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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

Linking Law and New Governance: Examining Gaps, Hybrids, and Integration in Water Policy

Cameron Holley, UNSW Australia, Faculty of Law, Connected Waters Initiative Research Centre, National Centre for Groundwater Research and Training, University of New South Wales (UNSW) - Faculty of Law

Food as a Matter of Global Governance

Michael Fakhri, University of Oregon - School of Law

The Failure to Understand Expertise in Administrative Law: The Problem and the Consequences

Sidney A. Shapiro, Wake Forest University School of Law

The Oregon Public Trust Doctrine and Atmospheric Greenhouse Gas Pollution: A Law Professors' Amicus Brief

Michael C. Blumm, Lewis & Clark Law School
Mary C. Wood, University of Oregon - School of Law
Steven M. Thiel, Lewis & Clark Law School

The Permanent Court of Arbitration and the Peaceful Resolution of Transboundary Freshwater Disputes

Tamar Meshel, University of Toronto, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law

Right to Live in a Pollution Free Environment: A Critique

Dr. Jyoti Shrirang Dharm, Bharati Vidyapeeth New Law College, Pune

Enhancing the Urban Environment Through Green Infrastructure

John R. Nolon, Pace University School of Law


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

"Linking Law and New Governance: Examining Gaps, Hybrids, and Integration in Water Policy" Fee Download
Law & Policy, Vol. 38, Issue 1, pp. 24-53, 2016

CAMERON HOLLEY, UNSW Australia, Faculty of Law, Connected Waters Initiative Research Centre, National Centre for Groundwater Research and Training, University of New South Wales (UNSW) - Faculty of Law
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Since the 1980s there have been significant shifts from traditional environmental enforcement toward networks, cooperation, and more pluralized forms of governance. The most recent iterations of these new approaches are increasingly characterized as New Environmental Governance (NEG). A range of common characteristics that include collaboration, participation, adaptation, and nonbinding guidelines and agreements define NEG approaches. Despite a growing NEG literature, it is unclear whether and how NEG can be effectively implemented in the same policy domain as traditional hard law. This article empirically explores and theorizes the dynamics of NEG's interaction with conventional law. It proposes a spectrum of eight possible interactions between traditional law and NEG approaches, before evaluating three distinct perspectives, namely, gaps, NEG in the shadow of the law, and integration. It studies these relationships by empirically evaluating three case studies from Australia, New Zealand, and the United States that correspond to these interactions. The article explores the strengths and weaknesses of the three relationships. It finds that a significant barrier to achieving productive cohesion between law and NEG is the worldview of regulators, who eschew NEG collaboration as ineffectual or incompatible with hard law. Recommendations are offered on how to better achieve cohesive implementation between law and NEG.

"Food as a Matter of Global Governance" Free Download
(2015) 11:2 Journal of International Law and International Relations 68-83

MICHAEL FAKHRI, University of Oregon - School of Law
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In this short comment, I examine the debate between Olivier De Schutter, during his tenure as the UN Special Rapporteur on the Right to Food, and the then-Director-General of the WTO, Pascal Lamy. I first explore what global governance means. I conclude by outlining the limits of a global governance perspective and briefly consider how trade law might also be understood in terms of growing and eating, and making and exchanging. And I discuss a bit about gardening. This paper is part of a special issue on Food Security and International Trade Law.

"The Failure to Understand Expertise in Administrative Law: The Problem and the Consequences" Free Download

SIDNEY A. SHAPIRO, Wake Forest University School of Law
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Although expertise has a starring role in administrative law, there has been a surprisingly impoverished understanding of expertise and its role in the rulemaking process. The failure to understand expertise, which this article explains is more complex and multifaceted that generally understood, is problematic because understandings of expert public administration influence administrative law institutions and practices, and conversely these legal developments condition the creation and use of expert knowledge in public administration. This Article contends that a more complete understanding of expertise indicates how it is possible to have a more workable, and yet accountable, administrative process.

More specifically, the article explains how the limited and sometimes misleading understanding of expertise has led to a “rational-instrumental� (RI) accountability paradigm, which distrusts agency expertise and seeks to narrow the policy space in which agency expertise can operate. A more accurate and complete understanding of expertise supports “deliberative-constitutive� (DC) accountability, which has the potential to increase agency effectiveness and still reconcile the administrative state with our constitutional democracy.

"The Oregon Public Trust Doctrine and Atmospheric Greenhouse Gas Pollution: A Law Professors' Amicus Brief" Free Download

MICHAEL C. BLUMM, Lewis & Clark Law School
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MARY C. WOOD, University of Oregon - School of Law
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STEVEN M. THIEL, Lewis & Clark Law School
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In Cherniak v. Brown, an Oregon Circuit Court rejected the youth plaintiffs' arguments that the public trust doctrine applied to the atmosphere, and that the state of Oregon violated its trust obligations by failing to take action to prevent runaway greenhouse gas emissions. In its opinion the lower court also rejected the applicability of the public trust doctrine to the state's waters, fish and wildlife, and beaches and shorelands. This amicus brief supports the plaintiffs' request that the Oregon Court of Appeals reverse the lower court decision and explains in some detail why the history and interpretation of the state's public trust doctrine make it applicable actions polluting the atmosphere that threaten the stability and integrity of trust resources like the state's public waters, its fish and wildlife, and its beaches and shorelands.

"The Permanent Court of Arbitration and the Peaceful Resolution of Transboundary Freshwater Disputes" Free Download
ESIL Reflections, Vol. 5, No. 1, January 2016

TAMAR MESHEL, University of Toronto, Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law
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The fact that freshwater is rapidly running out while human dependency on it continues to grow suggests that transboundary freshwater disputes are likely to arise with increasing frequency. Therefore, attention must be paid to their peaceful and effective resolution. History suggests that states most often attempt to resolve such disputes by way of bilateral negotiation or non-binding third-party mechanisms. However, such mechanisms do not always deal effectively with the complex issues involved in many transboundary freshwater disputes and may lead to deadlock and stalemate. At the same time, states faced with transboundary freshwater disputes may be reluctant to submit them to purely ‘legal’ resolution by the International Court of Justice (ICJ). In light of the limitations of both non-binding mechanisms and judicial settlement by the ICJ, this reflection aims to explore the potential for arbitration to be successfully used by states in the resolution of transboundary freshwater disputes.

"Right to Live in a Pollution Free Environment: A Critique" Free Download
IJSR, Vol. 4, Issue 12, December 2015, ISSN No. 2277-8179

DR. JYOTI SHRIRANG DHARM, Bharati Vidyapeeth New Law College, Pune
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The right to live in clean and healthy environment is fundamental to human life. The right to live in a pollution free environment is recognised as a fundamental right in India. Various laws are made by the legislature to provide clean environment to the citizens and the judiciary also play a momentous role in protecting the environment ,but irrespective of all the efforts made by the legislature and the judiciary many people do not have access to clean air and drinking water due to degradation of environment.

"Enhancing the Urban Environment Through Green Infrastructure" Free Download
Environmental Law Reporter, Vol. 46, No. 1, 2016

JOHN R. NOLON, Pace University School of Law
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This Article is adapted from Chapter Seven of John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, published by ELI Press. The book describes how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This Article follows the steady advance in the use of green infrastructure in recent years, and details its value as a strategy for adapting to climate change, bettering air quality, lowering heat stress, creating greater biodiversity, conserving energy, providing ecological services, sequestering carbon, preserving and expanding habitats, enhancing aesthetics, increasing property values, and improving the livability of neighborhoods.

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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

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.

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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

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