Announcements

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.



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

"Resolving Conflict over Scarce Resources: Private versus Shared Ownership" Free Download

W.C. BUNTING, American Civil Liberties Union (ACLU)
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This Article models private ownership as a conflict resolution mechanism and contends that for the Coase Theorem (as defined here) to be consistent, private ownership must yield the Pareto-optimal use of scarce resources among all feasible conflict resolution mechanisms. Conflict over a scarce resource may be better resolved, however, by eliminating the possibility of private ownership and “forcing� parties to share ownership of a contested scarce resource. A corollary to the Coase Theorem is introduced which states: In the absence of transaction costs, the distribution of private and shared ownership is efficient. Provided transaction costs are high and shared ownership is socially-optimal, a role for the courts is suggested wherein de facto shared ownership is established by rendering private property rights random or unclear — judicial behavior that stands in contrast to the normative implications of the Coase Theorem.

"Bringing Resilience to Wildlife Management and Biodiversity Protection" Free Download
in Social-Resilience and Law. Craig Allen and Ahjond Garmestani, eds. New York: Columbia University Press. 2014

MELINDA HARM BENSON, University of New Mexico
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MATTHEW E. HOMPTON, Government of the United States of America - Environmental Protection Agency (EPA)
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Over the past few hundred years, human activities have increased species extinction rates by as much as 1,000 times background rates that were typical over Earth’s history. In the United States, estimates are that there are approximately 1,900 species listed as threatened or endangered, with potentially thousands more at risk. The challenge of addressing biodiversity loss and the inevitable but largely unknown consequences associated with it presents a “wicked problem� characterized by extreme complexity and radical uncertainty. The current approach to wildlife management and the wicked problem of biodiversity loss in the United States is the subject of this chapter. It examines the nature in which existing legal frameworks and institutions address these issues and the extent to which they are compatible with a resilience-based approach. After providing a working definition of resilience, it then provides a brief overview of relevant state and federal approaches to wildlife management and biodiversity protection in the United States. This chapter places particular emphasis on the Endangered Species Act (ESA), currently the strongest federal law capable of addressing biodiversity loss. It then explores the extent to which the ESA and other wildlife laws are compatible with resilience theory and provides some recommendations for legal and institutional reform based on a resilience-based perspective of social-ecological systems.

"Chapter 7: Land Use, Land Use Change, and Forestry (c) Asia-Pacific" Free Download
Forthcoming in Van Calster, G., Vandenberghe, W., and Reins, L. (eds), Research Handbook on Climate Mitigation Law, Cheltenham, Edward Elgar, 2014

BRADLEY JOHN EVANS, Macquarie University, TERN eMAST
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The Asia-Pacific region supports 15% of the Earth’s total forest and woodland cover. Combined, Australia, China and Indonesia have approximately 69% of the regions forests. Regional land use is driven by the need to provide the densely populated region with both food and economic growth. As such, the Asia-Pacific faces strong socio-economic and industrial-political pressure to maximize production on all available land. Accordingly, this has resulted in high diversity between regulatory instruments governing land use change and the management of forests between sovereign nations. Whilst land clearing has slowed or is being reversed in some countries, its rates of change are not sustainable across the Asia-Pacific.

"The United Nations Watercourses Convention on the Dawn of Entry into Force" 
Vanderbilt Journal of Transnational Law, November 2014 Forthcoming

RYAN B. STOA, Florida International University College of Law
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The United Nations Watercourses Convention entered into force in August 2014. Despite overwhelming support when signed in 1997, the ratification process has been slow. As a binding treaty, the Watercourses Convention provides hope that its provisions will articulate legal principles of transboundary water management capable of promoting cooperation and regional agreements. Despite entry into force, however, global support for the Watercourses Convention is weak, concurrent efforts to develop treaty regimes governing water resources create competition for resources and may obscure understandings of international water law, and the foundational principles of the Watercourses Convention remain ambiguous. These limitations are illustrated in a case study of the discordant hydropolitics of the Nile River Basin – perhaps the most significant watercourse lacking a cooperative management agreement. This article provides an analysis of international water law and the limitations of the Watercourses Convention, considering the implications of entry into force. While the Watercourses Convention creates a workable framework for negotiating regional agreements, low levels of support from UN member states, competing treaty instruments, and ambiguous legal principles limit the potential impact of the Watercourses Convention.

"After Lying Dormant for Decades, Pennsylvania's Environmental Rights Amendment Recently Received a Spark of Life from Robinson Township v. Commonwealth" Free Download

RICHARD RINALDI, Independent
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In the wake of Pennsylvania’s coal revolution, voters took to the polls in 1971 expressing a unified vow not to repeat the environmental mistakes of their industrious-minded forefathers. What resulted was the Environmental Rights Amendment to Pennsylvania’s Constitution. It guaranteed the people’s "right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment" and affirmed that "public natural resources are the common property of all the people, including generations yet to come." The Amendment was the most powerful affirmation of citizens’ rights to environmental protection in the United States — perhaps even a bit too powerful for its time.

Over the years, Pennsylvania courts gave little constitutional effect to the Amendment’s plain meaning, treating it instead as a broad policy statement whose true activation as a constitutional right might require further action from the General Assembly. However, after lying in suspended animation for forty-three years, Pennsylvania’s Environmental Rights Amendment recently received a spark of life from a plurality of the Supreme Court of Pennsylvania. In a landmark decision, Robinson Township v. Commonwealth employed the Environmental Rights Amendment — for the first time since its inception — to strike down a Pennsylvania statute. The unprecedented judicial affirmation of the people’s constitutional right to clean air and pure water can have far-reaching effects on the gas drilling industry and others that may cause "actual or likely degradation" of Pennsylvania’s natural environment.

In 2012, the General Assembly passed Act 13 in order to expedite oil and gas extraction throughout Pennsylvania. Amending much of Pennsylvania’s Oil and Gas Act, Act 13 provided a universal, streamlined process for permitting drilling operations, largely by eliminating municipal authority to regulate the industry. In response, several local citizens challenged three main provisions of Act 13, arguing inter alias, that it violated Pennsylvania’s Environmental Rights Amendment. The Commonwealth Court of Pennsylvania, however, made quick work of the environmental rights claim, giving it little treatment before dismissing it in lockstep with previous decisions. On appeal, a plurality of the Supreme Court of Pennsylvania disagreed and struck down all three provisions of Act 13 under the Environmental Rights Amendment. More importantly, the decision placed the people’s environmental rights on par with other constitutionally guaranteed rights.

Section II.A of this survey first details the three challenged provisions of Act 13. Section II.B then outlines Pennsylvania’s Environmental Rights Amendment, including the historical context of its passage and the past jurisprudence that diminished the Amendment’s purpose. Section III then highlights the facts of Robinson Township, including its procedural history, the parties’ arguments and its final treatment by the Supreme Court of Pennsylvania. Section IV subsequently evaluates the impact of that landmark decision and suggests a potentially vast sea-change in the way future courts assess claims under the Environmental Rights Amendment, namely that the plurality’s textual interpretation of the Amendment may revitalize its promise as a true constitutional right to environmental protection. In conclusion, section V argues that the plurality’s interpretation and prescribed application of the Amendment is in accordance with the intent of the legislators and ratifying voters who were responsible for its enactment.

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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.

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

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Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

ENVIRONMENTAL & NATURAL RESOURCES LAW EJOURNALS

BERNARD S. BLACK
Northwestern University - 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
Professor of Law, 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
Associate Professor of Law, University of Maine - School of 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

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

JAY WEXLER
Professor of Law, Boston University School of Law