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Volume 45, Issue 9 — September 2015


Federal Environmental Permitting of Offshore Aquaculture: Coverage and Challenges

by Read Porter and Rebecca Kihslinger

Aquaculture is an important and growing element of the domestic and international food supply; however, the industry has grown slowly in the United States, where offshore facilities remain rare despite recent interest in deploying new facilities. Commentators have blamed this situation on a complex regulatory environment and unsettled regulatory practice. The authors argue, to the contrary, that the existing statutory and regulatory framework is sufficiently robust to effectively manage the environmental impacts of offshore aquaculture, and sufficiently flexible to enable agencies to address critical impacts. On the other hand, implementation is a primary challenge affecting offshore aquaculture permitting and sustainability. Implementation issues may currently constrain the industry, but can be overcome through institutional development and capacity-building.

Habitat Conservation Plans and Climate Change: Recommendations for Policy

by Melinda Taylor and Holly Doremus

Habitat conservation plans (HCPs) are critical tools for managing species and their habitats. Climate change poses special challenges for successful habitat conservation planning, but there are several steps to take to address these challenges. Key provisions in government regulations and guidance are at odds with considering climate change in HCPs, and revisions are recommended, including reliance on adaptive management. By looking to these recommended best practices, habitat conservation planning can be strengthened not only to address climate change, but to better reflect the changing context and environment in which HCPs must be implemented.


Field Notes From the Far East: China’s New Public Interest Environmental Protection Law in Action

by Yanmei Lin and Jack Tuholske

On May 15, 2015, the Nanping Intermediate People’s Court in Fujian Province conducted the first-ever Chinese trial involving environmental civil public interest litigation. The case, which concerned resource destruction and environmental restoration related to an illegal mining site, was heard under China’s new Environmental Protection Law, a strongly worded mandate that includes, among other potentially far-reaching provisions, a right of standing for nongovernmental organizations to bring environmental cases. While China’s long-term commitment to environmental protection through judicial action is not yet clear, this case, and others still pending, may one day be seen as a pivotal turning point in Chinese environmental litigation.

A Role for Interstate Compacts in Coastal Resilience and Climate Change Mitigation

by Michael Curley

Interstate compacts are legal tools that can help states address the increasing number of extreme weather events they face. This Comment discusses how interstate compacts have already been used to deal with such collective problems and will point out additional roles that they can play.

CERCLA Settlements in an Age of Uncertainty: Fallout From Ameripride Services v. Texas Eastern Overseas

by Barry M. Hartman, Christopher A. Jaros, and Elizabeth M. Elliott

In April 2015, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Ameripride Services, Inc. v. Texas Eastern Overseas, Inc., that could significantly impact private parties’ settlement strategy at multiparty sites subject to CERCLA. The court held that courts have discretion under CERCLA §113(f)(1) to determine, based on the facts of the particular case, the most equitable method of accounting for settlements between private parties in a contribution action, and thus can choose the proportionate share approach adopted by the Uniform Comparative Fault Act, the pro tanto approach adopted by the Uniform Contribution Among Tortfeasors Act (UCATA), or something different. But the Ninth Circuit decision is in direct conflict with Akzo Nobel Coatings, Inc. v. Aigner Corp., a 1999 U.S. Court of Appeals for the Seventh Circuit decision holding that courts must use the pro tanto approach under the UCATA, and further widens the split among various circuit courts over which approach is appropriate under CERCLA. Until the circuit split is resolved, responsible parties deciding when and how to settle third-party contribution claims should carefully consider the law of the circuit where the property is located, as the different approaches may require significantly different settlement strategies.


Working Landscapes: The Future of Land Use Policy?

by Marc Miller, Thomas E. Sheridan, Susan Charnley, Christy Plumer, Jim Lyons, and Tom Martin

The history of land use in the American West has traditionally been one of conflict, but the divisive relationships between ranchers, foresters, land management agencies, recreational users, and conservationists are transforming. Grassroots coalitions have developed among unlikely allies. Together, they are advocating for management approaches that incorporate local knowledge, community needs, and sound environmental stewardship. This “collaborative conservation” is especially appropriate for promoting the conservation of working forests and rangelands, which are critical for maintaining the ecological and economic health of rural communities and landscapes in the American West. Recognizing this revolution in land management, a group of scholars, agency staff, landowners and managers, and leaders of community-based conservation groups compiled case studies, thoughtful observations, and policy recommendations in a new book, Stitching the West Back Together. On December 8, 2014, the editors of the book and stakeholder group representatives convened at an Environmental Law Institute seminar to provide a dynamic overview of the issues. This Dialogue presents a transcript of the event, which has been edited for style, clarity, and space considerations.