Journals
Fall 2007, Vol. 47, No. 4
ESSAY—What Shall We Do with All of This Ground Water?
John Shomaker
A few years ago, a colleague of mine presented our well-researched, logically developed paper at an American Water Resources Association (AWRA) conference. Despite her engaging personality and the merits of the paper, her audience expressed considerable displeasure. The problem was that the paper explored a possibility for making use of a little of the huge, unusable volume of ground water in the Albuquerque-Belen Basin, a scheme that is outside the current paradigm, and people were afraid of it. They may have been right, but maybe the right answer isn’t as easy to come to as it seems. Sometimes it’s good to look beyond the current conventional wisdom.
United States Supreme Court Rules EPA Must Take Action on Greenhouse Gas Emissions: Massachusetts v. EPA
Charles de Saillan
On April 2, 2007, the United States Supreme Court announced its decision in Massachusetts v. EPA, holding that the U.S. Environmental Protection Agency (EPA) had improperly denied a rulemaking petition requesting that the agency place limits on air emissions that contribute to global warming. The petitioners had asked EPA to regulate the emissions of certain greenhouse gases from new motor vehicles under the Clean Air Act. In ruling on the EPA’s denial of the petition, the Supreme Court addressed three issues. First, the Court held that the lead petitioner, the Commonwealth of Massachusetts, had standing to sue for redress of injuries caused by global warming. The Court also ruled that a state acting to protect its quasi-sovereign interests was entitled to “special solicitude” in standing analysis. Second, the Court held that the EPA had the statutory authority to regulate greenhouse gases under the Clean Air Act. Finally, the Court held that the EPA had not adequately justified its denial of the petition in accordance with the statute. The decision sets significant precedent for pending and future litigation on global warming issues.
“Milking” Oil Tankers: The Paradoxical Effect of the Oil Pollution Act of 1990
Inho Kim
In response to the Exxon Valdez incident, the Oil Pollution Act of 1990 was enacted as allegedly comprehensive oil pollution legislation. The Act enforces double-hull requirements for tank vessels in U.S. waters, except designated lightering zones or deepwater offshore oil ports, until 2015. The requirements are efficient in preventing oil spills but suffer from cost ineffectiveness because of the large expenditures associated with them. In response to the increase in capital and operating costs, the shipping industry has changed its operation patterns to take advantage of cost-efficient older single-hull tankers in U.S. waters. In particular, the retirement deadlines of single-hull vessels under the Act have had the paradoxical effect of encouraging tanker owners to “milk” their vessels up to the end of their legal economic lives. The Act has led to an unexpected and undesirable situation in controlling oil pollution risks, which calls for taking appropriate measures to ensure the adequate operation of the older single-hull vessels.
Protecting the World’s Largest Body of Fresh Water: The Often Overlooked Role of Indian Tribes’ Co-Management of the Great Lakes
Jacqueline Phelan Hand
It has been said that water will be the oil of the twenty-first century in that struggles to acquire or retain water will be the primary factor in diplomacy and military aggression and in economic growth and decline. The struggle to acquire or retain water will be important in both the national and international arenas. The recent development of the Great Lakes Compact and Agreement provides an instructive example of cooperative efforts to create mechanisms to manage water and the amenities it provides. The development of these agreements also provides a paradigmatic example of the tendency of the dominant culture to ignore or marginalize the legitimate claims of indigenous people, in this case Native Americans, to the resource. This article sets forth the background for the Compact as well as explaining the process under which eight states and two provinces reached agreement on an approach to protect the water in place. It also explains the legal basis for the claims of Native Americans to the water and their history of success in managing the resource, as well as the way they were effectively shut out of the negotiation process. Finally, the article explains the practical and legal approach the tribes used to assert their rights while focusing on the protection of this resource for all, Indian and non-Indian alike.
