Tag: water

Subsidies with Responsibilities: Placing Stewardship and Disclosure Conditions on Government Payments to Large Scale Commodity Crop Operations

By Linda Breggin and D. Bruce Myers Jr.

The last century marked a sea change in the way agricultural operations are conducted. This “industrialization” of agriculture has significantly increased efficiency and yields, but it also has generated — as an unintended byproduct — pollution. The pollution resulting from commodity crop operations can have harmful effects locally and downstream. Typically, when the production of a good generates adverse environmental effects, the firm that profits from the activity is required to minimize the impacts. This is rarely the case in the agriculture sector, which is exempt from key provisions of the federal environmental laws. As a result, the harms are externalized and the public bears the pollution costs. The federal taxpayer also supports the agricultural sector through myriad farm subsidy programs. Large-scale farms — those with annual sales of $500,000 or more — represented six percent of U.S. farms in 2009 but received more than half of government commodity payments. These subsidy recipients typically are not required as a condition of receiving payments to implement measures that will protect the environment from pollution generated by on-farm activities. The authors present two recommendations for reform, neither of which would require additional federal subsidy payments. First, large-scale commodity crop operations that opt to receive any form of federal farm subsidy should assume responsibility for implementing a set of baseline stewardship measures to reduce nutrient pollution. Second, these same farms should report on the quantity, type, and timing of fertilizers they apply.

Cite as: Linda Breggin and D. Bruce Myers Jr., Subsidies with Responsibilities: Placing Stewardship and Disclosure Conditions on Government Payments to Large Scale Commodity Crop Operations, 37 Harv. Envtl. L. Rev. 487 (2013).

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Sackett v. EPA

By Turner Smith and Margaret Holden

The Supreme Court has historically maintained a complicated, tumultuous relationship with Clean Water Act cases. However, on March 21, 2012, the Court aligned in rare form to issue a unanimous, clear opinion in Sackett v. EPA. The decision establishes Administrative Procedure Act judicial review for Administrative Compliance Orders under the Clean Water Act. This Comment argues that while the decision changes the face of Clean Water Act enforcement law, it does so without affecting other administrative or environmental laws and with virtually no practical effect on Clean Water Act enforcement programs.

Cite as: Turner Smith and Margaret Holden, Comment, Sackett v. EPA, 37 Harv. Envtl. L. Rev. 301 (2013).

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Ocean Governance for the 21st Century: Making Marine Zoning Climate Change Adaptable

By Robin Kundis Craig

The variety of anthropogenic stressors to the marine environment — including, increasingly, climate change — and their complex and synergistic impacts on ocean ecosystems testifies to the failure of existing governance regimes to protect these ecosystems and the services that they provide. Marine spatial planning has been widely hailed as a means of improving ocean governance through holistic ecosystem- based planning. However, that concept arose without reference to climate change, and hence it does not automatically account for the dynamic alterations in marine ecosystems that climate change is bringing.

This Article attempts to adapt marine spatial planning to climate change adaptation. In so doing, it explores three main topics. First, it examines how established marine protected areas can aid climate change adaptation. Second, it looks at how nations have incorporated climate change considerations into marine spatial planning to increase marine ecosystem resilience, focusing on the international leader in marine spatial planning: Australia. Finally, the Article explores how marine spatial planning could become flexible enough to adapt to the changes that climate change will bring to the world’s oceans, focusing on anticipatory zoning. Governments, of course, can establish marine zoning governance regimes in anticipation of climate change impacts, as has already occurred in the Arctic. However, drawing on work by Josh Eagle, Barton H. Thompson, and James Sanchirico, this Article argues that governments could also combine anticipatory zoning and comprehensively regulated marine use rights bidding regimes to encourage potential future private users to make informed bets about the future productivity value of different parts of the ocean, potentially improving both our ability to anticipate climate change impacts on particular marine environments and the ocean governance regimes for climate-sensitive areas.

Cite as: Robin Kundis Craig, Ocean Governance for the 21st Century: Making Marine Zoning Climate Change Adaptable, 36 Harv. Envtl. L. Rev. 305 (2012).

