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Volume 36, Issue 3 — March 2006


Restoring the Abundant Trust: Tribal Litigation in Pacific Northwest Salmon Recovery

by Mary Christina Wood

Editors' Summary: Tribal fishing economies that survived thousands of years are now on the brink of collapse. Tribal harvest in the Columbia Basin today is less than 1% of what it was in aboriginal times, and in the Puget Sound region, tribal harvest has plummeted 90% from levels in the mid-1980s. Native American tribes, therefore, are now forcing the courts to confront the issue. In this Article, Prof. Mary Christina Wood explores three pending cases in which tribes are seeking protection of their fisheries in the Pacific Northwest. In these cases, tribes are asking courts either to recognize their unique trust-based property rights to the natural capital sustaining fish, or to enforce the ESA in a more meaningful way. Although the cases rest on different legal theories, they all ask the courts to protect the natural capital on which their fishing livelihood depends, a livelihood they were promised long ago when they ceded their lands to the federal government.

Comparative Analysis of Air Pollution Trading in the United States and China

by Heather Jarvis and Wei Xu

Editors' Summary: As in the United States, acid rain is becoming quite problematic for the People's Republic of China. Unlike the United States, however, China does not have a comprehensive trading program for controlling sulfur dioxide (SO2), a primary cause of acid rain. After comparing the different legal regimes of China and the United States, Heather Jarvis and Wei Xu examine the U.S. acid rain SO emissions cap-and-trade program. They then make several recommendations for a similar program in China, taking into account the composition of market participants, the decisionmaking powers of participants, and the role of central government. They conclude that despite the political, economic, and social differences between these two nations, China can learn from the U.S. experiences and implement a highly successful cap-and-trade program of its own.

From the Fields of Runnymede to the Waters of the United States: A Historical Review of the Clean Water Act and the Term "Navigable Waters"

by William W. Sapp, Tracy L. Starr, and M. Allison Burdette

Editors' Summary: This spring, the U.S. Supreme Court will be deciding two very important wetlands cases. In both, the Court is asked to decide whether the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency exceeded the bounds of the CWA by claiming jurisdiction over certain wetlands or, alternatively, whether such jurisdiction violates the Commerce Clause of the U.S. Constitution. As a preview to what the Court will find in determining the jurisdictional reach of the CWA, this Article examines the legislative history of the CWA and its various precursors, as well as the term "navigable waters." The authors conclude that the CWA, as enacted in 1972 and as amended in 1977, was intended to encompass all the nation's waters, including wetlands, with the exception of truly isolated intrastate waters.

A Nexus Runs Through It: Wetlands, Hydrological Connections, and Federal Jurisdiction in the Post-<i>SWANCC</i> World

by Jack Kerns

Editor's Summary: The U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) has certainly caused much confusion about the exact contours of wetlands jurisdiction. In this Article, Jack Kerns reviews the circuit and district court decisions that followed SWANCC and their development of the "hydrologic connection" test. He then asks whether groundwater can serve as a jurisdictional basis for wetlands as "waters of the United States." This issue is fraught with uncertainty, as groundwater cannot be readily observed. Nevertheless, the author concludes that with proper documentation and field verification, the answer may be yes.

U.S. Supreme Court Review of <i>Rapanos v. United States</i> and <i>Carabell v. United States Army Corps of Engineers</i>: Implications for Wetlands and Interstate Commerce

by William Want

Editor's Summary: The exact contours of wetlands jurisdiction has been in dispute ever since the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. Today, the Court has been given the chance to clarify this area of law as it faces two cases dealing with wetlands jurisdiction. In Rapanos v. United States, the Court must decide whether CWA jurisdiction extends to a series of wetlands that do not abut a navigable-in-fact water. And in Carabell v. U.S. Army Corps of Engineers, the issue is whether CWA jurisdiction can extend from a navigable-in-fact water over a man-made berm to an adjacent wetlands when there is no demonstrated hydrologic connection between the two waters. In both cases, if the answer is yes, the Court must also decide whether Congress has the authority to extend federal jurisdiction to such waters under the Commerce Clause. In this Article, Prof. William Want examines these two cases in light of the CWA and Court precedent, and expresses his view on how these cases should be resolved.