Building Social Capital in Forest Communities: Analysis of New Mexico’s Collaborative Forest Restoration Program
Tyler Prante, Jennifer A. Thacher, Daniel W. McCollum & Robert P. Berrens
In part because of its emphasis on building social capital, the Collaborative Forest Restoration Program (CFRP) in New Mexico represents a unique experiment in public lands management. This study uses logit probability modeling to investigate what factors determined CFRP funding decisions, which totaled $26 million between 2001 and 2006. Results reveal program preferences for projects that encourage collaboration and improve forest health, especially in poor counties. Negative determinants of funding include measures of small-diameter material utilization and whether a project takes place across multiple land jurisdictions. There is no evidence of bias toward funding any particular applicant type or land jurisdiction.
Alternatives for Restoring the Colorado River Delta
Kevin G. Wheeler, Jennifer Pitt, Timothy M. Magee & Daniel F. Luecke
The ongoing debate over the management, protection, and restoration of the Colorado River Delta near the U.S.-Mexico border can be informed by quantifying the effects of restoring flows to the Delta. The once-vibrant Colorado River Delta was nearly decimated by the construction of dams and diversions in the United States and Mexico. However, flood management, inadvertent releases from upstream reservoirs, and agricultural return flows partially restored the Delta in the 1980s and 1990s. Recent research estimates the Delta’s freshwater needs—to sustain native riparian forests and associated wetlands—at 50,000 acre-feet annually (commonly referred to as baseflows), plus occasional flood flows (one in four years) of at least 260,000 acre-feet in May and June. If this need were to be regularly met, what would be the impact on existing water uses? This article documents a collaborative study to examine various alternative scenarios for delivering the estimated minimum freshwater flows needed to sustain the Delta ecosystems. Using the Bureau of Reclamation’s Colorado River Simulation System (CRSS) model, this article presents the hydrologic differences of several alternative assured sources of baseflows and flood flows, including system water releases, market-based mechanisms, and various combinations of the two. In addition, we considered one alternative that does not fully meet the minimum requirements during shortage conditions (defined by a low elevation of water in Lake Mead). Alternatives were studied specifically to determine their effects on Colorado River water storage and deliveries, with particular attention to changes in water available to current consumptive users. On one extreme, making additional system water releases for the Delta from Lake Mead would reduce expected deliveries in Arizona by 2.7 percent, in Nevada by 1.7 percent, and in California by 0.2 percent by the year 2060. In contrast, leasing water from existing uses for the Delta could have a slightly beneficial effect on other existing uses in the United States. This article does not seek to advocate one particular alternative over another, but to provide an understanding of the impacts of these alternatives.
The Efficacy of State Law in Protecting Native American Sacred Places: A Case Study of the Paseo Del Norte Extension
Samantha M. Ruscavage-Barz
This article explores the legal and political history of the Paseo Del Norte extension through Petroglyph National Monument in Albuquerque, New Mexico. The underlying theme is protection of Native American sacred sites on public land and how the law can help or hinder protection.
Connection Lines: Re-Defining Western and U.S. Environmental Policy: A Review Essay
Peter Lavigne
The American West as a region has always been iconic and defined by images of opposites: cowboys and Indians; rogues, ruffians, and heroes. In the late twentieth and now the twenty-first centuries, a re-definition and re-thinking of conservation, environmentalism, and the West as a region is occurring. In contrast to the clearance of the “red man” in the name of progress so bluntly proclaimed in the 1930s film “The Plow That Broke the Plains,” the re-definition of a complex and more interesting West includes the re-emergence of native people’s power and re-invigorated re-emerging cultures, as well as a more complicated set of battles over the landscape, culture, and future of the region.
In an extraordinary set of books published in the last few years, these new themes are elucidated in a series of connection lines or, as Curt Meine posits, Correction Lines, the “place[s] where theory and reality meet.” These correction lines are also reflected in the themes of reconnection, restoration, and abolition in Chip Ward’s solution-seeking book Hope’s Horizon: Three Visions for Healing the American Land. We see these same themes in Paul VanDevelder’s tale Coyote Warrior: One Man, Three Tribes and the Trial That Forged a Nation. Finally, the connection and correction lines reach deep into the Southwest with John Sherry’s tale of the evolution of Diné CARE, a Navajo organization dedicated to protecting Navajo culture and the environment, and the mysterious and still unsolved murder of Diné activist Leroy Jackson in 1993 in Land, Wind and Hard Words: A Story of Navajo Activism.
