Washington Journal of Social & Environmental Justice

Throughout 2011 and 2012, members of the Deschutes River community who fish in the Lower Deschutes River in Oregon noticed a slew of significant changes to their natural environment. The Deschutes River Alliance attributed the changes to the operation of the Pelton Round Butte Hydraulic Project, which is co-owned and operated by Portland General Electric and The Confederated Tribes of the Warm Springs. In July 2016, DRA filed a Clean Water Act lawsuit against them. To rule on the alleged CWA violations, the DRA must first get past the tribal sovereign immunity hurdle. It is long-recognized that American Indian Nations possess sovereign immunity, however, Congress may expressly abrogate immunity or immunity may be waived. The groundbreaking opinon in Deschutes River Alliance v. Portland Gen. Elec. Co. represents the first time a court has held Congress did not abrogate tribal sovereign immunity under the CWA. Despite decisions from sister circuits, the court dismissed the suit before deciding whether a CWA violation occurred. The Ninth Circuit decided to tread lightly to respect both the principle of tribal sovereign immunity and Congress's authority, but ultimately the court's decision creates a free pass for projects on tribal land to pollute the water with no repercussions. 

In the millennia before the creation and adoption of electric lighting, night skies drenched in stars were the inalienable inheritance of humanity. Electric lighting threatens this birthright by emitting star-blocking light (also known as light pollution) into night skies. Left unaddressed, light pollution will restrict access to dark, starry skies so that many in future generations will only know the stars secondhand. Yet despite the many benefits of dark skies, little scholarship has considered the problem of light pollution limiting the accessibility of starry skies, or how law can address this problem. This Article balances the hope of a future without light pollution against the impracticability of eliminating electric lighting by offering a workable definition of redressable light pollution. After discussing proven ways to reduce light pollution, it recommends solutions for implementing these best practices using available legal avenues. 

As global warming intensifies, ensuring that its impacts do not disproportionately burden disadvantaged populations has become a growing policy concern. Within the United States, mobile home residents increasingly face climate injustices but are often overlooked in climate policy discussions. Even after accounting for income and race, mobile home residents experience substantially higher indoor heat risks than single-family home residents. Mobile home residents also comprise a disproportionately high percentage of indoor heat deaths. The heat vulnerability of these Americans is even greater for those living in the numerous sparsely-shaded mobile home parks occupying cities and towns throughout the country’s Sun Belt region. These residents typically do not own the land beneath their homes and often lack resources to combat indoor heat risks or to have a meaningful voice in driving policy changes capable of addressing their plight. Although mobile homes built in the United States today must conform to federal building standards that require better insulation, millions of Americans still reside in older mobile homes that are poorly suited to protect them from rising temperatures. This paper highlights the emerging mobile home heat crisis in the United States and identifies specific short-term and longer-term policy strategies capable of addressing it. Greatly improving mobile home residents’ access to home weatherization and utility assistance programs, requiring mobile home park landscaping and designs to better combat heat island effects, and ultimately phasing out nonconforming mobile homes will all be necessary to ensure that millions of vulnerable Americans can seek comfortable refuge as climate change worsens in the coming decades.

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To use or conserve environmental and natural resources effectively is complex. Many economists believe that institutional solutions built around markets and property rights can help improve results. This approach addresses what Peruvian economist Hernando de Soto termed the “missing lessons of U.S. history”—institutions whose designers may not have understood the outcomes that would occur, but the results were generally beneficial. However, technical economic analysis generally fails to persuade many at the policy level. Adding a focus on the practicality of solving issues by voluntary action will enrich the policy discussions. To do so requires economists to provide concrete examples of how to resolve environmental issues.

In this Article, we contrast the narratives given to support markets and property rights and state-centered solutions. The analysis suggests how to frame issues to increase opportunities for market and property rights solutions to be more broadly considered. In short, economists must stop talking past the dedicated environmentalists who have learned to communicate effectively with the public but often lack cost-effective alternatives to address environmental problems that economists can provide. Better narratives allow economists to join the public conversation successfully.

For the international community, 2015 was a momentous year in terms of transformative legal developments. Climate change response culminated in the adoption of the Paris Agreement and Sustainable Development Goals (SDGs), which heralded a new era in the international community’s pursuit of sustainability. Both of these developments are complementary; the climate change legal framework acknowledges sustainable development, and SDGs explicitly recognize the United Nations Framework Convention on Climate Change and the Paris Agreement. The Paris Agreement presented to the global community an objective to strengthen the global response to the threat of climate change, through sustainable development and efforts to eradicate poverty and a goal to restrict the global temperature increase to below 2 degrees Celsius above pre-industrial levels and a desirable goal of 1.5 degrees Celsius. The failure to achieve this target would seriously jeopardize States and individuals and challenge the success of sustainable development and SDGs. The Paris Agreement states not only that the achievement of the goal is essential, but the agreement must be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC), in light of different national circumstances. This paper argues that the adoption of SDGs premised on the idea of leaving no one behind provides an impetus for the re-evaluation of the principle of CBDR-RC under the Paris Agreement. The paper explores the possibility of a wider interpretation of CBDR-RC through the implementation of Nationally Determined Contributions (NDCs) to help the international community pursue SDGs.

