Environmental Law

A journal investigating issues of environment law and policy on a local, national and international level.

Articles from Vol. 23, No. 3, July

A Private Property Duty of Stewardship: Changing Our Land Ethic
I. Introduction The king is dead. Feudalism is dead. Despite their deaths they do not seem well buried. Some hear the cry of their ghosts roaming the land, spreading their message of fear. They trumpet that the safest haven against the tyranny...
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Confronting the Environmental Legacy of Irrigated Agriculture in the West: The Case of the Central Valley Project
I. Introduction On October 30, 1992, just before a presidential election, President Bush signed an important western water measure, the Reclamation Projects Authorization and Adjustment Act of 1992.(1) The legislation contains forty titles, some...
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Environmental Considerations in Hydroelectric Licensing: California V. FERC (Dynamo Pond)
I. Introduction The Ninth Circuit's decision in California v. FERC (Dynamo Pond),(1) is representative of the continuing conflicts between the Federal Energy Regulatory Commission (FERC) and state and federal natural resource agencies within...
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Extending Marsh's "Arbitrary and Capricious" Review to an Initial EIS Decision
I. INTRODUCTION Since its inception in 1970, the National Environmental Policy Act (NEPA)(1) has focused government and public attention on the environmental effects of proposed agency action. NEPA establishes that it is "the continuing policy...
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Introduction and Decision
I. Introduction The taking issue has displayed wilderness characteristics of the dark wood in which Dante became entangled during his legendary descent into the Inferno.(1) The path has been obscured; the compass has been obliterated; and the...
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Lucas: A Flawed Attempt to Redefine the Mahon Analysis
The South Carolina majority in Lucas,(1) in upholding the Beachfront Management Act,(2) reverted to the takings test that prevailed before the U.S. Supreme Court decided Pennsylvania Coal in 1922.(3) Despite the Court's rejection of that test in Mahon,...
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Lucas and Creative Constitutional Interpretation
I participated, to some small extent, in the Lucas case, being on the American Planning Association's Amicus Curiae Committee, which filed a Supreme Court brief in the case. The Court neither followed, nor apparently even used that brief. In fact,...
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Lucas: A Small Step in the Right Direction
I am a little uncomfortable here. I'm not used to having Ed Sullivan so close to me on the left,(1) and I am certainly not used to having Michael Blumm on my right.(2) I am also a little confused by the rules of this panel discussion. The chairman,...
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Panel Discussion
Large - Just to keep it brief, one fact I always thought was curious in Lucas was in the record - it was in the brief and it was argued, but it doesn't come up in any of the opinion - is that to purchase the property he paid $60,000 down and took a...
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Property Myths, Judicial Activism, and the Lucas Case
If you were to put words in my mouth, Professor Huffman,(1) I would fully expect the great environmental goddess in the sky to come down here and strike me down as I speak. You should be comforted to know that, whether I sit on your right or your left,...
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Regulation of Storm Water Discharges under the Clean Water Act
I. Introduction The discharge of storm water into navigable waterways is recognized as a widespread problem responsible for much of the degradation of U.S. waterways. According to the U.S. Environmental Protection Agency (EPA), "pollution from...
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Revolution or Restatement? Awaiting Answers to Lucas' Unanswered Questions
A tremendous amount of effort has gone into analyzing and deciphering Lucas v. South Carolina Coastal Council.(1) One might reasonably ask why; what is it about the Lucas case that's so significant? One thing that might be significant is that this...
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Tenakee Springs V. Franzel and the Tongass Timber Reform Act
In 1992, the Ninth Circuit closed the most recent chapter in a series of cases concerning logging in the Tongass National Forest in Alaska, determining that Congress, in enacting the Tongass Timber Reform Act, remedied the deficiencies alleged by the...
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The Columbia River Gorge National Scenic Area Act
I. Introduction The Ninth Circuit Court of Appeals decided two cases in 1992 interpreting the Columbia River Gorge National Scenic Area Act.(1) In Columbia River Gorge United v. Yeutter,(2) the court considered the first constitutional challenge...
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The Public Interest in Western Water
I. Political History of Western Water In the spirit of this conference, I thought I'd see if I can broaden, just a bit, the issue of title navigability to streams and water resources generally, and give you my view of the public interest as it...
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