Journals
Spring 2005, Vol. 45, No. 2
New Mexico’s Changing Climate
David S. Gutzler
The past several years of severe drought in New Mexico have undermined the perception that we exist within a static climate regime and have intensified the need to understand shifts in climate over broader time scales. From agriculture, forestry, and water management to tourism and development, the effects of both short-term climate variability and long-term climate change are felt at multiple levels. A deeper grasp of fundamental climatic processes can potentially enable us to predict changes in climate over time and to respond with appropriate policies and planning. In New Mexico, as elsewhere, the continuing development of a multi-dimensional science of climate change is crucial to the future viability of resources and communities.
Science and Environmental Decision Making: The Potential Role of Environmental Impact Assessment in the Pursuit of Appropriate Information
Joseph F.C. DiMento & Helen Ingram
The relationship of science to environmental decision making is complex and controversial in public policy. This is particularly true with regard to a set of problems of emergent complexity characterized by multiple authorities and agencies and varying protocols, decision rules, data types, and political incentives. This article reviews alternative explanations of the sometimes troubled relationship between science and environmental decision making. It then inventories constructive avenues for change—including better use of institutions for generating scientific information and integrating it into decisions. These avenues include outcome effects institutes, administrative rulemaking, consensus work-shops, and science advisory boards. A particular focus is on environmental impact assessment.
The National Environmental Policy Act, NEPA, and its state forms, SEPAs, are laws that require assessment of impacts associated with government and, in some cases, private projects. By many, they have not been appreciated as major contributors to addressing complex environmental challenges. Rather, they are often viewed as a necessary step, of limited scientific significance, in a project specific context. However, when compared with other strategies for making better government decisions to protect natural resources and the environment while pursuing other goals, the assessment process looks quite strong. It can be made even stronger. We overview and discuss suggested reforms and improvements in the environmental impact assessment process. The context goes beyond changes in NEPA and its progeny and addresses impact assessment as an evolving and still promising tool in environmental decision making generally. We evaluate recent far-reaching suggestions on making this strategy more useful and usable, with particular attention to the generation and use of scientific information beyond the project specific case.
Colonial Law and the Tungabhadra Disputes: Lifting the Veil over the Agreement of 1892
Radha D’Souza
In recent years, Indian interstate water disputes have grown both in number and contentiousness, exacerbating an already fragile federalism. The genesis of these disputes is traceable, in part, to India’s colonial legal history. During the colonial era, interstate water disputes occurred between the Indian States and the British Presidencies. The disputes were both the cause of—and the consequence stemming from—application of English principles of prescription and prescriptive rights to an alien social and environmental context. Colonial law cast social relationships over water within a framework that institutionalized an imperial interest in water. Those same colonial legal principles and statutes continue to define social relationships over water throughout much of India today.
The dispute over Tungabhadra waters and Kaveri waters between Mysore State and the Madras Presidency was one of the earliest interstate disputes to be resolved through an agreement on water sharing. The Agreement of 1892 became the legal basis for regulation of interstate water allocation and continues to govern and influence water-sharing principles between states in post-Independence India.
This article analyses the Agreement of 1892 in order to better understand the role of colonial law in Indian interstate water conflicts. Colonial rule introduced a disjuncture between legal rights of States as set out in treaties, settlements, and other legal instruments and the reality in society as reflected by geographical and historical conditions. Colonial rule introduced conflicting trajectories of economic development, different political structures, and different mixes of traditional and modern technology, and situated those differences within a legal framework that gave the disjuncture its structure. Indeed, India’s early experiments in colonial water regulation have had lasting structural implications for water use throughout the country.
The Case of Markets versus Standards for Pollution Policy
Peter Berck & Gloria E. Helfand
Market-based incentives (MBI) for pollution control (pollution taxes, subsidies for abatement, and marketable emissions permits) have gained attention and increased in use in recent years, due to their potential for achieving the same emissions goals as traditional “command and control” (CAC) (also known as standards) approaches at lower cost. This article reviews the evidence of the superiority of MBI relative to CAC. While MBI will achieve a specified emissions level at lower cost, their ability to achieve the same environmental effectiveness is not always certain, and the “commodification” of the environment associated with MBI raises ethical concerns among some.