Keywords: CBDR-RC, Equity, NDCs, Sustainable Development, Sustainable Development Goals.

Increased emissions of greenhouse gases are causing the Earth’s climate to change producing extreme temperatures and dangerous conditions for mankind. Livestock is positioned at a unique juncture of the current and future fight against atmospheric temperature rise. These animals produce the very nutrients a growing world population needs to survive, and the meat they yield plays an important role in all world cultures. Unfortunately, the production of livestock is considered one of the most significant emitters of greenhouse gases, of which cattle is the largest contributor. Therefore, a balance must be struck between livestock production and preservation of the Earth. One way to rebalance this relationship would be to reform the federal cattle grazing permit system.

Federal land in the Western United States contains hundreds of millions of acres and makes up over half the landmass of some states. The Bureau of Land Management and Forestry Service oversee most of the federal land in the West. On this land, these agencies operate grazing programs in which they allow private ranchers to apply for permits to graze cattle on the lands for a fee. The fee is based on an archaic formula that has not been updated in decades and is based on outdated economics of cattle grazing. As a result, the permit fee is far below market value, and the government operates the cattle grazing programs at a deficit of tens of millions of dollars annually.

The subsidizing of cattle grazing on land owned by the American people, which directly exacerbates climate change, is wrong. Action should be taken to redress the impacts on the climate and the costs to the federal government. Modernizing the permit fee can be accomplished by a two-fold change. First, the minimum rate has to be raised to make certain the government is at least getting close to a fair price. This avenue was pursued but ultimately not accomplished in the Obama Administration. Second, the permits should be auctioned to the public for a price in excess of the minimum rate, and the permit length shortened to allow more frequent fee adjustment through auctions. Additionally, the increased revenue resulting from these changes should be allocated to efforts to mitigate cattle production’s effect on climate change.

The Table of Contents for the second issue of the eleventh volume of the Washington Journal of Environmental Law and Policy.

The year 2021 marks the 50^th anniversary of the Water Resources Act of 1971, Washington’s program to protect instream flows in state rivers. Implementation has been controversial and, even a half century later, incomplete. Part 1 introduces the Act. Part 2 examines its legislative history, and administrative development by the Department of Ecology. The Act innovated water allocation, putting instream flows and public uses of rivers on par with out-of-stream water rights. But river protection labors under serious limitations, chief among them the subordination of instream flows to pre-existing water rights. And, although only half of Washington’s watersheds are protected under the Act, the program has ground to a halt. Part 3 examines twelve lawsuits that interpreted or relied on the Act, and the role of the courts in both endorsing and eroding the Act’s provisions. Part 4 concludes with recommendations for new water resources policy legislation. Absent affirmative steps by the state Legislature, Washington’s rivers are unprepared for the adverse impacts of the climate crisis.

Upon the passage of the Clean Water Act (“CWA”) in 1972, primary responsibility for protecting the United States' water quality and preventing water pollution shifted from the states to the Environmental Protection Agency (“EPA”). The program at the heart of the Clean Water Act, the National Pollutant Discharge Elimination System (“NPDES”), requires anyone who discharges pollutants into the waters of the United States to abide by the terms of a permit issued under the program. If a discharge occurs in violation of the permit or without a permit, and prosecutors are able to prove the responsible party acted with ordinary negligence, criminal charges can be brought under the statute. Forty-seven states have been authorized by the EPA to run and enforce an NPDES permit program within their own borders. Instead of adopting an intent standard of ordinary negligence as the federal statute and regulations require, many states have been authorized to run their programs with “gross” or “criminal” negligence intent standards. Litigation over Idaho’s recent program approval could force the EPA to assume responsibility over all approved state programs that are out of compliance with the CWA and the EPA’s regulations. This outcome could overload the EPA and put the NPDES program in jeopardy of complete failure. But, with a few regulatory changes, the EPA can prevent further litigation, comply with its non-discretionary duties laid out in the CWA, and ensure the proper level of criminal deterrence needed to protect water quality.

This article analyzes the potential jobs and community health benefits created by a sample Resilient Recovery Portfolio of investments in Washington State. This type of investment mindset can kick-start job growth, shared economic prosperity, cleaner air, and climate-resilient communities, thereby serving as a template for Building Back Better in Washington and elsewhere. A Resilient Recovery Portfolio supports over ten jobs per million dollars invested in clean transportation, forest conservation and ecosystem restoration, clean energy, water and energy efficiency, low carbon agriculture, and sustainable industry programs.   By comparison, the state’s ten largest industries support 4.3 jobs per million dollars invested. This portfolio prioritizes labor-intensive productive businesses in the state, outperforming multiple benchmarks on contributions to employee compensation and gross state product. Additionally, we find that every million dollars invested in these programs accrues $2.4 million in clean air and climate benefits, with the most cost-effective returns from wildfire prevention and preparedness.  Sustaining these and expanding to additional programs in order to meet the state’s climate goals can unlock net health and climate benefits of $46 billion through 2050 while continuing demand for the types of jobs highlighted in this report.

