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The eJournal is sponsored by the Environmental Law Center at the Vermont Law School, home to one of the nation's leading environmental law programs. Since establishing the Environmental Law Center in 1978, Vermont Law School has been training people to be environmental leaders in government, nonprofits, corporations, and private practice - locally, nationally, and internationally. With the largest and deepest graduate environmental law program in the country, the Environmental Law Center offers the most comprehensive environmental law and policy curriculum in the nation for law students, and also confers the Master of Environmental Law and Policy (MELP) and Master of Laws in Environmental Law (LLM) degrees, as well as a joint JD/MELP degree. The Vermont Law School's Environmental Law Center is also home to the Institute for Energy and the Environment, Environmental Tax Policy Institute, Climate Legacy Initiative, Land Use Institute, Partnership for Environmental Law in China, and Environmental and Natural Resources Law Clinic.


Table of Contents

Conservation or Claim? The Motivations for Recent Marine Protected Areas

David D. Caron, King's College London – The Dickson Poon School of Law, University of California, Berkeley - School of Law
Stephen Minas, Research Fellow, Transnational Law Institute, Kings College London, Melbourne School of Population and Global Health, University of Melbourne

The Rise of the Corporate Investment Rights Regime and 'Extractive Exceptionalism': Evidence from El Salvador

Michael L. Dougherty, Illinois State University
Sarah Anderson, Institute for Policy Studies
Manuel Perez-Rocha, Institute for Policy Studies

Developments in Law and Policy: The Promotion of Green Energy in the Electricity Sector of Palestine

Ibrahim Marei, QUT School of Law

Property Rights for Animals

Karen Bradshaw, Sandra Day O'Connor College of Law

Bridging the Business and Human Rights Divide with Lessons from UNCLOS’ Deep Sea Mining Regime

Humphrey Sipalla, Strathmore University Law School

Reevaluating the Role of Acquisition-Based Strategies in the Greater Historic Preservation Movement

Jess R. Phelps, USDA

Instream Flows in California and Spain: The Thorny Issue of Compensation

Luis Inaraja Vera, New York University School of Law, Furman Center


NATURAL RESOURCES LAW & POLICY eJOURNAL
Sponsored by the Environmental Law Center at Vermont Law School

"Conservation or Claim? The Motivations for Recent Marine Protected Areas" Free Download
Forthcoming in an edited collection of the Law of the Sea Institute
TLI Think! Paper 36/2016

DAVID D. CARON, King's College London – The Dickson Poon School of Law, University of California, Berkeley - School of Law
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STEPHEN MINAS, Research Fellow, Transnational Law Institute, Kings College London, Melbourne School of Population and Global Health, University of Melbourne
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The creation of marine protected areas (“MPAs?) has for decades been an important mechanism for the conservation of offshore habitats and biodiversity. In recent years, huge swathes of ocean have been designated for protection as states announced successively larger MPAs. Where maritime territory is disputed, the unilateral declaration of MPAs can arouse suspicions that states have harnessed conservation as a continuation of geopolitics by other means. This paper identifies the combustible interplay between conservation and territorial and strategic competition, with particular reference to, first, the recent arbitration concerning the United Kingdom’s Chagos Archipelago MPA under the United Nations Convention on the Law of the Sea and, second, ongoing maritime territorial disputes in the Indo-Pacific region. The paper discusses what happens when states are accused of creating MPAs to serve a hidden agenda. The relationship of marine conservation with territorial competition emerges as a complex one, in which power differentials and strategic conditions are important determinants of state behavior. Moreover, the hard choices inherent in this area of policy will be exacerbated by climate change. The developments discussed in the paper challenge unilateral MPAs as a means of protecting marine ecosystems. As a response, the paper identifies the objective of reducing incentives for states to play geopolitics with conservation.

"The Rise of the Corporate Investment Rights Regime and 'Extractive Exceptionalism': Evidence from El Salvador" Free Download
with Sarah Anderson and Manuel Perez-Rocha. In, Deonandan, K. and M.L. Dougherty (eds.) Mining in Latin America: Critical Approaches to the New Extraction. Routledge: London. 229-249 (2016)

MICHAEL L. DOUGHERTY, Illinois State University
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SARAH ANDERSON, Institute for Policy Studies
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MANUEL PEREZ-ROCHA, Institute for Policy Studies
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In the context of the current extractive boom in Latin America and beyond, transnational mining corporations are increasingly making use of a growing set of investment rights granted to companies operating in foreign countries. Mining companies take advantage of these rights by arbitration against host-state governments in international tribunals where they perceive violations of these rights. This chapter describes the origins and evolution of this sweeping set of rights, what we call here the corporate investment rights regime. We further focus on this use of binding arbitration to settle disputes that arise around these rights. Mining companies, we argue here, are particularly well-positioned to take advantage of the new investor rights, thus making the enforcement of these rights a key feature of the new landscape of extraction in the twenty-first century. Finally, we draw from the case of Pacific Rim Mining Corporation’s arbitration against the government of El Salvador in the International Center for the Settlement of Investment Disputes as an example of how these unprecedented corporate powers can undermine national environmental and other public interest regulations.

