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Abstract:
This article accompanies a presentation at the Texas Bar Association's 18th Annual Advanced Administrative Law Course, held September 2006. It provides readers with a comprehensive review of administrative-law-related decisions from the U.S. Supreme Court in its 2004-2005 and 2005-2006 terms.

First, the article examines three trends in the U.S. Supreme Court's federal administrative law jurisprudence going into the 2004-2005 term: (1) limited interpretation of the federal Administrative Procedure Act (APA); (2) limiting Chevron deference; and (3) federalism and the role of state authority in federal administrative law. Second, the article provides a comprehensive review of Supreme Court decisions from October 2004 through June 2006 for administrative law practitioners. Finally, the article identifies two unexploded bombshells in administrative law jurisprudence and four cases to watch during the 2006-2007 Supreme Court term.

Administrative Law, Supreme Court, Federalism, Chevron Deference, Separation of Powers, Administrative Procedure Act, APA, Statutory Construction, Statutory Interpretation, Federal Court Jurisdiction

Abstract:
Ocean and coastal ecosystems provide about two-thirds of the ecosystem services that make up the world's natural capital. Despite that fact, the political will to adequately protect these marine ecosystems in marine protected areas and marine reserves generally does not exist. Instead, regulation focuses where the markets focus: on commercial commodities demands for ocean and coastal resources. This traditional commodities-focused market-and-regulatory regime has proven inadequate to protect functional marine ecosystems, as the history of wetlands loss and fishery regulation failure makes clear.

This paper argues that neither the commodities market nor a private property regime is likely to strengthen the political will to protect and preserve marine ecosystems as a whole. Nor, given the paradigm of inexhaustibility, the failure to perceive marine resources as scarce, and the lack of public understanding about the importance of marine ecosystem services, is strengthened political will likely to follow from the numerous scientific recommendations that the United States protect about 20 percent of its ocean resources in marine protected areas and marine reserves.

Instead, this paper explores the potential of new markets for the lifestyle values of marine resources amenities to serve as proxy for a direct public demand for intact and functional marine ecosystems. Specifically, the paper argues that new consumer demands for recreational opportunities, tourism, and eco-living may provide sufficient use competition - specifically, competition between commodities and amenities users - to translate the new economic demands into a political will to better protect marine ecosystems and the services that they provide.

ecosystem services, ocean, coast, coastal, markets, commodities, amenities, scarcity, fishing, overfishing, wetlands, development, ocean policy

Abstract:
Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation's public trust doctrines - emphasis on the plural - can reveal.

This Article seeks to begin to restore that sense of comparative complexity to the discussion of public trust principles. It focuses on the public trust doctrines of 31 eastern states - all of the states east of the Mississippi River, plus the five states - Minnesota, Iowa, Missouri, Arkansas, and Louisiana - bordering the western bank of the Mississippi River. Moreover, it includes in an Appendix state-by-state summaries of the public trust doctrines in each of the 31 eastern states examined.

These eastern states provide a particularly rich subset of states for public trust discussion purposes. At its most basic, a state's public trust doctrine outlines public and private rights in water by delineating five definitional components of those rights: (1) the waters subject to state/public ownership; (2) the line or lines dividing private from public title in those waters; (3) the waters subject to public use rights; (4) the line or lines in those waters that mark the limit of public use rights; and (5) the public uses that the doctrine will protect in the waters where the public has use rights. The history of the eastern states' public trust doctrines has led to multiple variations in how these states define and assemble these five components. In particular, far more often than is the case in the later-settled West, public trust use rights in the East intrude - and for practical purposes always have intruded - upon privately owned riparian and littoral property.

public trust, property rights, navigable waters, eastern public trust doctrine, Illinois Central, mixed property, tidal waters, state public trust doctrine

Abstract:
Environmental enforcement jurisprudence, especially standing jurisprudence in citizen suits, privileges actual concrete injuries over increased risk of disease, despite the public health aspects of most of the federal pollution control statutes. This privileging undermines the preventive and precautionary public health goals embodied in these statutes. Focusing particularly on the federal Clean Air Act and Clean Water Act, this Article argues that the federal courts should adopt a public health perspective on citizen environmental enforcement and adjust the injury-in-fact analysis in the federal standing requirement to reflect the necessarily probabilistic and risk-based relationships between pollution control regulation, protection of the public health, and individual harm. Specifically, after re-evaluating the Supreme Court's standing analysis in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., from a public health perspective, this Article argues that four threads of jurisprudence - increased risk causes of action in tort, environmental increased risk standing, public health-based increased risk standing, and deference to agencies' public health-related regulatory decisionmaking - and the inherent limitations of technology-based pollution regulation combine to suggest that violations of health-related regulatory requirements should qualify as per se injuries-in-fact for any plaintiff falling within the zone of the resulting increased risk to public health.

standing, injury, injury-in-fact, pollution, harm, Clean Air Act, Clean Water Act, public health, environmental law, teachnology-based, citizen suits, citizen enforcement, environmental enforcement, deference, regulatory standards, risk, increased risk, probabilistic

Abstract:
This article summarizes the author's argument in her book The Clean Water Act and the Constitution (ELI 2004) that constitutional principles such as standing and separation of powers distort the balance of enforcement authority that Congress created in most of the federal environmental statutes. Arguing that the inclusion of environmental citizen suits is an important part of American environmental policy and that the Supreme Court has unnecessarily narrowed constitutional doctrines to limit citizen suits, this article concludes that a structural amendment to the United States Constitution that recognizes the role of citizens in the law could better balance environmental enforcement opportunities while preserving to Congress, rather than the courts, the primary authority to set environmental policy.

environmental law, Clean Water Act, Constitution, citizen suit

Abstract:
This article reviews the intersection of science and international law in the area of preserving marine biodiversity. It provides an overview of how the science concerning marine biodiversity preservation has changed focus in the last decade or so and then looks at how international law is beginning to react to that change in scientific emphasis in the international preservation of biodiversity. It ends with a recommendation that nations adopt a more comprehensive approach to marine biodiversity preservation and a recognition that such comprehensive protection packages are beginning to become part of international law.

biodiversity, marine, ocean, international law, marine protected area, MPA, treaty, pollution, fishing, overfishing

Abstract:
In the United States, seven states and territorial jurisdictions have coral reefs: Hawaii, Florida, Puerto Rico, the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands. Reef-based coastal tourism and recreation provide significant economic benefits to the United States - benefits that generally exceed those of reef-based commercial fisheries.

The coral reef tourism industry requires healthy coral reef ecosystems, and reefs worldwide are in serious trouble. While U.S. coral reefs are subject to a number of anthropogenic stressors, fishing is the one that simultaneously (1) is generally deemed the most damaging to coral reef ecosystems and the biodiversity that makes such reefs attractive to tourists; and (2) has created the most political and legal opposition to coral reef protection. However, a potential win-win solution exists: both scientists and policymakers have recommended the increased use of marine protected areas (MPAs) and marine reserves to protect coral reef ecosystems and their tourism services, a solution that could simultaneously improve reef-based fisheries.

Increased use of MPAs and marine reserves requires a legal basis for setting aside areas of the ocean and restricting fishing therein, preferably with some sort of policy priority for protecting marine biodiversity. U.S. law and policy provides a number of legal mechanisms for creating MPAs but creates no clear policy in favor of coral reef - or marine biodiversity more generally - preservation and protection. As a result, conflicts between fishing interests, on the one hand, and tourism and scientific interests, on the other, have stalled coral reef-based MPA designations at the federal level. Nevertheless, despite a de facto legal preference for fishing, a tension between fishing promotion and coral reef ecosystem protection has been emerging in U.S. law and policy, indicating that modification of U.S. federal law is necessary to promote coral reef ecosystem preservation and restoration.

This article explores developments in U.S. law and policy in the 21st century regarding coral reef protection in light of those ecosystems' acknowledged tourism value. It concludes that the structure and procedures of the National Marine Sanctuary Act have proven ineffective in protecting U.S. coral reefs for purposes of promoting and sustaining coral reef tourism and suggests improvements for future coral reef and MPA policy.

coral reef, marine reserve, marine protected area, Antiquities Act, National Marine Sanctuary, executive order, tourism, economics, ocean policy, instrument choice, climate change

Abstract:
Viewed from a watershed perspective, we are unconsciously sacrificing many marine ecosystems because upstream fresh water is a regulatorily fragmented resource. That is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water use have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource. Moreover, the ecological effects of this regulatory fragmentation are also becoming obvious, particularly when downstream marine ecosystems are considered.

