This section is a repository of unpublished papers representing work conducted by the Division on various environmentally-related topics. To help in searching through the articles, each title is followed by a brief abstract as well as keywords.
Judicial Approaches to Dealing With Constitutional Limitations Surrounding Ecosystem-Based Management: Can Rapanos Offer Guidance by Suggesting “Ecosystem Factors” in the Definition of What Constitutes “Waters of the United States?”
Abstract: Ecosystem-based management is becoming a more prevalent in federal legislative and executive mandates. Still, there are constitutional limitations to applying such measures, especially regarding federal control of certain intrastate water resources. Recent U.S. Supreme Court precedent may suggest a willingness to allow ecosystem-based principles as a foundation to support greater federal control. This paper looks at one recent U.S. Supreme Court decision to determine how far ecosystem-based principles might apply to federal control over intrastate bodies of water.
Keywords: Ecosystem Management, Environmental Law, Water Law
Remediating Contaminated Sediments Under California’s Regulatory Regime: Are Regional Water Quality Boards Using the Correct Standard as Required by Law?
Abstract: California has a legislative mandate to remedy contaminated sediments under state statutory guidelines contained in the Porter-Cologne Water Quality Act. Implementation of these guidelines is delegated to Regional Water Quality Board’s (RWQB) throughout California. RWQB’s have interpreted requirements for contaminated sediment cleanup to be a “background level” approach. Such an approach is in direct conflict with the specific statutory mandates under Porter-Cologne. Instead of requiring a standard of “background levels”, Porter-Cologne is clear in requiring a cost-benefit analysis akin to review standards in the federal Comprehensive Environmental Response for Contaminated Liability Act (CERCLA), and more importantly, the California Hazardous Substance Accountability Act (HSAA); the state equivalent to CERCLA. The purpose of this paper is to show RWQB’s have enacted regulations that are in direct conflict with statutory requirements by requiring a standard for cleanup of historical contaminated sediments that is different than California law requires. The effect of this change in standard is additional liability being placed on California businesses, which have to spend exorbitant amounts of money with no indication the cleanup is cost effective. Thus, RWQB’s are engaging in ultra-vires actions, resulting in excessive costs and expenses being placed on California businesses subject to background levels of cleanup.
Keywords: Environmental Law, Water Law
UNCLOS and the High Seas: Problems and Suggested Solutions to the Creation of a Common Pool Resource on an International Scale
Abstract: The purpose of this paper is to critically analyze UNCLOS as an efficient management regime for protecting migratory marine species1, especially those with economic value. The premise, based on foundations of collective action theory, is UNCLOS cannot adequately protect marine resources. The main reasons include the dynamics involved with national sovereignty, along with UNCLOS creation of what is tantamount to a common pool, or open access resource through the development of the “high seas” concept.
Keywords: Environmental Law, Ocean Law and Policy, Fisheries
Major Terrestrial Causes of Marine Coastal Pollution: A Critique of Current Regulation and the Suggestion of an Alternative Approach to Regulation
Abstract: The purpose of this article is to identify agricultural operations as the major source of marine pollution, and present an argument for an alternate regulatory mechanism to properly control these sources. First, causes of marine pollution will be identified. Then, existing federal regulations will be reviewed and criticized. Some emphasis will be placed on §303 of the CWA, and the Total Maximum Daily Load (TMDL) program suggested by EPA. It will be used as a case study to show why ambient-based regulations are ineffective at controlling pollution sources. Limitations on other regulatory programs will be identified and explained. An alternate form of regulation encompassing a “technology with alternatives” approach will be suggested and criticized. This alternate form of regulation will be differentiated from other proposed forms of regulation. Finally, an example of a cooperative solution being implemented in Idaho will be discussed. The reasons for its success will be analyzed and compared to the “technology with alternatives” approach.
Keywords: Environmental Law, Ocean Law and Policy, Water Law