Journals
Winter 2004, Vol. 44, No. 1
Science, Politics, and U.S. Forest Service Law: The Battle over the Forest Service Planning Rule
George Hoberg
On November 9, 2000, in the waning days of the Clinton administration, the Secretary of Agriculture issued the final rule reviewing the regulations implementing the National Forest Management Act (NFMA). This decision was the culmination of a nearly decade-long process of redefining the mission of the USDA Forest Service. In a striking departure from the agency’s historical emphasis on multiple use, the rule established ecological sustainability as the key objective guiding planning for the national forests. The supporting material for the rule explicitly states that “it is based on the recommendations of an eminent committee of scientists.” The secretary appointed the Committee of Scientists in 1997, and the committee issued its report March 15, 1999. The new policy was not in place for long, however. The Bush administration suspended the rule in May 2001, and in November 2002 issued a new proposed rule that would reverse a number of changes embodied in the Clinton Rule.
So Much Conflict, Yet So Much in Common: Considering the Similarities between Western Water Law and the Endangered Species Act
Reed D. Benson
The West has recently experienced major clashes over its scarce water supplies, with traditional water users on one side and endangered species on the other. These clashes, including those in the Klamath and Middle Rio Grande basins, have pitted western state water laws based on prior appropriation against the federal Endangered Species Act (ESA). One could easily mistake these laws for polar opposites, but, in fact, western water law and the ESA share a number of important and ironic similarities. This article identifies some of the similarities that arise from the basic provisions of the laws and from the way they are implemented. Despite these important similarities, however, recent efforts to reform the laws have been notably one-sided, focusing almost entirely on the ESA. The article concludes that the West will not achieve a sustainable balance in water use by revising the ESA alone.
Towards Common Sense in ESA Enforcement: Federal Courts and the Limits on Administrative Authority and Discretion under the Endangered Species Act
Gregory T. Broderick
This article reviews important recent developments in the interpretation and application of the Endangered Species Act (ESA). Specifically, the article reviews three important rulings from the federal courts of appeals, Sierra Club v. United States Fish and Wildlife Service, Arizona Cattle Growers v. United States Fish and Wildlife Service, and New Mexico Cattle Growers v. United States Fish and Wildlife Service. When read together, these cases reveal an emerging judicial trend toward limiting the federal government’s discretion under the ESA.
Further, these decisions have placed the federal government in the impossible position of implementing mandatory species programs without the required funding. Thus, the article announces, species conservation policy is being determined by activists and judges rather than by scientists. The article describes the holdings of the three cases and discusses the severity of the constraints they place on ESA implementation and enforcement. It also offers several suggestions for reform and evaluates each potential solution’s chances for success. The article further contends that none of the solutions is likely to succeed and that the modern trend of setting species policy through litigation is likely to continue.
In a Twenty-First Century “Minute”
Steven G. Ingram
The Rio Grande River forms a boundary between the United States and Mexico. Under a treaty concluded in 1944, both the United States and Mexico regulate the allocation of the Rio Grande waters. Over the past decade, commentators have demonstrated that the 1944 Treaty needs updating, and they have made calls to adopt updated principles and understandings to enhance cooperation. By developing a proactive, policy-oriented twenty-first century Minute that makes an umbrella commitment to modern principles of international watercourse law, the International Boundary and Water Commission (IBWC) can respond to this call for modernization. The IBWC should incorporate current, prospective-looking, and pragmatic international law principles. The U.N. Convention for the Non-Navigational Uses of International Watercourses codifies these principles and has already been applied in a key international watercourse dispute, the Gabcikovo-Nagymaros case. There is a clear need to add new, pragmatic vocabulary to the 1944 Treaty. The IBWC should use the U.N. Convention as a guide in future interpretations of the 1944 Treaty between the United States and Mexico.
Tribal Authority under the Clean Air Act: How Is It Working?
Jana B. Milford
In managing their air resources, Native American tribes face two sets of challenges: regulating pollution sources within their jurisdiction and addressing transboundary air pollution from upwind jurisdictions. The 1990 Clean Air Act amendments and the Environmental Protection Agency’s implementing regulations establish a legal framework for federally enforceable tribal regulation of sources within reservation boundaries, including sources on non-Indian-owned fee land. However, most tribes lack the resources needed to develop comprehensive air programs. EPA currently administers permits for most major sources in Indian Country, while hundreds of minor sources go unregulated. Transboundary air pollution threatens health and welfare and may simultaneously constrain economic development on many reservations. While states are increasingly trying to resolve transboundary problems through regional planning organizations, few tribes have the staff and resources required to actively participate in them.
The Pipeline Industry Meets Grief Unimaginable: Congress Reacts with the Pipeline Safety Improvement Act of 2002
Carol M. Parker
In response to several devastating pipeline accidents, Congress implemented major changes to the nation’s pipeline safety laws. By way of background, this article (1) describes the accident history leading to the passage of the new law, (2) explains basic pipeline operation, and (3) identifies the people and agencies that lobbied for change. The article then summarizes the legislative history of the new law, including some of the bills that Congress considered in the immediately preceding years. It explains the sections of the new statute and highlights the changes Congress made. The article illustrates how the new statute would have affected past accidents, had it been in place earlier, and goes on to identify where Congress fell short. Finally, the article suggests additional measures that Congress could impose if the new law fails to reduce the frequency and severity of pipeline accidents.
Preservation of Agricultural Lands Through Land Use Planning Tools and Techniques
Elisa Paster
Productive agricultural lands are an irreplaceable natural resource. Nonetheless, as urban populations increase and spill over the edges of the urban boundary, communities are relinquishing farmland to low-density development without regard to preserving these vital lands. While the growth of cities is essential to their economic health, that growth does not have to be at a premium cost to rural areas. The agricultural industry is vital to the United States economically, environmentally, and socially, so local planners and community members must make agricultural preservation part of long-term planning goals. There is no doubt that the realities of agriculture are changing, as small farmers find that agricultural production is no longer viable, as the popularity of organic farming and specialty crops increases, and as globalization raises phyto-sanitary and economic issues. As such, realistic, long-term planning goals that take the benefits and drawbacks of agriculture into account are vital. Land use planning is one tool that can be paired with other strategies to help save vital agricultural lands, so that the benefits of farming can be realized in our communities for the future.
