Jump to Navigation
Jump to Content


Volume 42, Issue 4 — April 2012


Existence and Persistence: Preserving Subsistence in Cordova, Alaska

by D.S. Pensley

Ordinary existence in Cordova, Alaska, illustrates an extraordinary range of subsistence practice. Despite cataclysmic disruptions to include the arrival of whites and the Exxon Valdez Oil Spill, the practice continues to animate a self-reliant and pluralistic society with a distinct local identity. The National Historic Preservation Act (NHPA) of 1966 is up to the crucial task of protecting subsistence in Cordova. The NHPA directs the federal government “to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations.” Adverse effects to the wild Pacific salmon of the Copper River Basin should trigger the consultative process of NHPA §106, as would be the case under the implementing regulations with any other object of functional, aesthetic, cultural, or scientific value that is on the National Register of Historic Places, or that is listing-eligible. Alternatively,   landscape, even a very large landscape like the Copper River Basin, is analogous to an urban or rural architectural district, and on that basis should be listing-eligible.

Implementing Regional Coastal and Marine Spatial Planning

by Richard G. Hildreth and Lynne M. Nickol

Coastal and marine spatial planning involves a comprehensive approach to ocean management based on science, politics, the environment, and economic
goals. Unfortunately, the needs of the ocean do not follow the arbitrary jurisdictional boundaries that have been drawn between the states, the federal government, and other countries. Due to the interjurisdictional nature of the oceans, an integrated regional plan would significantly benefit the West Coast waters and ocean resources. Through the use of the Compact Clause of the U.S. Constitution, cross-boundary regional coastal and marine spatial planning could be accomplished in a way that would integrate the individual needs of each jurisdiction while still considering the ocean resources on an ecosystem-based scale.

Tradable Standards for Clean Air Act Carbon Policy

by Dallas Burtraw, Art Fraas, and Nathan Richardson

EPA is in the process of regulating U.S. greenhouse gas (GHG) emissions using its powers under the Clean Air Act. The likely next phase of this regulatory program is performance standards under §111 of the Act for coal plants and petroleum refineries, which the Agency has committed to finalize by the end of 2012. Section 111 appears to allow use of flexible, marketbased regulatory tools. One such tool, tradable standards, appears to be a legally and politically viable choice for the Agency, and evidence suggests they are substantially more cost-effective than traditional performance standards.


Will NYSDEC’s Proposed Regulations Prevent the Potential Significant Adverse Impacts of Fracking?

by Sy Gruza

This Article explains the fracking process, how it differs from previous gas drilling processes, and the significance that fracking may have for America’s and New York’s
energy needs. The Article identifies fracking’s most significant potential adverse impacts, and discusses DEC’s evaluation of those potential impacts and proposed mitigation. Finally, the Article briefly considers the legal issues relevant to a municipality prohibiting fracking in its zoning code.

California and the U.S. Department of Energy Take Action to Smooth the Way for Renewable Projects.

by Elizabeth "Betsy" Lake, Madeline Stone, and Doug Karpa

Policymakers at both state and federal levels are likely to continue their efforts to promote renewable energy development in ways both large and small. However, as with
the current set of legislative and regulatory changes, how big an effect these changes will have on the ground will depend on whether projects will be able to take advantage of new streamlining and other benefits. As renewable project proponents seek to avail themselves of the opportunities offered by these legislative and regulatory changes, navigating the way through the various requirements will be increasingly important and require careful legal consideration.

Land Use Law and the Impulse From a Vernal Wood: The Mohonk Trust Case.

by David Sive

Over the course of David Sive's 55 years of practice, he describes the Mohonk Trust case as the most satisfying. In that case, heI was able to combine strategic skills gained from many years of litigating with a cause to which he had long been devoted, that of wild land preservation. The case provided an unusual, but in the authors' view, entirely apt, coupling of legal principles and English romantic poetry.


Toxic Substances Control Act Reform: Chemical Prioritization

by Linda K. Breggin, Peter de la Cruz, Daryl Ditz, Steve Goldberg, Carol Kraege, and Ted Sturdevant

Several key issues have emerged as pivotal in ongoing efforts to reform TSCA. Progress on these complex issues is central to the success of TSCA reform. As part of its ongoing series on TSCA reform priorities and challenges, on October 4, 2011, ELI convened a panel of experts to discuss reform related to prioritizing chemicals for regulation. The panel reviewed current EPA, state, and international initiatives for purposes of assessing the feasibility of various approaches. Topics addressed included criteria (hazard/exposure/risk), procedures for identification of chemicals, and the scope of regulatory authority to require alternatives and other actions.