Arizona Journal of Environmental Law & Policy, Volume 10, Issue 1 (2019)
ABOUT THIS COLLECTION
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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Environmental NihilismInformation is the lifeblood of environmental law. Pollution control standards depend on data about public health and technical information about the availability and effectiveness of abatement technologies. Pesticide and chemical registrations rely on studies about efficacy and potential adverse impacts. Environmental remediation requires surveying contaminated sites to identify the location and prevalence of hazardous substances. Enforcement efforts, whether initiated by regulatory agencies or through citizen-suits, depend on monitoring the waste streams of regulated industries and the conditions of environmental systems. Accurate and abundant information is a prerequisite for these elements of environmental law and many others, and information disclosure rules are themselves an important, quasi-regulatory element of the architecture of environmental law. This list of some of the components of environmental law suggests the contours of the field for purposes of this essay. Environmental law, as I use the term, addresses the effects of human activities on the environment, often striking a delicate balance between environmental protection and other competing interests. Precisely defining the boundaries of the field is unnecessary for my present purposes, because the subject of this essay is the information that animates substantive regulatory provisions rather than the particulars of those provisions.9 Information also informs political debate and inspires the public to demand change. Environmental law is the subject of ongoing reevaluation in Congress and the executive branch, although the importance of accurate information is rarely called into question. Rather, contest over environmental
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Insurance Coverage for Droughts, Due to Climate Change: The Case for “Loss Of Business Income” and “Loss Of Use”This article addresses the issue of insurance coverage for commercial enterprises as a consequence of the recent spate of droughts in the southwestern United States.2 This almost two-decade long drought results from increasing temperatures and climate change. The article posits that damage or injury to property and lost profits caused by this wave of droughts may be covered by insurance policies. It focuses on businesses—including tourist attractions such as hotels, motels, boat rental facilities, and others—that are so critical to the economies of the southwestern states. I posit that when these commercial enterprises are, or will be, affected by droughts they may be able to recover their lost income and profits via two supplementary provisions or riders3 to their routinely contracted for Commercial General Liability (“CGL”) policies. The “Loss of Business Income” rider and the “Loss of Use” rider have covered losses under other circumstances, including hurricanes, but never for drought affected harms. This article is the first to explore the use of these riders in the context of droughts. However, such coverage has not been afforded to suspended business operations that lost income due to droughts. The article also analyzes the development of insurance coverage for the riders. Throughout the article I offer hypotheticals that demonstrate how courts and claims people may interpret the riders. The article proceeds as follows: Part I introduces the framework for the article. Part II provides a brief historical description of the Southwest’s drought epidemic and defines what a drought is. Part III is a primer on the liability insurance coverage, which incorporates the two riders. Part IV discusses the impacts of Hurricane Katrina on the legal field concerning loss of business income and loss of use coverage. Finally, the article concludes with another hypothetical, and introduces a new product developed by the insurance industry that addresses business income. It closes with a discussion regarding the future of climate change and droughts.
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History, Enterprise, and Reform: Honduran Zede Regimes and Indigenous Peoples’ RightsFor decades, the situation of Indigenous peoples in Honduras has been closely monitored by the international community. With the passage of legislation in 2013 by the Honduran Government authorizing the creation of Zones of Economic Development and Employment (ZEDE), the renewed interest in Indigenous peoples’ rights in this relatively remote corner of the globe is not without merit. According to current United Nations Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, the situation of Indigenous peoples in Honduras is at a critical juncture – one beset by threats to “their rights over their lands, territories and natural resources,” which are “not protected,” and can even provoke acts of violence when Indigenous peoples lay claim to their rights. Given that Indigenous peoples comprise only seven percent of the total population of Honduras, and that roughly 80 percent of Indigenous peoples still live on their traditional lands, the observations of former Special Rapporteur on the rights of Indigenous Peoples, S. James Anaya, seem prescient. The situation of Honduras’s Indigenous peoples is complex precisely because of their ancestral relationship with their lands. When this ancient relationship to the land is coupled with the efforts of Indigenous peoples to maintain an identity as a people in the face of the most “powerful sectors of society,” it is not difficult to see why legislation aimed at economic development in Indigenous lands such as the ZEDE organic law would be so controversial. Nevertheless, according to 2016 figures gathered by the World Bank, Honduras is a very poor country facing “major challenges with more than 60.9 percent of the population living in poverty.” In addition, the country faces rampant economic inequality, soaring rates of crime and violence, and an economy