PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

A Member of the Law Professor Blogs Network

Monday, September 17, 2012

Whanganui River granted legal identity

There is a fascinating story from New Zealand regarding an agreement between the government and the Whanganui River iwi (a group of Maori who live near the river) to grant the Whanganui River status as an entity under New Zealand law.  "A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law - 'in the same way a company is, which will give it rights and interests'."  The river will be protected by two guardians, one representing the Crown, and the other representing the iwi.

The Whanganui River is the third longest river on the North Island of New Zealand.  It has been subject to ongoing court battles between the Crown and the Maori since at least 1873.  The area around the Whanganui River was heavily populated by Maori prior to the arrival of the Europeans, and the mouth of the river became an important trading post and European settlement.  Efforts have been made for the past several decades to dam the river for hydropower.  Those efforts have been heavily contested by the Whanganui River Maori Trust Board and environmentalists.

Thank you to Dan Ernst for the story tip!

Tanya Marsh

September 17, 2012 in Natural Resources | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 16, 2012

The Death of a Town

20treece1-articleLarge

The New York Times has a fascinating article today about the abandonment of Treece, Kansas, a town built literally on top of zinc and lead mines and now thoroughly, completely, contaminated.  The mining companies that caused the contamination and abandoned the mines are, of course, out of business.  The town is a parade of horrors -- structures and parts of roads collapse into abandoned tunnels from time to time, the lead dust in the air has led to children with lead-blood levels three times the national average, and the bodies of water that aren't orange are filled with acid. “The only thing polluted in Treece,” says Rex Buchanan, interim director at the Kansas Geological Survey, “is the earth, air and water.”

Yet, the article also describes the people who didn't want to leave, despite every reason to do so.  The article describes the remaining residents:

A few blocks away, I saw an immaculate double-wide trailer on a flowery corner lot. Its owners — Della Busby, a shovel-jawed woman with short bangs like Bettie Page’s and a raspy smoker’s growl, and her husband, Tim — had refused the buyout. Treece’s official population was now just two people. “To be honest, I don’t know why everyone left,” Della told me when I found her on her porch later that morning, still in the pink pajama pants and Las Vegas T-shirt she’d slept in. “Despite the obvious, it’s kind of nice out here. I’ve got the place to myself.”

A fascinating, and depressing story.

Tanya Marsh

May 16, 2012 in Land Use, Miscellaneous, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Monday, October 3, 2011

Cattle Ranchers, Environmentalists, and the Keystone XL Pipeline

20111001_USM927 There is an interesting article in The Economist regarding the proposal to bring the Keystone XL oil pipeline from the tar sands of Alberta, Canada to Texas.  The new pipeline will cross Montana, South Dakota, Nebraska, Kansas, and Oklahoma on its way to Port Arthur, but apparently it is the Cornhuskers who are raising the biggest stink.  The main reason is concern about potential contamination of the Ogallala aquifer:

"Many Nebraskans are worried that a leak from the pipeline might pollute the Ogallala aquifer, a vast underground reservoir that stretches from South Dakota to Texas and provides Nebraska with almost all its tap water and irrigation. The aquifer rises especially close to the surface in the Sand Hills region in the north of the state, near Mrs Luebbe’s ranch. The water table is so high, explains one of her neighbours, that if you drive a piece of piping three or four feet into the ground, water clean enough to drink will start gushing out."

The article doesn't explain how TransCanada will acquire the rights to bring the pipeline through the United States, but I presume that eminent domain will be involved.  That's interesting, since apparently the pipeline so unpopular in Nebraska that even the state's Republican governor has written to Hillary Clinton, asking her to refuse the required permits unless TransCanada modifies the pipeline's route.

Tanya Marsh

October 3, 2011 in Land Use, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Sunday, August 21, 2011

John Denver Peak?

I grew up listening to John Denver songs, so I was intrigued to see that there is a petition to name a peak 280px-Mount_Sopris
in the Rocky Mountains "John Denver Peak."  Specifically, the petition is to name the east peak of Mount Sopris, above Aspen, Colorado, rumored to be the site where he wrote "Rocky Mountain High."

  This petition has sparked a controversy between those who think that this is a perfect way to honor the artist, versus those who think that Denver's legacy as an environmentalist is overhyped, and that he did the area more harm than good by promoting it in his songs.

NPR did a piece on the controversy the other day, and if you are interested, you can sign the petition here.