Such conflicts in water management are only likely to increase as climate change alters the expected availability of water in many areas of the country. In particular, in those regions where climate change reduces water supplies, competition for water resources in general, and conflicts between consumptive and in situ users in particular, are likely to increase. As such, climate change is likely to underscore two significant weaknesses of the current regulatory fragmentation of water resources that the nation should address: (1) the lack of any comprehensive public debate that acknowledges and weighs the cross-jurisdictional tradeoffs among water uses that insufficient supply makes necessary; and (2) the general failure of fresh water regulation, particularly consumptive use regulation, to acknowledge watersheds' end of the line - the oceans.

This Article focuses primarily on the second weakness of current water resource management. Specifically, this Article argues that marine ecosystems have often been the largely unnoticed casualties of water's regulatory fragmentation but that these ecosystems are nevertheless too valuable to continue to be left unconsidered in fresh water regulation. This Article also argues that considering marine ecosystems could provide output-focused, ecosystem-based regulatory goals that could provide one basis for coordinating and, when necessary because of water shortage, prioritizing regulatory choices for fresh water. Moreover, by adding weight to existing arguments for leaving water in situ and highlighting additional sensitivities to water pollution, marine ecosystem output goals could suggest both regulatory adjustments to inputs and more comprehensive structural reforms that would better protect the entire watershed - including the human health that depends upon the health of that watershed.

The Article concludes by offering a number of suggestions to improve water resource management, in two groups. The first group of suggestions consist of relatively limited amendments to existing federal statutes. The second set of suggestions outlines a broad restructuring of water resources management in the United States. To better incorporate oceans and other federal interests, however, both sets of suggestions envision an expanded (although certainly not exclusive) role for the federal government in water resource management.

water law, Clean Water Act, climate change, regulation, regulatory fragmentation, federalism, endangered species, Endangered Species Act, ocean, marine ecosystem, aquatic ecosystem, watershed approach, ecosystem services, triage

Abstract:
While there is no question that successful mitigation strategies remain critical in the quest to avoid worst-case climate change scenarios, we've passed the point where mitigation efforts alone can deal with the problems that climate change is creating. Because of "committed" warming - climate change that will occur regardless of mitigation measures, a result of the already-accumulated greenhouse gases in the atmosphere - what happens to social-ecological systems over the next decades, and most likely over the next few centuries, will largely be beyond human control. The time to start preparing for these changes is now, by making adaptation part of a national climate change policy.

Nevertheless, American law and policy are not keeping up with the need for adaptation, even though adapting law to a world of continuing climate change impacts will be a far more complicated task than addressing mitigation. Environmental and natural resources law, for example, are currently based on assumptions of ecological stationarity and pursue goals of preservation and restoration. Neither those assumptions nor those goals fit a world of continual, unpredictable, and nonlinear transformations of complex ecosystems - but that is the world that climate change impacts are creating.

This Article argues for a principled flexibility model of climate change adaptation law to pursue goals of increasing the resilience and adaptive capacity of social-ecological systems. In so doing, it lays out five principles and several sub-principles for the law of environmental regulation and natural resources management. Structurally, this Article also strongly suggests that climate change adaptation law must be bi-modal: it must promote informed and principled flexibility when dealing with climate change impacts, especially impacts that affect baseline ecological conditions such as temperature and hydrology, while simultaneously embracing an unyielding commitment to precautionary regulation when dealing with everything else.

Adaptation, climate change, complexity, principled flexibility, stationarity, environmental law, natural resources, ecosystems, adaptive management, resilience, adaptive capacity

Abstract:
Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law. This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access to the federal courts, covering issues such as standing, jurisdiction, causes of action, statutes of limitation, and exhaustion of administrative remedies. Part II presents the Roberts Court cases that have addressed federalism and the Supreme Court’s role in defining the relations between and the respective authority of the state and federal governments, including the imposition of Due Process requirements on states, dormant Commerce Clause limitations on states, federal preemption of state law, and the increasing role of federalism concerns as a factor in the Court’s statutory interpretation. Part III summarizes those decisions that give insights into the Robert Court’s perspective on the “proper” role of the federal courts in a tripartite federal government, covering issues such as constitutional interpretation, the Court’s interactions with Congress, federal court review of federal agency actions, and Chevron deference. While acknowledging that these decisions do not allow for any absolutely consistent principles to be discerned, this Article nevertheless concludes that a strong majority of the Justices are quite comfortable with the Court’s roles as constitutional interpreter and as constitutional mediator between governments and citizens and between states and the federal government. However, an admittedly weaker majority also otherwise prefers to defer to other branches of government — Congress and agencies — with respect to the implementation of statutes, even when doing so sacrifices some federal court prerogatives.

Abstract:
In Mobil Oil Exploration & Producing Southeast, Inc. v. United States, 120 S. Ct. 2423 (2000), the U.S. Supreme Court held, 8-1, that the United States had repudiated its obligations under Outer Continental Shelf Lands Act (OCSLA) lease contracts by enacting new environmental legislation, the since-repealed Outer Banks Protection Act (OBPA), that delayed oil and gas production off the coast of North Carolina until more comprehensive environmental studies could be completed. In addition, the Court upheld full restitution to Mobil Oil and Marathon Oil of the $158 million that they had paid for the leases, even though: (1) potential profits from the leases were highly speculative from the outset; (2) numerous delays had already occurred; (3) the delay imposed by the OBPA both was and was intended to be of limited duration; and (4) North Carolina has already objected to both companies' permit applications and exploration plans pursuant to the Coastal Zone Management Act (CZMA).

After exploring the complex interactions of these three statutes and a review of the Supreme Court's decision, this article argues that the Court's decision was wrong even under principles of contract law. In addition, the paper argues that, more importantly, the Court completely ignored principles of the public trust doctrine and the environmental protection provisions of the OCSLA in reaching its decision. Without the active integration of the OCSLA's environmental and public trust dimensions into lease interpretation, the Supreme Court risks contracting the broader public interest in the outer continental shelf into oblivion.

oil and gas exploration, Outer Continential Shelf Lands Act, public trust, OCSLA, Coastal Zone Management Act, CZMA, oil and gas leasing, outer continental shelf leasing, contract law

Abstract:
One of the widely acknowledged consequences of global climate change is sea-level rise. Sea-level rise has predictable impacts on human welfare and the environment. Indeed, these impacts are potentially so severe that, in a policy briefing organized by the U.S. Geological Survey, both federal and state officials advised Congress in March 2008 that the federal government should be providing assistance to coastal states for climate change-induced sea-level rise and storms.

Sea-level rise requires coastal states and communities to plan adaptation strategies. Sea-level rise is already occurring, as the U.S. Supreme Court acknowledged in Massachusetts v. EPA, and the oceans will continue to rise for some time, regardless of the climate change mitigation measures that the countries of the world decide to take. Therefore, some adjustment to sea-level rise - adaptation - is inevitable.

However, sea-level rise poses two challenges for leaders trying to formulate adaptation plans. First, sea-level rise is slow, measured in millimeters per year, and the full extent of climate change-driven sea-level rise is expected to take centuries to manifest. This is a planning horizon outside the political ken of most governmental bodies; indeed, planning horizons longer than a few decades are extremely rare. Second, scientists are still uncertain as to the extent of the problem. Specifically, how high will the oceans rise?

For both reasons, adaptation to sea-level rise requires some form of adaptive management - an ability to react to new information regarding the extent and speed of sea-level rise as that information becomes more certain and precise for different areas of the country. Moreover, an adaptive management approach to sea-level rise allows current governmental officials to avoid becoming overwhelmed by the uncertainties and time frames involved into inertia. Instead, recognition of the need for an adaptive approach necessarily counsels governments to implement initial adaptation measures that will be beneficial to coastal communities regardless of how far the oceans encroach and how fast they do so.

This Article suggests that taking a public health approach to sea-level rise can provide governments and planners with immediately implementable and no regrets adaptation measures that will be beneficial to coastal communities regardless of the eventual actual impacts of sea-level rise in particular areas of the country. Specifically, this Article suggests that planners should begin by looking at three specific concerns: (1) availability of drinking water supplies; (2) potential changes in disease exposure, with possible resultant changes in medical infrastructure and training needs; and (3) the potential for the toxic contamination of sea water as it comes ashore, with resultant changes in allowable land uses in the coastal zone.

climate change, adaptation, sea level, public health, planning, land use, disease, water supply

Abstract:
This paper explores the tools available in the Clean Water Act and, to a lesser extent, the Coastal Zone Management Act, to protect ocean water quality from the pollutants in urban run-off, using southern California beaches as an example. It argues that the new effect of the CZMA is to convert much urban run-off from nonpoint to point source pollution, subjecting that run-off to the Clean Water Act's stormwater permitting provisions. Once covered by the Clean Water Act's NPDES permit provisions, moreover, urban run-off to coastal waters must also meet state water quality standards, and the discharge is subject to total maximum daily load (TMDL) requirements. In southern California, the evolution of urban run-off management to protect ocean water quality has recently culminated in the bacteria TMDL for Los Angeles area beaches.

