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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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Recent Submissions

  • Adapting Environmental Justice: In the Age of Climate Change, Environmental Justice Demands a Combined Adaptation-Mitigation Response

    Wagner, Raina (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    The Environmental Justice Movement of the late twentieth century had a lofty goal: to protect poor and minority communities from being adversely affected by environmental harms such as toxic waste dumps and polluted waters. Many agree that today's greatest environmental danger is climate change, a worldwide problem with intensely local impacts; and poor and minority communites ma be adversely impacted by that environmental harm as well. In the climate change case, experts foresee that the people in developing countries and island nations stand to face climate-change-related dangers ranging from increased hurricanes to desertification of cultivating lands to total inundation as sea levels rise. One goal of the Kyoto Protocol's carbon-exchange market is to mitigate the impacts on developing countries. Yet not all the consequences of climate change will be felt on the in/ernational scene, and within the United States, Environmental Jusice concerns dictate that mitigation should not be the only regional and national response to the planet's rising temperatures. Environmental Justice demands an adaptive response.
  • Consumer Liability for Harms Linked to Purchases

    Ostrander, Nathan (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    While the problem of negative externalities has long been recognized by environmental law, legal responses have uniformly focused on producer behavior. There is growing recognition, however, that consumption also contributes significantly to climate change and other forms of environmental degradation in ways that are not fully reflected in the prices of products. A major reason is that the harms from consumption develop many years after the consumer makes a purchase. But in the future, a virtually cashless society reliant on electronic payments will record the purchases of consumers. Technological developments will set the stage for the viability of consumers as class action defendants who could be held liable for societal harms that subsequently develop as a result of their purchases. Today, consumer class action plaintiffs discover they are entitled to portions of class action verdicts; in the future, consumer class action defendants will learn they must pay plaintiffs, including state governments suing on the basis of public nuisance, for the damages resulting from their purchases. Consumers, of course, would have to be put on notice, perhaps through a labeling system, that they are assuming liability for future harms. By taking advantage of technological developments that enable a cashless society, it will become possible to sue consumers who purchase goods that contribute to environmental degradation and other social harms.
  • NEPA Express: A Need for Sustainable Streamlining for Transportation Projects Without Undermining Environmental Review

    Tedder, Brian (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    With the U.S. House of Representatives’ transportation bill, the American Energy and Infrastructure Jobs Act of 2012 (“H.R. 7”), stalled on the floor, House Republicans have backed away from some of the bill’s more controversial proposals. Among its more well-known provisions, the bill sought to cut federal mass-transit spending and federal spending for bike and pedestrian projects. Additional provisions sought to streamline environmental review. While the $260 billion bill undergoes a rewrite to reattach mass transit funding, the new bill would still include such environmental streamlining.
  • A Nation Fractured: Drilling Into the Debate Over Fracking

    Malfettonea, Mike (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    The production of shale natural gas in the United States has boomed since the recent development of hydraulic fracturing, commonly known as “fracking.” Fracking is the method used to extract natural gas from underground rock formations. It involves the high-pressure injection of water, sand, and chemicals deep underground, fracturing the rock to release trapped gas that then flows up to the surface. Although hydraulic fracturing has been around for decades, a recent technological development in a horizontal drilling technique has substantially increased recoverable deposits that previously would have been uneconomical to produce. Natural gas is an important part of the U.S. economy and its energy sector, providing over 25 percent of the country’s total energy. Due to the fracking developments, shale gas production has risen from a trivial amount just a few years ago to accounting for almost 30 percent of the total U.S. natural gas production. Some have called the developments a “game changer” and a “natural gas revolution.” On March 31, 2011, President Obama declared that “recent innovations have given us the opportunity to tap large reserves--perhaps a century’s worth” of shale gas. The surge in production has led to sizeable economic benefits for states, lower gas prices, an increase in domestic jobs, improved energy security for the United States, and the potential for enhanced national security due to the opportunity of substantial domestic production, less reliance on foreign import, and increased foreign investment. In addition, industry leaders think it will help the “transition from dirty fossil fuels to clean, renewable sources of energy.” (excerpt from Introduction)
  • Snowbowl: No Green Deed Goes Unpunished

