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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — October 2007


Conflict Resolution for Addressing Climate Change With Ocean-Altering Projects

by Mark J. Spalding and Charlotte de Fontaubert

Editors' Summary: It is often remarked that the global problem of climate change will require local solutions. Wind and wave energy projects are just two examples of alternative energy sources that may slow the effects of climate change, but may also have detrimental effects for the immediate regions in which the projects are located. In this Article, Mark J. Spalding and Charlotte de Fontaubert discuss the challenge of balancing local impacts against global benefits. They begin with a description of the nature of the conflict and identify stakeholders and their interests. They then offer several options for possible conflict resolution strategies, ultimately concluding that a new type of conflict resolution mechanism is needed to balance the conflicting needs of global and local environments.

Ecosystem Services as a Framework for Law and Policy

by Ira R. Feldman and Richard J. Blaustein

Editors' Summary: Law and policy have traditionally lagged behind economics and ecology as fields addressing the value and protection of ecosystem services. Environmental lawyers and policymakers need to work to close the gap in ecologist- and economist-dominated discourse on these vital services. In this Article, Ira R. Feldman and Richard J. Blaustein examine the potential intersections of ecosystem services and law and policy. They discuss how economic considerations like valuation, scale, and uncertainty might figure in the policy opportunities for ecosystem services. And they address how such considerations as taxation and payment arrangements, common-law rights, "constitutive" constitutional rights, and established international legal norms might work to protect ecosystem services.

Foreign Affairs Federalism: The Legality of California's Link With the European Union Emissions Trading Scheme

by Hannah Chang

Editor's Summary: Last year, Tony Blair and Arnold Schwarzenegger signaled their commitment to join the United Kingdom and California in efforts to combat climate change. In this Article, Hannah Chang examines whether California can legitimately join its carbon market to the European Union's emissions trading scheme. She sets forth the foreign affairs federalism considerations that California must address and points to elements of its transnational action that ought to persuade a court to uphold its state legislation in the face of a foreign affairs preemption challenge. She ultimately concludes that California's legislation might well be foreign affairs-preempted, but that this result ought not be inevitable given the unique aspects of California's actions that call for a rethinking of foreign affairs federalism.

Ending Both Forms of Grandfathering in Environmental Law

by Edan Rotenberg

Editors' Summary: Grandfathering is a form of what some tax scholars call transition relief--the payment of compensation for a legal change. Grandfathered polluters and grandfathered emissions permits are both compensations for legal transitions, but the two are fundamentally different. In this Article, Edan Rotenberg defines the two types of grandfathering and exposes the problems these practices pose for environmental law. He begins with some definitions and an overview of compensation. He then questions the efficiency of these types of compensations and explores the political motivations and ramifications for compensation. He concludes by suggesting some possible alternatives to the two types of compensation regimes.

The Continued Highway Requirement as a Factor in Clean Water Act Jurisdiction

by David E. Dearing

Editors' Summary: U.S. courts have consistently ruled that navigable, intrastate waters are not traditional navigable waters unless they form part of a continued highway of interstate commerce. However, for purposes of its permitting duties pursuant to the CWA, the Corps has defined a broader set of traditional navigable waters that includes all navigable, intrastate waters, regardless of whether the waters meet the continued highway requirement. In this Article, David E. Dearing examines the case law supporting the continued highway requirement, including the recent U.S. Supreme Court case, Rapanos v. United States, in order to argue that the Corps has no legal basis for redefining "navigable waters" to encompass navigable, intrastate waters that do not form a continued highway of interstate or foreign commerce. He concludes that navigable, intrastate waters that terminate in a closed basin are within the exclusive domain of the individual states, and that the Corps and EPA lack authority to regulate these waters under the CWA.