Hydraulic fracturing, or fracking, is the current technology of choice for developing most shale gas reserves. This technology allows increased production of natural gas from formerly inaccessible shale formations. One of the primary environmental impacts of concern for fracking is its potential to contaminate water.

This paper focuses on the potential risks affecting the drinking-water resources throughout the complete lifecycle of a drilled and fractured well. Given the significant environmental concerns, fracking risk assessment (what we know about the risk), and fracking risk management (what we wish to do about the risk) appear to be indispensable steps for the enactment of any environmental statute or regulation addressing such high-stake environmental problems and public concerns.

The federal government currently exempts most fracking activities from regulation, and therefore, states remain free to regulate practices as they see fit. This has resulted in a patchwork of state regulations, where each state enacts various requirements for wastewater disposal, underground injection, water supply acquisition, drilling, casing, and operating wells. The various state fracking regulations fall along a spectrum from outright statewide bans to laissez-faire approaches. This paper includes a comparative analysis of state fracking regulations in three states in the US: New York, Texas, and Illinois.

Having demonstrated the shortcomings of the current state-centric system regulating the shale gas fracking, the present paper advances forward both structural and substantive changes to enhance fracking risk assessment and management in the US.

The world is undergoing a global energy transition that will transform societies from fossil-fuel dependency towards clean energy solutions to meet future energy demand. An assumption is that nuclear energy, as a low-emissions energy source, could play a vital role in a clean, low-carbon future. Most reactors operating in the United States today are large custom-made reactors (LRs). Because of unfair risk-perceptions and the forced internalization of negative externalities, LRs and nuclear energy industry have long-struggled to compete with other energy sources.

The deployment of Small Modular Reactors (SMRs) make up for many of the inherent problems that exist in the traditional focus of the nuclear industry. SMRs offer technological advancements and potential opportunities to overcome certain obstacles of the dreaded licensing process that has hampered nuclear growth in the United States. In the context of the current energy transition and the problems of conventional reactors, the case for the deployment of SMRs presents an opportunity for the next nuclear renaissance in the United States.

This paper reviews an adaptation plan for the Tokyo Metropolitan Area. The Japanese Government decided to remain in the Paris Agreement and began trying to reduce CO2 with technology after the Great East Japan Earthquake of 2011. Nuclear power plants were closed, and some are still under safety review. Newly built thermal power plants will increase CO2 emissions, and the battle among the ministries hinders effective adaptation planning.

In 2012, the central government announced three basic approaches: risk management, comprehensive and general planning, and cooperating with local governments. However, the central government’s tactics still fall behind other countries’, and local governments such as prefectures and municipalities continue to need to mitigate the harmful effects of climate change. Local governments lack the appropriate information, technology, and budget. In 2018, the Ministry of the Environment released guidelines for local governments to draft adaptation plans.

Tokyo established a basic environmental plan in 2008 and made an environmental prediction in 2009. By analyzing comparative administrative law and environmental law perspectives, this paper will review improvements to Japan’s capacity to adapt and the sensibility of the Tokyo Metropolitan Adaptation Plan. Tokyo has several basic policies: establish a smart energy city, encourage the “3Rs” (recycle, reduce, and reuse), and sustainably use resources. The plan might present a good example for other prefectures, just as the State of California has become a model for other parts of the United States.

This Comment explores the Pennsylvania Superior Court's rejection of the traditional rule of capture as it applies to oil extraction from adjacent land parcels using the hydraulic-fracturing method. At the time of writing, the Pennsylvania Superior Court's departure from the rule of capture has opened the door for trespass claims filed by an adjacent land owner, when oil under her property is extracted by a neighboring frack well. This Comment also examines the various health and environmental concerns that are consequent of the hydraulic-fracturing method of oil extraction.

One of the implementation problems for environmental justice is reconciling the need to protect public health with the economic realities of struggling communities. This article explores that tension through the lens of siting decisions for large scale poultry operations in rural communities. Poultry siting decisions have major economic and environmental impacts and have been underdiscussed in the environmental justice literature. This article focuses on the role of law and policy in concentrated animal feeding operation (CAFO) siting—from community benefit agreements to Right to Farm legislation. It uses a Kansas CAFO siting and the wider Kansas experience as a case study.

