RSS 1.0Arizona Journal of Environmental Law & Policy, Volume 1 (2010-2011)
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The Arizona Journal of Environmental Law & Policy (AJELP) is an interdisciplinary online publication that examines environmental issues from legal, scientific, economic, and public policy perspectives. This student-run journal publishes articles on a rolling basis with the intention of providing timely legal and policy updates of interest to the environmental community.
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Table of ContentsThe University of Arizona James E. Rogers College of Law (Tucson, AZ), 2010
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Davis v. Agua Sierra Resources: Bringing Some Clarity to Groundwater Rights in ArizonaFor the better part of a century, the Arizona Supreme Court played a dominant role in shaping Arizona’s approach to groundwater. From the adoption of the first territorial water code in 1864 to the enactment of the Groundwater Management Act (“GMA”) in 1980, the Arizona legislature was content to remain largely in the background, leaving some of the most important decisions about groundwater regulation to the courts. Those decisions witnessed Arizona’s transformation from a state dependent on agriculture and mining to one of the fastest-growing, most water-limited states in the West. Although the GMA has done much to shift control of groundwater regulation to the legislature, the courts continue to affect the development of legal principles applicable to groundwater, though on a much more limited scale. In particular, since the passage of the GMA, the Arizona Supreme Court has increasingly deferred to the legislature when confronted with important decisions about the state’s limited water resources. (excerpt from Introduction)
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Alaska Tribes' Melting Subsistence RightsSubsistence foods are distinct from those that line grocery stores’ shelves throughout the United States. Mother Nature offers no guarantee that a particular kind of food will be available on demand. The Food and Drug Administration does not provide quality assurance. To procure, protect, and store subsistence foods throughout the year, Alaska Native subsistence users must use their traditional knowledge. When the Alaska Native Claims Settlement Act (ANCSA) was enacted by the United States Congress in 1971, many Alaska Natives saw it as an encroachment on their subsistence rights. Over the last few decades, another threat to the ability of Alaska Natives to meet their subsistence needs has emerged--climate change. Climate change impacts the availability and safety of subsistence foods, the costs and risks of subsistence activities, and the very knowledge on which subsistence depends. While there are laws and programs in place to address some of the environmental and health impacts related to climate change, there is little to ensure that Alaska Natives will be able to continue their traditional subsistence lifestyles. This article suggests that climate change impacts subsistence-dependent Alaska Natives more than the Lower 48 Natives and other United States populations. The first part of the article discusses research and observations from the 2000s, suggesting that climate change affects the Alaskan environment more than that of any other state. It also considers how climate change affects subsistence and Alaska Natives’ control over their subsistence activities. The second part of the article considers how the legal and political framework unique to Alaska limits the ability of Alaska tribes to control land and resources needed for subsistence. Finally, the article considers whether any non-tribal entity will be able to protect Alaska Natives’ subsistence interests in the face of escalating climate change. There are a number of caveats regarding this article’s analysis of climate change. First, it is based on the premise that the earth has embarked on a period of overall warming, exacerbated by anthropogenic greenhouse gas emissions. There are still a large number of Americans who disagree with this premise. Second, many of the observations included in the article are based on weather changes, and the distinction between weather change and climate change is not always clear. Publicity surrounding climate change may influence interpretation of weather observations, whether or not this is appropriate. Third, the impacts of climate change cannot be understood in isolation from other changes, particularly those associated with economic development and rapid social and cultural change. Finally, there are 229 federally recognized tribes in Alaska. Alaska tribes have different cultures and economic situations and may have different views on the impacts of climate change.
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Blame Game: Thoughts on the Deepwater Horizon Oil SpillThe Gulf Coast of Mexico will never be the same. Even after billions of dollars are spent on clean-up efforts,1 the Gulf’s $234 billion dollar economy2 will not be bouncing back quickly, nor will the natural habitats of birds, fish and other marine life that call the Gulf home. Months after the explosion of the Deepwater Horizon oil rig, there is little consensus on exactly how many gallons of oil spilled into the ocean3 and although the leak is now capped, concerns linger as experts work to permanently close the damaged pipeline.4 The far-reaching effects of the spill raise the question of responsibility. Was poor regulatory oversight by the U.S. government the weak linchpin that led to the failure of safeguards? Or does most of the blame belong to British Petroleum (“BP”), the company in charge of operations the day of the accident? Did BP’s greed for greater profit lead to risky drilling practices that caused the accident? As we struggle to measure the environmental damage, implement clean-up operations, and help the thousands of people who depend on fishing and tourism in the Gulf, a central question remains: Who is to blame for the accident?