    Holder, Oksana P. (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    The litigation over artificial snowmaking on the San Francisco Peaks in Northern Arizona is one of the most hotly debated local environmental topics in recent memory. The controversy between the Arizona Snowbowl Resort Limited Partnership (“Snowbowl”) and the Indian Tribes relates to Snowbowl’s proposed use of reclaimed wastewater for the purpose of making artificial snow, as a part of the Snowbowl’s expansion plan. Snowbowl’s plan has encountered stiff resistance and has drawn extensive media and Internet coverage. The proposal has even prompted the production of a documentary, and websites have sprung up dedicated to covering every political and judicial step of the parties. If one searches for “Snowbowl and sewer,” the Google search engine will provide thousands of hits. The case is hardly limited to those interested in tribal advocacy, as it touches and concerns many other legal issues, including possible adverse harm on environment and public health, freedom of religion, scope of the agency action, violation of state law and public policy, tribal water rights, public nuisance, and even American adherence to international standards to which the United States has expressed its commitment. The goal of Snowbowl, Northern Arizona’s primary ski resort, is to provide a quality recreation venue for local and out-of-state skiers and snow enthusiasts during the winter months. However, the unpredictable Arizona weather and unreliable snowfall has prompted Snowbowl to develop alternative methods to meet the expectations of patrons. To ensure that the skiers and snowboarders have plenty of snow, the business invested in an expansion plan calling for the production of artificial snow. Aware of the fact that environmental activists and coalitions fearlessly file for injunctive relief to draw attention to conservation problems, and given environmentalists’ mantra of promoting alternative energy and recycling, the Snowbowl decision initially appeared to be a “green” decision designed to avoid the use of precious wild or natural water resources for mere recreational purposes. The City of Flagstaff agreed to sell reclaimed water from one of its wastewater treatment plants to the resort for snow production. Why should anyone oppose a program that actually recycles sewer water to make snow? Interestingly, regardless of business effort to “go green,” it nevertheless met vehement and widespread opposition on environmental and religious grounds from Native American Tribes who consider the peaks as sacred ground and consider the idea of dumping repurposed recycled wastewater on their cherished peaks to be grossly insensitive at best, and sacrilegious at worst. This controversy has a number of players on the defense side. The first target was the United States Forest Service (“USFS”), which approved the permits for using reclaimed water. Then, the Hopi Tribe independently sued the vendor, the City of Flagstaff (“the City”), which based its contract with Snowbowl on the USFS’s permit. The City entered into a contract with Snowbowl to provide up to 1.5 million gallons of reclaimed water every day from November to February each year. Denied any form of preliminary relief in the first round of litigation, the Tribes are pressing for extra-judicial relief on the executive level by formally requesting that President Obama suspend the permit issued by the USFS. Accordingly, the Tribes have pressed Snowbowl into a corner using three distinct tactics: pressuring against the vendor; litigating against the administrative power (USFS); and invoking with the executive.
  • Quenching the Thirst of a Nation: Returning Water to the Navajo People

    Lamoureux, Carol (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    Fresh water is perhaps the most precious natural resource on Earth. This is especially true for arid regions, such as the American Southwest, where freshwater sources are scarce. Despite being fully aware of the limited availability of water, policymakers adopted a “build first, ask questions later” attitude during the rapid development of the Southwest, choosing to turn a blind eye to the real threat of a future water crisis. To make matters worse, when the Colorado River resources were divided, parties with potentially enormous water claims were left out of negotiations. Specifically, Navajo Nation and many other regional American Indian tribes were overlooked during this process. Ignoring the claims of the American Indian communities may have been to the immediate benefit of Colorado River developers and expanding Southwestern metropolises, but their need for instant gratification could ultimately undermine the interests that users were initially trying to protect. The Navajo Nation is in the process of settling water rights claims to the Colorado and Little Colorado Rivers that could completely uproot the existing system of Colorado River allocation. On one hand, if the claim is successful, the Southwest could face a serious water crisis if parties fail to respond responsibly. On the other hand, this settlement represents an opportunity for Southwestern cities to address past shortcomings by proactively implementing sustainable water policies and infrastructure. Despite the real threat of a water shortage, the Navajo Nation should not be punished for the irresponsible water usage of the twentieth century. The Navajo claims to the Colorado and Little Colorado Rivers are long overdue, and the region will have to make adjustments to its own water habits to ensure that the Navajo people finally have access to water that is rightfully theirs.
  • The Environmental Consequences of Plan Columbia

    Graham, Daniel (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    Plan Colombia was first proposed by former Colombian President Andrés Pastrana Arango in 1998, and presented officially in 1999. Today, Plan Colombia operates to combat illegal drug trafficking in Colombia and the insurgency of FARC (Fuerzas Armadas Revolucionarias de Colombia) guerillas that frequently support it. In contrast to the final, U.S.-supported version of the plan, Pastrana’s original plan called for a substantial focus on developmental aid and the manual destruction of drug crops, as opposed to the large-scale fumigation measures currently in place. However, after considerable input by the Clinton Administration, Plan Colombia adopted a much stronger emphasis on anti-drug measures (primarily the destruction of coca and poppy fields used to produce cocaine and heroin, respectively) and fortifying Colombian military power against FARC. In fact, the differences between the originally proposed and final versions of Plan Colombia prompted former U.S. ambassador Robert E. White to comment: If you read the original Plan Colombia, not the one that was written in Washington but the original Plan Colombia, there’s no mention of military drives against the FARC rebels. Quite the contrary. (President Pastrana) says the FARC is part of the history of Colombia and a historical phenomenon, he says, and they must be treated as Colombians. Unfortunately, Plan Colombia’s use of fumigation on the coca fields of numerous Colombian farmers has led to serious environmental consequences involving the contamination of Colombia’s soil, air, and water supply along with direct adverse health effects for Colombians, causing some critics to question whether the Plan should be allowed to continue.
  • We The People: Differing Approaches to Engaging the Citizenry in Combating Non-Native Species