"Developments in Law and Policy: The Promotion of Green Energy in the Electricity Sector of Palestine" 
Journal of Energy & Natural Resources Law, Online First, p. 1-21, Sep. 2016

IBRAHIM MAREI, QUT School of Law
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This paper analyses the regulatory framework for renewable electricity in Palestine. The State of Palestine has inherited accumulative problems in its electricity sector, as in many other sectors, mainly due to the Israeli occupation of the Palestinian Territories since June 1967. These territories include the West Bank (including East Jerusalem) and the Gaza Strip. The Occupied Palestinian Territories were declared by the United Nations General Assembly in September 2012 to hold non-member state status, and have since been known as the ‘State of Palestine’. Multifaceted limitations and restrictions resulting from the occupation have impeded development in the electricity sector as a pivotal public service. However, the Palestinian Government has recently attempted to take control over electricity and to restructure the sector using legal instruments. The government has adopted regulations and embraced a target to promote the use of renewable energy sources for the generation of electricity. This paper argues that despite the Palestinian Government’s attempt to achieve the renewable target, the law needs to be revised thoroughly to ensure increased promotion of alternative energy generation sources.

"Property Rights for Animals" Free Download

KAREN BRADSHAW, Sandra Day O'Connor College of Law
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What if animals could own property? This Article presents a thought experiment of extending our anthropocentric property regime to animals. This exercise yields new insights into property law, including what appear to be biological underpinnings to what is widely assumed to be the distinctly human system of property. It also reveals that government and private actors alike have created a vast network of functional property rights for animals. The effects of a property rights regime for animals extends beyond property law: it would serve to improve the plight of animals, especially wildlife, by counting historic exclusion of animals from property allocations.

Property law may be a human codification of ingrained biological principles, common among species. Human governance of land, partially reflected by property law and observation of social attitudes to property, may, in fact, better theorized as animal in nature. Scientific findings suggesting that animals engage behavior mirroring that which establishes property ownership among humans. Species ranging from bees to jaguars undertake actions to acquire and protect land, which, when undertaken by people, forms the legal basis of property ownership.

Initial entitlements of American land excluded customary animal users, then afforded subsequent human landowners with the right to develop and exclude, which produced profoundly negative effects on species conservation. In response, a variety of governance strategies have emerged to protect wildlife, most federal statutes weakening property rights. In fact, law has already partially accommodated the idea of animals as property owners. Examining a variety of Constitutional, statutory, and common law doctrines suggests that animals already hold a variety of functional property rights, including ownership of hundreds of millions acres of land.

This Article is the first to analyze a property-rights approach to animal welfare and species conservation. Benefits of this approach, relative to existing efforts to imbue animals with human rights, include its bipartisan nature and foreseeable endpoint. Animal property rights would not require a massive shift in societal norms or uncompensated property redistributions. Indeed, this approach would likely improve animal welfare while also strengthening existing property rights, lessening the need for statutory controls on land uses, and updating law to harmonize with prevailing norms regarding animals’ place in society.

"Bridging the Business and Human Rights Divide with Lessons from UNCLOS’ Deep Sea Mining Regime" Free Download
Juan Carlos Sainz-Borgo (ed), Liber Amicorum Gudmundur Eiriksson, University for Peace Press, 2016 Forthcoming

HUMPHREY SIPALLA, Strathmore University Law School
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The norms that govern international economic law have for decades been criticised by the Third World for favouring the interests of western Industrialised Powers to the detriment of Third World peoples and their states. Among the contested issues is whether the very structure of international law facilitates this skewed situation, in matters such as accountability abeyances of business entities for human rights violations and the clash of state obligations under international human rights and international economic law. The United Nations Convention on the Law of the Sea (UNCLOS) regulates matters that undoubtedly affect critical economic interests of states. It is lauded for having, through tortured negotiations (1973-82, 90-94), arrived at far more equalising standards between established maritime powers and economically weaker Third World states. The UNCLOS deep sea mining regime was so contested that it delayed UNCLOS’ acceptance among established economic powers for over a decade. In this paper, we interrogate whether this regime offers a viable model that the business and human rights divide could emulate, both in terms of the viability of the ‘treaty road’ as well as establishing reasonable terms of assigning international responsibility among international organisations, states and corporate entities within municipal law, especially since the 2011 ITLOS Advisory Opinion on responsibilities and obligations of states, arose from concerns of small island states.

