Environmental – Page 99

At its crux, environmental law is about forcing potential polluters to act in ways they would not otherwise. To do this, environmental law attempts to make noncompliance more costly than compliance. Without doing so, potential polluters would pollute regardless of its legality, a theory known as efficient breach of public law. Academics and judges alike have increasingly accepted this theory, resulting in courts struggling to prevent efficient breaches. But that has proven a difficult task. In Pakootas v. Teck Cominco Ltd., the Ninth Circuit sought to prevent efficient breach by barring citizen suits to enforce Environmental Protection Agency penalties, thereby concentrating enforcement power in the Environmental Protection Agency. This Note argues, however, that the Ninth Circuit ruling will generally make efficient breach more likely, even if it ensured compliance in Pakootas v. Teck Cominco Ltd. The Environmental Protection Agency has repeatedly failed to protect the environment due to lack of oversight, a lack of resources, or a lack of desire. Citizen suits are powerful tools to counteract the Environmental Protection Agency’s failure and should not be uniformly discarded. Contrary to the Ninth Circuit’s rule, I argue for a case-by-case approach to determine whether a citizen suit for Environmental Protection Agency penalties would increase or decrease the likelihood of compliance in each particular case. Even beyond the realm of citizen suits, environmental protection powers should be broadly shared among potential enforcers, including the Environmental Protection Agency, citizens, states, and Native American tribes, so that the probability of paying for pollution and the cost of noncompliance both rise.

Petition to Protect Maya Lands in Southern Belize from Unauthorized Drilling

November 19, 2012November 19, 2012Ann Tweedy2 Comments

Please consider signing this petition. The government of Belize is ignoring Belize Supreme Court precedent that confirms that this land is the homeland of Maya communities.

Ray Cross on Fracking and the Fort Berthold Reservation

November 17, 2012Matthew L.M. Fletcher

Probably the most important article on fracking in Indian country so far.

Raymond Cross has published “Development’s Victim or Its Beneficiary?: The Impact of Oil and Gas Development on the Fort Berthold Indian Reservation” in the North Dakota Law Review.

All Things Considered Story on Waste Water Streams at Wind River

November 16, 2012Kate Fort1 Comment

Here, via ILTF/@indianland

The responses to NPR’s two Freedom of Information Act requests include emails between staffers, correspondence with the companies, results of water-quality tests, the permits, and documents justifying each permit. Most of this information had not been public before.

The documents show hints of mutiny inside the EPA. Some EPA staffers clearly are appalled by the wastewater releases.

One wrote in an email to colleagues: “Can we get together and discuss a strategic approach for sending our message of concern? I have attached pictures of this ridiculousness.”

Another staffer warns that the chemicals in the water could have “irrevocable human health and environmental impacts.”

The documents also show recent detective work that some EPA staffers did to try to figure out what chemicals companies are putting in the water. Their research reveals that some of the waste streams sometimes include chemicals from hydraulic fracturing, an engineering technique designed to increase the flow of wells. They also include chemicals whose warning labels clearly state “toxic to aquatic organisms,” “prevent material from entering sewers or waterways,” and warnings about cancer and birth defects at low levels.

The documents suggest that at least some people inside the EPA are advocating for stricter rules. But much of this debate has been kept secret. The EPA refused to give NPR 757 documents about the loophole, claiming they can be kept secret because they are between the EPA and its attorneys or among EPA staffers.

Briefs (Complete) in Montana SCT Case Involving Transfer of Bison Herd to Fort Peck Reservation

November 14, 2012June 20, 2013Matthew L.M. Fletcher3 Comments

Here are the materials in Citizens for Balanced Use v. Maurier:

Environmental Appellant Brief

State Appellant Brief

Fort Peck Amicus Brief

Appellee Brief

Environmental Reply Brief

State Reply Brief

The Environment Report: Wolf Classification as Game Animal and Tribal Opposition

November 13, 2012Kate Fort1 Comment

Here. The audio version is longer than the print version.

We’ve been doing a lot of thinking in the office about how courts interpret the “public interest” when weighing tribal concerns. This story certainly shows how one state representative chooses to do so.

Allen: Many of the Indian tribes in Michigan are opposed to this legislation right now, and that’s primarily because they feel the wolf has a special status for them. It figures importantly in many of their creation stories. They consider the wolf to be a brother or part of their kin. Here’s what Kurt Perron, the president of the Bay Mills Indian Community, told me about that:

“As we see the wolf returning, or gaining strength, just like we, as Ojibwe Anishinaabe people have, we see that relationship. So that’s what concerns us with the hunt, it’s almost like you’re hunting our brothers.”

Perron also said that by hunting wolves, you really don’t know what’s going to happen in terms of how that affects the pack structure of wolves, since they are pack animals.

Senator Tom Casperson of the western Upper Peninsula, is the primary sponsor of the wolf hunt bill, and he says that he has met a couple of times with the Indian tribes, and heard their concerns, and he recognizes and respects their relationship to the wolf. But he also says that that’s not a value that all of his constituents hold.

“I don’t know how you negotiate that, because that’s a personal belief they have. But at the end of the day, I do think many people don’t hold that same belief, so what do we do. Do we hold fast to it because the tribes say it’s sensitive to them, when many of my citizens don’t hold that same value?”