The National Environmental Policy Act (NEPA) requires all federal agencies to consider the environmental effects of a proposed action that may significantly affect the environment. In addition to outlining the important pieces of NEPA, this article explores the State Environmental Policy Act (SEPA), Washington’s state-equivalent to NEPA. Established in 1971 and modeled after NEPA, SEPA requires that an Environmental Impact Statement (EIS) be prepared for any governmental project proposal that significantly affects the environment. Currently under both state and federal law, there is no rule or guidance that instructs project applicants on how to calculate greenhouse gas emissions in a manner that satisfies statutory requirements. The Washington Department of Ecology rescinded its only guidance in 2016 with regard to adequate greenhouse gas calculation to be included in an EIS. As a result, project applicants must make an educated guess and rely on previous case law and administrative decisions when measuring greenhouse gas emissions for their EIS. The lack of a clear, uniform rule under SEPA will continue to foster confusion about how to calculate the direct and indirect effects of greenhouse gas emissions for an EIS. This article argues that Washington’s Department of Ecology—or any other lead agency—should establish a rule on how to quantify, analyze, and mitigate greenhouse gas emissions under SEPA.

The 1985 Pacific Salmon Treaty between Canada and the United States was negotiated to deal with evidence that Pacific salmon stocks originating in Canada and the United States were in decline. The Pacific Salmon Treaty sought to establish total annual fishing limits for Canada and the United States that were consistent with the sustainable conservation of Pacific salmon stocks, and to base the total allowable catch for Canadian fishermen on forecasts of the total abundance of salmon. As the Pacific Salmon Treaty has been implemented, however, there has been a re-occurring pattern of annual abundance forecasts overestimating the actual abundance of salmon stocks. This article posits that these discrepancies between Pacific Salmon Treaty abundance forecasts and actual reported abundance levels are due in large part to a conservation model that fails to take proper account of the differences and relationship between wild (naturally-spawning) salmon and salmon artificially-propagated in hatcheries. Once these differences and relationships are better understood, it becomes clear that expanding hatcheries may lead to the continuing decline of Pacific salmon stocks rather than their restoration, and that the Pacific Salmon Treaty conservation model may need to focus less on hatcheries and more on improving freshwater conditions and habitat for wild salmon. Recent amendments to the Pacific Salmon Treaty, which went into effect in 2019, may provide a potential mechanism to bring the conservation of wild salmon stocks and their habitat into the Pacific Salmon Treaty’s abundance forecasting model.

One of the nation’s most longstanding environmental-energy conflicts concerns the plight of numerous Columbia Basin salmon species which must navigate the Federal Columbia River Power System (FCRPS), a series of hydroelectric dams that make the basin one of the most highly developed in the world. Although the FCRPS dams produce a wealth of hydropower, the mortalities they cause due to the construction and operation of FCRPS dams led to Endangered Species Act listings for the basin’s salmon. Since those listings a quarter-century ago, the federal government has repeatedly failed to produce biological opinions that can survive judicial scrutiny. The latest round of litigation resulted in renewed directives from the federal district court of Oregon to revise the current biological opinion and to spill more water at several dams in the interim to facilitate juvenile salmon migration. The directive to increase spill was upheld by the Ninth Circuit in 2018, but the U.S. House of Representatives quickly voted to overturn that decision, and the Senate now has the matter under consideration.

As people around the globe grapple with the realities of an ever-warming planet, Americans, too, are coping with some of the attendant consequences of climate change: severe droughts, storms, and wildfires to name just a few. In response, Americans are evaluating their personal and collective contributions to the climate crisis. Notwithstanding President Trump’s unilateral move in June 2017 to withdraw the United States from the Paris Agreement, the international community is pressing forward with comprehensive strategies to mitigate anthropogenic sources of atmospheric carbon. Despite their best efforts, however, most of these actions focus on the energy and transportation sectors while largely ignoring the most significant, though lesser acknowledged, climate culprit of them all: industrial animal agriculture (or “factory farming”).

Like many of its international counterparts, the United States currently has no broad-based plan to mitigate carbon emissions from its livestock industry. However, if Americans can garner the political will to prioritize the climate impacts of animal agriculture, any effective emissions-reduction strategy must be multi-faceted. The strategy must address the underlying drivers of factory farming and not just livestock-related emissions. This necessarily requires an overhaul of federal crop subsidies that provide livestock producers with a glut of cheap feed grains—corn and soy, specifically—that enable them to produce meat well below its true cost. Shifting federal subsidies away from commodity crops and toward a broader array of fruits, vegetables, and nuts (or “specialty crops”) could level the playing field between commodity crop and specialty crop production. Additionally, shifting federal subsidies to specialty crops could catalyze a change in consumer choices away from carbon-intensive meat and toward more carbon-neutral, plant-based alternatives.

Many low-income communities, communities of color, and indigenous communities in the United States are suffering from unequal access to safe and affordable water. This is partially the result of an ineffective and fragmented legal framework governing water issues in the country. In addition, the notion of a human right to water and sanitation, accepted internationally to reinforce and protect human needs related to water, has yet to be meaningfully recognized in the United States. This article sets out, first, to examine the legal framework governing access to freshwater in the United States and the concerns underlying the reluctance of the federal government and most states to acknowledge the human right to water and sanitation as a legal right. The article then assesses the potential of such recognition to promote laws and policies that would ensure water justice for vulnerable or disadvantaged communities across the United States.