Clean Water Act, water quality, ocean, coast, coastal, Coastal Zone Management Act

Abstract:
Since at least the 1996 Sustainable Fisheries Act amendments to the Magnuson-Stevens Fisheries Conservation and Management Act, the United States has, at least nominally, been pursuing a policy of sustainable management of fisheries. Nevertheless, concerns about the status of marine fisheries remain, and both the Pew Oceans Commission (2003) and the U.S. Commission on Ocean Policy (2004) recommended that the United States use more marine protected areas and marine reserves to restore these fisheries and better maintain sustainable harvests.

A variety of legal mechanisms exist in federal law to establish marine protected areas. This article provides an initial instrument choice analysis of these various legal vehicles for establishing marine protected areas and marine reserves in the United States, using the history of the protection of Northwestern Hawaiian Islands coral reef ecosystem as an illustration of the advantages and disadvantages of each. The article concludes that, if the United States decides to establish a national system of marine protected areas to enhance the sustainability of its marine fisheries, legislation that incorporates some of the advantages of the Antiquities Act may be an appropriate choice.

sustainable development, sustainable, sustainability, fishery, fisheries, marine protected area, marine reserve, MPA, marine national monument, Northwestern Hawaiian Islands, Antiquities Act, Magnuson-Stevens, executive order, Marine Protection Research and Sanctuaries Act, national marine sanctuary

Abstract:
On November 12, 2008, the U.S. Supreme Court decided Winter v. NRDC, vacating the lower courts' carefully tailored injunctions - at least so far as the Navy challenged the imposed mitigation requirements - on the grounds that the public interest in national security clearly outweighed the potential harm to marine mammals. However, the Court declined to address the other issue before it: whether the U.S. Navy is entitled to use abbreviated procedures to comply with the National Environmental Policy Act (NEPA) for its Mid-Frequency Active SONAR (MFAS) training exercises occurring off the coast of southern California over two years. Thus, the Court left unreviewed the Navy's use of environmental exemptions, even though those exemptions have become the de facto method of "balancing" the public interest in environmental protection and national security preparation, and even though the Navy's active SONAR activities - both MFAS and Low-Frequency Active SONAR (LFAS) - have been strongly correlated with harm to marine wildlife, including whales, dolphins, sea turtles, and fish.

Environmental organizations, particularly the Natural Resources Defense Council (NRDC), have been challenging the Navy's use of LFAS and MFAS for over a decade now. Three different federal district courts have concluded that the public interest is best served through narrowly tailored injunctions that allow SONAR training exercises to occur, but with significant mitigation measures in place. The Navy, however, has pursued a number of blanket exemptions from various environmental statutes, including not only NEPA but the Marine Mammal Protection Act, the Coastal Zone Management Act, and the Endangered Species Act.

This article provides a survey of the Navy SONAR litigation (including a chart of all the cases as an Appendix), of the federal environmental statutes that have been invoked in that litigation, and of the various exemptions to those statutes that the Navy has used to avoid having to mitigate its training exercises. It argues that, procedurally, the current use of binary statutory exemptions and the mish-mash environmental exemptions counsel in favor of a new comprehensive statutory approach to national security exemptions that: (1) allows all potentially relevant environmental exemptions to be addressed in one proceeding; (2) avoids binary decisions (completely exempt or completely subject to environmental regulation) in favor of flexible mitigation requirements and adaptive management; and (3) preserves effective court oversight over all uses of the exemptions.

Winter, SONAR, Navy, whales, NEPA, Endangered Species Act, Marine Mammal Protection Act, National Marine Sanctuary Act, Coastal Zone Management Act, national security, public interest, environmental policy

Abstract:
Justice Kennedy's significant nexus test may emerge as the proverbial silver lining of the U.S. Supreme Court's June 2006 decision in Rapanos v. United States, at least so far as recognition of ecosystem services is concerned. The Court's opinion in Rapanos was fractured. Nevertheless, it left no doubts that the Clean Water Act's jurisdiction over navigable waters had been limited, drawing criticism for both its lack of clarity and its restriction of federal jurisdiction under the Act.

The extent of that restriction, however, would depend on which of the three major opinion's in the case - Justice Scalia's plurality, Justice Kennedy's concurrence, or Justice Stevens' dissent - the lower courts chose to follow. Since the Rapanos decision, it has become clear that Justice Kennedy's concurrence provides the controlling test or one of the controlling tests in every circuit where the Court of Appeals has addressed the issue. As such, Justice Kennedy's significant nexus test is likely to guide Clean Water Act jurisdiction for the foreseeable future, unless Congress decides to act instead.

By forcing lower courts to find and articulate a functional connection between the waters at issue and more traditionally navigable waters, Justice Kennedy's test encourages the federal courts to articulate the ecosystem functions that these waters serve and to identify the ecosystem services that they provide to humans. As a result, this Article argues, Justice Kennedy's significant nexus test may help to produce an ecosystem services rhetoric that will emphasize both the ecological and economic value of the nation's waters, potentially improving both the public's appreciation of water quality regulation and the overall quality of that regulation.

Clean Water Act, Rapanos, navigable waters, waters of the United States, ecosystem services, ecosystem function, significant nexus, functional approach, categorical approach, formalistic approach, water quality

Abstract:
Urban storm water runoff - storm water flowing through cities to receiving waters - is a major contributor to coastal water quality problems. This short article, which appeared as part of a journal issue on the problem of storm water, describes the problems that storm water causes for ocean water quality and function; provides a brief overview of the regulatory mechanisms that can help to address ocean storm water contamination, especially the Clean Water Act and the Coastal Zone Management Act; and describes as a case study the Santa Monica Bay estuary in southern California.

storm water, stormwater, ocean, coastal, Clean Water Act, Coastal Zone Management Act, CZMA, pathogens, bacteria, Santa Monica Bay, estuary

Abstract:
Although the political will to protect areas of the ocean in marine protected areas lagged far behind governments' willingness to protect ecologically or culturally important terrestrial areas, marine protected areas and systems of marine protected areas have emerged into the political agendas of governments throughout the world, including Australia, Canada, New Zealand, the United States, and, as of June 2003, the European Union. However, the creation of marine protected areas and systems of MPAs requires countries to sacrifice potentially beneficial uses of those areas, such as fishing and mineral extraction. Creation of MPAs and systems of MPAs thus involve political choices and policy promotion, and a country's choice of legal vehicle and political priorities can suggest implications regarding the eventual scientific and ecological success of its national system of MPAs.

This paper examines the legal and political rhetoric that three countries - the United States, Canada, and Australia - have used to justify their national systems of MPAs and explores the potential ramifications of that rhetoric and the policy chooices behind it for the scientific and ecological success of each of their systems. Because each system is relatively new, measurements of success may have to wat for several years. Nevertheless, some distinctions are already striking. The United States, for example, is pursuing its national systems of MPAs based on a non-binding legal policy to promote economic goals, suggesting that the scientific and ecological value of its system will readily fall victim to changing political priorities and national pressures. Canada, in contrast, has put in place substantial national culture and national pride policies that will serve to reinforce its bioidiversity goals for its system of national marine conservation areas. Finally, Australia has committed fully to the protection of marine biodiversity for biodiversity's sake, suggesting that its national system of MPAs, as has already been evidenced in the history of the Great Barrier Reef Marine Park, will enjoy considerable scientific validity.

marine protected area, MPA, national system, biodiversity, rhetoric, Canada, Australia, comparative law

Abstract:
Climate change is already altering historical expectations regarding water supply and aquatic ecosystems. In turn, changes in water supply may call into question the continued utility of existing water law rules in many areas of the country, unsettling private rights and expectations in water allocations in favor of more public interests and values in water, including protections for ecosystems and their services. Water law is already more sensitive than many other kinds of law to the ecological conditions that dominate in an area. As a result, water law is a likely legal mechanism for effectuating climate change adaptation, at least as relates to water resources. In particular, and far more than most fields of property law, water law is almost uniquely potentially available to support some of the adaptive management regimes that climate change adaptation will require. This Article argues that, within water law, state public trust doctrines can be particularly well-suited to providing legal support for adaptive management-based climate change adaptation regimes. In particular, it notes that courts have long adapted public trust doctrines in the United States to local needs and circumstances, and several states now explicitly characterize their public trust doctrines as evolutionary. With respect to water resources, therefore, these common-law public trust doctrines give willing states a means of (1) acknowledging climate change as a threat to public resources; (2) continually reassessing the cumulative impacts climate change is causing; (3) supporting fledgling adaptive management efforts by state agencies; and, at the extreme, (4) engaging in judicial adaptive management, in the sense of rebalancing private rights and public values in impacted aquatic resources, ecosystems, and ecosystem services.

climate change, public trust doctrine, common law, adaptation, adaptive management, evolutionary, ecological, flexibility

Abstract:
In June 1992, and the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it -- Agenda 21. One of those nations was the United States.

