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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

Laurentian and African Great Lakes: Different Strategies in the Fight Against Invasive Species

Scott O. McKenzie, University of British Columbia (UBC) - Institute for Resources, Environment and Sustainability (IRES)

Litigating Shut-In for Lack of a Market: A Comment on Stewart Estate v. Taqa North Ltd

Wayne Renke, University of Alberta - Faculty of Law

The Federal Public Trust Doctrine: A Law Professors' Amicus Brief

Michael C. Blumm, Lewis & Clark Law School
Lynn Schaffer, Lewis & Clark Law School

Preservation Is a Flawed Mitigation Strategy

Jessica Owley, State University of New York (SUNY) at Buffalo - Law School

Rule 76A: Could Texas Courts Solve the Secrecy-Science Dilemma in Fracking Disputes?

R. Kyle Alagood, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Sue to Adapt?

Jacqueline Peel, Melbourne Law School
Hari M. Osofsky, University of Minnesota - Twin Cities - School of Law


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

"Laurentian and African Great Lakes: Different Strategies in the Fight Against Invasive Species" Free Download
Indiana International & Comparative Law Review, Vol. 24, No. 1, 2014

SCOTT O. MCKENZIE, University of British Columbia (UBC) - Institute for Resources, Environment and Sustainability (IRES)
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Invasive exotic species are a reality in all ecosystems. These biological invaders disrupt ecological patterns and cause billions of dollars in economic damage. Justifiably, governments are stepping up their response. However, while many invaders are considered unmitigated ecological disasters, a number of species have become important and controversial parts of the regional economy. In the Laurentian Great Lakes, the invasive species issue has been addressed through a number of unilateral and multilateral attempts at the state, national, and international level. This “law of the lakes� has evolved towards the implementation of the Great Lakes Water Quality Agreement of 2012, which uses a framework-protocol basis to combat the problem through a preservation-focused ecosystem approach. The management of water and fisheries in the African Great Lakes has similar problems addressing invasive species. However, states in this region have responded to the threat differently, particularly as it pertains to economically viable invasive fish species. Various state-level legislation and policy shows that the invasive threat is acknowledged, but follows a conservation management approach, which hopes to maintain the essential economic opportunities that the invasive species provide for area residents. The experiences of the Laurentian Great Lakes in moving their invasive species management forward can be used as a template to update and focus the response in the African Great Lakes.

"Litigating Shut-In for Lack of a Market: A Comment on Stewart Estate v. Taqa North Ltd" Free Download
Alberta Law Review, Vol. 52, No. 4, Forthcoming

WAYNE RENKE, University of Alberta - Faculty of Law
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Comment on Stewart Estate v. TAQA North Ltd, 2013 ABQB 691 - freehold oil & gas lease preserved through shut-in royalty clause, based on lack of market for natural gas.

Typically an Alberta freehold petroleum and natural gas lease continues for a defined period (the primary term) and so long thereafter as leased substances are produced from the leased lands or the lessee satisfies specified lease conditions. In exchange for the lessee’s rights to explore for and produce leased substances, the lessor receives a royalty. This arrangement works satisfactorily (in the main) when leased substances are produced. Circumstances, though, may disincline the lessee to produce and incline the lessee to shut-in a well, particularly when the well is productive of natural gas. For example (especially if the well is in a new or little developed location), pipelines may have to be constructed, there may be no nearby pipeline system to connect to, or there may be no readily available processing plants; purchase contracts must be secured. Unlike oil, natural gas cannot simply be trucked to another location for disposition. The most convenient means for storing the natural gas pending changed circumstances is to leave it in the ground. To preserve both a lease and its finances, a lessee may seek to rely on lease provisions permitting a well to be shut-in and for the lease to be continued on the payment of shut-in royalties. A lessee would favour an expansive approach to shut-in provisions. In contrast, a lessor would understandably prefer to receive royalties on actual production (which presumably would be greater than shut-in royalties) or to have the lease terminate so that a lessee with a more aggressive or economical approach to production could be found. A lessor would favour a restrictive approach to shut-in provisions.

"The Federal Public Trust Doctrine: A Law Professors' Amicus Brief" Free Download

MICHAEL C. BLUMM, Lewis & Clark Law School
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LYNN SCHAFFER, Lewis & Clark Law School
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This amicus brief, signed by more than 50 law professors with over a collective 1100 years of teaching experience, argues that the D.C. Circuit's interpretation that the public trust doctrine is solely a product of state law -- and therefore inapplicable to the federal government -- was erroneous. The brief therefore urges the Supreme Court to review the lower court's decision in Alec L v. McCarthy, 561 F.Appx. 7 (D.C.Cir. 2014).

