Washington Journal of Environmental Law & Policy

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.

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

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.

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.

This article examines the flood control rules established by the Columbia River Treaty and Protocol between Canada and the United States before and after 2024. The flood control operations change automatically in 2024. Part I discusses the flooding risks posed by the Columbia and Kootenay Rivers. Part II offers an account of the general international law pertaining to flood protection and in particular the duties that one basin state may owe to another. This section draws on the work of the International Law Commission which informed the adoption of the United Nations Convention on the Non- Navigational Uses of International Watercourses. Part III outlines some of the background to the negotiation of the flood control provisions of the Columbia River Treaty (CRT) referring in particular to the work of the International Joint Commission (IJC) established by the Boundary Waters Treaty of 1909. Part IV describes the flood control provisions of the Treaty as qualified by the terms of the Protocol to the Treaty including both assured flood control and oncall flood control. The assured flood control provisions expire in 2024. Flood control is principally provided by the construction of three treaty dams in Canada (Arrow/Keenleyside, Mica and Duncan) and the operation of those dams in accordance with a flood control operating plan (FCOP). The appendix contains a more detailed account of the FCOP and variation of the FCOP known as VARQ FC.

The year 2014 is a key date for the potential re-negotiation of the Columbia River Treaty between the United States and Canada. The Treaty coordinates hydropower operations at 14 mainstem and multiple tributary dams, with the dual goals of maximizing flood control and electrical power generation. In 2024, either party may terminate, with ten years’ notice to the other. Regardless of termination, a key Treaty provision will change, requiring the United States to maximize use of its reservoirs before asking Canada to do the same, leading to deeper drawdowns in Grand Coulee’s Lake Roosevelt and other major reservoirs and potential water shortages for agriculture, hydropower generation, and instream flows for endangered salmon. Native American Tribes, First Nations, and British Columbia residents view Treaty amendment as a means to redress uncompensated historic losses associated with massive hydroelectric development of the watershed. Compounding these issues, global warming will substantially alter Columbia River hydrology, as melting glaciers and reduced snowpack exacerbate winter-spring floods and reduced instream flows and water quality degradation during summer. The United States and Canada should renegotiate a new Columbia River Treaty, recognizing the sovereign rights and interests of Tribes and First Nations. The new treaty must focus on addressing the hydrologic changes caused by global warming and achieving much needed river restoration.

As in other river basins, the disparity in the Columbia is growing between ever-expanding water demands and ever-shrinking water availability. Looming near the forefront of decisions on how to manage such waters is the potential liability the government faces if it reduces water distributions to further environmental objectives. While recent cases raise fascinating takings and contract issues, the most interesting issue may be the intersection of the available remedies. Does the contractual relationship between an aggrieved water user and the government preclude a takings claim, even where the contract claim ultimately fails? On one end of the spectrum, courts have held that a takings claim is available even if the contract terms expressly allowed the governmental action alleged to be the taking. Conversely, courts have held that a contract completely subsumes any takings claim even if the government breached the contract but escaped contract liability. This article suggests a middle ground: the availability of a takings claim should depend on why the contract claim failed.

Since 1964, the Columbia River Treaty has shaped the joint use of the Columbia River by the United States and Canada. The Treaty will be impervious to change until 2024, but either party may give notice of an intent to alter it as soon as 2014. Since the Treaty’s ratification, changes in United States domestic law have reflected a shift in attitude toward the environment and the Columbia River. These changes have impacted the Columbia River’s governance on the United States side of the border and though domestic law has evolved in response to environmental concerns, the Treaty has remained static. This comment posits that the Treaty as it currently stands is out of synch with the legal framework surrounding the River, and that the Treaty should be updated to more accurately reflect the cultural values and legal imperatives that have developed in the United States over the last fifty years. The comment offers several adjustments that might be made to the Treaty to bring it into accord with current governing principles in the United States.

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.

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.

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.

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.

The introduction of new power generation, including intermittent resources, into the North American electric grid is exposing the fact that the traditional approach to resource integration is not necessarily cost-effective. At the forefront of analysis is the electric balancing authority; the functional structure that is responsible for maintaining the continuous balance of the demand for and supply of electric power. Electric balancing authorities perform this function according to standards developed by the North American Electric Reliability Corporation and the Federal Energy Regulatory Commission. These services can significantly affect the cost of power. Rather than blindly purchasing balancing services from the local balancing authority, power generators and loads are proactively affecting their cost structure by purchasing balancing services from an adjacent balancing authority or forming a separate balancing authority and self-supplying services. These options do not undermine reliability and the cost controls enabled by competition ensure efficient resource integration.

In order to protect Indian property rights to water and fish that Indians rely on for subsistence and moderate income, the Interior Department Solicitor has construed federal statutes and case law to conclude that the Department must restrict irrigation in the Klamath River Basin of Oregon and Northern California. Draft legislation, prescribed by the February 18, 2010 Klamath River Hydroelectric Agreement and the Klamath Basin Restoration Agreement, would release the United States from its trust duty to protect the rights of Indian tribes in the Klamath River Basin. The agreements will also prolong the Clean Water Act Section 401 application process to prevent the Federal Energy Regulatory Commission from issuing a properly-conditioned license for dams in the Klamath River that will protect the passage of vital fish populations. This article argues that the agreements prioritize the water rights of non-Indian irrigation districts and utility customers over first-in-time Indian water and fishing rights.

Hydrokinetic energy harnesses the power of the oceans and generates renewable energy with a low carbon footprint. Because wave and tidal energy projects have not yet been initiated for the Outer Continental Shelf (OCS) and scientific knowledge of the effects on the ocean environment is uncertain, analysis under the National Environmental Policy Act is particularly important. However, overlapping jurisdiction on the OCS creates an inhospitable regulatory environment for hydrokinetic energy developers and marine ecosystem protection. This comment will analyze these overlapping and duplicative regulations and will make recommendations to streamline the environmental review process. Programmatic environmental impact statements, adaptive management and marine spatial planning will simplify the environmental review process and balance the interests of federal agencies, hydrokinetic energy developers and the ocean environment.

“Animal feeding operations (AFOs),” or, if large enough, “concentrated animal feeding operations (CAFOs),” have become increasingly concentrated in ownership, location, and quantity of animals since the 1950s. The Yakima Valley of central Washington is one area that has been subject to an influx of these industrial farms, raising health and environmental concerns for residents. Despite scientific evidence of potential harm, citizens have had difficulty enforcing air emissions regulation. The problem is twofold: the EPA is still working with the industry to develop a methodology for emission monitoring –– the effectiveness of which remains unclear ––and, assuming monitoring methods existed, the statutory framework provides numerous agricultural exemptions. State “Right-to-Farm” statutes further exempt some farms from liability under the common law. Nonetheless, this comment will demonstrate that nuisance, trespass, and/or negligence actions, if teed up correctly in light of the state Right-to-Farm statute, can operate to combat pollution from AFOs.

Over the past decade major public policy concerns over the environment, national security, the economy, and climate change have converged, creating significant pressure to reform America’s energy system. The result has been a tremendous increase in the use of renewable energy sources with growth only expected to accelerate. This new development represents a radical shift for a nation whose electricity system was built to run on fossil fuels and hydroelectric dams. The electricity grid is a complex interconnected system requiring constant balancing of supply and demand. Using new intermittent technologies like solar and wind requires changes in grid management to maintain a constant energy balance in real-time. This comment analyzes proposed solutions for the integration of renewable resources into the electricity grid, and the legal and regulatory steps required to achieve this integration.