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 inaugural issue, in July 2011,
and check back regularly this spring for WJELP Briefs and other announcements.
Volume 1
| Number 2
| December 2011
Stranger Than Fiction: An “Inside” Look at Environmental Liability and Defense Strategy in the Deepwater Horizon Aftermath
William H. Rodgers, Jr., Jason DeRosa & Sarah Reyneveld
1
WJELP
219
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The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible party to minimize liability in the face of incriminating evidence. This article argues that the successful use of legal precedents, tactical defenses and the enhanced role of the responsible party in response and restoration, will minimize BP America’s liability and civil and criminal penalties resulting from the Spill, to the detriment of the prevention of future environmental crimes.
Rebuttal in Defense of the Klamath Hydroelectric Settlement Agreement
Michael A. Swiger & Sharon L. White
1
WJELP
297
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This article rebuts certain assertions made by Mr. Thomas Schlosser in a recent article entitled Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration Agreements. The Klamath hydroelectric dams are not causing degrading fish disease conditions in the Klamath Basin. Dewatering Trust Responsibility overlooks the effects of water diversions for agriculture, pollution from pesticides and industrial operations
and habitat degradation from timbering, ranching and other human activities on current Basin conditions. Under the Klamath Hydroelectric Settlement Agreement and the Federal Energy Regulatory Commission license, PacifiCorp is taking extensive measures to protect aquatic resources in the Basin prior to dam removal. The abeyance in the Clean Water Act certification process is necessary to allow the study of anticipated impacts of dam removal and water quality measures that could be implemented during the interim period prior to
potential dam removal.
Beyond the Blaze: Strategies for Improving Forest Service Fire Suppression Policies
Aurora R. Janke
1
WJELP
310
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Current Forest Service fire management policies restrict NEPA’s application to fire suppression actions and contribute to a lack of detailed information about the effectiveness and environmental impact of suppression efforts. Decisions by the U.S. District Court for the District of Montana in the Forest Service for Environmental Ethics v. U.S. Forest Service litigation suggest that NEPA review applies to commonly used fire suppression tactics and that the Forest Service should conduct this review before fires occur. Other recent federal district court decisions and congressional concern with current fire suppression efforts support the need for NEPA review in the fire suppression context. This comment explores this case law and analyzes Forest Service compliance with NEPA procedures in its fire suppression practices.
Creating an Environmental No-Man’s Land: The Tenth Circuit’s Departure From Environmental and Indian Law Protecting a Tribal Community’s Health and Environment
Claire R. Newman
1
WJELP
352
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When Congress set aside reservations as permanent homelands for American Indian people, it intended that the reservations remain “livable environments.” When resource conflicts arise in “checkerboard” areas outside Indian reservations—where land ownership alternates between a tribe, state, the federal government and private, non-Indian landowners—disputes over regulatory jurisdiction and environmental protection intensify. Two recent Tenth Circuit opinions determining the next generation of uranium mining in the checkerboard area of the Navajo Nation, depart from the intent of environmental laws and fail to uphold federal agencies’ trust responsibilities to the Tribe. These cases illustrate the legal vulnerabilities tribal communities in checkerboard areas face through the loss of their environmental and public health and the potentially massive cost of remediation. This comment urges the federal government to strike a more equitable balance of authority, risk and cost by retaining environmental regulatory jurisdiction in checkerboard areas and by writing Indian Trust Impact Statements that will help ensure that the federal government fulfills its trust responsibility to tribes.