Species Concepts and the Endangered Species Act: How a Valid Biological Definition of Species Enhances the Legal Protection of Biodiversity
Anna L. George & Richard L. Mayden
There is no single accepted definition of a “species” in the natural sciences, nor does the Endangered Species Act (ESA) offer one. Instead, prolonged debate over species concepts has allowed various stakeholders to embrace and defend particular definitions based upon personal agendas that may be at odds with the objectives of the ESA. The best approach to arriving at a biologically accurate definition of a “species” is to use a hierarchy of species concepts to compare diversity across all taxonomic groups and not to limit recognition of species to groupings identifiable by humans using one particular technique. Adopting this hierarchy of concepts will provide theoretically sound and empirically testable data enabling the most accurate identification of species-level biodiversity.
Political Mobilization, Venue Change, and the Coal Bed Methane Conflict in Montana and Wyoming
Robert J. Duffy
The emerging conflict over coal bed methane (CBM) exploration and development in the mountain west offers a classic example of what Baumgartner and Jones call a “wave of criticism.” The cozy subgovernments that have dominated energy exploration and development in the mountain states are now under attack and are struggling to maintain their autonomy. Energy exploration, which was once perceived to have only positive consequences, is now the focus of an intense debate that has managed to unite previously warring factions. This article utilizes a comparative assessment of CBM politics in Montana and Wyoming to explain the connection between changing popular and elite perceptions of the issue, institutional change, and policy change.
Water Transfer between North and South Carolina: An Option for Policy Reform
David Franck & Jeffrey Pompe
In recent years, economic development and a severe drought have resulted in conflict between water users in the Carolinas over the flow of the Yadkin–Pee Dee River. Currently, the Federal Energy Regulatory Commission is considering renewal of the licenses of the six North Carolina dams that control water flow into South Carolina. In the present analysis, we provide a simple two-sector model to examine the impact of a water transfer program for the Yadkin-Pee Dee River as one option for policy reform.
Lobato v. Taylor: How the Villages of the Rio Culebra, the Colorado Supreme Court, and the Restatement of Servitudes Bailed Out the Treaty of Guadalupe Hidalgo
Ryan Golten
In 2002, the Colorado Supreme Court ended one of the state’s longest legal battles by announcing that the descendants of individuals who settled the Sangre de Cristo Land Grant in southern Colorado have the right to use the lands within the original Grant. In a shocking ruling, Lobato v. Taylor reversed over 40 years of case law that had rejected local landowners’ claims to these so-called “settlement rights.” The claims dated back to an 1863 document by Charles Beaubien, who received the Grant from the Mexican government in the mid-1800s and documented the rights of the initial settlers to use the resources on the Grant’s mountain tract. Lobato held that the successors of these settlers established implied rights to the mountain tract by prescription, prior use, and estoppel under the modern Restatement of Servitudes. In a significant departure from past land grant decisions from the past century, the court interpreted these common law doctrines broadly in order to honor the original intent of the parties and serve the interests of justice. This equitable approach allowed the court to consider evidence of the settlers’ original expectations, subsequent use of the land, and Mexican legal and cultural norms of the time to interpret the rights established at common law. Lobato provides important tools for vindicating historic rights that trace back to our antecedent sovereigns, and for using the laws and practices of previous regimes to inform these rights under the American common law.
Restoration Policy and Recent Books and Articles on the Topic: Humpty Dumpty and Restoration Policy
Peter Lavigne
Writing about restoration policy is at once both simple and daunting. Simple because a survey of the growing literature on restoration policy and practices shows many common themes. Daunting because the combined projects of many brilliant minds have yet to execute restoration efforts under even a broad collection of consistent principles. Indeed, Leopold biographer and writer Curt Meine suggests that we have not yet reached a point where “restoration policy” even exists.