This article assesses the United States' progress in achieving the goals of sustainable development in its ocean and coastal ecosystems in the decade after the Rio Conference. Specifically, it compares four of the seven programs laid out in Chapter 17 of Agenda 21 to the Unites States' marine-related laws and its assessments of its various marine resources, concluding that improvements in U.S. law and policy are still needed.

sustainable development, Agenda 21, Rio Conference, ocean, coast, biodiversity, marine resources, Chapter 17, ocean policy

Abstract:
Citizen suit provisions are common in federal environmental statutes, and almost all contain a notice letter requirement: before filing suit -- generally 60 days before -- the citizen must notify the alleged violator and the regulatory agencies in charge of the intent to file suit. In Hallstrom v. Tillamook County, 493 U.S. 20 (1989), the U.S. Supreme Court read this notice letter timing requirement strictly, requiring dismissal of citizen suits when the citizen does not wait the full statutory period before filing suit.

Since Hallstrom, federal courts have been increasingly strict about the CONTENTS of citizen-suit notice letters as well as the timing, even though the content requirements are regulatory, not statutory, and even though the EPA has generally required only sufficient information to permit the recipients to identify the problem. This article argues that strict requirements for notice letter content effectively supersede, as a practical matter, the notice pleading standard in the Federal Rules of Civil Procedure. This article further argues that neither the environmental statutes nor the EPA's regulations require this result and that the Supreme Court in other contexts has expressly forbidden federal courts to allow statutes to displace the Rules' requirements without a thorough and proper Federal Rule supersession analysis.

environmental law, citizen suit, Federal Rules of Civil Procedure, notice letter, Hallstrom v. Tillamook County

Abstract:
In the context of water supply, “[w]ater is energy.” Two aspects of the intersection of energy and water in supplying water become important. First, there are always trade-offs among energy use, economic costs and benefits, social benefits, and environmental costs in providing for water supply.. Second, as a matter of governance, the political and legal mechanisms currently available for establishing water and energy policies do not allow the relevant decisionmakers to consider all of these relevant trade-offs explicitly and coherently.

This article explores the water supply-energy matrix through the lens of desalination, an increasingly popular water supply technology. It begins by reviewing current and projected future water shortages in the United States and worldwide that are prompting increased interest in desalination, then looks at desalination as a water-supply solution in terms of both costs and environmental impacts. Finally, it examines two types of alternative energy desalination—wind-powered desalination and solar-powered desalination. These new types of desalination may both provide for climate-friendly desalination and allow consistently productive uses of these sporadic alternative sources of electricity, particularly when one considers water to be a form of energy storage.

The article concludes that trying to definitively establish whether desalination is “good” or “bad” misses the point. Desalination is one water supply technology among many. All such technologies involve trade-offs. Desalination is a new or unusual water supply technology in most places. Moreover,, it comes with glaringly obvious energy and environmental concerns. As a result, increased use of desalination may have the salutary effect of encouraging full and public consideration of water and energy needs and the potential social and environmental impacts of water supply.

water, energy, climate change, desalination, trade-offs, energy policy, water supply, economic costs

Abstract:
Each of the three major opinions in the Supreme Court's June 2006 decision in Rapanos v. United States, - U.S. -, 126 S. Ct. 2208 (June 19, 2006), discussed (to a greater or lesser degree) the role of federalism in the Clean Water Act. In particular, Justice Scalia's plurality and Justice Stevens' dissent reaching diametrically opposite conclusions about the propriety of federal regulation of wetlands adjacent to human-created drains and ditches pursuant to Section 404 of the Clean Water Act. Section 404, however, is a peculiarly federal Clean Water Act regulatory program, and the Scalia-Stevens dialectic leaves many unresolved questions regarding the proper scope of the Clean Water Act's Section 402 National Pollutant Discharge Elimination System (NPDES) permit program - particularly in light of Justice Scalia's contortionist attempts to distinguish the jurisdictional scope and regulatory import of those two permit programs.

This article argues that, to fully analyze the future of NPDES permit program jurisdiction, readers of Rapanos need to remember that the Supreme Court unanimously decided S.D. Warren v. Maine Board of Environmental Protection, - U.S. -, 126 S. Ct. 1843 (May 15, 2006), only one month before it issued its fractured opinion in Rapanos. S.D. Warren helps to explain Justice Scalia's tortured juxtaposition of navigable waters and point sources and his attempts to distinguish dredge and fill material from other pollutants in Rapanos. Moreover, when read in conjunction with Rapanos, S.D. Warren elucidates a fundamental split in the Justices' relative prioritization of the first two of the Clean Water Act's many goals: (1) restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation's waters, 33 U.S.C. § 1251(a); and (2) recogniz[ing], preserve[ing], and protect[ing] the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution [and] to plan the development and use . . . of land and water resources . . . . 33 U.S.C. Sub-Section 1251(b). As was the case in S.D. Warren, the Section 402 permit program, as currently implemented, once again allows these two goals to align toward the same result, suggesting that the Rapanos dissenters will prevail should the Supreme Court ever decide a navigable waters issue in the context of the NPDES permit program instead of the Section 404 dredge and fill permit program.

Clean Water Act, federalism, states' rights, water quality, Rapanos, S.D. Warren, Scalia, Stevens, Kennedy, Section 402, Section 404, wetlands, jurisdiction, navigable waters, waters of the United States

Abstract:
On May 9, 2006, NOAA listed two species of coral - elkhorn coral and staghorn coral - as threatened species under the federal Endangered Species Act (ESA). The presence of these two species in the Florida Keys brings into sharp relief the intertwined relationship of water quantity and water quality in southern Florida and may require changes to the ongoing efforts to restore the Florida Everglades, especially in light of the fact that Everglades water quality restoration efforts address phosphorus pollution rather than nitrogen pollution, which is more important to the corals off southern Florida.

This short article reviews the 2006 coral listing and its import for southern Florida's dual ecosystem management.

endangered species, threatened species, coral, Florida Keys, Everglades, water quality, water quantity, water flow, ecosystem management, ecosystem restoration, Endangered Species Act, Comprehensive Everglades Restoration Plan, CERP

Abstract:
This short piece reviews the background of and the U.S. Supreme Court's November 2008 decision in Winter v. Natural Resources Defense Council, which challenged the Navy's use of its mid-frequency active sonar (MFAS) in fourteen military training exercises off the coast of southern California. It concludes that despite possible readings of the case that would generally limit the availability of injunctions in environmental cases, especially cases under the National Environmental Policy Act (NEPA), the case is best read as the latest articulation of the Supreme Court's belief that military readiness activities are "special" when it comes to forced compliance with the federal environmental laws.

Winter v. NRDC, sonar, Navy, military, NEPA, National Environmental Policy Act, injunction, public interest

Abstract:
Climate is perhaps most easily understood as the results of the atmosphere's and the oceans' combined efforts to redistribute heat from the Earth's equator to the poles. What happens at the atmosphere-ocean interface, therefore, is critical to climate, climate change, and the ecosystem services provided by every ecosystem on Earth.

This chapter has been submitted for inclusion in William H. Rodgers' forthcoming 'Climate Change Reader'. It reviews the basic processes of the atmosphere and the oceans, emphasizing their roles in climate regulation and other ecosystem services and paying particular attention to atmospheric-oceanic interactions. It concludes with a summary of how changes in these interactions both contribute to climate change effects and disrupt ecosystems and their services worldwide.

climate change, global warming, ocean, atmosphere, ecosystem, ecosystem services, currents, thermohaline, greenhouse

Abstract:
On January 9, 2001, the Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers [SWANCC], 531 U.S. 159 (2001), restricting the federal government's permitting authority over "navigable waters" and thus readjusting the federal-state balance under the Clean Water Act from its pre-SWANCC presumed Commerce Clause limits. In the process, the Court made several statements indicating that federalism concerns were relevant in interpreting the scope of the federal government's jurisdiction under the Act. In the wake of the SWANCC decision, lower federal courts have strived to resolve the ambiguities regarding the federal role in water quality jurisdiction that the SWANCC Court left, but few have addressed the larger issues of statutory federalism that the Supreme Court raised. However, three specific areas of Clean Water Act jurisdiction - underground waters, dams, and ocean and coastal waters - are likely to test the federalism implications of the SWANCC decision, leading to a different balancing of federal and state interests in each area and hence different decisions regarding federal Clean Water Act jurisdiction in those areas.