If you need some inspiration, you can see John Denver perform Rocky Mountain High here, or, my personal favorite, Grandma's Feather Bed (with the Muppets) here

Tanya Marsh

 

August 21, 2011 in Miscellaneous, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 12, 2011

Blumm on the Development of American Natural Resources Law

Blumm Michael C. Blumm (Lewis & Clark) has posted The Columbia River Gorge and the Development of American Natural Resources Law: A Century of Significance on SSRN.  Here's the abstract:

The Columbia River Gorge, site of the nation’s first national scenic area and the only near sea level passage through the Cascade Mountains, possesses the longest continuously occupied site of human habitation in North America. The Gorge has served as a major transportation corridor between the Pacific and the Great Basin for hundreds of years, is home to spectacular scenery, dozens of waterfalls, many sacred sites, and abundant recreational activities, including world-class kite boarding and wind surfing. The Gorge has also been the location of over a century of legal battles that have made major contributions to American natural resources law. From judicial interpretations of 19th Indian treaties, to the development of the largest interconnected hydroelectric system in the world, to ensuing declines in what were once the world’s largest salmon runs – ultimately resulting in endangered species listings – to innovative federal statutes concerning electric power planning and conservation and land use federalism, to compensation schemes for landowners burdened with regulation, to dam removal and conflicts between sea lions and salmon, the Gorge has spawned a legal history as rich as its geography. This article surveys these developments and suggests that no area of the country has produced more varied and significant contributions to natural resources law.

Steve Clowney

July 12, 2011 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, June 6, 2011

Hudson on How Federal Governments Create Tragedy of the Commons Problems

Hudson Blake Hudson (Stetson) has posted Federal Constitutions: The Keystone of Nested Commons Governance (Alabama Law Review) on SSRN.  Here's the abstract:

The constitutional structure of a federal system of government can undermine effective natural capital management across scales, from local to global. Federal constitutions that grant subnational governments exclusive regulatory authority over certain types of natural capital appropriation - such as resources appropriated by private forest management or other land use-related economic development activities - entrench a legally defensible natural capital commons in those jurisdictions. For example, the same constitution that may legally entrench poor forest management practices by private landowners in the southeastern United States may complicate international negotiations related to forest management and climate change. Both the local and international issues may remain unaddressed because the national government is not constitutionally empowered to guide subnational policy formation and therefore may not bind subnational governments to certain types of international agreements related to private forests. Though there are around 160 unitary systems of government worldwide, compared to 25 federal systems, approximately 46 percent of the world’s land base is contained within the boundaries of federal nations. For certain types of natural capital, like forests, the numbers are even starker. Though federal systems comprise approximately 13 percent of the world’s governments, they maintain control over 70 to 80 percent of the world’s forests - a resource crucial for combating climate change.

Ultimately, national constitutional incapacity to participate in subnational natural capital management in federal systems legally entrenches three natural capital commons, one nested within another: 1) private individuals may rationally appropriate natural capital within the state commons in the absence of state government rules guiding sustainable resource appropriation; 2) state governments may rationally appropriate natural capital within the national commons because the national government is not constitutionally empowered to guide resource appropriation within states; and 3) national governments may rationally appropriate resources within the global commons because subnational governments constrain federal system participation in legally binding global governance of resources. This article introduces and describes the operation of nested natural capital commons created by certain federal structures and establishes a foundation for studying how keystone constitutions in federal systems may be fortified to allow more effective natural capital management across local, national, and global scales.

Steve Clowney

June 6, 2011 in Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 9, 2011

Las Vegas and the Future of Water Usage in the U.S.

A quick article on how Las Vegas has become the most water smart city in the country:

It's illegal now to have a front lawn in any new home in Las Vegas. The water authority will pay people who already have lawns to take them out--$40,000 an acre-- and replace them with native desert landscaping. They pay golf courses to do the same thing. It is illegal to let your sprinkler spray water on a sidewalk or street, and Las Vegas specifies the kind of hose nozzle you can use to wash your car (trigger style, so it doesn't simply pour water out when you're not using it).

And a determined recycling effort has produced pioneering results: the Las Vegas metro area now collects, cleans, and recycles to Lake Mead 94 percent of all water that hits a drain anywhere in the city. Essentially, the only water that isn't directly recycled back to the source is the water used outdoors.