Often called the “Magna Carta” of environmental laws, the National Environmental Policy Act (NEPA) has made informed decision-making about the environment a pre-requisite for every major federal permit approval. By requiring federal agencies to systematically consider and disclose the environmental and health consequences of a course of action, NEPA also made federal decision-making public—”we know best” no longer suffices to allow agencies to make a decision without considering its environmental consequences. Yet NEPA’s mandate has been thwarted when it comes to natural gas exports. Without meaningful review of the consequences, federal agencies have already approved proposals to export an amount roughly equivalent to one-fifth of all domestic natural gas demand. In so doing, they have failed to consider basic consequences such as rising domestic prices, production, and pollution. This Note argues that recent decisions by the U.S. Court of Appeals for the D.C. Circuit have allowed federal agencies to hide the impacts of natural gas exports in an improperly segmented review process. Because the public and local decision-makers deserve—and NEPA requires—an honest assessment of the impacts associated with natural gas exports, this Note urges judges and advocates to consider segmentation as a critical legal principle for understanding why the D.C. Circuit’s recent decisions have created a void in environmental review and should be reconsidered.

Global climate change is well underway and its impacts are reaching far into the future. As these impacts progress, they present core questions of intergenerational justice. What does justice require of the current generation in tackling climate change to safeguard the wellbeing of future generations? How is the current generation to achieve a just relationship with those to come in light of the atrocious violations represented by global climate change? Taking the Juliana v. United States lawsuit as an example, I argue that we are not equipped to address the current climate crisis using existing environmental law, and therefore our obligations for future generations remain unmet. In that light, I demonstrate the unique contributions of the restorative justice framework to the discussion of intergenerational justice, and how restorative justice can address not only environmental crime, but also the harms that future generations will experience because of climate change.

Gordon Steinhoff, Associate Professor of Philosophy, Utah State University. Abstract: The U.S. Forest Service is required to manage the national forests for multiple use, including outdoor recreation, timber production, and more recently, biodiversity conservation. National forest management plans throughout the country are currently being revised under the 2012 Planning Rule. As will be discussed, the 2012 rule provides the Agency with high levels of discretion and management flexibility. The rule does not require maintaining viable populations of all native plant and animal species. The Agency is required to conserve viable populations of “species of conservation concern,” yet the Regional Forester is granted sole discretion in designating these species. The 2012 rule is highly controversial, primarily for the reason that it grants the Agency too much discretion. Wildlife management and policy experts are concerned that the biodiversity provisions within the rule will prove ineffective in the conservation of native wildlife. On closer examination, the conservation mandates presented by the 2012 rule regarding species of conservation concern, and other at-risk species, are actually quite strong, and if strictly followed would influence every aspect of national forest management and effectively constrain agency discretion. Properly understood, the 2012 Planning Rule provides a mix of strong biodiversity provisions with agency discretion and management flexibility. The key to effective biodiversity conservation in the national forests, and an equitable balance of interests, is to ensure that the conservation mandates for at-risk species are genuinely met, at both the management plan and individual project levels. The National Environmental Policy Act (NEPA) plays an essential role. NEPA regulations remove biodiversity conservation in the national forests from the high levels of discretion and subjectivity granted the Agency by the 2012 rule, providing the strong biodiversity provisions within the rule the strength they have. The 2012 Planning Rule, in the context of NEPA, provides a potentially effective means of conserving native biodiversity in the national forests.

Dayna Jones, Lewis & Clark Northwestern School of Law ‘18 and Public Defender for the Mescalero Apache Tribal Court. Abstract: The Columbia River Gorge is host to some of the most biodiverse landscape on the planet. In addition to harboring unique species, the Gorge is also home to a unique jurisdictional landscape. The collaborative legislation that enacted the Gorge Act endowed governmental authority of the General Management Area of the Gorge within a compact agency: the Gorge Commission. Railroads running through the Gorge have contested the Gorge Commission’s jurisdiction over their operations, claiming preemption from the Commission’s authority. This article discusses the competing jurisdictional interests in the General Management Area of the Gorge and explains why the Gorge Commission is an adequate forum for all entities operating within the Gorge, including railroads.

Arctic Law & Policy Institute, University of Washington, Craig H. Allen, Judson Falknor Professor of Law, Director, UW Arctic Law and Policy Institute, with assistance from Malina Dumas (UW Law ’18).

Todd A. Wildermuth, Director, Environmental Law Program, University of Washington School of Law.