The brief claims that the public trust doctrine has been misunderstood as purely a matter of state common law when in fact it is an inherent limit on sovereignty antedating the U.S. Constitution, which was preserved by the Framers as a reserved power restriction on both the federal and state governments. Nothing in the Court’s recent decision in PPL Montana v. Montana, 132 S.Ct. 1215 (2012) -- which the lower court misinterpreted -- indicates otherwise.

The federal nature of the public trust doctrine was recognized over a century ago by the Supreme Court in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). That decision has functioned as binding federal law and has been so understood by the vast majority of states. Interpreting that decision as an expression of state law is erroneous.

As a constitutionally recognized limit on sovereignty, the public trust doctrine -- unlike a common law doctrine -- is not subject to displacement by congressional statutes. The brief cites numerous opinions of the Supreme Court that have recognized the doctrine’s applicability to the federal government, which reinforce the notion that the Constitution recognizes the public trust doctrine as a reserved power withheld from both the federal and state governments.

"Preservation Is a Flawed Mitigation Strategy" Free Download
41 Ecology Law Currents, 2014, Forthcoming

JESSICA OWLEY, State University of New York (SUNY) at Buffalo - Law School
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The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps�) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it acknowledges wetland destruction will occur. Instead of preventing wetland conversion, developers compensate for wetlands lost. Compensatory mitigation can come in the form of restoration, creation, enhancement, and/or preservation of wetlands and other aquatic resources. This essay urges the Corps to eliminate its use of preservation as mitigation and to improve accountability mechanisms where private organizations, like land trusts and private mitigation banks, remain involved in wetlands permitting programs. As even the EPA acknowledges that preservation results in a net loss of wetlands, preservation is unlikely to compensate for the loss in ecological function from wetlands destruction. Additionally, because private land trusts commonly manage, monitor, and enforce preservation areas, concerns of accountability and democracy arise. Although I focus on the Clean Water Act’s section 404 program, the arguments and lessons discussed here apply to state and local wetland mitigation programs as well.

"Rule 76A: Could Texas Courts Solve the Secrecy-Science Dilemma in Fracking Disputes?" Free Download
Journal of Energy Law and Resources Currents, September 2014

R. KYLE ALAGOOD, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center
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Settlement confidentiality shrouds U.S. fracking lawsuits from scrutiny and ultimately makes it difficult for later litigants to establish their own claims. This brief article focuses on Texas Rule of Civil Procedure 76A, which regulates court-sanctioned secrecy, and proposes Texas as a litigation battleground for settlement transparency in fracking lawsuits.

"Sue to Adapt?" Free Download
Minnesota Law Review, Forthcoming 2015

JACQUELINE PEEL, Melbourne Law School
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HARI M. OSOFSKY, University of Minnesota - Twin Cities - School of Law
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Climate change litigation has influenced regulation substantially in the United States. Most notably, the Supreme Court’s decision in Massachusetts v. EPA serves as the basis for federal Clean Air Act regulation of greenhouse gas emissions from motor vehicles and power plants. However, most U.S. litigation thus far has focused on mitigation, i.e., how to limit emissions of the greenhouse gases that cause climate change.

This Article is the first to address the significance of an emerging area of U.S. litigation: cases focused on forcing or limiting government action to adapt to climate change. These new lawsuits – on issues such electric grid resiliency, protective sand dunes, coastal sewage system inundation, deterioration of coastal waters, and flood insurance – will help shape local, state, and federal efforts to plan for the impacts of climate change.

Although the United States has just begun to address adaptation in its courts, other common law countries are farther along. In particular, Australia, which faces many early impacts from climate change due to its geography, has more developed adaptation policy and jurisprudence. This Article not only explores the role of the developing U.S. case law, but also considers how the Australian experience might inform U.S. approaches. Drawing from extensive interviews with U.S. and Australian litigants and regulators in addition to doctrinal analysis, the Article argues that the Australian litigation illustrates pathways for U.S. litigation to build on its early cases to: (1) change planning culture, (2) use natural disasters as catalysts for adaptive planning, and (3) navigate more effectively the tensions between public adaptation interests and private property rights.

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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.

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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
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