Clean Water Act, federalism, jurisdiction, SWANCC, Solid Waste Agency

Abstract:
As I have noted in a previous work, pollution kills, debilitates, sickens, and poisons - i.e., pollution is a public health problem. Thus, enforcement of the federal pollution control statutes is an important facet of public health protection. However, environmental enforcement is an inherently discretionary activity. Therefore, an interesting question for both public health officials and environmental practitioners is to what extent environmental agencies consciously and explicitly seek to advance the pollution control statutes' public health-related goals.

Little attention has been paid to the incorporation of public health goals into enforcement decisions, even though environmental enforcement involves the exercise of a great deal of agency discretion, particularly in light of limited budgets and enforcement personnel. Agencies like EPA simply cannot take equally stringent enforcement actions against all violations of the federal pollution control statutes. Complicating this enforcement discretion, moreover, is the fact that few pollution control statutes have unitary goals. For example, EPA generally characterizes its overall mission in the binary form of "protecting human health and the environment."

EPA enforcement policies can potentially affect the environmental health aspects of pollution regulation in two ways. First, rhetorically, such enforcement policies can articulate (or not) the public health values of environmental law and the enforcement of that law. Second, programmatically, enforcement policies dictate which public values will be protected in the real world, under what circumstances they will be protected, and to what degree. Therefore, in addition to reifying these policies' values rhetoric, enforcement also actualizes the degree of health protection that the public will effectively enjoy as a result of pollution regulation.

This article offers a first and qualitative look at the role of public health considerations in EPA's pollution control enforcement decisions, concentrating on the agency's enforcement policies for the Clean Water Act and the Clean Air Act - statutes that comprise two of the largest subcategories of EPA enforcement actions - as they have guided enforcement over the last decade (1999-2008). These policies include EPA's national enforcement priorities, various enforcement guidance documents for each Act, and the Office of Enforcement and Compliance Assurance's (OECA's) annual reports on enforcement and compliance. The article concludes that EPA enforcement policies are fairly equally targeted at both environmental and public health injuries but in some ways do promote enforcement actions against violations that create risks to the public health. EPA's enforcement rhetoric, moreover, is often at its strongest - most specific and most colorful - when it acts to protect the public health, suggesting that EPA recognizes the public relations value of the public health aspects of environmental enforcement. Somewhat perversely, therefore, over the last three years OECA has muted its discussions of the public health benefits of environmental enforcement outside of the Clean Air Act context, creating an impression that the Clean Air Act is the only pollution control statute that significantly protects public health despite a broad range of national enforcement priorities with public health connections.

pollution, public health, Clean Water Act, Clean Air Act, agency discretion, enforcement, national enforcement priorities, guidance documents, agency policies

Abstract:
By some estimates, oceans and coasts provide almost two-thirds of the value of the world's ecosystem services. In the United States, goods and services from the oceans and coasts have been valued at over $1 trillion - about one-tenth of the nation's gross domestic product. Protection of these marine ecosystem goods and services is thus decidedly in the United States' social and economic interests.

In May 2003, the Pew Oceans Commission issued its comprehensive review of the United States' management of its living marine resources, America's Living Oceans: Charting a Course for Sea Change. Over a year later, and in response to the Oceans Act of 2000, the U.S. Commission on Ocean Policy released its comprehensive review report, An Ocean Blueprint for the 21st Century.

While the scope of each report differed, their conclusions were remarkably consistent. In particular, both Commissions recommended that the federal government adopt a comprehensive, integrated, ecosystem-based ocean policy for the nation's more than four million square miles of marine territory to replace the fragmented, species-by-species, resource-by-resource, and medium-by-medium regulatory regime that has dominated marine management since the early 1970s. Since the Commissions' reports appeared, moreover, increased knowledge regarding the effects of climate change on the oceans and the existence of ocean acidification have only underscored the need for an ecosystem-based and adapative management approach to regulating marine resources.

This short article reviews the federal government's progress (or lack thereof) since 2004 in implementing the Commissions' vision of ocean management. It concludes that if the United States wants to protect its marine resources and their ecosystem services, especially in the face of climate change and its effects, Congress should enact comprehensive legislation along the lines of H.R. 21, currently being debated in the U.S. House of Representatives.

ocean, marine resources, ecosystem services, U.S. Commission on Ocean Policy, Pew Oceans Commission, Ocean Action Plan, fisheries, sustainable development, Agenda 21

Abstract:
This article discusses means for restoring ocean biodiversity in light of recent science arguments that marine species are already severely depleted compared to historical levels. Using the Oceans Act of 2000 as the impetus for legal reform, the article assesses the weaknesses in the current United States regimes for regulating ocean resources and argues that increased attention must be paid to preservation of marine wilderness through marine protected areas.

science, biodiversity, marine, ocean, Oceans Act, marine protected area

Abstract:
On June 11, 1998, President Bill Clinton issued Executive Order 13089, which created the Coral Reef Task Force. This article outlines the science of coral reefs, the provisions of the Coral Reef Executive Order, other legislation available to give agencies the authority to carry out the Executive Order, and progress being made in protecting coral reefs.

coral reef, Coral Reef Task Force, Executive Order, marine protected areas

Abstract:
The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.

The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.

This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.

sustainable governance, coasts and estuaries, wateshed managment, adaptive management, public trust doctrine, polluter pays, precautionary principle

Abstract:
On January 16, 2009, the EPA agreed to review the Center for Biological Diversity's December 2007 petition requesting that the EPA revise its marine pH water quality criteria pursuant to the federal Clean Water Act to reflect current knowledge about ocean acidification. Ocean acidification is the result of increasing concentrations of carbon dioxide in the atmosphere. As a result, the petition and the EPA's response to it raise very basic questions about what, if anything, the Clean Water Act can do about climate change.

This short article first describes how climate change is likely to impact water quality. It then reviews how courts have been linking other environmental statutes to climate change issues, concluding that these intersections highlight three climate change problems: information generation; climate change mitigation, and climate change adaptation.

Using the Center for Biological Diversity's petition as a focus, the article then reviews how various aspects of the Clean Water Act are likely to interact with climate change. It concludes that the Clean Water Act is best viewed as a climate change adaptation tool and indeed suggests that the Act may require increased flexibility to respond rationally to climate change impacts on water quality.

climate change, Clean Water Act, adaptation, ocean acidification, water quality, pH, temperature, Center for Biological Diversity

Abstract:
In January 2009, the EPA determined that it would respond to the Center for Biological Diversity's petition requesting that the EPA modify its marine pH water quality criteria to reflect the phenomenon of ocean acidification. Ocean acidification, however, is a by-product of increasing concentrations of carbon dioxide in the atmosphere. Thus, climate change has come to the Clean Water Act.

The question, of course, is what the Clean Water Act can actually contribute to more general regulatory and planning efforts to deal with climate change. After reviewing the Clean Water Act's basic provisions (Part I) and the various kinds of impacts that climate change is likely to have on water quality in the United States (Part II), this Article systematically evaluates the contributions that the Clean Water Act can (Part III) and cannot (Part IV) make to efforts to respond to climate change. It argues that the EPA and the states could use the Clean Water Act to: (1) make valuable contributions to the nation's efforts to gather information about actual climate change impacts on water resources and to promote more effective modeling of future impacts; (2) generate expert recommendations about potential responses to those impacts; and (3) encourage and require states and the EPA to implement water quality standards, permitting requirements, best management practices, and other measures that blunt the worst possible water quality impacts from climate change, increase protections for particularly sensitive areas, and increase the resilience of aquatic species, aquatic ecosystems, and the socio-ecological systems dependent upon them. However, the Article also argues that the Obama Administration and Congress could implement several changes to the Clean Water Act and its regulations that would increase the Act's effectiveness as a climate change adaptation tool. Finally, the Article concludes that even though the Act's total maximum daily load (TMDL) provisions could be interpreted to reach greenhouse gas emissions, such an interpretation would lead to costly and ultimately ineffective efforts to make the Clean Water Act a climate change mitigation tool - a role for which the Act is not at all suited.

climate change, adaptation, Clean Water Act, ocean acidification, mitigation, TMDL, total maximum daily load, water quality standards, NPDES, Section 404

Abstract:
This companion article to the Fall 2007 A Comparative Guide to the Eastern Public Trust Doctrines explores the state public trust doctrines - emphasis on the plural - in the 19 western states. In so doing, this Article seeks to make the larger point that, while the broad contours of the public trust doctrine, especially regarding state ownership of the beds and banks of navigable waters, have a federal law basis, the details of how public trust principles actually apply vary considerably from state to state. Public trust law, in other words, is very much a species of state common law. Moreover, as with other forms of common law, states have evolved their public trust doctrines in light of the particular histories, perceived needs, and perceived problems of each state.

