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.