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Volume 38, Issue 9 — September 2008


Law and Climate Change: Government's Atmospheric Trust Responsibility

by Mary Christina Wood

Editor's Summary: Mary Christina Wood delivered this presentation on February 19, 2008, as part of the University of Montana Wilderness Institute Lecture Series: Climate Change: Moving From Science to Solutions. She begins by describing the urgency of climate change and government's failure to address the problem. She then explains a legal principle that she hopes can catalyze the kind of paradigm shift needed to confront the crisis. Finally, she concludes with a call to citizenship that she hopes her audience will deliver to families, workplaces, churches, and schools.

Green Governance: Building the Competencies Necessary for Effective Environmental Management

by LeRoy C. Paddock

Editors' Summary: In this Article, LeRoy C. Paddock examines the issue of green governance by looking at several of the changes that are driving the need for new approaches, the long series of studies calling for reform in environmental governance, and four case examples involving impaired waters, urban ozone and particulate pollution, brownfields rehabilitation, and nanotechnology. He concludes with suggestions about how to more effectively integrate economics-based and values-based tools into the way government approaches environmental problem solving.

EPA's New Tribal Strategy

by David F. Coursen

Editor's Summary: In 1984, EPA became the first federal agency to adopt an Indian policy. Congress subsequently affirmed the policy by authorizing the Agency to treat Indian tribes as states under the SDWA, the CWA, and the CAA. EPA's adoption of a common-law inherent authority test to determine jurisdiction under the statutes spawned a treat-as-states (TAS) process that requires a detailed review of factual information about each tribe. In this Article, David Coursen examines the complexity of EPA's jurisdictional analysis and evaluates whether EPA's new TAS strategy will ultimately be successful in addressing delays in these decisions.

Fitting a Square Peg in a Round (Drill) Hole: The Evolving Legal Treatment of Coalbed Methane-Produced Water in the Intermountain West

by Colby Barrett

Editors' Summary: Groundwater resources in the intermountain West (Colorado, Montana, New Mexico, Utah, and Wyoming) continue to dwindle while populations expand. In the 1950s, states set up oil and gas conservation commissions to regulate the disposal of small amounts of highly saline water produced during conventional oil and gas extraction. Beginning in the mid-1980s, however, energy producers began extracting methane trapped in coal seams too deep to mine conventionally. Today, this coalbed methane (CBM) comprises nearly 10% of total domestic natural gas production. To extract CBM, large quantities of often high-quality water must be removed and disposed. Traditionally, that water is exempted from western states' groundwater laws requiring it to be beneficially used and subject to senior uses. But states are now recognizing this produced water should not belong in the regulatory schemes of mining waste governed solely by state oil and gas conservation commissions. In this Article, Colby Barrett examines Colorado's recent shift from the byproduct waste model to a groundwater resource model and proposes specific legislative changes that would integrate mining-produced water into western water law.