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In re: Oil Spill by the Oil Rig “Deepwater Horizon”

By Brendan Selby

This Comment discusses the ongoing litigation arising from the oil spill around the Deepwater Horizon rig. In particular, it analyzed the causation standard for claims for pure economic loss against the background of maritime common law and OPA’s economic loss provision, which most courts have found to eschew the common law pure economic loss rule. Following the lead of this existing case law, the August 26, 2011 In re: Oil Spill order held that, under maritime common law, pure economic loss claimants in the Deepwater Horizon litigation (excepting fishermen) have no available remedy. However, the order found that OPA expanded the scope of compensable claims beyond the pure economic loss rule. The question is how far, and specifically, what kind of causal relationship must be shown between economic injury and physical damage or loss. Case law suggests that the courts should not blindly import a full-fledged proximate cause analysis into the economic loss provision, but neither should they abdicate their traditional role in formulating fair and reasonable limitations on liability.

This Comment then evaluates competing interpretations of the causation standard contained in OPA’s economic loss provision. The use-right requirement would prohibit recovery for economic loss unless the claimant has “a right physically to obtain or use property or resources that are damaged or lost because of an oil spill.” This requirement provides a (relatively) simple and categorical test, but it is overly inflexible and inconsistent with the best plain language reading of the statutory provision. A factual cause requirement — in the heightened form proposed by Professor Robertson — would make recovery for economic loss dependent on showing that the injury would still have occurred in an imagined world where the spill caused no physical damage. Professor Robertson’s reading departs both from the everyday usage of causation language and from the presumption that Congress would have given a clearer indication had it intended to completely overrule the traditional discretion judges have to define the “harm within the risk” contemplated by the statute. Moreover, it is not reasonable to suppose that Congress intended to create a strange counterfactual that asks fact-finders to speculate whether the economic damages would have occurred under completely different and unrealistic circumstances, i.e., an equally massive spill that somehow causes no physical loss or damage. His test would be exceptionally hard to apply, and would produce strange and, in some cases, unfair results.

Finally, this Comment suggests that a fair and workable alternative to these positions supported by OPA’s language would require that economic loss claimants show that the spill deprived them of the benefit of real property, personal property, or a natural resource that was reasonably necessary for claimant’s commercial activity, including production or sale. Looking beyond the context of the oil spill, if a commercial needs requirement were to succeed in producing equitable outcomes in a litigation as diverse as the Deepwater Horizon MDL, it should lead courts to consider abandoning the strict requirement that pure economic loss claimants (except commercial fishermen) show a proprietary interest. In at least some cases not currently recognized by the common law, courts should protect reasonable investment-backed interests in property or resources needed for commercial activity, regardless of who owns them.

Cite as: Brendan Selby, Comment, In Re: Oil Spill by the Oil Rig “Deepwater Horizon” on the Gulf of Mexico, on April 20, 2010, Order, Aug. 26, 2011, 36 Harv. Envtl. L. Rev. 533 (2012).

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The Dormant Commerce Clause and Water Export: Toward a New Analytical Paradigm

By Christine A. Klein

Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska ex rel. Douglas. Determining that groundwater is an article of commerce, the Court held invalid under the dormant Commerce Clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas has challenged Oklahoma legislation limiting water exports, and as Wind River L.L.C of Nevada has contested the denial of its application for a permit to acquire water from Arizona.

This Article examines the dormant Commerce Clause as it applies to water export. It argues that Sporhase asked the wrong question, transplanting a relevant issue from the context of the affirmative Commerce Clause — whether water is an article of commerce — into the context of the Clause’s dormant aspect. Observing that the U.S. Supreme Court has not addressed the issue of water export regulation directly for more than twenty-five years, this paper suggests three ways in which the Court can bring its water cases into doctrinal harmony with its modern dormant Commerce Clause jurisprudence. In so doing, this Article develops a new analytical paradigm, the “water continuum,” that respects the nuances of state water law and recognizes that not all water has the same constitutional status.

Cite as: Christine A. Klein, The Dormant Commerce Clause and Water Export: Toward a New Analytical Paradigm, 35 Harv. Envtl. L. Rev. 131 (2011).

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