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This Month's News & Analysis

Volume 48, Issue 3 — March 2018


Antiquities Act: Legal Implications for Executive and Congressional Action

by James McElfish, Brenda Mallory, Mark Squillace, and Jonathan Wood

Secretary of the Interior Ryan Zinke's review of 27 national monuments has focused new attention on the Antiquities Act of 1906. Two recent proclamations by President Trump reducing existing Utah monuments, and the potential for further actions by the president and Congress, may substantially affect the future shape and effect of this important law. On December 7, 2017, ELI held a seminar to explore presidential and congressional authority in declaring and modifying national monuments. Panelists discussed the Act's legal history, the importance of existing national monuments, the role of Congress in managing these lands, and what might be expected from pending court challenges. Here, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.


Small Critter, Big Problem: Protecting the Pearl River Map Turtle in Mississippi

by Kristina Alexander

Mississippi has 47 animal species federally protected under the Endangered Species Act. That list includes all types of animals, from whales to mollusks, but it does not include the Pearl River map turtle (Graptemys pearlensis). This is notable because the Pearl River map turtle is considered endangered or perhaps critically endangered by the International Union for Conservation of Nature, and trade of the map turtle is restricted by international treaty—the Convention on International Trade in Endangered Species of Wild Fauna and Flora—at the request of the United States. This Comment examines the existing protections for the turtle—state, federal, and international—to demonstrate why ESA protection is still needed to prevent the extinction of this species.

Environmental Rule of Law and the Critical Role of Courts in Achieving Sustainability in Water Resources (Introduction to Judges’ Reflections for the 8th World Water Forum)

by Scott Fulton and Antonio Herman Benjamin

This year’s 8th World Water Forum in Brazil—the largest gathering on this subject, held every three years—will for the first time bring judges and prosecutors together with policymakers from around the world to discuss the precarious state of freshwater resources and the importance of rule of law in achieving water resource objectives. Recognizing this, the Environmental Law Institute, in collaboration with the Global Judicial Institute for the Environment and the International Union for Conservation of Nature World Commission on Environmental Law, is dedicating this section of this issue of the Environmental Law Reporter to marking the symbolic and reflective importance of the role of the judiciary in achieving water justice and ecological sustainability. The Comments we present here—all written by practicing senior judges—speak to the legal and scientific complexity involved in adjudication of water controversies in different jurisdictions, the criticality of rule of law in protecting and maintaining water resources, the central role of the courts in advancing environmental rule of law, and the approaches

Water Justice: The Case of Brazil

by Antonio Herman Benjamin

The main proposition of this Comment, which focuses on the Brazilian experience and the jurisprudence of the National High Court of Brazil (STJ), is that we must develop a water justice system. To some extent, this would be a novel concept, aggregating not just traditional principles of water and environmental law, policy, and management—like the polluter-pays, user-pays, and precautionary principles—but one that would also embrace new and strengthen existing legal perspectives, such as recognition of the intrinsic public nature of water and the principle in dubio pro aqua. These principles must be coupled with the adoption of innovative enforcement mechanisms and institutions, which should include at their core the judiciary, and that are conformed by nature instead of attempting to conform nature.

The Conflict Over the River Atuel in Argentina

by Ricardo Lorenzetti

In a historic ruling that began to shape the solution to a conflict that has been going on for more than 70 years, the Supreme Court of Argentina ordered in 2017 that the province of Mendoza, together with the province of La Pampa, should allocate the water flow of the Atuel River within 30 days in order to enable restoration of the ecosystem that was affected in the northwest of La Pampa by the Los Nihuiles dams. In the ruling, the Argentine high court ordered that the two provinces, together with the national government, submit a work plan for allocation of the waters of the Atuel River. This Comment examines the ruling and offers a reflection on the importance of a paradigm shift in the management of shared water resources.

Is Integrated Water Management on Track in the European Union?

by Luc Lavrysen

Although major progress has been made in water management compared with the sometimes dramatic situation in the 1960s and 1970s, much has still to be done to achieve the ambitious objectives of European Union (EU) water law. Climate change is adding an extra challenge. Additional measures should be taken, and continuous investment in upgrading and maintaining water treatment systems, together with an environmentally friendly management of water systems, will be on the agenda for many years. The judiciary can help to bring closer the realization of those objectives by enforcing the rules that have been enacted on the EU and at domestic levels.

Recent Developments in Environmental Jurisprudence Affecting Water in Africa

by Emmanuel Ugirashebuja

This Comment is a compendium of select recent cases pertaining to water in Africa, and details how these cases have contributed to the interpretation of the legal framework within which water is utilized and protected as a “common good.” The most notable issues dealt with in these cases include the use and protection of water as a common good; how other rights, such as the right to property, interface with the use and protection of water; and important jurisdictional questions on the most appropriate forum for adjudicating water

Climate Change and the Judge as Water Trustee

by Michael D. Wilson

Humanity’s quest to achieve orderly mitigation of and adaptation to climate change is dependent upon the just application of the environmental rule of law—the legal framework that protects and sustains the environment on which life depends. A 3+ degree world of collapsing ecosystems will arrive within the century, unless the environmental rule of law is enforced. This Comment posits that the present framework positions earth’s judges as guardians of the public trust—sworn to protect earth’s water resources from the severe damage that will be caused by heating the earth system two to three degrees above preindustrial levels. Moreover, environmental courts and tribunals are proving to be critical to the world judiciary’s just application of the environmental rule of law to issues of climate change.


Deep Decarbonization and Nuclear Energy

by David A. Repka and Tyson R. Smith

The Deep Decarbonization Pathways Project (DDPP) projects a doubling of U.S. demand for electricity by 2050, even accounting for increased energy efficiency and conservation. In two DDPP scenarios, this demand would be met by significant increases in nuclear, wind, and solar energy by 2050. The High Nuclear Scenario involves more than 400 gigawatts of nuclear, four times current capacity. The Mixed Scenario involves approximately 200 gigawatts of nuclear, or two times current capacity. A sustained national commitment to nuclear energy would be necessary to meet the DDPP goals for either scenario. Advanced technologies exist or are under development that could support a significant, rapid expansion of nuclear energy capacity, but under current conditions, those technologies are not likely to be deployed at the scale required. This Article, excerpted from Michael B. Gerrard & John C. Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (forthcoming in 2018 from ELI Press), highlights various factors that impact nuclear energy, and proposes legal, regulatory, and policy changes to reduce barriers and promote increased use of nuclear generation.

In the Courts

Ninth Circuit strikes down portions of Idaho ag-gag law.

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In the Agencies

EPA issues third round of 2010 SO2 NAAQS designations.

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In the Congress

Coastal-state members introduce multiple OCSLA leasing bills.

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In the States

New Hampshire amends groundwater quality standards.

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