    Gregory, John M. (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    It seems almost too self-evident to say that the people most concerned about a problem are those who live with it. They would therefore seem to be potential resources in combatting the problem. However, on the issue of non-native species management, governments have not always done a good job of combatting the problem with meaningful civic engagement.
  • Coloring Outside the Lines: Christo’s “Over The River” and the BLM’s Visual Resource Contrast Rating System

    Goldey Barter, Caylin J. (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    The above analogy, from a July 2010 article in The New York Times, expressed concern that an Environmental Impact Statement (EIS) was perhaps ill-suited to the task of analyzing a proposed art installation. Could a method of review developed to gauge the likely effects of cattle grazing, timber harvests, and mineral extraction possibly preserve the essence of an artwork? The answer appears to be “yes”--for now. On November 7, 2011, after three years of analysis, the U.S. Bureau of Land Management (BLM) approved a land use authorization permit for “Over the River,” a massive, fleeting, and controversial public art installation conceived by world-renowned environmental artists Christo and Jeanne-Claude. Over the River is the first art project to survive the rigors of an EIS, the highly technical review process required by the National Environmental Policy Act of 1969 (NEPA) for any proposed federal action that poses potentially significant impacts to the environment. The EIS for Over the River ran to 1,686 pages, analyzed six action alternatives, recommended more than 100 mitigation measures, and attracted 4,558 official public comments. By approving a three-year permit for Over the River, the BLM accepted the EIS’s conclusions that the art project was “broadly consistent” with resource management objectives for the affected area, and that proposed mitigation measures would result in “the elimination of any significant, adverse long-term impacts to all resources.” Construction was scheduled to begin in July 2012, and the vision of twenty years finally realized in August 2014. However, beauty is in the eye of the beholder. Take, for instance, the opinion of Ellen Bauder, a leading member of Rags Over the Arkansas River, the grassroots organization intent on stopping Over the River: “I don’t particularly consider it an art project. This is a construction project in my view.” On February 1, 2012, with assistance from students in the Environmental Law Clinic at the University of Denver’s Sturm College of Law, Rags Over the Arkansas River filed a lawsuit in federal court seeking to set aside the BLM’s approval. The Petition for Review of Agency Action alleges that the proposal does not conform to the Royal Gorge Resource Management Plan (RMP), a 150-page document that governs land use decisions in the area that would host the art project. The plaintiff advances several supporting arguments ranging from, inter alia, degradation of bighorn sheep habitat, displacement of anglers, and traffic snarls. In the context of an art project, though, the proposal’s impacts to visual resources may be the most telling. Thus, this Comment focuses on application of the “Visual Resource Contrast Rating System,” the BLM’s homegrown methodology for evaluating a proposed action’s impact on scenic values. On this basis alone, there is at least a chance that Over the River may be doomed to twist in the wind.
  • Writ of Man-Dangerous: Herbicide 2,4-D and the EPA’s Failure to Act

    Fischer, Katherine (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    Background: Herbicide 2,4-dichlorophenoxyacetic acid (2,4-D) is one of the most pervasive pesticides in the consumer market. Used in the United States since the 1940s, it is the most common active ingredient in commercial weed killer. Some studies have linked exposure to 2,4-D with cancer, birth defects, irregular endocrine function, decreased immune function, and abnormal reproductive capacities. A 2005 study by the Environmental Protection Agency (EPA) found that 25 percent of 2,4-D samples were contaminated with dioxins, which are carcinogenic, mutagenic, and cause reproductive problems even at minute doses. However, the EPA has discredited some of these studies, stating that they lack a measure of “2,4-D exposure that would allow for an establishment of 2,4-D as the source of any observable effects.” Because of the alleged adverse health risks that 2,4-D poses, the Natural Resources Defense Council (NRDC) filed a petition in November 2008 with the EPA requesting: (1) that the EPA revoke the tolerance limits set for exposure to Herbicide 2,4-D residues; and (2) that the EPA cancel all registrations to sell or distribute products containing 2,4-D. The petition specifically addressed the concerns that: (1) exposure to 2,4-D is disruptive to the endocrine system; and (2) the Personal Protection Equipment (PPE) the EPA mandates for workers who handle 2,4-D offers inadequate defense from these risks.
  • Moving Beyond the Industrial Organic Food Movement: Rethinking Organic Food Regulations