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Not In My Backyard: The United States’ Struggle to Find Appropriate Hazardous and Toxic Waste Dump SitesIntroduction: Consumption is accompanied by waste. Some individuals try to create as little waste as possible by recycling, reusing, or buying products with environmentally friendly packaging. On the other end of the spectrum, there are people who do not care about the waste they create and simply throw their trash in garbage, hoping someone else will take of the problem. Whichever side you more closely identify with, the fact is everyone produces toxic and hazardous waste. While “toxic” and “hazardous” may conjure thoughts of nuclear weapons, these types of wastes are used in an average day. The Environmental Protection Agency (EPA) lists common items such as pesticides, fertilizers, x-ray waste, home-cleaning products, and dry cleaning chemicals as toxic waste. Additionally, EPA classifies ordinary businesses such as hospitals, automobile repair shops, exterminators, and chemical refineries as hazardous waste generators. The public generates such waste directly by using these goods, or indirectly by using products that were manufactured or assembled with hazardous or toxic waste. Toxic and hazardous waste has potentially been linked to cancer, cardiovascular diseases, and central nervous system disorders. Additionally, the long-term effects of being around such waste are not yet fully understood, but the consequences could include death. With unknown long-term effects and potential deadly effects, the proper location for toxic and hazardous waste disposal is an issue that has sparked heated debates between socioeconomic classes, races, and political parties.
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Solar Energy's Cloudy FutureWith governments and environmental groups both clamoring for clean alternatives to fossil fuels, the future of solar energy looks bright. To date, however, solar power produces less than one percent of the U.S.’s electricity needs and, despite unprecedented subsidies since the 2009 passage of the American Recovery and Reinvestment Act, very few utility-scale solar projects have broken ground. Solar remains an emerging technology not yet price competitive with fossil fuels, but this efficiency gap alone does not account for the lack of a burgeoning utility-scale solar market--especially when subsidies are considered. Instead, as this article explains, large land and water requirements for utility-scale solar technologies, the arduous permitting process required for proposed sites on public lands, disincentives created by a preference for agriculture, and stringent objections from politicians and environmentalists toward actually siting utility-scale solar projects better explain the state of solar power in the United States. This article will suggest that solar companies would be wise to focus their efforts to site their projects on private or tribal lands. And, it will suggest that, if solar is ever going to contribute significantly to this country’s energy needs, we must minimize disincentives and strike a balance between the opposing environmental goals of preserving pristine land and reducing carbon emissions.
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Working Rivers and Working Landscapes: Using Short-Term Water Use Agreements to Conserve Arizona's Riparian and Agricultural HeritageDesert water--our streams and rivers, springs, ponds and pools--allows both human and natural communities to survive in the arid Southwest. The working landscapes--farms and ranches--that span our watersheds are part of an intricate system of natural and man-made elements that support and protect rural communities, biodiversity, cultural resources, and sweeping western vistas. Traditionally, river systems and watersheds were maintained by a balance between natural processes and human uses: fire, flood, and grazing herbivores. These influences provided a mosaic of “disturbances” that allowed diverse biota to thrive in riparian habitats.1 The combined stressors of drought, climate change, and economic growth have upset this balance. Many water conservation and restoration projects are being undertaken in Arizona with varying degrees of success. Few of these projects take into account the importance of the symbiotic relationship between human and natural use of water systems and riparian and river health. By incentivizing partnerships that address the needs of this symbiotic relationship, the State of Arizona may be able to reach a condition of lasting water and landscape resilience. Arizona’s water management regime provides few incentives for landowners to proactively conserve and manage their water in a manner that balances natural resources with human use. Most water conservation mechanisms available require a choice between agricultural water use and environmental flows. But ranchers, farmers, and rural landowners have put water to a beneficial use for generations and have stewarded our vast working landscapes and watersheds. Working landscapes can act as a modern continuation of historic disturbance: “occasional trampling by livestock, or periodic disturbance of bank and stream channels by livestock, may mimic natural forms of disturbance that recreate early successional stages favorable for population expansion.” Active management can be utilized to mimic the most beneficial aspects of historic use. This can be accomplished through incentivized partnerships such as short-term water and groundwater use agreements with agricultural landowners to protect native fish populations, surface flows, and riparian habitat. Short-term water use agreements are private contractual agreements in which a water user agrees not to pump or divert water for a period of time. Depending upon the needs of the particular hydrologic and ecologic system that is targeted for conservation, an appropriate surface water or groundwater use agreement may be implemented for a term of months or for a period of less than five years, so to not risk forfeiture of a surface water right.4 Short-term agreements can be tailored to mimic seasonal flood flows or provide water to help reestablish riparian vegetation. The water right or claim does not change hands; rather, its use is temporarily contractually dedicated to a conservation purpose, allowing the continuation of agricultural or other water uses.
