Washington Journal of Environmental Law & Policy
The University of Washington School of Law and GreenLaw are proud to announce the
Washington Journal of Environmental Law & Policy. WJELP is a student-run and
peer-reviewed journal publishing twice a year and supporting an investigative
and interdisciplinary approach to analyzing environmental legal issues important
to the Pacific Northwest and beyond.
WJELP will showcase the ideas pushing environmental law & policy in the region
and across the country. Viewing WJELP online is always free of charge. Simply
follow the subscribe link and provide your information to receive an email alert
when each new issue is published.
After subscribing, look for an email alert of the next issue, which will be published in June 2013, and check back regularly for WJELP Briefs and other announcements.
Please come to our journal-specific meeting on April 22, in room 118 - snacks will be provided!
Volume 2
| Number 2
| December 2012
The Overlooked Role of the National Environmental Policy Act in Protecting the Western Environment: NEPA in the Ninth Circuit
Michael C. Blumm & Keith Mosman
2 Wash. J. Envtl. L & Pol'y 193
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Critics widely disparage the National Environmental Policy Act (NEPA) for being a mere “paper tiger” or bureaucratic red-tape. The U.S. Supreme Court has surely encouraged this perception by treating the statute with consistent hostility, reducing it to a requirement only to follow prescribed administrative procedures but not produce any environmental results. But in the Ninth Circuit, NEPA lives a more important life, since that court has not forgotten NEPA’s essential environmental purpose. This article examines four lines of cases in the Ninth Circuit that may show that NEPA’s future might reflect its conservation purpose. These cases 1) deny NEPA plaintiffs with purely economic motives standing, 2) exempt from NEPA analysis designations of critical habitat under the Endangered Species Act because they have no physical effect on the environment, 3) reduce the threshold for when NEPA requires preparation of an environmental impact statement (EIS) by requiring environmental plaintiffs to raise only “substantial questions” about whether the agency proposal may produce significant environmental effects, and 4) accept a relaxed scope of alternatives in EISs on agency proposals that have a conservation purpose. We maintain that if other circuits adopted these four Ninth Circuit rules, NEPA would achieve the environmental protection that Congress envisioned from the statute four decades ago.
Leopold's Last Talk
Eric T. Freyfogle
2 Wash. J. Envtl. L & Pol'y 236
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During the last decade of his life, Aldo Leopold (1887–1948) delivered more than 100 conservation talks to various popular, professional, and student audiences. In them, he set forth plainly the central elements of his conservation thought. By studying the extensive archival records of these talks one sees clearly the core elements of Leopold’s mature thinking, which centered not on specific land-use practices (good or bad), but instead on what he saw as deep flaws in American culture. Leopold’s sharp cultural criticism—more clear in these talks than in his lyrical, muted classic, A Sand County Almanac—called into question not just liberal individualism but central elements of Enlightenment-era thought. This article distills the messages that Leopold repeatedly presented during his final years. It clarifies the messages by situating Leopold’s thought within long-running philosophic discussions on the nature of life, the limits on human knowledge, standards of truth, and the origins of value. For Leopold, conservation could succeed only if it challenged prevailing cultural understandings and pressed for specific, radical change. The now-stymied environmental movement has never taken that advice to heart
Legal and Policy Implications of the Perception of Property Rights in Catch Shares
Mark Fina & Tyson Kade
2 Wash. J. Envtl. L & Pol'y 283
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Catch shares are a fishery management strategy under which persons are allocated exclusive access to specific portions of the total allowable catch of a fishery. Proponents of catch share management argue that these programs allow for more efficient management of annual catch limits and mitigate the negative biological and economic impacts associated with other management programs. Because of the exclusivity of their allocations, catch share programs have been characterized by their opponents as privatizing the public fisheries resource and granting catch share holders a property right to fish. However, case law suggests that a court is unlikely to conclude that catch shares constitute property or entitle a share holder to compensation under the Fifth Amendment takings clause if those shares are revoked or modified. Nevertheless, the Magnuson-Stevens Fishery Conservation and Management Act instills catch shares with more attributes of property than other fishing permits. This paper examines the existing authority for establishing catch share management programs and the property right implications of that authority. Despite the low probability that a court would find a compensable taking, an analysis of takings law provides useful guidance to policymakers and fishery managers as they attempt to develop catch share programs. Consideration of takings law can help managers to structure a program that provides some of the benefits that arise from property rights, while avoiding potential claims of entitlement from catch share holders when program modifications are implemented.
Oil Development in ANWR: The Precautionary Principle is Compatible with the Fish and Wildlife Service’s Statutory Mandate
Trisna Tanus
2 Wash. J. Envtl. L & Pol'y 330
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The potential for oil production in the Arctic National Wildlife Refuge (ANWR) coastal plain, otherwise known as the 1002 Area, is significant, with a current value of $770 billion. Yet, there are considerable knowledge gaps and disagreements over the environmental impacts of oil development in ANWR. The Fish and Wildlife Service (FWS) manages ANWR and is tasked with advancing the refuge’s mission of ecological conservation. Before it can approve oil development in ANWR, the FWS is statutorily required to ensure that oil development is compatible with ANWR’s mission. This Comment argues that the precautionary principle is embedded within the laws governing FWS management of ANWR. Simply, the precautionary principle is “foresight planning,” in that it demands proactive prevention of potentially serious threats to human health and the environment. Therefore, until sufficient scientific information demonstrates oil development is compatible with ecological conservation, the FWS must proceed with caution and prohibit oil development in ANWR’s 1002 Area.