Steve Clowney

May 9, 2011 in Natural Resources | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 26, 2011

Blumm and Guthrie on Internationalizing the Public Trust Doctrine

Michael Blumm (Lewis & Clark) and R.D. Guthrie (Lewis & Clark) have posted Internationalizing the Public Trust Doctrine: Natural Law and Constitutional and Statutory Approaches to Fulifilling the Saxion Vision (U.C. Davis Law Review).  Here's the abstract:

The public trust doctrine, an ancient doctrine emanating from Roman law and inherited from England by the American states, has been extended in recent years beyond its traditional role in protecting public uses of navigable waters to include new resources like groundwater and for new purposes like preserving ecological function. But those state-law developments, coming slowly and haphazardly, have failed to fulfill the vision that Professor Joseph Sax sketched in his landmark article of forty years ago. However, in the last two decades, several countries in South Asia, Africa, and the Western Hemisphere have discovered that the public trust doctrine is fundamental to their jurisprudence, due to natural law or to constitutional or statutory interpretation. In these dozen countries, the doctrine is likely to supply environmental protection for all natural resources, not just public access to navigable waters. This international public trust case law also incorporates principles of precaution, sustainable development, and intergenerational equity; accords plaintiffs liberalized public standing; and reflects a judicial willingness to oversee complex remedies. These developments make the non-U.S. public trust case law a much better reflection than U.S. case law of Professor Sax’s vision of the doctrine.

Steve Clowney

April 26, 2011 in Law Reform, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 6, 2011

Rule on Airspace in a Green Economy

Troy A. Rule (Missouri) has posted Airspace in a Green Economy on SSRN.  Here's the abstract:

The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land. The article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and non-rival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

April 6, 2011 in Land Use, Law & Economics, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, December 13, 2010

Fracking as Nuisance?

Thanks to reader Lee Van Put for pointing me to this article arguing that nuisance law might be used to put a break on gas drilling in the Northeast.  The basic argument that drilling practices that cause harm to neighbors might be a nuisance seems reasonable to me.  It strikes me that this can't be the first time this kind of issue has come up for drilling practices - anyone know of any specific precedents?  The harm/benefit scenario reminds me of Boomer, which would be controlling in New York - damages might be awarded rather than an injunction.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 13, 2010 in Natural Resources, Nuisance | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 28, 2010

The Fight for the Arctic

In 2007, Russia planted its flag on an underwater mountain range arising from the oil-rich Arctic seabed, adding a show of power to its legal claim that the range belonged to it under international law.  Not surprisingly, other nations claiming property rights in the Arctic seabed loudly objected, most notably Canada.  As the ice shelf in the Arctic disappears, making areas accessible that were inaccessible before, arguments over sovereign property rights are gathering momentum.  Russian and Norway recently concluded a 40-year dispute over Arctic territories.  And this week scientists and diplomats from a number of nations claiming rights are meeting at a conference in Moscow.Arctic  For an excellent source of analysis of international relations in the Arctic, see Professor Michael Byers's blog, Who Owns the Arctic? 

Beyond the obvious geopolitical and resource-management importance of the dispute, it is fascinating to see the array of tactics contemporary competing claimants to property use to establish their dominion over it, particularly for those of us who teach first-year property students.  The parties' use of law, custom, marking & signaling, and raw power to make their claims certainly would not surprise anyone teaching Johnson, Pierson and Ghen.

For example, Russia has gone to great lengths to mark the territory as its own, using a submarine to plant its titanium flag.  It has argued that by custom, the Arctic is its own, since more Russians live within the Arctic circle than any other nationality.  And Russia and Canada are both submitting claims to the territory to the UN for a ruling under the Convention on the Law of the Sea.

Russian flag on seabed

In addition, both Russia and Canada are making a show of expanding their presences in the region.  Both countries have found new enthusiasm for sponsoring scientific expeditions to, and building research stations in, the region.  The presence of those stations sends an important signal about territorial claims.  More ominously, in moves that both display territorial claims and threaten the use of raw power, both countries have increased their military presences there as well.  Canada, in fact, held military exercises there and vowed to increase its spending on defense forces for the area.

We teach students that actual, physical presence can be a key to making a successful property rights claim under doctrines such as adverse possession.  That same impulse seems to be animating the competing nations, even without the benefit of a doctrine that would reward their efforts.  That suggests to me that doctrines such as adverse possession merely ratify a deeply felt normative sense that claims to property rights are strengthened by the fact of physical presence.  And this may be our last, best opportunity to see competing claims to "new" earthly territory -- in other words, the doctrine of discovery, and the raw military power that animates it, at work.     