This Article notes that, in the West, four factors have been most important in the evolution of state public trust doctrines: (1) the severing of water rights from real property ownership and the riparian rights doctrine; (2) subsequent state declarations of public ownership of fresh water; (3) clear and explicit perceptions of shortages of water, submerged lands, and environmental amenities; and (4) a willingness to raise water and other environmental issues to constitutional status and/or to incorporate broad public trust mandates into statutes. From these factors, two important trends in western states’ public trust doctrines have emerged: (1) the extension of public rights based on states’ ownership of the water itself; and (2) an increasing, and still cutting-edge, expansion of public trust concepts into ecological public trust doctrines that are increasingly protecting species, ecosystems and the public values that they provide.

The Article includes an extensive Appendix that summarizes each of the 19 states’ public trust doctrines. These summaries include relevant constitutional provisions, statutory provisions, and cases.

public trust doctrine, common law, ecosystem services, prior appropriation, public rights, public values, ecological

Abstract:
Ask the average person to name the leading cause of marine ecosystem degradation, and he or she will likely answer pollution. Scientists, however, are in wide agreement that the most significant cause of marine ecosystem degradation is overfishing.

There is growing evidence that fishing drastically alters marine ecosystems and that marine wildernesses are necessary to preserve and restore the sea's natural function and biodiversity. To restore overfished stocks, marine managers worldwide are increasingly employing a regulatory device known as a marine protected area (MPA). However, because MPAs rely on geographical regulation rather than species-based regulation, they are also emerging as important regulatory tools for protecting marine ecosystems and marine biodiversity more generally.

Because of their popularity for both fishing and tourism and their geographical identifiability, coral reef ecosystems have been the focus for the creation of many MPAs and marine reserves. This article explores the ways in which fisheries goals and ecosystem goals have led to conflict in two large coral reef ecosystem MPAs in the United States: the Florida Keys National Marine Sanctuary and its new Dry Tortugas Ecological Reserve; and the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve.

The article begins be discussing in depth the effects of overfishing on marine ecosystems, then explores the growing use of MPAs and marine reserves throughout the world, especially to protect coral reef ecosystems. The article concludes that, while Americans have shown themselves ready to accept increasingly large areas of marine wilderness protected through marine reserves when such reserves will directly enhance fisheries, conflicts between fisheries interests and environmental protection may thwart the creation of marine reserves when such fisheries and other economic benefits are absent or limited. As a result, there is a need for better articulated, biodiversity- and ecosystem service-related, nonconsumptive values for marine wildernesses.

marine protected area, MPA, marine reserve, coral, ecosystem, biodiversity, Hawaii, Florida Keys, Dry Tortugas, Northwestern Hawaiian Islands

Abstract:
On January 2, 2001, the U.S. Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, holding that the Corps could not require SWANCC to get a Clean Water Act section 404 permit before filling ponds in an abandoned sand and gravel pit. In so holding, the Supreme Court redefined federal jurisdiction over wetlands, although the federal courts are still working out the scope of that redefinition.

This article explores lower courts' reactions to and interpretations of the SWANCC decision. It concludes that the lower courts have created a variety of approaches to assessing the Army Corps' authority to regulate wetlands, but that the emergining majority rule is that federal jurisdiction exists any time a wetland has a surface water connection -- however distant and convoluted -- to other "navigable waters."

Solid Waste Agency, SWANCC, wetlands, Army Corps, Clean Water Act, jurisdiction, majority rule, minority rule

Abstract:
In January 2001, the Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, holding that the U.S. Army Corps of Engineers could not exercise jurisdiction over ponds at an abandoned gravel pit pursuant to its Migratory Bird Rule, an interpretive gloss on its regulatory interpretation of waters of the United States for purposes of section 404 of the Clean Water Act. For the first time in the Act's 30-year history, moreover, the Court gave substantive weight to the Act's inclusion of states as regulatory partners, refusing to accord the Army Corps Chevron deference on grounds that the Army Corps' interpretation of the Act pushed the Act to its constitutional limits, on both federalism and Commerce Clause grounds.

This article argues that by emphasizing one sentence from the Clean Water Act's general purposes section, the Court displaced Congress' complex compromise between state and federal regulatory authority - a compromise that incorporates the variety of accepted state and federal interests in this country. If the Court had looked at the broader context of the Clean Water Act instead of just section 404, it would have noticed that Congress used the term navigable waters to recognize and preserve state authority over certain types of waters, rather than to undermine that authority in favor of federal regulation.

Clean Water Act, navigable waters, waters of the United States, Solid Waste Agency, SWANCC, section 404, section 402, federalism, Commerce Clause

Abstract:
It would be difficult to contest the status of pollution as a public health problem. However, environmental regulation by definition imposes limitations on private individuals and entities, and those limitations become most acutely obvious in the context of government enforcement actions. As a result, there always has been and likely always will be resistance to environmental regulation and enforcement. In light of this resistance, pollution regulation's public health benefits offer strong rhetorical and political arguments in favor of such regulation and its effective enforcement, especially during a flailing economy.

Unfortunately, the public health benefits of pollution control law are not always obvious. Because of this potential obscurity, this Article argues that the Environmental Protection Agency's (EPA's) annual enforcement assessments and reports, prepared by its Office of Enforcement and Compliance Assurance (OECA), become important vehicles for communicating the public benefits of environmental enforcement to Congress and the American public. Since 2005, OECA has been reporting specifically on the public health benefits of its Clean Air Act enforcement efforts. This new reporting metric demonstrates the rhetorical power of qualitative assessments of the public health benefits that pollution regulation and enforcement provide. However, because OECA has been using it only for Clean Air Act enforcement, the new public health metric also underscores the rhetorical anemia of the EPA's more traditional quantitative measures of enforcement effort.

This Article argues, most basically, that the rhetoric of enforcement reporting matters. While acknowledging the difficulties of producing quantitative public health benefit calculations for all of the major federal pollution control statutes, this Article concludes that the EPA and OECA could beneficially strengthen the public health analyses of enforcement by providing more and more prominent qualitative assessments of the value of certain kinds of enforcement actions, across statutory regimes.

environmental law, enforcement, cost-benefit analysis, public health, rhetoric

Abstract:
In December 2002, the U.S. Supreme Court affirmed, per curiam, the Ninth Circuit's decision that "deep ripping" of wetlands requires a permit from the Army Corps of Engineers. However, because the Court was equally divided and issued no analysis, the reasons why "deep ripping" might be subject to Clean Water Act regulation remain obscure. This paper argues that the facts found by the district court support Clean Water Act jurisdiction despite the rather unusual analysis in the Ninth Circuit.

