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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

Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference and the Limits of Law

Peter D. Burdon, Adelaide Law School, University of Adelaide
Georgina Drew, University of Adelaide
Matthew T. Stubbs, University of Adelaide - School of Law
Adam Webster, University of Oxford - Blavatnik School of Government
Marcus Barber, Government of the Commonwealth of Australia - Land and Water

Free Trade, Fair Trade, and Selective Enforcement

Timothy Meyer, Vanderbilt University Law School

Next Generation of Export Restrictions: An Emergence of Raw Materials II Dispute?

Bayar Purevdorj, Cornell University, Law School

The Trump Public Lands Revolution: Redefining 'The Public' in Public Land Law

Michael C. Blumm, Lewis & Clark Law School
Olivier Jamin, Lewis & Clark College, Law School, Students

The Impact of Brexit on Environmental Protection in Scotland: Some Early Reflections

Annalisa Savaresi, University of Stirling School of Law


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

"Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference and the Limits of Law" Free Download
(2014) 5 Settler Colonial Studies 334-49
U. of Adelaide Law Research Paper No. 2017-32

PETER D. BURDON, Adelaide Law School, University of Adelaide
Email:
GEORGINA DREW, University of Adelaide
MATTHEW T. STUBBS, University of Adelaide - School of Law
Email:
ADAM WEBSTER, University of Oxford - Blavatnik School of Government
Email:
MARCUS BARBER, Government of the Commonwealth of Australia - Land and Water

This article addresses Indigenous Australian claims to water resources and how they inform and relate to current Australian law and contemporary legal thinking about future possibilities. It adopts a multidisciplinary approach, drawing from historical records, previous ethnographic investigation with Indigenous Australians, current legal scholarship, and social anthropological theory. In doing so, it analyses Indigenous dependencies on water, the history of settler colonial orientations to water bodies, the evolution of settler colonial–Indigenous relations to natural resources, and the development of the Australian legal system’s regulation of water. This provides foundations for a discussion of the limitations of settler colonial notions of property and the failure of settler colonial law to understand and incorporate the dynamism of Indigenous relationships to water, particularly the meaning and productive capacity of water flows within Indigenous cosmologies and sociocultural and ecological systems. Calling for a decolonial turn in legal approaches to Indigenous access and water resource determination, the authors explore the ways in which Australian law may need to ‘unthink’ settler colonial notions of resource ownership as a prerequisite for reformulating future water policy and planning. This reformulation relies on a more extensive legal philosophical engagement with the concept of ‘flow’, a concept that already exists in both water law and planning, but which has not been adequately theorised and enacted. A more comprehensive legal understanding of flow in the context of Indigenous understandings of, and claims to, water provides more sustainable and equitable legal and analytical foundations for managing future water resources issues. The article creates the space for a more culturally relevant notion of ‘Indigenous water rights’ and for new ways of honouring the interrelationship between water flows, meaning-making practices, and cultural continuity.

"Free Trade, Fair Trade, and Selective Enforcement" Free Download
118 Columbia Law Review (2018 Forthcoming)
Vanderbilt Law Research Paper No. 17-45

TIMOTHY MEYER, Vanderbilt University Law School
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The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should be, but are not, “fair.? Although only achieving broad consensus recently, the critique that U.S. trade agreements are unfair has been around for decades. Since 1992, much of this fairness critique has focused on ensuring that trade liberalization does not undermine non-commercial values, such as environmental protection and labor conditions. Beginning with the negotiation and ratification of the North American Free Trade Agreement (NAFTA) in the early 1990s, governments have responded by including in their trade agreements a prohibition on the selective enforcement of environmental and labor laws. This ban — a central component of efforts to make sure that free trade agreements are, indeed, fair — aims to prevent a global race to the bottom in environmental and labor standards.

These efforts have fallen wide of the mark. This Article makes two novel contributions. First, it demonstrates empirically that selective enforcement is considerably more pervasive than commonly thought. But contemporary selective enforcement is the reverse of the kind of selective enforcement that has traditionally concerned trade critics. Instead of selectively enforcing environmental and labor laws to gain a trade advantage, governments selectively enforce trade laws in ways that undermine environmental and labor interests. To illustrate, the Article presents data from trade enforcement actions in the energy and fisheries sector to demonstrate this claim. In both sectors, trade laws are enforced exclusively against natural resource substitutes, such as renewable energy and farmed fish. The natural resources with which these products compete, fossil fuels and wild fish, benefit from the same allegedly unlawful conduct but are not targeted for enforcement.

Second, this Article presents a theory of how selective enforcement of trade law distorts markets to the detriment of the environment. It argues that selective enforcement is an implicit subsidy for products that are not targeted for enforcement but benefit from the same allegedly unlawful conduct as targeted products. When, for instance, natural resource substitutes such as renewable energy are more likely to be targeted for enforcement, they incur three kinds of costs: litigation costs, liability, and lost investment. Taken together, these costs allow natural resources, such as fossil fuels, to sell at a discount relative to their competitors. This competitive advantage spurs unsustainable natural resource consumption and discourages investment in sustainable products. It presents evidence that selective enforcement in the energy and fisheries sectors has indeed caused these effects.