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The International Whaling Commission: All Bark, No BiteIntroduction: On June 21, 2010, the International Whaling Commission (“IWC”), with its stated goal as “provid[ing] for the proper conservation of whale stocks and ... orderly development of the whaling industry[,]” “““Int’l commenced its annual meeting in Agadir, Morocco. Among the most noteworthy agenda items was a discussion about ending the Commission’s twenty-five year ban on commercial whaling and allowing nations to resume such operations under strict regulation. Predictably, the IWC, which is comprised of representatives from each of its eighty-eight member countries, found it impossible to reach an agreement. Those nations whose economies have historically thrived due to whaling profits argued for the reinstatement of commercial whaling, while the non-whaling countries cited urgent conservation concerns as the reason for leaving the ban intact. Unable to resolve these differences, the IWC took no action and decided to revisit the issue during its 2011 meeting. So, for the time being, it would appear that the earth’s whales are protected from the over-exploitation that has run rampant within the whaling industry since its start. Unfortunately, things are not always as they appear. The unsettling truth is that it makes little difference whether the ban is lifted or remains in effect. Nations belonging to the IWC and who have pledged adherence to its regulations are presently hunting whales, despite the ban’s existence, with no plans to stop. The most startling fact, perhaps, is that they are doing so legally. The International Convention and accompanying Schedule that govern the whaling industry and that mandated the creation of the IWC9 contain gaping loopholes that allow these countries to whale without any legal repercussions whatsoever.
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Land in Limbo: Mining in and Around the Petrified Forest National ParkPotash mining will almost certainly come to Eastern Arizona. However, it remains to be seen what lands will be open to mining and what lands will be preserved in their current state. As it stands now, potash mining will likely occur on lands Congress authorized for expansion of the Petrified Forest National Park but never bought because the funds were never appropriated. Advocates for environmental preservation, however, are working to keep mining out of these lands.
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The Forgotten Sector: Arizona Water Law and the EnvironmentArizona is renowned for its geographic diversity and natural environment. Yet, the water needs of the environment have often been overlooked as the demands for water of the state’s population and economy have grown. Over time, many riverine and riparian areas in Arizona have suffered significant degradation. According to one study, a majority of Arizona’s stream lengths have a “most-disturbed” water quality condition. Invasive nonnative species and surface water and groundwater withdrawals have negatively impacted riparian vegetation, streambed, and habitats. Many studies have shown that the increased invasion of non-native species is driven by altered hydrological patterns. Water withdrawal in certain areas appears to be the primary culprit for the poor ecological state of Arizona’s streams and rivers. This Paper examines the extent to which environmental water needs are--or are not--recognized in Arizona water law. Like many states, Arizona manages surface water and groundwater under two different legal regimes. Arizona’s surface water law is grounded in the prior appropriation doctrine of “first in time, first in right.” Under this doctrine, the only means of protecting environmental water needs is through the use of instream flow rights. In 1980 Arizona adopted the landmark Groundwater Management Act (GMA), which introduced groundwater regulation to regions of the state designated as Active Management Areas, thereby adding a body of groundwater law to existing state surface water law. The GMA established rights to use groundwater, water conservation programs, and an assured water supply program related to growing communities. In addition to creating new programs, the GMA recognized the municipal, industrial and agricultural sectors as water-using sectors. At present, Arizona’s surface water law and groundwater law do not consider the water needs of the environment. While environmental considerations have sometimes been taken into account during the development of Arizona’s water supplies, this has been done on an ad hoc basis through voluntary efforts. This Paper focuses on the status of Arizona water law in terms of the environment and establishes that the environment is indeed the “forgotten” water-using sector. This Paper examines federal law, state law, and state policy that affect how environmental water needs are recognized and addressed in Arizona. In addition to highlighting the lack of consideration for environmental needs, the Paper identifies many problems caused by the absence of such consideration. Also, the Paper discusses ways in which existing and new laws could be used to protect the environmental sector in Arizona. It may be that in addition to instituting change in Arizona’s law, improving public awareness about environmental water needs and laying the groundwork for comprehensive state water planning will move Arizona forward to recognizing the environment as a water-using sector. Part II of this Paper presents the reasons that the environment can no longer be treated as the forgotten sector in Arizona law and policy. Part III describes the known supplies and uses of water in Arizona. Part IV discusses federal protections that affect Arizona’s waters. Part V discusses elements of Arizona water law that are relevant to environmental water needs. Part VI describes opportunities within the given legal context to help the environment gain a place at the table as a water-using sector. Finally, Part VII offers some concluding remarks.