"Reevaluating the Role of Acquisition-Based Strategies in the Greater Historic Preservation Movement" Free Download
Virginia Environmental Law Journal, Vol. 34, No. 399, 2016

JESS R. PHELPS, USDA
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Historic preservation and land conservation advocates have traditionally had similar goals, organizational structures, and even somewhat comingled histories when it comes to their efforts to protect the built and natural environment. Despite these striking similarities, a meaningful gap in practice has developed as to how the disciplines approach their respective resource challenges. Land conservation groups largely default to acquisition-based strategies in order to ensure the perpetual protection of targeted conservation tracts – most commonly through the use of conservation easements. Historic preservation advocates, however, are much less likely to rely on acquisition – relying instead on regulatory controls, site-specific advocacy, and incentive payments. This Article explores the explanations for this divergence – institutional, structural, and financial. Ultimately, understanding the roots of how the land conservation and historic preservation movements have come to approach their work so differently can provide meaningful insight into both fields and provide a lens for exploring, in particular, the comparatively limited role that affirmative resource protection efforts play in modern preservation practice.

"Instream Flows in California and Spain: The Thorny Issue of Compensation" Free Download
Georgetown International Environmental Law Review (GIELR), Vol. 27, No. 2, 2015

LUIS INARAJA VERA, New York University School of Law, Furman Center
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Limiting existing water rights to preserve environmental values, for instance, by requiring that a minimum flow be left in a watercourse, can be a controversial measure in and of itself. The relevant question that arises in these situations, however, is the extent to which water users should be compensated for the curtailment of their right. Two geographical areas with a similar climate, Spain and California, have been dealing with this problem for some time, and their approaches show remarkable parallels.

Both in California and Spain, the latest court decisions suggest that the government may have to compensate water users for the reduction of their rights. The courts dealing with cases of this nature in California have adopted the physical taking standard, which is more favorable for water users than the regulatory takings rubric. In Spain, while the Supreme Court has left this issue as an open question, the legislative framework in place strongly suggests that water users should have to be compensated if their rights are curtailed to ensure that rivers maintain a minimum flow. Nevertheless, there is some uncertainty in both jurisdictions as to whether certain defenses -- the public trust doctrine in California and the general restriction defense in Spain -- could successfully exempt the government from the duty to pay compensation, at least in cases where the reduction of the right is relatively small.

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About this eJournal

Sponsored by: Institute for Energy and the Environment at the Vermont Law School. This eJournal distributes working and accepted paper abstracts dealing with the regulation, management, and distribution of natural resources. The eJournal will discuss a diverse array of natural resource topics such as public and private land use, wildlife and biodiversity, forest protection, mineral rights, parks and wilderness, the public trust doctrine, water and wetlands, and tribal lands and resources.

Editor: Melissa K. Scanlan, Vermont Law School

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Directors

ENVIRONMENTAL & NATURAL RESOURCES LAW EJOURNALS

BERNARD S. BLACK
Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Natural Resources Law & Policy eJournal

LEE P. BRECKENRIDGE
Professor of Law, Northeastern University School of Law

HOLLY DOREMUS
James H. House and Hiram H. Hurd Professor of Environmental Regulation, and Associate Dean for Faculty Development and Research, University of California, Berkeley - School of Law

TIMOTHY P. DUANE
Professor, University of California, Santa Cruz

JONATHAN NASH
Professor of Law, Emory University School of Law

DAVE OWEN
Professor of Law, University of California - Hastings College of the Law

ROBERT V. PERCIVAL
Robert F. Stanton Professor of Law and Director of the Environmental Law Program, University of Maryland - Francis King Carey School of Law

MELISSA POWERS
Assistant Professor of Law, Lewis & Clark Law School

J. B. RUHL
David Daniels Allen Distinguished Chair in Law, Vanderbilt University - Law School

MARK STEPHEN SQUILLACE
Professor of Law and Director of the Natural Resources Law Center, University of Colorado Law School

STEPH TAI
Associate Professor of Law, University of Wisconsin Law School

JAY WEXLER
Professor of Law, Boston University School of Law