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Volume 37, Issue 12 — December 2008

Articles

Delisting Wolves: Are the Western Great Lake States Ready?

by Edward Fitzgerald

Editors' Summary: The recent ESA delisting of gray wolves in the Western Great Lakes region has challenged the states in that region to develop wolf management plans to protect the species. Michigan, Minnesota, and Wisconsin are at the forefront of efforts to develop comprehensive wolf conservation plans. In this Article, Edward Fitzgerald discusses the case of the gray wolf and its delisting in this region. He begins with a history of gray wolf protection, then examines the delisting and the development of wolf management plans in the region. He concludes with an analysis of the wolf management plans themselves, identifying their funding sources as well as other challenges the states face in implementing their plans.

A Ringmaster for the Circus: Using Interstate Compacts to Create a Comprehensive Program to Restore the Chesapeake Bay

by Matthew L. Paeffgen

Editor's Summary: Efforts to protect and restore the Chesapeake Bay began as early as the 1970s, but the agencies and organizations working on the issue lack direction, coordination, and cohesion. As a result, progress toward protecting the bay and its watershed has been slow, while the threat of interstate pollution has grown. In this Article, Matthew L. Paeffgen offers a solution to increase the effectiveness of Chesapeake Bay protection efforts: the interstate compact. Paeffgen begins by describing the state of the bay, and then discusses how the federal common law of interstate nuisance provided a remedy for interstate pollution in the past, and how subsequent judicial interpretations foreclose this option. He then reviews interstate compacts and their use to address environmental issues, as well as compacts currently operating in the Chesapeake Bay watershed. He closes with a description of how to structure a new interstate compact to focus current, scattered efforts into a cohesive movement.

What's Wrong With Dumping Radioactive Wastes in the Ocean? The Surprising Ethical and Policy Analysis Implications of the Problem of Person-Altering Consequences

by Gregory Scott Crespi

Editor's Summary: A commonly cited rationale for environmental protection is the ethical obligation to protect the planet and its resources for the

use and enjoyment of future generations. However, as Gregory Scott Crespi argues in this Article, this rationale, if based on conventional ethical premises, is misguided. He explains that policy decisions have person-altering consequences, meaning that any decision made in the present will eventually cause entirely different future generations to be born than if the decision were made differently. Thus, we have no ethical obligations to future generations distant enough from us in time for their members to all have had their genetic identities significantly altered by those person-altering consequences, since any policy that we might pursue would be endorsed by those future persons since it would be a necessary condition of their existence.

Marine Aquaculture: A Growing Business

by Panel discussion

Editors' Summary: On February 6, 2007, the Environmental Law Institute hosted a seminar to discuss the environmental implications of the growing business of marine aquaculture. This seminar was the fifth event in the Oceans seminar series. After the moderator offered introductions, the panelists discussed a range of issues, including the current environmental challenges facing aquaculture, laws and policies that regulate existing aquaculture practices, and expanding and emerging sectors such as offshore aquaculture. The seminar concluded with a question-and-answer period. Below is a transcript of the event. [Transcribed by ACE Transcription Service, Washington, D.C. The transcript has been lightly edited, and citations have been added, for ease of reading.]

<i>Garamendi</i>'s Unspoken Assumptions: Assessing Executive Foreign Affairs Preemption Challenges to State Regulation of Greenhouse Gas Emissions

by Kimberly Breedon

Editor's Summary: In 2003, the U.S. Supreme Court issued its most recent pronouncement on the executive foreign affairs preemption doctrine in American Insurance Ass'n v. Garamendi. In this Article, Kimberly Breedon argues that lower courts are prone to overbroad applications of Garamendi because the Court assumed the presence of three elements when it developed the standard for executive foreign affairs preemption of state law: (1) formal source law; (2) nexus to a foreign entity; and (3) indication of intent by the executive to preempt the state law under challenge. She concludes that unless these three elements are present, courts need not even reach the question of whether a law is preempted under the Garamendi test.