Clean Water Act, wetlands, Borden Ranch, dredging, filling, deep ripping

Abstract:
Coral reef tourism in the US provides significant economic benefits that exceed those of reef-based commercial and recreational fisheries. While US coral reefs are subject to a number of stressors, fishing has created the most opposition to coral reef protection. One solution is increased use of coral reef marine protected areas (MPAs), which could simultaneously improve reef-based fisheries. US law provides a number of mechanisms for creating MPAs but contains no clear policy in favor of coral reef preservation. Nevertheless, a tension between fishing and coral reef ecosystem protection has been emerging in US law, indicating that federal law should be modified to promote coral reef ecosystem preservation.

coral reef, ecosystem, marine protected area, MPA, National Marine Sanctuary, National Marine Monument, Antiquities Act, Endangered Species Act, executive order, fishing

Abstract:
States are increasingly considering multistate efforts to promote the production, sale, and use of renewable energy. For example, in August 2009, policymakers and stakeholders gathered to consider joint renewable energy (specifically, wind energy) transmission projects among Colorado, New Mexico, Utah, and Wyoming. This Article explores the number of constitutional issues that multistate efforts to encourage, market, transmit, and/or distribute renewable energy could raise. It reflects the reality that, for energy as for many other issues, multistate creativity in establishing new governance regimes and/or implementing interstate projects often creates constitutional ambiguities. Many of these ambiguities center on the constitutional status — private or governmental; local, state, or federal — of the resulting multistate or regional institutions. Even so, the constitutional issues raised can usefully be divided into three categories for discussion: (1) issues that can arise as a result of the substantive content of the multistate enterprise; (2) procedural issues regarding the formation and conduct of the multistate enterprise; and (3) the core structural issue of whether the multistate enterprise requires an interstate compact. This Article discusses each of these sets of issues in turn, concluding that most multistate renewable energy programs and projects will indeed require an interstate compact, but that interstate compacts afford states not only extensive flexibility to address renewable energy issues but also substantial protection from particular kinds of constitutional challenges — especially federal preemption.

interstate compact, renewable energy, constitutional law, preemption, dormant Commerce Clause, electricity, transmission, Regional Greenhouse Gas Initiative, Northern Tier Transmission Group, governance, due process, Indian Commerce Clause, regulatory takings

Abstract:
In May 2000, President Clinton issued his Marine Protected Areas Executive Order, which, inter alia, required EPA to use its existing authority under the Clean Water Act to protect ocean waters. In response, EPA drafted new ocean discharge criteria for the first time since 1980. This Article discusses these new ocean discharge criteria, concluding that the Clean Water Act needs to be amended to allow EPA to promulgate marine water quality standards, which have more far-reaching protections than do ocean discharge criteria for ocean and coastal waters.

Clean Water Act, ocean, ocean discharge criteria, water quality standards, marine

Abstract:
In her review essay, Toward a Notion of Environmental Bioethics, Professor Robin Kundis Craig reviews Eric A. Davidson's recent book, YOU CAN'T EAT GNP: ECONOMICS AS IF ECOLOGY MATTERED (2000), as a means of exploring the potential for bioethical concepts such as personal autonomy and bodily integrity to expand protections for the environment without turning the environment into property. The essay discusses the ecological reality that human life and productivity depends upon the environment and argues that a species of ecotorts could recognize this dependence by expanding the concept of person to include those ecosystems and ecosystem services upon which a person's life depends.

ecological economics, book review, GNP, ecology, bioethics

Abstract:
Mariculture is the aquaculture of the sea. Various agencies of the U.S. government are trying to establish mariculture as a sustainable and profitable industry.

Sustainable mariculture, however, is intimately tied to ocean water quality. To date, the industries that regulate mariculture operations have focused primarily on preventing or limiting the water pollution that such facilities can cause. However, mariculture facilities location in the coastal zone are also subject to increasing levels of land-based water pollution, most of it from upland non point sources.

This Article argues that if the United States wants to establish a viable mariculture industry, it must pay more attention to ocean water quality and the control of land-based ocean pollution, especially non point source pollution.

mariculture, aquaculture, Clean Water Act, Coastal Zone Management Act, CZMA, nonpoint source, water quality, ocean, coastal zone

Abstract:
Cornelius M. Kerwin has updated his 1994 exposition, Rulemaking: How Government Agencies Write Law and Make Policy. The 1999 edition provides practical insights into the real process of agency rulemaking and takes practitioners far beyond the basics of the federal Administrative Procedure Act (APA). However, the public's contribution to rulemaking remains a murky aspect of the rulemaking process, undermining some of Kerwin's conclusions.

administrative law, rulemaking, Administrative Procedure Act, APA, book review, public participation

Abstract:
When the United States Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. in 1993, it changed the process and standards for admitting expert testimony in federal court. Since that decision, most federal courts have assumed that the Daubert analysis is the only standard governing the admissibility of expert testimony in federal court -- even in diversity medical malpractice and medical products liability cases.

However, Daubert did not modify, or even significantly discuss, the Erie doctrine, leaving questions unanswered regarding the admissibility of expert medical testimony when federal courts sit in diversity.

In particular, states often impose medical certainty requirements on expert medical testimony that can affect that testimony's admissibility, the expert's competence to testify, or the plaintiff's burden of proof. This article argues that because these state medical certainty standards generally are substantive enough under Erie to apply in diversity cases and do not directly conflict with the Federal Rules of Evidence or the Daubert analysis, federal courts sitting in diversity should apply the relevant state standard as well as the Daubert analysis in diversity cases that involve medical experts.

Daubert, evidence, medical testimony, Erie doctrine, admissibility, diversity, expert witness

Abstract:
What are environmental citizen suits? This question has deep constitutional implications when the focus turns to the relationship between citizen suit plaintiffs and the federal Executive. Such resonances are especially acute because the federal courts have traditionally viewed citizen suits as a type of enforcement action, supplementing state and federal environmental enforcement efforts.

Four Justices of the U.S. Supreme Court have suggested that environmental citizen suits may violate separation of powers principles on Article II grounds. Specifically, so the argument goes, in creating citizen suits Congress has impermissibly interfered with the President's constitutional duty to "take Care that the Laws be faithfully executed."

This Article explores the legitimacy of that Article II concern by evaluating citizen suits through the lens of federal qui tam provisions. It concludes that, given the Supreme Court's imposition of an Article III standing requirement on environmental citizen suits, such suits look more like private actions than public actions and hence should survive Article II scrutiny.

citizen suit, qui tam, Article II, Article III, standing, separation of powers

Abstract:
Regulation of the United States' marine resources suffers as a result of fragmented jurisdiction and legal authorities. This short article provides an overview of just how complex and uncoordinated regulation of those resources has become -- a fact that both the Pew Oceans Commission and the U.S. Commission on Ocean Policy emphasized in their respective reports in 2003 and 2004.

ocean policy, regulatory fragmentation, marine resources, ocean, marine, jurisdiction

Abstract:
As the introduction to a symposium entitled "The Bush Administration and the Environment," this article provides an introductory overview of the Bush Administration's environmental policies and regulatory actions in its first term.

Bush Administration, environment, politics, regulation

Abstract:
Since 1972, the Clean Water Act (CWA) has incorporated a basic division of regulatory authority between states and the federal government based on the source of the water pollution. In delineating state and federal regulatory responsibility on the basis of a point source/non point source distinction, the CWA establishes a scheme of statutory federalism -- a division of power between the national and more local levels of government.

Of course, federalism has a constitutional component, and were the state and federal spheres of regulatory authority always mutually exclusive, constitutional boundary drawing would be the only inquiry relevant to the interactions of the state and federal governments in environmental law. However, they are not, and statutes like the CWA thus embody Congress' political judgment as to how to best divide state and federal regulatory authority, not a fixed constitutional mandate.

From a federalism perspective, the division of federal and state regulatory authority along point source/non point source lines is not arbitrary. Comprehensive federal regulation of non point source pollution would arguably engage the federal government in land use regulation -- a type of regulation historical viewed as belonging almost exclusively to more local levels of government.

This article examines the increasing federalization of non point source pollution regulation under the CWA over time.

Clean Water Act, nonpoint source, point source, federalism, Best Management Practice, land use

Abstract:
Under the federal Clean Water Act, qualifying tribes can receive treatment-as-a-state status (TAS), which allows them to set water quality standards, certify that certain discharges meet those water quality standards, and, after delegation from the Environmental Protection Agency (EPA), administer the Act's National Pollutant Discharge Elimination System (NPDES) permitting program. The EPA generally regulates tribal activities for Clean Water Act purposes before a tribe receives TAS status. However, a number of jurisdictional issues remain unclear, especially where the state has been delegated permitting authority and the tribes within that state are in various stages of receiving TAS status.

Discussions of these issues to date have focused on downstream tribes that enacted more stringent water quality standards than did the EPA in states without delegated Clean Water Act authority. As a result, several issues remain to be resolved in states with permitting authority, such as where a particular discharge is located, whether the location is the same for permitting and certification, and what is the effect of state ownership of relevant water bodies bordering on and within reservations. These may become critical questions in states where the state, the EPA, and the various tribes have claims to permitting or certification authority for a certain discharge.

It also remains to be seen whether the EPA, the courts, or the affected states and tribes themselves will be the most effective in resolving the inevitable disputes. Thus far, the general pattern has been for the EPA to resolve the conflict and for courts to follow its lead. The EPA has not committed itself to the role of binding arbitrator, however, and this area of law could become quite complex and unpredictable without an overarching,coherent view of state-tribal relations to protect water quality. As such, state-tribal compacts could offer the best path to comprehensive,peaceful, and logical water quality regulation.

