Wednesday, February 1, 2006

Houston Conference on Natural Gas

The University of Houston Law Center has announced a conference titled Should We Site It Here:  The Environmental Issues Assoicated With Liquefied Natural Gas:

The Expansion of the use of Liquefied Natural Gas (LNG) and how that utilization will occur is probably the most important energy issue that our country has faced since the first widespread adoption of Nuclear Energy. Energy shortages and the accompanying increasing price of natural gas, along with new federal legislation about siting of LNG terminals ensure that LNG will have an enormous future effect on our energy security, energy usage patterns, prosperity and the environment. The University of Houston Law Center's Environmental & Energy Law & Policy Journal will address this important topic at its second annual symposium entitled "Should we Site it Here: Environmental Issues Associated with LNG Development" on Friday, March 3, at the Hilton Hotel on the University of Houston Campus.

This symposium will specifically address the environmental issues associated with the increasing use of LNG in terms of extraction, importation and utilization, and the appropriate body to make siting decisions. This will be the first academic symposium to address these questions and will feature law professors Peter Appel, Eileen Gauna, and Irma Russell addressing federalism, environmental justice, and environmental impacts of fuel switching. The keynote address will be delivered by the Honorable Danny J. Boggs, of the U.S. Sixth Circuit Court of Appeals and former Deputy Secretary of Energy in the Reagan Administration.

Ben Barros

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February 1, 2006 in Conferences, Land Use, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 18, 2006

Symposium on the Rule of Capture

A recent volume of Environmental Law (Rule of Capture in 35 Environmental Law no. 4 (2005)) contains a symposium on the rule of capture.  Four of the eight articles from the symposium are now available on SSRN:

The Role of Captives in the Rule of Capture, Lea S. Vandervelde (University of Iowa College of Law).

This article makes two important comments about how the Rule of Capture as a distributional measure excludes certain groups.

First, The Rule of Capture as formulated by John Locke effectively shut out two kinds of co-claimants from the commons of North America: free original inhabitants and men and women who were in the service of others, even when these people were indispensable to the act of capture. Though the Capture rule resonates as an ethically based distributional principle, its three ethical premises are not carried through when applied to the commons of North America. The three premises are: 1. first in time, first in right; 2. the deservedness of the laboring person who capture the resource; and 3. hunger as a human condition shared by all. The article demonstrates how Native Americans are excluded in Locke's formulation though they have strong claims of first in time, and servants and slaves are excluded despite having strong claims to deservedness as the laboring person who actually does the capturing of the resource. Hence, Locke's formulation as an apologist for conquest and domination appears to have the instrumental and anti-democratic objective of delegitimating the claims of these two groups of peoples to the commons.

Second, using the example of York, William Clark's slave and companion in the Corps of Discovery, the article demonstrates how historical practices operated to continue the subordination of slaves utilized in various phases of conquest. Slaves, like York, were instrumentally used to advance American efforts at Conquest and later settlement. An examination of Lewis and Clark's accounts of York show that these masters treated him with respect and almost partnership while in the wilderness and on Indian lands during the voyage of discovery only to relegate him to slavery in several of its worst treatments when the successful mission returned. Having seen the West, having survived the wilderness travel and aided in the mission's success, York was disappointed in his hopes and expectation of winning freedom for his heroic efforts upon returning to civilization. His treatment was completely at odds with the treatment of every other member of the troupe who were showered with laurels of increased recognition, status, and material gain.

The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, Michael C. Blumm and Lucas Ritchie (Lewis & Clark School of Law).

The law of capture, a central feature in Anglo-American property law, has deep historical roots, running at least to Rome, where capturers could create private property in res nullius resources like wildlife (ferae naturae) if they did so consistent with Roman law (imperium). When transferred to English common law, capture doctrine became laden with pervasive restrictions imposed by royal prerogatives, as the English king was said to own, and therefore control, all wildlife that had been unowned in Rome. Thus, the English concepts of royal forests and hunting franchises imposed substantial limits on the capture of wild animals.