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Radioactive Optimism: Japan’s Nuclear Power Plants And New Mexico’s Crownpoint Uranium MineAs the horror of Japan’s nuclear accident continues to unfold, some American scientists and analysts are already identifying flaws in the Japanese system. We are told that the Japanese failed to properly assess the risks inherent in the placement and design of their nuclear power plants.1 We are also told that the nuclear regulatory agencies in Japan merely “rubber stamped” the nuclear facility’s reports.2 Yet Japanese scientists and officials have no monopoly on overly optimistic projections and a lack of independent judgment. In 2010, the Court of Appeals for the Tenth Circuit upheld a permit issued by the Nuclear Regulatory Commission (“NRC”) for an in-situ leach uranium mine in northwestern New Mexico.3 The NRC approved the project even though the method that will be used to restore the aquifer had never been shown to work.4 Further, the NRC established cleanup procedures based on economic considerations and reports from the regulated industry.5 If nuclear power is ever to become a safe alternative to fossil fuels, America’s officials and scientists must do a better job of avoiding the “radioactive optimism” that is prevalent among promoters of nuclear energy.
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Restoration Measures, Cooling Water Intake Structures, and the Protection of Ecosystems: The Regulatory Scheme of Clean Water Act Section 316(B)The objective of the Clean Water Act is to restore and maintain the “chemical, physical, and biological integrity of the Nation’s waters.” In 1972, Congress enacted sections 316(a) and 316(b) of the Clean Water Act because power plants that draw cooling water through water intake structures and later discharge the water at elevated temperatures have the potential to affect the maintenance of the chemical, physical, and biological integrity of the Nation’s waters. Power plants draw cooling water from a source, such as a river or reservoir, to cool plant equipment or to condense the steam that turns their turbines. As plants draw water for these processes, adult fish and larger organisms are sometimes drawn into the plants’ intake structures and can become entrapped (“impinged”) against intake screens. These screens are designed to filter out debris that would interfere with the operation of, or cause damage to, condenser systems. Organisms that are not removed from the cooling water by the intake screens--typically small benthic, planktonic and nektonic organisms--are “entrained,” meaning they are carried through the power plant’s condenser systems. Environmental groups take the position that because cooling water systems may endanger the maintenance of optimum yields of sport and commercial fish or disrupt sensitive ecosystems, § 316(b) regulation is necessary. Section 316(b) requires that the “location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” (excerpt from Introduction)
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Defending Environmentalists’ Punching Bag: Lake PowellIn 1963, Glen Canyon Dam began impounding the Colorado River’s water. The rising water would eventually form Lake Powell, named after Civil War hero Major John Wesley Powell who first mapped the region in 1869. Today, Lake Powell is the second largest man-made reservoir in the United States. The lake’s finger-like nature gives it nearly two thousand miles of shoreline, more than the entire west coast of the United States. The ample shoreline, combined with stunning red rock formations, fishing, hiking, and plenty of water sports, attracts roughly two million people to Lake Powell every year. While many consider Lake Powell to be a premier vacation destination, some consider it to be the most humiliating failure of the environmental lobby. Former Sierra Club Executive Director David Brower claimed that his inability to block Glen Canyon Dam’s construction was his life’s greatest failure and tragedy. In 1975, eco-novelist Edward Abbey published his inflammatory work, The Monkey Wrench Gang. The novel’s protagonists consider blowing up Glen Canyon Dam to be the ultimate victory for the environmental community. Inspired by the story, the eco-activist group Earth First! invited Abbey to witness the unfurling of a giant, fake crack down the dam’s face in 1981. In 2007, Gary Hansen wrote Wet Desert, a fictional work in which Glen Canyon Dam is successfully sabotaged and destroyed by a rogue environmentalist.
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The Marlin Mine, Guatemala: Environmental and Indigenous Human Rights ConcernsMontana Exploradora de Guatemala S.A., a wholly-owned subsidiary of Goldcorp, a Canadian mining company, began gold and silver mining operations in the western highlands of Guatemala in 2005. The municipalities of San Miguel Ixtahuacán and Sipacapa were primarily affected. The presence of the mine has directly impacted 18 communities of indigenous Maya people: Tres Cruces, Escupijá, Pueblo Viejo, La Estancia, Poj, Sipacapa, Pie de la Cuesta, Cancil, Chual, Quecá, Quequesiguán, San Isidro, Canoj, Ágel, San José Ixcaniché, San José Nueva Esperanza, San Antonio de los Altos, and Siete Platos. As the construction and operation of the mine was undertaken without consultation with the local indigenous peoples, and because of its potentially devastating environmental effects, a groundswell of protest followed by legal activity has occurred. In their legal proceedings, the communities complained of a variety of environmental issues, including the contamination of rivers; the drying up of wells; illness to infants and children, including frequent skin rashes; and the deaths of live stock.