    Gholkar, Sheila (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    One of the fastest growing sectors of the food economy, the sale of organic and non-genetically modified foods has burgeoned from $1 billion in 1990 to $26.7 billion in 2010. Over the past two decades, as the demand for organic foods has grown, the industry has evolved significantly, from a group of small-scale farmers who sold their goods at local farmers markets to large-scale, modern industrial farming operations. As consumers have grown more knowledgeable about the ecological and health effects of pesticide use and chemical fertilizers, they have also begun demanding more information in the marketplace. In a recent decision by the Sixth Circuit Court of Appeals, the court struck down an Ohio law that kept dairy farmers who were compliant with federal organic standards from labeling their goods as free of antibiotics, pesticides or synthetic hormones. The decision was celebrated as a victory for both consumers and the organic industry, since both parties will benefit from consumers having more information to inform their purchases. Ohio’s now-voided law illustrates an underlying tension: despite the boom of the industry and the growing demand for organic foods, current standards regulating the production and distribution of organic and non-genetically modified foods may be falling short of protecting the environment and supporting sustainability. The current framework allows for large-scale farming operations to easily adapt their techniques to meet organic production requirements. While this benefits consumers by making organic goods more accessible and affordable, the federal standards do not provide for adequate transparency or consistency. Gaps in the current regulations prevent consumers from accessing information that can more fully inform their purchases, and this calls into question whether Congress has achieved its intent in creating a meaningful national organics program.
  • Running Wild: The Bureau of Land Management and America’s Wild Horses

    Felchlin, Alexandra (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    America’s wild horses have long served as a symbol of the West, of freedom, and of things that cannot be tamed or caged. However, the Secretary of the Department of the Interior (“Secretary”), through the Bureau of Land Management (BLM) is specifically charged with keeping the wild horse population under control--metaphorically, and often literally, caging the horses in. Recent population control techniques used by the BLM have caused an outcry from supporters of wild horses, although not for the first time. Claims against the BLM have included allegations of inhumane roundups of wild horses, restrictions on the wild horse herd size that interfere with breeding and herd diversity, as well as overestimations of the wild horse population and reproduction statistics. The greatest concern of wild horse supporters is that the BLM is prioritizing the use of public lands for ranchers and attempting to reduce the wild horse population to numbers that resemble those in 1971 when Congress deemed that the wild horse population was “fast disappearing.”
  • Drink Beer, Conserve Water

    Coe-Smith, Heather (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    In ancient Mesopotamia, water was rarely safe to drink. Luckily, along with the cultivation of cereal crops came the discovery of beer. By 3000 BCE, Mesopotamians brewed over twenty kinds of beer. Integral in ancient culture, beer was thought to be a gift from the gods. Although water is safe to drink today, beer is still popular and still a part of our culture. As the world’s second largest producer, the United States has a substantial beer industry. In 2010, the United States produced 194,169,303 barrels of beer. Americans spent $167 billion on beer in 2009. The number of breweries increased considerably from 331 in 1933 to 1,693 in 2010. Today, the vast majority of beer companies are specialty and craft breweries.
  • The Caribbean Catastrophe Risk Insurance Facility: Parametric Insurance Payouts without Proper Parameters

    Brooks, Lauren (The University of Arizona James E. Rogers College of Law (Tucson, AZ), 2012)
    The small island states of the Caribbean are highly exposed and extremely vulnerable to catastrophic weather events, especially hurricanes and earthquakes. During the one to six months following a serious hurricane or earthquake, after emergency funds have been exhausted and before donor pledges come in, Caribbean governments experience a “liquidity gap,” when their monetary resources fall far below what is required to provide essential governmental services and begin the recovery process. Established in 2007, the Caribbean Catastrophe Risk Insurance Facility (“CCRIF” or the “Facility”) offers a solution to the liquidity gap through the use of an innovative insurance scheme. This Article first engages in a background discussion of the Facility, reviewing why it was created, how it works, and what it has accomplished for its insureds since taking effect. It then examines the many facets of CCRIF that have earned it its good name--specifically, its efficiency, fairness, and attentiveness to Caribbean needs and interests. At the same time, the Article attempts to provide a more pragmatic critique than can be found in the existing literature by shedding light on a rather notable CCRIF flaw that has thus far received little recognition: the risk that the Facility’s insurance payouts are inaccurate. Finally, the Article considers the possible ramifications of this flaw and suggests a grassroots solution requiring the participation of the Caribbean people.