Natural Resources Journal

Fall 2013, Vol. 54 No. 1

The Ninth Circuit Court of Appeals, the nation’s largest appellate court, with jurisdiction over 15 judicial districts and 61 million people—almost 20 percent of the nation’s population—spans from Alaska to Arizona, from Montana to Hawaii. The Ninth Circuit has a reputation for being an environmentally sensitive court, but the court is as diverse as the terrain over which it has jurisdiction. Due to its size, the court’s en banc reviews do not include all 29 judges but instead only panels of 11. Thus, Ninth Circuit en banc panels can reflect the kind of diversity of opinion they aim to reduce. Recently, the two en banc decisions discussed in this article—Lands Council v. McNair and Karuk Tribe of California v. U.S. Forest Service—displayed the court’s apparently schizophrenic approach to review of agency environmental decision-making.

A unanimous court in Lands Council called for more deference to Forest Service decisions favoring timber harvests, while the Karuk Tribe majority, with barely a reference to Lands Council, gave close scrutiny to the Forest Service’s interpretation of the Endangered Species Act. The latter decision prompted a bitter dissent from the author of Lands Council, Judge Milan Smith, which seemed to be more of a political diatribe than legal criticism and may have been aimed at attracting the attention of the U.S. Supreme Court. Although the varying results of the two cases can be reconciled, we think that they epitomize a deep philosophical rift within the court on environmental issues, and we include an appendix suggesting to litigators on which side of the environmental divide certain Ninth Circuit judges may fall.

Environmental impact assessment (EIA) is used by most countries and is widely recognized as an important instrument for infusing sustainable development considerations into governmental decision-making. However, studies show that EIA often falls short of that goal. This article explores the design and operation of EIA through the lens of comparative institutional analysis. It examines the pros and cons of various governmental institutions charged with implementing EIA, uses a case study of Taiwan to demonstrate the validity of this analytical framework, and provides suggestions for future practices and legal reforms.

This article proposes that the core problem that EIA is meant to address is minoritarian bias—the highly disproportionate representation of the interests of developmental interest groups in political processes, as opposed to the interests of the general public and future generations. To adequately counteract this political malfunction, this article argues for improvements to EIA systems that enhance public participation, reinforce expert governance, and heighten judicial scrutiny. Among these, the judiciary plays the most profound institutional role. Where minoritarian bias is prominent in EIA proceedings, courts should strictly review, rather than submissively defer to, EIA judgments and developmental decisions.

The SunZia Southwest Transmission Project is a high-voltage transmission line under development in southern New Mexico and Arizona. The project was created to allow the expansion of the renewable energy production economy, and is also part of larger efforts at climate change mitigation. It has the support of federal and state governments, and has been fast-tracked by the Obama Administration. However, in spite of its potential to increase the availability of clean energy, conflicts between local environmental groups and government agencies over siting difficulties have impeded its development. Efforts to streamline the permitting process have been largely unsuccessful, as they often focus on centralizing authority at the expense of local input, and result in increased opposition from citizen groups and local governments who feel their needs and concerns are being ignored. This article examines the current permitting process, potential methods of centralization to increase efficiency, and the procedural protections that will be necessary to ensure that this efficiency does not reduce local input. Easing the development of renewable energy is both necessary to protect the climate, and a concept that lends itself to broad support from environmental groups, government agencies, and the business sector. This article proposes that this potential for support should be encouraged and conflict minimized by ensuring adequate opportunities for meaningful citizen input that can help SunZia and similar projects be embraced rather than rejected by their local communities.

In 1918, Congress passed the Migratory Bird Treaty Act (MBTA) to curb mass avian extermination caused by hunting and poaching. Despite Congress’s initial concern with these activities, the U.S. Fish and Wildlife Service (FWS) expanded the scope of MBTA enforcement to include bird deaths caused by industrial activities. This created a glaring split of authority among U.S. Circuit Courts of Appeals, with one side applying strict liability under the MBTA for all deaths of protected birds caused by industrial activities and the other side refusing to apply the MBTA to indirect and unintentional bird deaths.

