Table of Contents

The Trials and Tribulations of Ontario's Mining Act: The Duty to Consult and Anishinaabek Law

Karen Drake, Lakehead University - Bora Laskin Faculty of Law

Not Good or Bad But Different: Free Markets, Subjective Preferences, and Labels for Genetically Modified Foods

Bruce Pardy, Queen's University - Faculty of Law

Penny Lane, Literally: Funding Roads One Vehicle Mile at a Time

Casey Ball, Arizona State University (ASU), Sandra Day O'Connor College of Law, Students
Courtney Moran, Arizona State University (ASU), Sandra Day O'Connor College of Law, Students

Inadvertent Anti-Environmentalism: A Perfect Storm of Migration, Consumerism and Climate Change

Shane J. Ralston, Pennsylvania State University - Hazleton

Tribes and Pipelines

Nadia B. Ahmad, Barry University Dwayne O. Andreas School of Law


ENVIRONMENTAL LAW & POLICY eJOURNAL

"The Trials and Tribulations of Ontario's Mining Act: The Duty to Consult and Anishinaabek Law" Free Download
JSDLP - RDPDD, Volume 11, Issue 2, (2015)

KAREN DRAKE, Lakehead University - Bora Laskin Faculty of Law
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After a series of high profile disputes pitting statutory mining rights against constitutionally protected Aboriginal rights, Ontario finally amended its Mining Act. This paper argues that Ontario's amended regime still fails to comply with the Crown's duty to consult and accommodate Aboriginal peoples in at least ways. First, some areas of Ontario are subject to Aboriginal title claims. Recording a mining claim within Aboriginal title territory triggers the duty to consult, but the amended Mining Act still does not require consultation prior to the recording stage. Second, at least some treaties in Ontario, such as Treaty Nine, protect the right to implement the laws of the First Nations signatories, including Anishinaabek laws. The early exploration activities permitted by the Mining Act violate Anishinaabek laws about land use and thus adversely impact a treaty right, again with no requirement to engage in prior consultation. Third, the new regulations run afoul of both Anishinaabe law and Canadian law by failing to allow sufficient time for Anishinaabek decision-making processes. For these reasons, the amended Mining Act is still unconstitutional and another round of amendments is required.

"Not Good or Bad But Different: Free Markets, Subjective Preferences, and Labels for Genetically Modified Foods" Free Download
(2016) 29 Journal of Environmental Law and Practice 347

BRUCE PARDY, Queen's University - Faculty of Law
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Arguments for and against mandatory labels for genetically modified foods tend to be based upon the assertion of public interest. Those who advocate against labels say GM foods are safe and carry significant social benefits, such as increased yields, reduced use of pesticides and enhanced nutritional value. Labels, they say, would discourage people from buying them. Those who favour mandatory labels emphasize health risks, environmental contamination and pest resistance as dangers of an untested technology. This article argues that the most compelling arguments for mandatory labeling are not based upon public interest, but upon consumer autonomy and market competition. Labels require no more than that producers disclose what the buyer is purchasing. They increase the efficiency of the market, meaning simply that demand and supply are aggregate reflections of individual wants and voluntary contracts. A government that genuinely endorsed consumer choice and free market values would require GM foods to be labelled whether they are harmful or not. The labelling question is not whether GM foods are good or bad, but whether they are the same or different from non-modified goods. If they are different, they require labels. If they are the same, they do not deserve patent protection.

"Penny Lane, Literally: Funding Roads One Vehicle Mile at a Time" Free Download
5 Willamette Environmental L. Journal, 2016, Forthcoming

CASEY BALL, Arizona State University (ASU), Sandra Day O'Connor College of Law, Students
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COURTNEY MORAN, Arizona State University (ASU), Sandra Day O'Connor College of Law, Students
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The federal government and all fifty states tax motor fuels to generate revenue for roads, bridges, and highways. Unfortunately, motor fuel taxes are an increasingly unsustainable source of revenue as fuel efficient hybrid vehicles and completely electric vehicles grow in popularity. Accordingly, states must search for alternative methods of collecting revenue that encompass two important principles of the gas tax. Ideally, this new revenue source must be both easy to collect, and be based on a “user pays� principle, meaning the tax is proportional to an individual’s use of the roads. Oregon, the first state to implement a fuel tax, recently launched a pilot program to test the vehicle-miles traveled (“VMT�) tax in lieu of a tax on motor fuels. Under a VMT tax, drivers who voluntarily opt into Oregon’s new program pay a certain number of cents per mile traveled rather than pay the gas tax. This program, which the Oregon state government calls “OReGO,� is that state’s newest attempt to create a sustainable source of revenue for the road fund. This Article examines OReGO and ultimately suggests that other states seriously consider drafting similar road funding programs. The Article also identifies ways that Oregon and other states could improve upon the OReGO model, including measures that address environmental concerns and that ensure the tax adjusts to inflation. A sustainable VMT tax will eventually need to become mandatory, and coordinated at a regional or national level as multiple states adopt similar taxes. With these adjustments, VMT taxes could be a promising funding solution for states faced with falling revenue from the outdated fuel tax.

"Inadvertent Anti-Environmentalism: A Perfect Storm of Migration, Consumerism and Climate Change" 

SHANE J. RALSTON, Pennsylvania State University - Hazleton
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In my book Pragmatic Environmentalism, I discussed a phenomenon which I called 'inadvertent environmentalism': agents behaving in environmentally responsible ways because economic factors (such as poverty) constrain their field of possible choices and actions. In this paper I want to discuss the reverse situation, what I term 'inadvertent anti-environmentalism': agents behaving in environmentally irresponsible ways because because their field of possible choices and actions becomes significantly less constrained than it was previously. My contention is that those people who migrate from Third World nations to First World nations often find hyper-consumerist patterns of behavior highly attractive. The move from extreme scarcity to extreme abundance has a positive psychological effect. Consequently, these immigrants consume more meat and drive more, thereby releasing more greenhouse gases (methane and carbon) into the atmosphere. Heightened migration and related consumerism accelerate the global climate change emergency. They are the so-called 'perfect storm' for an imminent global environmental disaster. Similar to inadvertent environmentalists, the solution to the problem is to enhance environmental awareness, teaching new immigrants how their consumer choices impact the short and long term health of the environment.

"Tribes and Pipelines" 
Lewis & Clark Law Review, Vol. 20, 2016

NADIA B. AHMAD, Barry University Dwayne O. Andreas School of Law
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American Indian tribes face exceptional land use, property, and environmental challenges because of hydrocarbon transport projects on their lands. Due to the tribes’ various geographic locations throughout the United States and their proximity to existing and future hydrocarbon reserves, pipelines are crisscrossing tribal lands with increased frequency and carrying capacity.

A hydrocarbon transport project in a right-of-way corridor creates an economically efficient means of passage for energy resources, but such a project also sullies tribal property, sovereignty, and environmental rights. From a legal perspective, a pipeline poses significant risks to the use and enjoyment of tribal land and uniquely threatens sacred space. Respect for tribal sovereignty and federal tribal trust responsibilities counsel that the National Environmental Policy Act and participation rights should mean more, not less, on tribal lands. To enrich the democratic approaches to tribal consultation and alleviate environmental justice concerns arising from lax regulation and the subsequent environmental degradation, this Article proposes a rights-based approach to reinvigorate tribal treaty regimes based on a historico-legal analysis of the interconnected right-of-way doctrine and environmental impact statement process for pipeline projects in Indian Country.

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ENVIRONMENTAL & NATURAL RESOURCES LAW EJOURNALS

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