Journals
Spring 2003, Vol. 43, No. 2
Essay – Visions of Sustainable Interstate Water Management Agreements
John E. Thorson
Limiting Liability for Long-Continued Breach of Interstate Water Allocation Compacts
Douglas L. Grant
Recent Supreme Court decisions in Texas v. New Mexico and Kansas v. Colorado, involving assessment of damages for long-term breaches of interstate water compacts, have raised the specter of huge liability for breaching states. Thus far the Supreme Court has not dealt with the possibility that time may bar some claims of long-continued breach. The ancient principle of nullum tempus—no time runs against the sovereign—might enable a sovereign plaintiff state to recover damages no matter how old. The nullum tempus principle should not apply in water compact enforcement suits, however, because it would produce little or no public benefit in that situation and because its application would violate the constitutional plan of equal footing for litigating states. With the removal of the principle of nullum tempus, the defenses of either laches or a borrowed statute of limitations may reduce a defendant state’s liability for breach of an interstate water compact.
A Comparison between the Water Law Reforms in South Africa and Scotland: Can a Generic National Water Law Model Be Developed from These Examples?
Andrew Allan
Many governments have been prompted by water shortages and inadequate infrastructure to re-assess their water management regimes. The aim of this article is to compare the reforms made in two very different nations, South Africa and Scotland, and to examine the best parts of each with a view to establishing a model national water law framework. The article assesses the hydropolitics of both countries, along with the reforms and their implementation, and critically compares these in the context of international best practice and relevant regional agreements. It concludes that a model framework could be implemented in more affluent nations, irrespective of climate, but would not be workable in very poor nations.
Scotland’s Water – Safe Clean Affordable Public?
Sarah Hendry
This article assesses the current and future management of water resources, and provision of water services, in Scotland. New quality and technical standards continue to require increased investment, whilst higher charges focus public discontent and sustainable development principles bring greater citizen participation in decision making. Previous public campaigns have affected political strategy for industry reform and may do so again with the proposed introduction of competition to a public water supply. The role of the public will be analysed alongside the particular management problems arising from an abundant resource.
Coalbed Methane Development: The Costs and Benefits of an Emerging Energy Resource
Gary C. Bryner
Coalbed methane has rapidly become an important source of natural gas, particularly in the Intermountain West. The rapidity of its development has resulted in significant pressure on communities to deal with its environmental consequences. Coalbed methane production often results in large quantities of water that are released as byproducts of production; in some cases, the water may inundate sensitive arid ecosystems, worsen surface water quality, and diminish underground water supplies. Noise, dust, and increased traffic; impairment of visibility and conflicts with recreation and other land use; impacts on wildlife and ecosystems; and other consequences of development have generated opposition in many communities. Particularly vexing has been development on split estates, where surface owners do not own the mineral rights underneath their property and are required to cooperate with development that may disrupt the use and control of their land. This article examines the problems associated with coalbed methane development and offers a variety of suggestions for how conflicts could be reduced and how development could proceed in ways that are ecologically sustainable.
Governing Western Mineral Resources: The Emergence of Collaboration
Ric Richardson
Collaborative decision making about the environmental consequences of mineral development is an important policy-making tool for federal and state policy makers, local officials, environmental advocates, and citizens. This article addresses the role of collaboration and consensus building in mining and energy mineral development. Consensus building about mineral development strategies and negotiation of mitigation and reclamation actions have been used effectively to address mining’s social, economic, and environmental impacts. In the context of an evolving national energy policy, the article discusses the implications of mining history, traditions, law, and regulatory innovations that can be used to shape consensus about mining policy and mining’s negative impacts. The article identifies the ways that collaborative planning and consensus building are rooted in the history of mining and mineral development and concludes with recommendations to improve collaborative decision making in mining and energy minerals development in the Western United States.
In Search of a Paleontological Resources Policy for Federal Lands
Robert W. Malmsheimer & Alisa S.H. Hilfinger
Federal law provides only limited and inconsistent protection for paleontological resources on federal lands. For more than 20 years, Congress and federal agencies have attempted to develop policies that balance the need to protect these resources with the requests of amateur, commercial, and scientific collectors. The debate over these policies involves two fundamental questions: (1) Should federal lands be open to amateur, commercial, and scientific collectors, and if so, under what conditions, and (2) Who should own the paleontological resources collected from these lands? This article examines how attempts to create paleontological resource policies, including the recently introduced Paleontological Resources Preservation Act, have addressed these two issues.
Federalism, Electric Industry Restructuring, and the Dormant Commerce Clause: Tampa Electric Co. v. Garcia and State Restrictions on the Development of Merchant Power Plants
Jeffery S. Dennis
Electricity deregulation in the United States has proceeded at both the wholesale level, under the jurisdiction of the federal government, and at the retail level, under the jurisdiction of the states. The federal government has proceeded quickly to develop a highly competitive wholesale market for sales of electricity in interstate commerce. Meanwhile, the few states that have experimented with deregulation have moved much more slowly, and most states have either scrapped their deregulation plans or never chose to deregulate at all. As a result, electricity markets nationally are governed by a patchwork of varying state and federal laws and policies, and companies seeking to build power plants to serve these new competitive wholesale markets for electricity must navigate this hodgepodge of requirements. One of the barriers to building new power plants is state siting laws, which require regulatory approval before new generating plants may be constructed within the state. In Tampa Electric Co. v. Garcia, the Florida Supreme Court issued a ruling in 2000 interpreting that state’s siting law to restrict the construction of new power plants in the state to only those plants fully committed to supplying power to in-state uses. In practical effect, this interpretation of the statute prevents the construction of power plants intended to serve the interstate wholesale market. This ruling, and the actions of other states to similarly restrict the development of power plants intended to operate in the interstate market, raises concerns under the Commerce Clause of the U.S. Constitution, and specifically the negative, or dormant, Commerce Clause. With federal policy marching towards increased competition in national electricity markets, while states back away from competition in their own local markets, the constitutional issues raised by Tampa Electric will require definitive resolution by the courts.