This article argues that the best solution would be for Congress or the FWS to establish an incidental take permit program that would exempt industrial operators from prosecution for certain indirect, unintentional bird deaths caused by industrial activities. Such a program would provide the best balance between the MBTA’s conservation principles and the reality of vital and growing industrial operations. A permit program would provide industrial operators with certainty concerning liability and project planning, and provide the FWS with a tool to fund and ensure conservation of migratory birds, while still allowing the FWS to prosecute those failing to obtain a permit or violating the Act in another way.

Federal environmental law and policy ambitiously purports to provide clean air and water, protect endangered and threatened species, clean-up hazardous and toxic waste sites, and infuse environmental considerations into the decision-making process of all federal agencies with respect to major proposals impacting the environment. Despite such lofty goals and an expansion of the regulatory state, certain types of activities and associated risks have eluded statutory coverage. Additionally, these uncoordinated federal environmental statutes typically embody a singular and sometimes myopic focus, leading to unpredictable or undesirable regulatory gaps, constraints, and inefficiencies. Further, limitations on standing and judicial review may significantly limit the ability of private litigants to enforce compliance with substantive and procedural duties of federal agencies and other private actors.

This article illuminates these complexities through the lens of a hypothetical but plausible scenario presenting controversial environmental issues associated with hydraulic fracturing operations. The various issues presented are discussed and analyzed by a fictional Supreme Court, drawing upon both recent and historically significant judicial decisions of the real U.S. Supreme Court and others. This conceit highlights the problematic interplay of the federal statutes and standards of judicial review. It also provides insight into potential methods to navigate the substantive and procedural challenges faced by private litigants, federal agencies, and the courts in applying these complex statutes to address modern environmental threats, such as those presented in hydraulic fracturing activities.

In periods of war, African states experience great difficulty in defending maritime zones from criminality because the legal and institutional infrastructure, which guarantees the safety and security of the zones, is often highly compromised. Major maritime commercial corporate interests are exploiting economic opportunities that arise in these compromised coastal states due to war. Some of the most common exploitations of marine resources are illicit fishing, extraction of minerals, and illegal dumping of toxic substances in the territorial waters of maritime states. Such unlawful exploitation is detrimental to Africa’s economic integrity and well-being. Corporate accountability for these criminal activities would guarantee a measure of economic integrity and secure a state’s economic welfare. Increasing evidence of illicit exploitation in maritime states during periods of conflict necessarily calls for the elaboration of the rights and responsibilities of private maritime corporations in foreign waters under the United Nations Convention of the Law of the Sea, and further highlights a great need for international criminal penalties for such exploitation. This article investigates whether the relevant international legal and institutional frameworks can be relied upon to prevent illegal natural resource exploitation of Africa’s maritime zones during periods of armed conflict, and proposes a strategy for criminal sanctions against this conduct.

Contested Waters: An Environmental History of the Colorado River by April R. Summitt (University Press of Colorado; 248 pages; 2013).
Reviewed by Xochitl Torres Small, Class of 2015, University of New Mexico School of Law.

Redeeming REDD: Policies, Incentives and Social Feasibility for Avoided Deforestation by Michael I. Brown (Routledge; 344 pages; 2013).
Reviewed by Doreen Jameson, Class of 2015, University of New Mexico School of Law.

A Great Aridness: Climate Change and the Future of the American Southwest by William deBuys (Oxford University Press; 353 pages; 2011).
Reviewed by Caitlin Dillon, Class of 2015, University of New Mexico School of Law.

Contested Water: The Struggle Against Water Privatization in the United States and Canada by Joanna Robinson (MIT Press; 254 pages; 2013).
Reviewed by David Ketai, Class of 2015, University of New Mexico School of Law.