassUMass Pass
ReservItReservIt ZimbraZimbra
+