In early America, colonial rejection of royal prerogatives seemed for a time to sanction a free-wheeling rule of wildlife capture unknown in England. For example, the English rule allowing landowners to exclude capturers was largely discarded, at least with respect to unfenced lands. But as the overharvesting consequences of expansive capture rules became apparent, American courts rediscovered and republicanized the royal prerogatives into the concept of state ownership of wildlife. This 19th century development was grounded on both sovereign power and public ownership principles, or sovereign ownership, a concept endorsed by the Supreme Court in 1896.

Although during the 20th century the Supreme Court repeatedly limited the state ownership of wildlife where it conflicted with federal law - and finally overturned the case that endorsed the doctrine in 1979 - today nearly every state claims ownership of wildlife within its borders. This article examines that phenomenon and explains both the limits and utility of the state ownership doctrine in the 21st century. We claim that although modern notions of the police power justify expansive state regulation of wildlife, the state ownership doctrine retains vitality because it may bolster or enlarge police power regulation by 1) imposing affirmative duties to protect wildlife, 2) empowering states to collect damage for destriction of wild animals, and 3) offering an affirmative defense against landowner claims of constitutional takings based on restrictive habitat protections.

Three Cases/Four Tales: Commons, Capture, the Public Trust, and Private Property in Land, Dale D. Goble (University of Idaho College of Law).

This article examines the legal universe occupied by animals ferae naturae through an analysis of three cases from the early nineteenth century. The three cases - Pierson v. Post (an 1805 decision of the New York Supreme Court), Arnold v. Mundy (an 1821 decision of the New Jersey Supreme Court of Judicature), and Inhabitants of Stoughton v. Baker (an 1808 decision by the Massachusetts Supreme Judicial Court) - examine the nature of property in such animals. In doing so, the decisions shed light on four recurrent topics in natural resource law: common property, capture, private property in land, and the public trust. Animals ferae naturae have particular relevance to these issues. For Locke and the Enlightment civilians, animals ferae naturae were the paradigm of an unowned thing; they were the then-current analog of the state of nature, that imagined starting point for society. Wildlife law, in short, was often a speculation about the nature and sources of property. The early nineteenth century also has particular relevance to these questions. During this period, federal and state judges worked to reconfigure the common law to account for two ongoing revolutions: the political revolution from monarchy to republic and the economic-social revolution from agrarian-communitarian to market-individualistic. As such, the cases provide insight into the balance between public and private: what scope of unchecked autonomy is to be accorded the individual? what does the individual owe to society?

The Spiritual Values of Wilderness, John Copeland Nagle (Notre Dame Law School).

The Wilderness Act of 1964 is the principal legal mechanism for preserving wilderness in the United States. The law now protects over 100 million acres of federal land, half of which is in Alaska. Yet the contested meaning of the term wilderness continues to affect the management of those wilderness areas, and the designation of additional lands as wilderness areas. Much current thinking about wilderness emphasizes the ecological and recreational interests that Congress cited when it enacted the law. These justifications for wilderness preservation are important, but they are incomplete. They are best supplemented by a better understanding of the spiritual values of wilderness. Religious conceptions have long informed American attitudes toward wilderness, beginning with the hostility that early settlers gleaned from Old Testament images of wilderness lands, and later appearing throughout the writings of John Muir. More recently, the witnesses testifying on behalf of the proposed Wilderness Act during the 1950's and 1960's repeatedly sounded spiritual themes, including biblical examples of the values of wilderness. The decades since the enactment of the law have produced a substantial theological literature that explores the meaning of wilderness. This article integrates the writing about the spiritual values of wilderness into the discussions of the management of wilderness areas, relying upon the examples of Alaskan wilderness lands to consider how to identify new wilderness areas and how to manage existing areas.

Ben Barros

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

January 18, 2006 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)