Natural Resources Journal Current Issue

Fall 2014, Vol. 55 No. 1

As oil and gas development increases in western states, states are responding at different speeds to protect human health and the environment. Colorado and Wyoming are recognized as having taken relatively early action to regulate air pollution emissions from oil and gas development, with Wyoming adopting its first sector-specific requirements in 1999. In contrast, New Mexico and Utah have been relatively slow to act. Furthermore, the U.S. Environmental Protection Agency did not adopt emissions standards for most oil and gas production activities until 2012, when it relied on Colorado and Wyoming as proving grounds for control technology. The regulatory history in these four western states shows that concern about ozone nonattainment was an important driver for control requirements in Colorado and Wyoming. These two states also have a history of relatively stringent pre-construction permitting requirements for small sources. In some areas, National Environmental Policy Act requirements for cumulative impact assessment drove adoption of tighter controls to mitigate impacts of growth. Moving forward, federal emissions standards will even out control requirements for new sources across the western states. However, control efforts that go beyond the 2012 federal standards will likely be needed in ozone nonattainment areas in western Wyoming, northeastern Utah, Colorado’s Front Range, and in Indian Country. Further efforts will also be needed to address greenhouse gas emissions including methane.

This article explores how the designation of critical habitat under the Endangered Species Act provides an opportunity for landscape-level planning to conserve species. The Act’s requirement to designate critical habitat has generated considerable controversy. Some question its utility, including even those who aggressively pursue species conservation. Other industry and local communities challenge the economic analyses accompanying designations. For many years, designating critical habitat only occurred after litigation, well after the Act suggests designation. The general malaise surrounding the program, therefore, is well documented. Yet policy-makers and scholars shy away from crafting innovative proposals for resolving the principal issues hovering around the critical habitat program. This article fills that gap by examining those problems and suggesting how each of the primary issues can be resolved. The critical habitat program should change to reflect the Act’s objective: securing landscape- level management prescriptions to promote species conservation. The article refers to this new approach as “An Integrated Critical Habitat Recovery Program.”

New water development projects in China threaten the environment of international rivers. Chinese law, however, does not require developers to assess the effects of proposed projects on the environment outside China’s borders. Nevertheless, examples of transboundary cooperation and international agreements provide a basic legal foundation that allows China to implement transboundary environmental impact assessments (TEIA) as a standard practice. This article explores China’s customary law obligation to conduct TEIA by examining relevant treaties and instances of joint action. The article finds that a basic legal structure is already in place to support carrying out environmental impact assessments in a transboundary context, particularly regarding China’s shared water resources, and concludes that this legal foundation could help move China toward implementing full TEIA procedures.

Water markets form differently across the western United States, depending on the relative importance of water supply uncertainty and impediments to water transfers. In many locations, trades take the form of short-term leases of water, allowing the underlying property rights to remain unaffected. In other regions, water right transfers predominate. We quantify the relative effects of economic, hydrologic, and state-level institutional variables on a water agency’s decision whether to lease or purchase water rights. Econometric analysis of 3,806 transactions reported in the Water Strategist over 1990 supports the conclusion that market structure varies across states in accordance with local hydrologic and economic conditions. These conditions call for alternative forms of economic organization to achieve efficiency.

One of the missing oil and gas jurisdictions in the world for private participation was finally opened when the Mexican government reformed its constitution and congressional laws last December 2013 and August 2014. Now, the private sector will be able to participate in the exploration, extraction, refining, transportation, storage, distribution, and commercialization of petroleum and its by-products through (i) contracts to be granted by the National Hydrocarbons Commission, and/or (ii) permits to be granted by the Ministry of Energy or the Regulatory Energy Commission. These are important modifications not only for the Mexican oil and gas industry, but also for the local and foreign private industry. These modifications will be analyzed throughout this article with the purpose of explaining the (i) background of petroleum regulation in Mexico; (ii) modifications made to the Mexican Constitution and the legal protection to be provided to foreign participants; (iii) the new legal system applicable to the private sector in each phase of the industry and the potential for foreign investment; and (iv) the new status and role of the national oil company, “Petroleos Mexicanos,” and its potential joint ventures with private companies.

After reaching water rights settlements, a number of Native American tribes find themselves with rights to more water than their reservations or pueblo communities presently need. As climate change exacerbates drought conditions in the western United States and demand for water increases, some tribes have leased these surplus water rights to public and private, non-Indian, users. Theoretically, this could be a boon for tribes, although the extent of the economic impact of water leasing is difficult to assess without an examination of each individual water lease. This paper attempts to illustrate the economic impact of Indian water rights leasing anecdotally, by examining the leasing efforts of one particularly successful tribe, the Jicarilla Apache Nation in northern New Mexico.

The Migratory Bird Treaty Act (MBTA), almost a century old, incites disagreement between conservationists, wind energy developers, and the courts. The MBTA protects over 800 bird species but unlike other conservation laws, the MBTA and its regulations do not provide for “incidental takes” (an unintentionally caused bird death or injury). In the absence of an incidental take permitting program, the United States Fish and Wildlife Service (FWS) developed the voluntary Land-Based Wind Energy Guidelines to reduce wind energy impacts on migratory birds. A circuit court split exists on whether a wind energy developer violates the MBTA when a bird is killed or injured during an otherwise lawful activity. The current situation is flawed. This article presents a solution that benefits both birds and wind energy development. FWS should use its “special purpose permit” to require commercial actors to engage in thoughtful pre-construction siting and mitigation in exchange for incidental takes.