Journals
Winter 2003, Vol. 43, No. 1
Essay – Redeeming the Geography of Hope
Charles E. Little
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers: Isolated Waters, Migratory Birds, Statutory and Constitutional Interpretation
Edward Fitzgerald
The U.S. Supreme Court, through its statutory and constitutional interpretations, has revived federalism to curtail federal authority. In the Solid Waste case, the Court, relying primarily on the text of the Clean Water Act, determined that the federal government lacked jurisdiction over isolated waters that serve as migratory bird habitat. The Court’s decision was inconsistent with text, intent, and purposes of the statute. The Court reinforced its statutory interpretation by declaring that the migratory bird rule probably exceeded federal commerce clause authority. The Court’s speculation was dubious under the framework of United States v. Lopez. The Court’s conclusions are not a positive sign for the future of environmental law.
Federal Project Financing Incentives for Green Industries: Renewable Energy and Beyond
John A. Herrick
The federal government, through the U.S. Department of Energy, has been promoting the development and emergence of viable domestic renewable energy and energy efficiency industries through numerous administrations. This Article discusses the types of legal instruments used by the federal government to provide incentives and assistance to aid in the development of green technologies that are targeted for potential commercialization in the future energy marketplace. The relative merits of those respective instruments and the need for Congress to set out green energy priorities in comprehensive energy policy legislation in the near future are discussed.
Managing the Quality of International Rivers: Global Principles and Basin Practice
Meredith A. Giordano
Population and development pressures combined with changing regional values have intensified competition for global freshwater stocks, raising concerns of expanded conflicts over scarce water resources. At the international scale, water supply and allocation are frequently cited as the primary sources of tension, yet significant vulnerabilities also exist in terms of water quality management. The vast majority of the world’s international basins are without any type of water quality institution, and, even where such institutions do exist, a general lack of substantive language and full basin participation likely minimize their ultimate effectiveness. To foster greater co-riparian cooperation, the international community has concentrated on the development of generalized, global principles of water quality management. More attention to the specific institution building needs at the basin level, however, may be needed.
Is Public Participation a Rule of the Law of International Watercourses?
Melvin Woodhouse
At present the existence of a rule requiring public participation in the law of international watercourses is unclear. Whilst States are party to an increasing number of international agreements, their practice is also influenced by non-binding sources of law. To date, no study has been undertaken to determine such a rule with respect to all recognized sources of international law. This study examines sources of international law recognised in the Statute of the International Court of Justice. Whilst no rule requiring public participation in the law of international watercourses can presently be recognized, it is shown that a rule may crystallize in the future as changes in State practice contribute to the sources of international law and offer a substantive basis upon which to define a general principle of law. Further analysis of subsidiary sources of non-binding law shows that whilst the international community is suggesting that the recognition of a range of different public entities is required to enable effective public participation, binding sources of law for the present only recognize the public as a homogeneous single entity. This is hypothesized to be a key factor preventing State practice from crystallizing public participation as a rule of the law of international watercourses. The means to identify key indicators of change in State practice are identified, which will enable the emergence of a new rule to be monitored; a present course of action is suggested for States seeking to promote public participation in international watercourse management.
"Whiskey’s fer Drinkin’; Water’s fer Fightin’!" Is It? Resolving a Collective Action Dilemma in New Mexico
John R. Brown
The water budget of New Mexico’s Middle Rio Grande region incurs annually a deficit of 55,000 acre-feet through groundwater mining. To address this unsustainable condition, a state-mandated regional water planning effort involving significant public participation is underway to produce a regional water plan. The action arena where this process is taking place may not be appropriately constituted to enable stakeholders to agree on and implement a comprehensive plan to "balance all desired and required uses with sustainable supply." The heterogeneity of the actors and their interests and the complexity of the decision situations they face contribute to a high level of uncertainty about the outcome. Changing the rules of the game to encourage interested actors to negotiate partial solutions to the problem may increase incentives for participation and cooperation and allow more productive institutional arrangements to emerge.
Revisiting Merrion v. Jicarilla Apache Tribe: Robert Nordhaus and Sovereign Indian Control over Natural Resources on Reservations
Robert Nordhaus, G. Emlen Hall, & Anne Alise Rudio
In 1982, the Supreme Court held in Merrion v. Jicarilla Apache Tribe that tribes have the sovereign power to tax non-member oil and gas lessees on reservations. Merrion sanctioned an expansive view of tribal sovereignty at a time when many western tribes were adapting to a new federal policy of self-determination by trying to take charge of natural resource production on the reservations. Merrion suggested that the Court would respect the efforts of tribes to govern as distinct political entities.
Twenty years after Merrion, Robert Nordhaus and two co-authors reconstruct the seminal case he brought to the Supreme Court as the Jicarilla Apache Tribe’s attorney. The following account is based on transcripts of interviews with Nordhaus taped in 1997 as part of the University of New Mexico School of Law’s New Mexico Oral History Project. The interviews were supplemented by legal research in the archives of the New Mexico Federal District Court, the Tenth Circuit Court of Appeals, and the U.S. Supreme Court. In addition, the authors drew on the personal papers of Robert Nordhaus, as well as the papers of Supreme Court Justices William J. Brennan and Thurgood Marshall. Interviews of various participants—judges, lawyers, and law clerks—completed the research. The resulting annals of litigation provide an intimate portrait of a critical lawsuit involving a critical issue—sovereign Indian control of natural resources on reservations—as important and fragile in the course of the litigation then as it is today.
A Look at Climate Change and the Evolution of the Kyoto Protocol
Todd M. Lopez
The withdrawal of the United States from climate change negotiations and the Kyoto Protocol ratification almost single-handedly defeated the only concerted international attempt to curb worldwide carbon dioxide emissions. Climate change discussions entered the international arena in 1988, and by 1997 the Kyoto Protocol was drafted and ready for signing and ratification. It will not enter into force until it has been ratified by at least 55 states that account for 55 percent of the total industrialized carbon dioxide emissions of 1990. During the course of negotiations, U.S. participants have effectively worked to minimize commitments and increase alternatives to straightforward reductions. Although no longer a signatory, and with no intentions to ratify, the United States has forced the parties to the Protocol to accept weaker targets and greater compromises. Even if climate change proves not to be the threat that some scientists claim it will be, an entire international legal, political, and economic structure is now being created that will substantially affect the global economic environment. Isolating itself from the rest of the world, the United States will surely face the consequences of non-involvement in the years to come.
