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Volume 43, Issue 4 — April 2013

Is Water a Natural Resource in International Watercourses?

by Tarek Majzoub and Fabienne Quilleré-Majzoub

Resource managers, economists, and legal scholars consider water a natural resource. The fundamental tensions raised by the concept of international water management are legal, such as sharing water in international watercourses, conserving permanent sovereignty over natural resources, and trading water in international watercourses actively or shielding it from world market interference. Contemporary natural resource management’s fidelity to historic legal baselines, protecting preexisting national ownership, and shielding water in international watercourses from watercourse states’ interference is increasingly untenable, particularly in light of international watercourse law. Water in its natural state is neither a good nor a natural resource, and the institutions and goals of a natural resource concept must be changed to better reflect a dynamic, integrated world. Dwindling water resources force a radical reconsideration of the aims, features, and criteria of the natural resource concept.


Rethinking Sustainability to Meet the Climate Change Challenge

by Michael Burger, Elizabeth Burleson, Rebecca M. Bratspies, Robin Kundis Craig, Alexandra R. Harrington, David M. Driesen, Keith H. Hirokawa, Sarah Krakoff, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Patrick Parenteau, Melissa Powers, Shannon M. Roesler, and Jonathan Rosenbloom

A group of environmental law professors formed the Environmental Law Collaborative with the goal of engaging environmental law scholars in the thorny issues of the day. The members of the Collaborative gathered in the summer of 2012 to produce an intensive and collective assessment of sustainability in the age of climate change. Their writings examine the process of adapting the principles and application of sustainability to the demands of climate change, including framing the term sustainability in climate change discussions; coordinating sustainable practices across disciplines such as law, economics, ethics, and the hard sciences; and conceptualizing the role of sustainability in formulating adaptation and resiliency strategies. Their work also contemplates the role of law and legal systems in crafting effective climate change adaptation strategies and considers feasible strategies in the context of specific examples.


Demystifying NEPA to Speed the Review and Permitting of Energy Generation and Transmission and Other Projects and Programs

by Judith Lee and Robert Cunningham

Our nation’s infrastructure is deteriorating, damaging our economic growth, security, and environmental quality. Unfortunately, many needed improvements are suffering unnecessary delays from multiple, sequential, and often poorly coordinated federal, state, and tribal reviews, consultations, and approvals. In our experience, controversy, conflict, and delay are often due to a misunderstanding of the intent of NEPA and its contribution to agency planning procedures. Part of its power is its flexibility for integrating the alternative and impact analyses of other environmental laws

Governing on the Edge of Change: A Report From the Next Policy Frontier

by David Rejeski

Strange things—sometime exciting and unexpected things—happen at the edge, a place that can inspire both creativity and craziness. We can be “on edge,” be “pushed to the edge,” or be “on the cutting edge.” As gonzo journalist Hunter Thompson once wrote: “[T]here is no honest way to explain [the edge] because the only people who really know where it is are the ones who have gone over.” But if one can avoid falling off the precipice, edges often provide some unique perspectives on our social, cultural, or scientific landscape. Nature provides important lessons about why this happens.

Tracing U.S. Renewable Energy Policy

by Lincoln L. Davies

Perhaps it is not as exotic as Portugal, but a brief tour of a narrow stretch of the American West provides a remarkably accurate depiction of U.S. energy policy. Get on I-15 and drive southwest from Salt Lake City to southern California. Leave the high mountain desert, its valley of oaks and maples, geometric grids, and charmed streets. Find the palm trees, traffic, beaches, and sun. Between these points, the landscape is a tangible manifestation of our nation’s aims, goals, and aspirations when it comes to energy. Trace this route, and you have traced U.S. energy policy itself.


Oil Pollution Update

by Russ Randle, Trudy Fisher, William T. Hassler, Lois Schiffer, and Courtenay Taylor

Two years after the Presidential Commission’s report on the tragic Deepwater Horizon disaster, much happened in the area of oil pollution law, though only one aspect of the Oil Pollution Act was amended. On January 31, 2013, ELI convened a panel of experts to provide a review of recent OPA litigation, including the BP criminal plea agreement and the issues in the pending civil penalty action. The panel also discussed legislation allocating potential civil penalties and the natural resource damages assessment underway, which features an innovative framework laid out in agreements with NOAA and in settlements with the Gulf states.