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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

The Whaling in the Antarctic (Australia v. Japan) Decision: Giving Up the Spear or Refining the Scientific Design?

Anastasia Telesetsky, University of Idaho
Donald K. Anton, Australian National University - ANU College of Law, Griffith University - Griffith Law School
Timo Koivurova, University of Lapland - Northern Institute for Environmental and Minority Law (NIEM)

Environmental Regulatory Nukes

Brigham Daniels, Brigham Young University - J. Reuben Clark Law School


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

"The Whaling in the Antarctic (Australia v. Japan) Decision: Giving Up the Spear or Refining the Scientific Design?" Free Download
Ocean Development and International Law, Forthcoming

ANASTASIA TELESETSKY, University of Idaho
Email:
DONALD K. ANTON, Australian National University - ANU College of Law, Griffith University - Griffith Law School
Email:
TIMO KOIVUROVA, University of Lapland - Northern Institute for Environmental and Minority Law (NIEM)
Email:

The case on Whaling in the Antarctic (Australia v. Japan) decided by the International Court of Justice is a landmark that introduces new parameters for measuring the “reasonableness� scientific research by permit under the International Convention on Whaling. However, aspects of these parameters and how they may be applied in future cases remain uncertain. Because the Court’s interpretation of the language “for purposes of scientific research� avoids defining scientific research, the Court’s decision provides only a limited degree of clarification for States that intend to operate scientific whaling programs under Article VIII of the Convention. While it is clear after the ICJ’s decision that States will be given deference to design their programs “for purposes of scientific research,� the Court expects States issuing Annex VIII permits to proactively justify that both the design and implementation of a given lethal “scientific research� plan is reasonable. What this means in practice is that States that intend to issue Annex VIII permits must ensure that in creating and implementing their programs that the ends can be justified by the means. For States such as Australia and New Zealand who seem to be generally opposed to all whaling, the ICJ’s application of its “reasonableness� test in this case will not be sufficient to prevent “scientific whaling� as a prelude to rejuvenating a commercial whaling industry. The essay concludes with a suggestion that States who no longer support the dual object and purpose of the Convention may want to consider negotiating a new international instrument that would be more protective of whales and their habitat.

"Environmental Regulatory Nukes" Free Download
Utah Law Review, Vol. 2013, No. 6, 2013

BRIGHAM DANIELS, Brigham Young University - J. Reuben Clark Law School
Email:

Regulatory nukes are regulatory tools that can prove extremely destructive to regulatory targets and have an element of political taboo surrounding their use. This Article discusses how and why Congress proliferates regulatory nukes. It explores the way regulatory nukes shape the contours of environmental law and define important aspects of various environmental enactments, including the Clean Air Act, the Clean Water Act, RCRA, CERCLA, and the Endangered Species Act, among others. The typical narratives we find surrounding environmental regulatory nukes, that either focus on regulatory Armageddon or dust settling on nukes in their silos, only tell part of the story. These narratives neglect the ways in which regulators use environmental regulatory nukes to prod, cudgel, and extract regulatory concessions from their potential targets. Seeing regulatory nukes in this light helps us better understand that regulators use these weapons not only by firming them but also by brandishing them and even merely possessing them.

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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.

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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

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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