that is particularly vulnerable to the whims of export prices which tend to have a disproportionate, adverse impact on the country’s poor. Far from the corridors of power in Tegucigalpa, rural Hondurans tend to rely upon agriculture to make ends meet, and it is exactly this reliance that places them in such a precarious economic situation. While many other scholars and economists (not mutually exclusive terms) have addressed the former question, Given these observations, it stands to reason that economic development would be a key priority for the Honduran Government. Indeed, it would be quite difficult to imagine any functional government in the world that would ignore such fiscal dire straits. The resulting question, then, is not whether economic development needs to occur in Honduras. The situation in Honduras, instead, leaves us with two questions: whether laws creating special economic zones (SEZ) like the ZEDE can actually address these economic issues, and whether they can be made to work for the country’s Indigenous peoples in such a way that their culture, identity, land rights, and natural resources are protected. this paper will seek to address the latter, exploring what some of the best practices related to Indigenous governance might look like within the context of a ZEDE regime: 1) Section I will provide a brief hhistorical overview of Indigenous peoples’ land rights in Honduras; 2) Section II will explore some of the key provisions of the ZEDE regime, and discuss international comparative approaches that have been implemented in other jurisdictions, including other Indigenous jurisdictions; 3) Section III will seek to outline key criticisms of the ZEDE legislation; 4) Section IV will evaluate contemporary best practices for strengthening Indigenous governance, and explore ways that a ZEDE regime can maintain consistency with international law and international norms with respect to Indigenous peoples.
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Continuity and Transformation in Environmental RegulationSince the modern era of environmental regulation began in the 1970s, there have been arguments for replacing it with something else. Surely, critics have argued, it was possible to improve on a rigid hierarchy from the issuance of federal uniform standards to state implementation of firm compliance. Conventional regulation, it has been said, is too clumsy, too slow, too inefficient. Yet, there is little sign the traditional paradigm is fading away. Commentators have proposed several replacements for conventional regulation by EPA, including the adoption of new regulatory approaches and .....
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Cannabinoid Conundrum: A Study of Marijuana and Hemp Legality in the United StatesAs a Schedule I controlled substance under the Controlled Substances Act (CSA), controversies surrounding legal, ethical, and societal implications associated with the use of marijuana are compounded by its adverse health effects, limited clinical data for therapeutic indications, and safe administration/ packaging/dispensing regulations. The fragmented transition of marijuana from a vilified substance to one with legitimate therapeutic merit has been convoluted and controversial. Cannabis is the most commonly cultivated, trafficked, and abused drug worldwide, with an annual usage by approximately 147 million individuals, which equates to 2.5% of the global population. The social attitudes and cultural norms surrounding marijuana use are shifting in a positive direction, as shown by the rapidly evolving cannabis policy at the state level. State cannabis laws are widespread and highly variable—which leads to some ambiguity and concern. As state legal restrictions have eased, marijuana use has increased. In states where it is legal, sales topped $8 billion in 2017, and they are projected to grow to $24 billion by 2025. State marijuana legalization and industry growth show no signs of slowing. This paper will outline the central issues within marijuana legality, provide potential legislative solutions, and pose several core questions that must be answered before significant changes occur at the federal level. The central issues regarding marijuana legality include: convoluted state and federal laws, adverse health effects of cannabis use, research restrictions that produce knowledge gaps, and inconsistency with Food and Drug Administration (FDA) and Environmental Protection Agency (EPA) regulations. In order to resolve the conflict, it is imperative to stress the importance of science in this policy debate. The changes in state laws have occurred largely without significant input from the medical, scientific, or policy research communities.10 Updating marijuana policy on the federal level is a desirable goal, but we must seek to minimize any adverse consequences in the form of social and public health costs. Scientific research must be at the heart of all legislative decisions.
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Violence Against the Earth Begets Violence Against Women: An Analysis of the Correlation Between Large Extraction Projects and Missing and Murdered Indigenous Women, and the Laws that Permit the Phenomenon through an International Human Rights LensThis note examines the prevalence of sex trafficking of Native women and children, and the correlation those rates have with large extraction projects, such as the Bakken Oil Fields in North Dakota, and the camps (“man camps”) that employees live in. In order to fully flesh out the phenomenon accurately, this note walks through pertinent history and the Truth of the Native experience of colonization and genocide in the United States. Further, this note also examines the current laws and policies in the United States that perpetuate and exacerbate the Missing and Murdered Indigenous Women and Girls phenomenon. Finally, it compares those laws and policies to international human rights standards, speaks to how the United States consistently falls short of international human rights standards, and how the issue can be remedied.