Clean Water Act, tribe, Indian, TAS, treatment as a state, NPDES, National Pollutant Discharge Elimination System, jurisdiction, water quality standards, permit, certification, Section 401, Section 402

Abstract:
Since the federal government developed the Columbia River for hydropower, fish kills - single events killing thousands of fish - have been infrequent but recurring consequences of the Columbia River dams. Over the weekend of July 15-19, 1994, for example, at least 36,000 and perhaps more than 90,000 juvenile chinook salmon died at the federally owned and operated McNary Dam in the dam's fish collection system. The state laws of Oregon, Washington, and Idaho would have allowed those state to sue for damages for the kill, providing a legal means of checking or challenging federal decision-making in the day-to-day operation of the dams. However, federal sovereign immunity creates a severe impediment to state suits against the United States for fish kills at federal dams. This Comment explores the extent of federal immunity for dam-related fish kills, discusses the interaction of state and federal interests in the Columbia River, and argues that the Columbia River states should have a strict liability remedy available to them against the federal government for fish kills in the Columbia River arising out of the Federal Columbia River Power System.

sovereign immunity, fish, hydroelectric, dam, Columbia River, salmon, federalism

Abstract:
As far back as 1972, Congress recognized that both federal facilities and non point sources contribute significantly to water pollution, and recent observations emphasize that non point source water pollution on federal lands from federally conducted or federally authorized activities -- federal facility non point sources -- are significant continuing threats to water quality. However, the Clean Water Act gives regulatory authority over non point sources to the states. Moreover, while the Act waives the federal government's sovereign immunity regarding water quality requirements, federal facilities need comply only "in the same manner, and to the same extent as any nongovernmental entity."

In Idaho Sporting Congress v. Thomas, the Ninth Circuit ignored these sovereign immunity limitations and allowed plaintiffs to sue the Forest Service as a federal facility non point source through the federal Administrative Procedure Act (APA) to make the Forest Service comply with Idaho's water quality standards, even though Idaho only holds non point sources responsible for complying with the applicable Best Management Practices (BMPs). This Article argues that neither the APAnor the Clean Water Act allows the federal courts to create such generalized federal requirements for federal facility non point sources; instead, courts must look to the details of the relevant state's non point source management program to establish the federal facility's water quality responsibilities.

Idaho Sporting Congress, federal facility, nonpoint source, Clean Water Act, sovereign immunity, APA, Administrative Procedure Act

Abstract:
Many environmental and natural resources statutes have existed for decades. In addition, however, these statutes have been evolving for decades in response to congressional recognition of new problems, improved scientific and public health information, and agency and court interpretations of prior provisions. For example, congressional amendments of the Clean Water Act, Clean Air Act, and Endangered Species Act have ranged from simple renumbering of statutory provisions to complete overhauls of regulatory programs.

It ought to be an uncontroversial proposition that the evolution of these statutes should be relevant to the current "plain meaning" of their provisions. In this sense, statutory evolution raises the same contextual concerns as the initial codification of the law: Why, exactly, did Congress change the prior expressions of the law, and what ramifications do those purposes have for the situation at hand?

Nevertheless, as the purposive approach to statutory interpretation has come under increasing criticism in U.S. jurisprudence over the last two decades, the Supreme Court Justices have diverged in their treatment of statutory history and the relevance of a statute's evolution to its current meaning. The result is what I have chosen to term the Stevens/Scalia principle: If Justice Stevens and Justice Scalia end up on opposite sides of a statutory interpretation decision involving one of these long-lived statutes, something interesting happened in the history of that statute that affects the meaning of the statutory provision issue. This principle is important not so much for its existence but for what it reveals about the Supreme Court Justices' statutory interpretation methodologies, about how those methodologies can affect a statute's meaning, and about the resulting relationship between Congress and the Supreme Court.

At the largely unexamined crux of two important but functionally opposing contemporary threads of statutory interpretation -- the textualist critique of the tradition purpose-based approach and the postmodernist recognition that meaning is always indeterminate and contextual -- is the conception of a statute's "audience." In particular, two assumptions about audience influence contemporary statutory interpretation and make the strict plain meaning approach's reconciliation with linguistic indeterminacy possible. First, most court interpretations of statutes and most commentaries on statutory interpretation assume a model of statutes as commands -- that is, of Congress directly ordering a regulated entity to do something. Second, an oft-states, but rarely examined, premise of the strict plain meaning approach is that the presumed audience of these statutory commands is a generalized, relatively unsophisticated reader.

This article posits that these presumptions of audience are inappropriate when courts are interpreting long-existing, administrative agency-mediated statutes governing complex and technical regulatory programs, such as those created in environmental law or tax. Instead, these regulatory regimes create recognizable subcultures in law. Participants in one of these particular subcultures not only use more specialized language than the general public, but also have been engaging in a long-term conversation about the statute's meaning that is not readily penetrable by outsiders. In effect, the relevant subculture's participants -- including Congress but generally excluding the Supreme Court -- have been conversing over decades through statutory provisions, statutory amendments, and regulations, and the Supreme Court is thus often in the position of walking in late on the conversation.

As a result, these statutes often should require outsiders like the Supreme Court to engage in a dialogic mode of statutory interpretation. Moreover, the Supreme Court's failure to do so can effectively turn statutory interpretation into an assertion of regulatory power, threatening to upset the separation of powers between Congress and the courts.

statutory interpretation, cultural criticism, subcultures, plain meaning, purpose, separation of powers, textualism

Abstract:
Approximately 15 states in the United States test Administrative Law on their bar examinations, and that number has increased and is likely to keep increasing. The growing inclusion of Administrative Law as a bar subject reflects a growing recognition that almost all lawyers will need some knowledge of Administrative Law in their practices, regardless of field of expertise. Moreover, the increase implicitly acknowledges that neither Civil Procedure nor Criminal Procedure ? two common and more traditional bar subjects ? adequately prepare budding lawyers to deal with an administrative tribunal.

Nevertheless, only about 20 American law schools require their students to take Administrative Law. Moreover, these schools split fairly evenly between those, like the Columbia University School of Law, that require their first-year students to take a course that gives them a general introduction to the regulatory state, and those law schools, like the Franklin Pierce School of Law, that require the full Administrative Law course as an upper-division requirement.

In contrast, LL.B. programs in the UK and Australia routinely require all law students to take Administrative Law. Their inclusion of Administrative Law as a required subject -- often in the first or second year, reflects a realization that Administrative Law is in fact a different practice that normal courtroom law. As one commentator has noted for Australian law, [t]he position occupied by administrative tribunals and the type of law applied therein, known as administrative law, is a matter of great importance. Moreover, UK and Australian law schools are more apt to describe Administrative Law as a course about the relationship between the citizen and the state (University of Wales), the control of power as exercised by government and other 'public' bodies (Queen's University of Belfast), Control of Discretionary Power (Cambridge). Finally, Australian law schools show a distinct tendency to describe Administrative Law as a practice-oriented course. Bond University, for example, discusses access to government information and the nature and scope of administrative and judicial review of government decisions and actions in terms of the order in which they can arise in practice, while Flinders University incorporates the theory and practice of legal interviewing into its required Administrative Law course.

My presentation and paper will explore the reluctance of American law schools to require that all law students be exposed to at least the basics of Administrative Law through a comparison of how UK, Australian, and American law schools currently treat Administrative Law as a subject. In particular, I will argue that whereas UK and Australian law schools tend to portray Administrative Law as a practice- and procedure-oriented subject with, at least in the UK, important international connections, American law schools currently describe Administrative Law in three basic ways: (1) as a subject with strong connections to Constitutional Law; (2) as an amalgam of various constitutional, statutory, and procedural doctrines; and (3) as a specific facet of how the American legal system functions, with its own specific rules and procedures.

In addition, my presentation will use the comparative approach to explore the extent to which American law schools continue to view Administrative Law as a course for public interest lawyers-to-be, but not for lawyers in general.

Abstract:
The debate over the relative merits of the traditional command and control (CAC) approach and the alleged more progressive economic incentive (EI) approach to environmental regulation has been prominent in American politics for the last two decades. The current Administration is clearly a proponent of increased use of economic incentives and reduced CAC regulation by the federal government. But is the choice of environmental policy instrument really a black-and-white choice? Can regulators safely assume that CAC regimes are inherently more expensive for regulated entities and more administratively and informationally demanding to implement than economic incentive schemes, or that economic incentive instruments are inherently more efficient than more traditional regulatory approaches?

This review essay highlights some potential lessons for American environmental policymakers as it explores the research performed by the book's many authors regarding the practical effects of various environmental regulatory programs in the United States and the European Union.

regulatory instrument choice, environmental law, environmental policy, policy implementation, European Union, command-and-control, economic incentive