Professor Sandi Zellmer has had a busy 2013. This year she has published a new text book and three new articles.
The book is Comparative Environmental and Natural Resources Law (Carolina Press 2013) - With increasing globalization, comparative law has become increasingly more relevant in recent years. Climate change, transboundary pollution, biodiversity loss, and the emerging field of environmental human rights make comparative environmental law especially compelling. This coursebook provides a comparative look at environmental and natural resource laws governing water, waste, biological diversity (wildlife and habitat), and environmental assessment. It focuses on the United States, Canada, England, New Zealand, and India. The first four countries are chosen for comparative analysis because of their common cultural roots yet divergent environmental problems and strategies. The first three countries—the U.S., Canada, and England—have taken media-specific and somewhat fragmented approaches to water, waste, and wildlife issues, while New Zealand has made path-breaking efforts to adopt a more holistic, ecosystem-based approach to pollution prevention and sustainable development. The fifth nation, India, is a country deeply influenced by England but charting its own course as an emerging economic giant, whose growth poses significant implications for biological diversity, climate, and the environment. The book is suitable as a primary text or supplement for law classes and seminars as well as other types of graduate courses.
The three articles are:
Treading Water While Congress Ignores the Environment, 88 Notre Dame L. Rev. 2323 (2013) -
Throughout the 1970s and 1980s, a syncopated yet rhythmic dance took place between the agencies, the federal courts, the public, and Congress when it came to environmental law. Congress legislated, agencies issued an array of regulations to implement legislation, such as the Clean Water Act and other keystone environmental statutes, courts resolved citizens’ suits and other challenges to those regulations, and Congress subsequently either validated or repudiated the results. And so it went, until around 1990.
From climate change to major breakthroughs in both technology and scientific understanding, much has changed in the past few decades, and a number of catastrophic disasters, such as the BP Deepwater Horizon blowout, have occurred. But Congress has failed to take any meaningful action to reform our nation's pollution control laws. The bitterly partisan nature of environmental issues in Congress today suggests that comprehensive, thoughtful reforms tailored to the problems faced by modern society are unlikely. This article analyzes the phenomenon of environmental gridlock, considers the implications of Congress's failure to act, and explores the ways in which the agencies have stepped into the vacuum or could fill the vacuum left by congressional inaction. It concludes with an assessment of several “portaging strategies” that offer an opportunity to work around the congressional logjam and move the environmental ball forward through non-legislative means. Although comprehensive legislative reform may be the “first best” option for addressing wicked problems like climate change, empowering agencies to engage in more progressive environmental action presents a viable “second best” alternative. This alternative turns in part on empowering citizens to motivate agency action through petitions for rulemaking and citizens' suits, and in part on clearing away impediments to agency action while minimizing agency capture by antiregulatory interests. The article concludes that a coordinated strategy of regulation, Executive Orders, and enforcement might take us beyond merely “treading water” while Congress ignores the environment.
The Shallows Where Federal Reserved Water Rights Founder: State Court Derogation of the Winters Doctrine, 18 Denv. Water L. Rev. (2013) (with J. Huber) -
The doctrine of implied federally reserved water rights, as established over a century ago by Winters v. United States, is critical to realizing federal land management goals. Recently, the doctrine’s ability to protect those goals, particularly with respect to federal lands set aside for non-Indian purposes, has been greatly limited by several poorly reasoned and result-oriented state court decisions. The primary factors that have led to the erosion of the Winters doctrine’s utility are: (i) the McCarran Amendment, which allows states to force the federal government to assert its reserved water rights claims in state court general stream adjudications; (ii) state hostility to the assertion of Winters claims for political and economic reasons; (iii) state court expansion of the US Supreme Court’s restrictive interpretation of reserved water rights in United States v. New Mexico; and (iv) state court abuse of the inconsistent and often ambiguous language included in executive and congressional public land reservations.
The arid western states are unlikely to become more amenable to the assertion of federally reserved water rights, and the US Supreme Court is almost as unlikely to issue a more enlightening exposition of the Winters doctrine anytime soon. It is fair to surmise that the problem can only be fully and, due to its political nature, appropriately resolved by Congress. Ideally, Congress would repeal the McCarran Amendment to undo some of the damage done and to prevent the future derogation of this important aspect of federal land management law. This, too, may be unlikely given the current political climate, which tends to prioritize states’ rights over federal interests and also tends to be antagonistic to environmental concerns. Should Congress fail to respond to the problem, federal agencies might be more proactive in litigating their reserved water rights in federal court in order to ensure the integrity of water bodies and water-dependent resources.
Assessing Institutional Ability to Support Adaptive, Integrated Water Resources Management, 91 Neb. L. Rev. (2013) (with C. Hoffman) -
Institutions designed to manage water resources as they existed in the past are often ill equipped to address the challenges of today. In many ways, resource management institutions have become “prisoners of history,” which embody past rather than present, much less future, knowledge and necessity. Western water law, in particular, emerged at a time when water resources were seemingly ample, supplies were not fully allocated, and governments had limited administrative capabilities. Since then, demands have grown and, in many areas, outpaced available supplies, causing adverse consequences for social-ecological systems. Accordingly, the National Research Council declared that the “research agenda for the 21st century should give priority to developing new legal arrangements governing diversions and consumptive use that emphasize flexibility and facilitate the management of water scarcity.”
Limitations in our ability to control supplies and respond to weather-related extremes by technical means, such as dams, canals, and other forms of large-scale infrastructure, combined with the need to deal with conflicting values, uncertainty, and changing environmental conditions, are stimulating more adaptive approaches in water resources management. Yet implementation of adaptive management has been spotty, in part because agencies are constrained by historic legal frameworks established to promote certainty and stability, and in part because of the inherent inertia of existing government institutions. This article assesses whether water resource institutions can embrace flexibility and adaptation while maintaining the stability associated with existing legal frameworks and investment-backed expectations. Striking such a balance will require resource managers to identify and understand the problems faced by the social-ecologically linked system and to calibrate their strategies to address those problems, while ensuring accountability and enforceability, promoting focused learning that seeks and takes advantage of feedback loops, and securing sufficient funding for present and future actions. We assess the merits of Nebraska’s integrated water management approach, and examine whether such an approach can be used as a model for other western states under pressure to devise more holistic and adaptive approaches.