Michael Byers, Canada Research Chair in Global Politics and International Law, University of British Columbia. Kelsey Franks, BCL/LLB Candidate, Faculty of Law, McGill University. Andrew Gage, LLB, Staff Counsel, West Coast Environmental Law. ABSTRACT: The annual global costs of climate change in 2010 were estimated at nearly $700 billion. As the costs continue to escalate, discussion is necessarily shifting to who should pay for mitigation and adaption. Many scholars argue that policy considerations and principles of tort law support holding greenhouse gas producers responsible for the costs of climate change. However, legal claims against greenhouse gas producers in the United States have thus far proven unsuccessful. This Article explores two previously overlooked potentialities that could significantly and rapidly alter the landscape for climate change litigation: (1) the emergence of transnational climate change litigation coupled with the possible enforcement of foreign judgments in U.S. courts; and (2) the enactment of legislation altering the rules around climate change liability. This Article then quantifies the contribution of major U.S. fossil fuel companies to the costs and damages of climate change to illustrate the potential financial impacts of successful litigation or legislative change.

Clifford J. Villa, Assistant Professor, University of New Mexico School of Law.

Denis Binder, Professor of Law, Dale E. Fowler School of Law, Chapman University.

This article was originally published by the Duke Environmental Law & Policy Forum, 23 Duke Envtl. L. & Pol’y F. 185–241 (2012), http://scholarship.law.duke.edu/delpf/vol23/iss1/6. The Washington Journal of Environmental Law & Policy made no edits to this article.

Jan Whittington, Associate Professor of Urban Design and Planning, College of Built Environments, University of Washington.

This Article aims to distill the lessons of Washington’s experience with ocean acidification (OA) policy and apply them to the political framework that exists in California. More generally, this Article evaluates the political landscape in which OA policy is taking shape along the west coast of the United States and highlights elements of a political and policy strategy that would build current momentum on OA in California and elsewhere into a larger, more sustained policy infrastructure capable of addressing coastal issues of environmental resilience and water quality in the context of global change. It concludes by identifying some ways in which OA policy might benefit from action on—and constituencies for—the multiple interacting drivers of environmental change.

As ambitious as it is at times challenging to meaningfully apply, the Wilderness Act purports to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. Interest groups often seek to extract from the Act a meaning of wilderness that comports with whatever interest they wish to secure for themselves and their members, and their interests often conflict with each other. These conflicts can turn national parks into sandboxes where interest groups draw lines and ask the National Park Service to pick a side. The losing party inevitably looks to a judge who, in her infinite wisdom, will surely see that wilderness means exactly what the party knows it means. Injunction in hand, the now-prevailing party’s favored use will flourish and all will be right in the world, or at least in wilderness. A microcosm of litigation over competing uses nationally, Olympic National Park in Washington State has played host to its fair share of sandbox showdowns, the presence of historic structures in the park eliciting perhaps the most wide-ranging response from interest groups. This Article examines arguments from those seeking to preserve these structures and those seeking to remove them, and suggests a reading of the Act and its Washington State counterpart that comports with legislative intent.

California maintains a complex system of water rights, with the State Water Resources Control Board as the premiere administrative agency overseeing it. The State Water Resources Control Board has the ability, for example, to investigate water usage and implement regulations. However, when it comes to adjudicating water rights disputes, the agency’s power is not absolute. Under the California Supreme Court’s holding in National Audubon v. Superior Court of Alpine County, the trial court shares concurrent jurisdiction with the State Water Resources Control Board over water rights disputes. As California faces extreme drought conditions and climate change, legal battles over precious water resources have intensified and have brought National Audubon to the forefront. This comment begins by reviewing the existing framework for water rights in California and analyzing the court’s decision in National Audubon. It then proceeds to explain how changed circumstances—namely, drought and climate change—render the current system unworkable. Finally, this comment advocates for abolishing the doctrine of concurrent jurisdiction for water rights disputes in favor of administrative exhaustion through legislative amendment. Doing so would eliminate confusion in litigation, give deference to the State Water Resources Control Board’s technical expertise, and better prepare California for an increasingly dry future.

Washington State's Energy Facility Site Evaluation Council (EFSEC) is responsible for siting the state's energy facilities. The current process can frustrate robust public participation. One reason is that applicants must submit a single, comprehensive, application and these submissions have grown to enormous size and complexity. Local groups struggle with responding to these complex applications in time. Additionally, the council uses quasi-judicial adjudication where the applicant is represented by professional counsel, but local groups may lack the financial support to retain comparable counsel. Washington should learn from how New York overhauled its energy facility siting process in 2011. New York's Board on Electric Generation Siting and the Environment (BEGSE) uses a pre-application that identifies key issues and initiates dialogue between the affected parties. Each application then receives a neutral facilitator who mediates disputes between parties during the process. Subsequently, BEGSE provides funds to interested local groups, ensuring they can fully participate in the adjudication. By adopting these procedures for the EFSEC, Washington would improve local and public participation.

