The Ninth Circuit refused to reverse a district court opinion finding no implied cause of action in the Klamath treaties for damages related to the Klamath River fishkills. The Court held without opinion that Skokomish Indian Tribe v. United States foreclosed the claim.
Environmental
Salon: Exxon Should Be Target for Liability in Kivalina Case
From Salon:
Conspiracy theory in the frozen North
In Finland, the warmest winter on record is leading to predictions for a record grain harvest. Yay for global warming! See, adaptation can be fun. There’s never been a better time to invest in beach front property in Siberia.
However, Agriculture Ministry researcher Anneli Partala warns: “It is not certain whether the warm winter is good or bad … there may be mold problems or diseases.”
Or, as in the case of the Alaskan town of Kivalina, rising sea levels could force your complete relocation, to the tune of $400,000,000. Adaptation — extremely costly and painful!
Wagoner County Rural Water Dist. v. Cherokee Nation Dismissed
The Northern District of Oklahoma dismissed the Cherokee Nation as a party from this lawsuit — Wagoner v. United States — on the grounds that the McCarran Amendment did not abrograte tribal sovereign immunity. The case is ongoing with the rest of the defendants.
NYTs Article on Native Village of Kevalina vs. Exxon Suit
From the NYTs:
SAN FRANCISCO — Lawyers for the Alaska Native coastal village of Kivalina, which is being forced to relocate because of flooding caused by the changing Arctic climate, filed suit in federal court here Tuesday arguing that 5 oil companies, 14 electric utilities and the country’s largest coal company were responsible for the village’s woes.
The suit is the latest effort to hold companies like BP America, Chevron, Peabody Energy, Duke Energy and the Southern Company responsible for the impact of global warming because they emit millions of tons of greenhouse gases, or, in the case of Peabody, mine and market carbon-laden coal that is burned by others. It accused the companies of creating a public nuisance.
Native Village of Kivalina v. Exxon Complaint
The Native Village of Kivalina sued Exxon and a host of others over global warming, alleging that their village will be destroyed by rising ocean waters.
Here is the complaint.
WaPo Coverage of Exxon Valdez Oil Spill S.Ct. Case
From WaPo:
When a federal jury in Alaska in 1994 ordered Exxon to pay $5 billion to thousands of people who had their lives disrupted by the massive Exxon Valdez oil spill, an appeal of the nation’s largest punitive damages award was inevitable.
But almost no one could have predicted the incredible round of legal ping-pong that only this month lands at the Supreme Court.
In the time span of the battle — 14 years after the verdict, nearly two decades since the spill itself — claimants’ lawyers say there is a new statistic to add to the grim legacy of the disaster in Prince William Sound: Nearly 20 percent of the 33,000 fishermen, Native Alaskans, cannery workers and others who triumphed in court that day are dead.
Eric Biber (Boalt) on the Dysfunctions of Multiple-Goal Agencies
Friend of the blog Eric Biber has posted “Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies” on SSRN. Here’s the abstract:
All federal agencies must cope with the challenges of trying to achieve success on the multiple goals laid out for them by Congress, the President, or the public-at-large, with varying degrees of success. Recent economics and political science literature has laid out a theoretical framework that helps us understand why agencies might succeed in achieving some goals and fail in achieving other goals: Agencies will systematically underperform on goals that are hard to measure and that conflict with the achievement of other more measurable goals. The lack of information about these hard-to-measure goals means that there will be fewer rewards to agencies for any success on those goals. While agencies in theory might be able to overcome this lack of information problem through technological and organizational innovation (where feasible), in many cases agency missions, historical inertia, and the professional orientation of agency staff will interfere with innovation, as shown by a case study of the U.S. Forest Service. Having diagnosed the source of the problem, the paper then examines various options that principals (such as Congress) might have to address it.
Quechan v. Dept. of Interior (D. Ariz.) — Arizona Clean Fuels Refinery
From Indianz [see the briefs and opinion below the fold]:
A federal judge has dismissed the Quechan Nation’s lawsuit over a proposed oil refinery in Arizona.
The tribe said the Bureau of Reclamation, an agency of the Interior Department, failed to address the environmental impact of a land transfer that was authorized by an act of Congress. The judge dismissed the claim as “frivolous.” Arizona Clean Fuels bought the land at issue in the transfer for an oil refinery. But the company has decided to use a different site after the tribe raised questions about the original site.
DC Circuit Vacates EPA Mercury Emissions — New Jersey v. EPA
Here is a link to our previous post that included several briefs, including the tribal brief.
Congrats to the petitioners!
Barsh on Applying Coast Salish Property Law in Environmental Law
Russel Lawrence Barsh has published “Coast Salish Property Law: An Alternative Paradigm for Environmental Relationships” in the Hastings West-Northwest Journal of Environmental Law and Policy.
Here is the introduction to this important paper:
In different venues, Pacific Northwest anthropologist and linguist Wayne Suttles and Salish economist Ronald Trosper have argued that the indigenous peoples of Puget Sound and the Gulf of Georgia–the Coast Salish peoples of the ‘Salish Sea‘–achieved a high degree of economic stability and environmental sustainability through a distinctive regional form of social organization, law, and beliefs. This essay focuses on the nature of the Coast Salish legal paradigm and its implications for managing the living resources of the Salish Sea today. An appropriate starting-point is clarification of the nature of the prevailing paradigm of environmental law.
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