Mark A. Edwards

[Comments are held for approval, so there will be some delay in posting]

 

September 28, 2010 in Miscellaneous, Natural Resources, Property Theory, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, July 15, 2010

Saxer on Property Rights in Water.

Shelley Ross Saxer (Pepperdine) has posted The Fluid Nature of Property Rights in Water on SSRN.  Pun presumably intended.  Here's the abstract:

In this article, Professor Saxer discusses how the understanding of private and public rights in water influences the efficient allocation of this essential resource. Property rights to surface water, ground water, and rain water are explored and evaluated using the traditional comparison to the land-based “bundle of rights” metaphor. However, Professor Saxer concludes that this metaphor is inappropriate when applied to a resource such as water, which is constantly changing in form, quantity, and location and is difficult to exclusively possess. Rather, she argues that water rights should be viewed as a communal resource subject to state ownership under the public trust doctrine, with private rights allocated through government contracts granting revocable licenses to use.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

July 15, 2010 in Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 21, 2010

Bronin on Curbing Energy Sprawl

Sara C. Bronin (UConn) has posted Curbing Energy Sprawl on SSRN.  Here's the abstract:

Energy sprawl - the phenomenon of ever-increasing consumption of land, particularly in rural areas, required to site energy generation facilities - is a real and growing problem. Over the next twenty years, at least sixty-seven million acres of land will have been developed for energy projects, destroying wildlife habitats and fragmenting landscapes. According to one influential report, even renewable energy projects - especially large-scale projects that require large-scale transmission and distribution infrastructure - contribute to energy sprawl. This Article does not aim to stop large-scale renewable energy projects or even argue that policymakers focus solely on land use in determining whether energy projects are allowed to proceed.

Rather, it proposes that we advance the legal institutions necessary to facilitate one possible solution to energy sprawl: the alternative energy microgrid - that is, small-scale distributed generation between neighbors of energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells. Microgrids are attractive from a public policy perspective. They decentralize energy production, reducing the need for massive transmission lines and large centralized plants. They allow property owners to achieve economies of scale by spreading the costs and the risk of installation and maintenance among many parties. They provide cleaner alternatives to conventional energy methods of production. And they improve system efficiencies by reducing the amount of energy lost during transmission across long distances to end users.

Despite such benefits, regulatory, political, and economic barriers thwart microgrids. For example, state laws prohibit or severely limit their viability, while neighbors may object to living nearby. This Article offers three proposals to address such barriers. First, Congress should require states to consider a model standard for microgrids, just as it has required states to consider model standards in other areas of utility law. Second, states should provide guidance to localities with respect to siting and permitting microgrid projects. Third, states should develop and authorize legal institutions that would support microgrid projects, drawing from Professor Robert Ellickson’s proposal for block improvement districts, which accommodate the public-private nature of shared energy. Together, these proposals would support small-scale energy sharing collectives whose emergence could transform the American landscape.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

May 21, 2010 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 21, 2010

Salkin on Renewable Energy and Land Use Regulation Parts I and II


Patricia Salkin (Albany) has posted Renewable Energy and Land Use Regulation (Part 1) and Renewable Energy and Land Use Regulation (Part 2) on SSRN.  Here are the abstracts:

Part I of a two-part set of materials on renewable energy and land use regulation, this piece focuses on local climate change action plans (highlighting Denver, Los Angeles, Montgomery County, Cleveland and Santa Fe), discusses lcoal governments and LEED, Energy Star issues including preemption, and the incorporation of green development concepts into local comprehensive land use plans and local zoning and land use regulations.

This article is Part 2 of a set of materials on renewable energy and land use. The article focuses on state and local government approaches to the siting of wind projects including a discussion of host community agreements. Examples of local ordinances are provided as well as a summary of recent relevant caselaw.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

April 21, 2010 in Land Use, Natural Resources, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, March 11, 2010

Owen on Urbanization, Water Quality, and the Regulated Landscape

Dave Owen (Maine) has posted Urbanization, Water Quality, and the Regulated Landscape on SSRN.  Here's the abstract:

Watershed scientists frequently describe urbanization as a primary cause of water quality degradation, and recent studies conclude that even in lightly-developed watersheds, urbanization often precludes attainment of water quality standards. This article considers legal responses to this pervasive problem. It explains why traditional legal measures have been ineffective, and it evaluates several recent innovations piloted in the northeastern United States and potentially applicable across the nation. Specifically, the innovations involve using impervious cover TMDLs, residual designation authority, and collective permitting. More generally, the innovations involve transferring regulatory focus from end-of-the-pipe to landscape-based controls. I conclude that the innovations, while raising some new problems, represent a promising shift, and it discuss additional reforms and research needed to better reconcile legal water quality standards and traditional land development patterns.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

March 11, 2010 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

AALS Program on Water Law for Next Annual Meeting

Professor Kali Murray of the Marquette University Law School and Chair of the 2010 AALS Section on Property Law is pleased to announce that the Section will be doing a joint program with the Agricultural Section (where Professor David Myers of Valparaiso University School of Law is the current chair) for the annual meeting next year (January 2011) in San Francisco.

The joint program will focus on "Changing Conceptions of Water in Law."

If you would like to submit a paper, we would love to hear from you by March 30, 2010. Please send us a working title and a brief description of your paper.  The paper will be published in a law review so we can only consider unpublished articles for possible inclusion in the AALS panel. If interested, please contact us at kalimurray@marquette.edu, or david.myers@valpo.edu. Please be sure to include both of us on your email submissions.

[Comments are held for approval, so there will be some delay in posting]

March 2, 2010 in Conferences, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Saturday, February 6, 2010

Ode to Centralia, Pennsylvania

The Associated Press ran an interesting story yesterday about the final days of Centralia, Pennsylvania, which has rested for decades above an intense, underground coal fire.  The federal government condemned the town in the 1980s and 1990s, but a hand few of holdouts have remained.  The state government now appears to be getting serious about removing them.  This story presents a lot of interesting property aspects -- from environmental concerns to eminent domain policy to the relationship between property, place and personal identity.  Interested readers can find a number of resources on Centralia here, although I can't vouch for any of them personally.

Mike Kent

P.S.  Thanks to Stetson Law student Emily Pabalan for bringing the story to my attention.

[Comments are held for approval, so there will be some delay in posting.]

February 6, 2010 in Natural Resources, Property Theory, Takings | Permalink | Comments (1) | TrackBack (0)

Monday, February 1, 2010

Requiring Rainwater Mitigation in LA

From an interesting story in the LA Times:

A proposed law would require new homes, larger developments and some redevelopments in Los Angeles to capture and reuse runoff generated in rainstorms.

The ordinance approved in January by the Department of Public Works would require such projects to capture, reuse or infiltrate 100% of runoff generated in a 3/4 -inch rainstorm or to pay a storm water pollution mitigation fee that would help fund off-site, low-impact public developments. . . .

Under the ordinance, builders would be required to use rainwater storage tanks, permeable pavement, infiltration swales or curb bump-outs to manage the water where it falls. Builders unable to manage 100% of a project's runoff on site would be required to pay a penalty of $13 a gallon of runoff not handled there -- a requirement the Building Industry Assn. has been fighting.

"The Building Industry Assn. is supportive of the concept of low-impact development and has invested a lot of time and energy in educating our members on those techniques and advancing those technologies," said Holly Schroeder, executive officer of the L.A.-Ventura County chapter of the association.

"But when we now start talking about using LIDs as a regulatory tool, we need to make sure we devise a regulation that can be implemented successfully."

Schroeder said that some building projects, such as those in downtown L.A. or areas where the soil is high in clay, would have difficulty with the 100% retention rule and that the $13-a-gallon mitigation fee is too high. A one-acre building on ground where runoff could not be managed on site, Schroeder said, could pay a fee as high as $238,000.

"We're seeking flexibility to reflect the site circumstance," she said.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

February 1, 2010 in Land Use, Natural Resources | Permalink | Comments (1) | TrackBack (0)

Thursday, January 28, 2010

Babie on Climate Change and Property

Paul T. Babie (University of Adelaide) has posted Climate Change and the Concept of Private Property on SSRN.  Here's the abstract:

This essay argues that the dominant liberal conception of private property, implemented and operating in legal systems worldwide, permits power - or choice - over the use and control of goods and resources so as to prioritise self-interest over obligation towards the community, both local and global. This, in turn, is one of the components of modern social life making possible the complex processes that produce both anthropogenic climate change and its consequences for humanity.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

January 28, 2010 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 25, 2010

Rosser on Reservation Resources

Ezra Rosser (American U.) has posted Ahistorical Indians and Reservation Resources on SSRN.  Here's the abstract:

This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

January 25, 2010 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)