The Article concludes by suggesting how governments can reform trade law enforcement to address the pernicious effects of selective enforcement. Governments have acted to address other kinds of selective enforcement in the past, so reform is politically feasible. Nevertheless, given the current political climate, reforms should concentrate on increasing trade law enforcement across the board.

"Next Generation of Export Restrictions: An Emergence of Raw Materials II Dispute?" Free Download

BAYAR PUREVDORJ, Cornell University, Law School
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The proliferation of export restrictions on natural resources in a last decade has gained prominence in the international trade debate and has deepened an already existing wide divide between the North and the South in the context of the principle of permanent sovereignty over natural resources versus the beggar-thy-neighbor policy. Nevertheless, there is a conventional wisdom that the WTO disciplines dealing with export restrictions are weak. Some new WTO members, such as China, Mongolia, and Ukraine, were required, during their accession negotiations, to commit themselves to stricter rules, so called ‘WTO-plus’, by agreeing to phase out their export duties or to limit them to a designated number of tariff lines. Due to this additional legal uncertainties, the field of international trade law faces a greater challenges. However, until the China-Raw material I case the extent to which this would restrict their actual policy practices in this field had never been tested. In this regard, China-Raw materials and China-Rare earths, as defining case laws in this field, allow us to understand the legal boundaries of export restrictions under WTO law and determine the inconsistencies and gaps in the WTO law. This article evaluates the factual and evidentiary issues China may face in the emerging China-Raw Materials II dispute, in light of previous two cases, and identifies potential challenges that will impair China’s ability to prevail in Raw Materials II.

"The Trump Public Lands Revolution: Redefining 'The Public' in Public Land Law" Free Download
Environmental Law, Vol. 48, No. 2, 2018

MICHAEL C. BLUMM, Lewis & Clark Law School
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OLIVIER JAMIN, Lewis & Clark College, Law School, Students

The Trump administration’s efforts to comprehensively dismantle Obama-era policies had special force in federal public land management. The disassembling included a promised reduction in the size of national monuments, a jettisoning of protections for sage-grouse habitat, and a widespread fostering of fossil-fuel friendly policies, such as ending leasing moratoria, attempting to revoke methane emission controls, and a scuttling hydraulic fracturing regulation. Congress was a willing partner in this deregulatory campaign, eliminating revised land-planning regulations and threatening to authorize oil leasing in the Arctic National Wildlife Refuge.

This article surveys these events in the early days of the Trump administration. The effect was to revolutionize public land law in arguably undemocratic terms, as there was little evidence of widespread public support for the rollbacks of land protections or the championing of fossil-fuel development. We think that the Trump revolution reflected an attempt to fundamentally redefine the public in public land law and policy, narrowing the focus of government concern largely to those producing commodity production, especially fossil fuels. The long-term consequences are disturbing in terms of their potential costs and who will be saddled with them.

"The Impact of Brexit on Environmental Protection in Scotland: Some Early Reflections" Free Download
Edinburgh Law Review, Forthcoming

ANNALISA SAVARESI, University of Stirling School of Law
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With much of UK and Scottish environmental law presently originating in Brussels, experts have long warned of the specific challenges associated with Brexit in this sector. These concern the loss of the well-established and comparatively stable regulatory, enforcement and support frameworks provided by EU law. Brexit is also likely to entail the loss of access to EU funding and to cooperation programmes that, for good or ill, presently are the lifeblood of UK environmental policy tools, like farm payments, conservation and research-related initiatives. And Brexit raises sensitive questions on the allocation of repatriated EU law and policy-making powers between UK and devolved administrations. These challenges have specific implications for Scotland. Scotland has benefitted greatly from EU funds for environmental protection and the development of new low carbon technologies, like tidal energy. It also receives a disproportionately large share of EU farm payments. Ahead of Brexit, finding replacements for these means of support will be crucial. When the unifying frame of EU law is removed, furthermore, existing regulatory and policy differences between Scotland and the rest of the UK – on matters such as genetically modified organisms, fracking and renewable energy – are likely to increase. Such fragmentation in standards across the UK may well threaten the maintenance of present levels of environmental protection. Even more significantly, the spat on the European Union Withdrawal Bill (EUW Bill) has shown that the UK and the Scottish Government hold rather diverging views on who should assume the regulatory competences presently exercised by the EU after Brexit. The challenges associated with the EUW Bill therefore are not just constitutional, but affect the very mechanics of environmental law-making, implementation and enforcement. This article offers some general reflections on the likely implications of Brexit for environmental protection in Scotland; identifies common challenges; and makes recommendations for solutions that may be adopted to address these.

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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

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Directors

ENVIRONMENTAL & NATURAL RESOURCES LAW EJOURNALS

BERNARD S. BLACK
Northwestern University - Pritzker 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, Visiting Professor of Law, University of San Diego School of Law

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