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Table of Contents


Michael Pappas, University of Maryland Francis King Carey School of Law

When Retreat is the Best Option: Flood Insurance after Biggert-Waters and Other Climate Change Puzzles

Robert R. M. Verchick, Loyola University New Orleans College of Law, Loyola University New Orleans
Lynsey R. Johnson, Loyola University New Orleans

International Water Law Principles and Frameworks: Perspectives from the Nile River Basin

Ryan B. Stoa, Florida International University College of Law

Sponsored by the Environmental Law Center at Vermont Law School

"Anti-Waste" Free Download
Arizona Law Review, Vol. 56, 2014
U of Maryland Legal Studies Research Paper No. 2014-15

MICHAEL PAPPAS, University of Maryland Francis King Carey School of Law

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste� even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or a combination of these values.

After identifying waste, the law seeks to eliminate it via targeted anti-waste provisions, which follow one of three approaches. First, “usage-veto� measures empower selected parties to halt perceived wasteful changes to resource uses. Second, “market-facilitating� measures prevent economic waste by encouraging and correcting markets. Third, “sustainability� measures proscribe wasteful overconsumption of resources fundamental to human and ecosystem flourishing.

Through this framework, the Article synthesizes seemingly disparate property and resource doctrines into a coherent legal approach to the idea of waste. This overarching understanding of legal waste explains how individual anti-waste provisions originate and operate. Further, the waste framework serves as a practical tool for analyzing whether anti-waste laws remain in touch with current resource contexts and societal preferences. Finally, it offers theoretical insight about how anti-waste provisions work cumulatively to inject a necessary adaptability into property law.

"When Retreat is the Best Option: Flood Insurance after Biggert-Waters and Other Climate Change Puzzles" Free Download
47 John Marshall Law Review (2014 Forthcoming)
Loyola University New Orleans College of Law Legal Studies Research Paper Series

ROBERT R. M. VERCHICK, Loyola University New Orleans College of Law, Loyola University New Orleans
LYNSEY R. JOHNSON, Loyola University New Orleans

Commentators argue, with good reason, that flood risk polices are soft on retreat. We Americans are more interested in fortifying our castles or building them higher than in moving out of harm’s way. And that is despite warnings of rising seas and stronger storms associated with climate change. But the impulse to stay put may be eroding. In particular, the practices and policies of the Federal Emergency Management Agency (FEMA) are gradually encouraging retreat over other alternatives. As one example, FEMA’s current Mitigation Best Practice Database, the agency’s new National Disaster Recovery Framework (NDRF), now contemplates retreat mechanisms. For a while, Congress, too, beat the drums of retreat. The Biggert-Waters Insurance Reform Act of 2012 (BW-12), promised to remove important insurance subsidies for flood-prone homes, forcing some residents to consider relocation as a cost-saving option. Two years later, in response to public backlash, Congress repealed the law’s strongest retreat-based incentives. Congress is expected to reform the insurance program once again by 2017.

In this article, we consider retreat as a strategy of hazard-risk reduction, with reference to the developments in FEMA practice and legislation listed above. As the effects of climate increase the risks of floods and other extreme events, we also see FEMA’s evolving retreat strategies as an important part of the nation’s climate adaptation efforts. Unfortunately, initiatives like the new NDRF and Congress’s insurance reforms are developing piecemeal, with blind spots large enough to drive a tornado through. We believe that policy makers would do better to have a set of principles to guide them when considering and implementing strategies that are intended or will have the effect of encouraging retreat. In particular, we think that Congress could have avoided the embarrassing failure of BW-12 if lawmakers had more fully recognized the complex issues at stake in retreat-based policies. One aim of our analysis is to suggest what a successful reform of the NFIP might look like, setting the foundation for more detailed conversations about flood insurance as the 2017 deadline approaches.

"International Water Law Principles and Frameworks: Perspectives from the Nile River Basin" 
Nile River Basin: Ecohydrological Challenges, Climate Change and Hydropolitics, 2013

RYAN B. STOA, Florida International University College of Law

With the current body of international water law limited to customary principles and nascent treaty instruments, the potential for major transboundary water resources conflict is high. Nowhere is this more apparent than in the Nile River Basin. At about 6,825 km long, the Nile is the longest river in the world, sustaining the livelihoods of more than 180 million people in 11 riparian countries. And yet, the Nile River continues to flow without a binding cooperative management treaty or agreement. While the Nile Basin Cooperative Framework Agreement (CFA) may soon come into force, it lacks the support and participation of two of the largest players in the region, downstream Egypt and Sudan. Meanwhile, basin countries’ interpretations of customary international water law highlight the inherent and predictable difficulties of reconciling the principles of equitable use and no significant harm. Considering the Nile River Basin’s critical importance to the economic development of basin states, the absence of a binding cooperative management agreement places the Nile River Basin at risk of conflict and continued mismanagement. This chapter analyzes the legal status of Nile River Basin water allocations through the lens of contemporary international water law, a developing body of law struggling to resolve transboundary disputes such as those found in the Nile River Basin.


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