The recent emphasis on building design, construction, and performance has revealed legal challenges and risks an owner or project team may face when attempting to construct a “deep green” building. The intent of this article is to encourage and facilitate the development of deep green and high performing buildings by reducing perceived and actual risks as well as challenges associated with their development, construction, and operation. This article explores these risks and challenges through a discussion of specific examples from two case study projects located in Seattle, Washington. These examples are arranged in two broad categories: (1) the process of achieving a deep green, high performing project, and (2) specific aspects of the technology employed to achieve deep green goals. As most technical challenges that the case study projects faced could be resolved through process improvements, the reader will note that solutions identified through the case studies are heavily weighted toward process. The authors’ recommendations, based on input from policy planners, construction lawyers, and leasing and operations professionals, are also heavily process-oriented. These recommendations include aligning code with municipal goals, integrating green codes, leading by example, leveraging existing regulations, developing demonstration ordinances (for policy planners), assigning risk reasonably, understanding appropriate responsibilities, encouraging an integrated process (for construction lawyers), and encouraging the use of green leases and collection of building performance data (for leasing professionals).

The world’s oceans have become approximately thirty percent more acidic since the Industrial Revolution and are currently acidifying at a rate ten times faster than anything the earth has experienced over the last fifty million years. Washington State is undertaking a groundbreaking effort to address ocean acidification, a global issue that has serious implications for the world’s oceans, marine ecosystems, and the individuals and communities that depend upon the services that they provide. These localized actions, in isolation, will be insufficient to effectively combat and adapt to the acidification of marine waters. While acknowledging this generally accepted premise, Washington has nonetheless determined to become a leader in responding to ocean acidification. This article discusses several reasons why this issue is being addressed at the state level and by Washington in particular, and examines the successes and challenges of, and lessons that can be learned from, Washington’s response to ocean acidification.

In the spirit of fostering interdisciplinary dialogue, the Washington Journal of Environmental Law and Policy is proud to present this Article. Professor Varanasi takes examples from her career as a fisheries scientist for the National Oceanographic and Atmospheric Administration to argue for a new model for ecological disaster planning and response, in which baseline ecosystem data is collected in advance of possible incidents so that decision-makers are empowered to make informed choices from the first stages of disaster response. She concludes by urging sustained and targeted funding for long-term ecosystem data collection to better understand various disasters’ effects on a region and to improve prospects for restoration of the degraded ecosystem and recovery of species.

The EPA currently regulates the Navy program Sink Exercise (SINKEX) under a permit issued under the Ocean Dumping Act. The Navy regards SINKEX as both a “live fire exercise,” important for the training of sailors in tactics and operations, and as a ship disposal program. Due to the toxic materials used to construct the derelict ships–including PCBs, asbestos, and lead–a case was filed in San Francisco District Court alleging that the EPA is required to regulate and permit SINKEX under the Toxic Substances Control Act (TSCA). This comment addresses the complexities arising from EPA permitting of SINKEX, including a comparison of the Ocean Dumping Act with the TSCA, military waivers and exemptions present in both statutes, and a discussion of possible interagency cooperation and enforcement measures this may implicate. This comment concludes that the most effective method for disposing of derelict ships while maintaining environmental and human health as well as national security is legislative reform and an increased budget for disposal.

Decker v. Northwest Environmental Defense Center is a recently decided Supreme Court case that originated in the forests of Oregon. Frustrated by the level of pollution in Oregon rivers that was originating from logging roads, an environmental group sued the State to enforce the Clean Water Act and require Oregon to issue National Pollutant Discharge Elimination System (NPDES) permits for the pollution. The Supreme Court held that the Environmental Protection Agency’s (EPA) decision to exclude water pollution from logging roads from NPDES permitting was entitled to deference, reversing the Ninth Circuit’s decision that such pollution required NPDES permits under the Clean Water Act and the EPA’s Silvicultural Rule. Part I will introduce the case and the issues more fully. Part II will provide the background to the case. Part III will discuss the case and its procedural history, focusing on the Ninth Circuit’s decision and the Supreme Court’s opinion. Part IV will discuss different policy models that may be useful to Oregon going forward. Part V will conclude that Oregon is still under pressure to change its policy, and that certain changes to its current regulations could reduce pollution from logging roads while still remaining cost-effective and with little administrative interference for the logging industry.

The Columbia River Treaty between the United States and Canada may be terminated unilaterally by either nation beginning next year; this has brough attention within the Pacific Northwest and beyond to the 1964 agreement on river flows. Much of the discussion about updating the accord highlights important goals such as bettering the protection of fish and increasing public participation in ecosystem governance, but often neglects analysis of how electricity markets have changed over the past fifty years. This Comment, through an examination of key developments in utilities law and application of economic theory, attempts to parse principles that may prove helpful in finding a solution to the agreement’s most contentious element—the “Canadian Entitlement” payments from the U.S. to British Columbia—from the puzzle of the Columbia River Treaty’s electricity piece.

We are proud to present the first installment of the Washington Environmental Law Year in Review. This feature, which will be published annually in the Fall issue, will track significant developments in the environmental laws and regulations of Washington, and present a summary of these changes organized by topic.

The West is witnessing early, important efforts to join water supply and land use planning, and the reality of climate change makes this convergence all the more critical. Local comprehensive planning presents itself as an existing and indispensable tool for unifying important planning efforts in the areas of land use, water, and climate change. As the primary regulators of land use, local governments are at the front line of regulating a myriad of environmental concerns. They are also integral partners in planning and implementing waterrelated initiatives alongside tribal, state, federal, and private partners. The West’s potential for broad-based action is greatly increased if water and climate become an essential, required element of local comprehensive planning. This article thus calls for a new, freestanding “water-climate element” in comprehensive planning that better prepares our communities for the important task of managing water in wise, resilient, and collaborative ways. Part I summarizes the first legal steps being taken to integrate water-land use planning, predominantly through assured supply laws. This first level of integration alone is no small task since it requires a realignment of historically separate legal spheres in which water law is the domain of the state and land use is the domain of the local government. Yet there is more to be done. Part II argues for an expansion of water-land use planning to include climate planning, and discusses the innovative work that some communities are generating in this area. Part III illustrates why model legislation for a “water-climate” element in comprehensive planning is a next, big step to bring land use, water, and climate together. It then describes the key provisions of such model legislation. The article concludes that if western states require local water-climate planning, there will be improved community preparedness and more robust interjurisdictional cooperation regarding shared land and water resources. Thus, a water-climate element is a practical and critical part of integrating water, land use, and climate planning in the West.

Washington, like most western states, exempts domestic groundwater use from water rights permitting requirements. The cumulative impact of exempt groundwater use threatens senior water rights and protected stream flows in certain arid parts of the state that have seen significant exurban and suburban development. Exempt domestic wells, however, are only exempt from requirements to obtain a permit and are still subject to regulation under the principles of prior appropriation; exempt well users can be forced to curtail their water use in order to satisfy the full extent of a senior water right. In Kittitas County v. Eastern Washington Growth Management Hearings Board, the Washington State Supreme Court held that county comprehensive plans must not allow evasion of water permitting requirements through the use of exempt wells. The Court clearly suggested that counties have an affirmative duty to ensure that applicants seeking permits to build or develop land have a legally adequate supply of water available. Some commentators express concerns regarding whether this is an appropriate role for counties to play in water management. This Comment argues that requiring counties to ensure the legal adequacy of a proposed water source when permitting development may actually provide an effective means to regulate exempt wells where their cumulative impact is significant. Counties are equipped to determine whether a permit applicant has access to a legal water source. The apparent regulatory structure following Kittitas County allows the Washington Department of Ecology to determine whether to close basins off for new withdrawals and for Ecology or some other expert entity to handle the details of administering mitigation banks, while the counties will be responsible for ensuring compliance by adding a small step to an existing permitting process.

The Bonneville Power Administration (BPA) is the primary transmitter of power in the Pacific Northwest. Charged with operating the federal dams on the Columbia River, the BPA also maintains and operates 15,000 miles of high-voltage power lines that transmit power produced by federal and non-federal power sources alike. Under federal law, the BPA must accept onto its transmission system power from non-federal sources in a manner that is fair, non-preferential, and does not discriminate against non-federal sources. Recently, strong snowpack and periods of heavy runoff have stressed the Federal Columbia River Power System and has led to a problem: the overgeneration of hydropower for which there is not enough capacity on the transmission system. Compounding this problem is the fact that wind power generation has greatly increased in the Pacific Northwest over the past decade, with no sign of significantly slowing down. The over-generation of power, in conjunction with the BPA’s statutory mandate to accept non-federal power sources, has created a challenge for the BPA: to maintain the reliability of its stressed power transmission system while fulfilling its obligation to accept, in a fair and non-discriminatory manner, power from both federal and non-federal sources. In an attempt to accomplish this task, the BPA began implementing a curtailment policy beginning in 2011 that, according to the Federal Energy Regulatory Commission, unlawfully discriminated against non-federal wind power producers. The BPA has since revised and updated its displacement policy; nevertheless, the BPA’s policies continue to unfairly discriminate against wind power producers by placing a preference on the generation and transmission of federal hydropower at the expense of non-federal wind power. Not only do these policies violate the BPA’s statutory obligations and requirements of the Federal Energy Regulatory Commission, but they also hurt the ability for utility companies in Washington to meet obligations to diversify energy portfolios as required by the Washington Energy Independence Act. Because wind power is the dominant renewable energy resource available to satisfy Washington’s new renewable portfolio standards (RPS), its curtailment is problematic for utility companies and consumers alike. This Comment evaluates the BPA’s past and existing curtailment polices, their impact on the ability to satisfy the goals of the Washington Energy Independence Act, and the ability for utility companies in Washington to meet RPS requirements.

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.