Journals featured in this issue of the Law and Policy Digest, Volume 7, Number 1 .

For more information, click on the name of the journal.

Albany Law Environmental Outlook Journal
Boston College Environmental Affairs Law Review
Boston College Law Review
Boston University Law Review
Brooklyn Law Review
Coastal Management
Columbia Journal of Environmental Law
Denver University Law Review
Ecology Law Quarterly
Energy Law Journal
Environmental Law
Environmental Law Reporter
George Washington International Law Review
Hastings West-Northwest Journal of Environmental Law & Policy
Journal of Environmental Law and Litigation
Journal of Land Use and Environmental Law
Louisiana Law Review
McGeorge Law Review
Naval Law Review
New York University Environmental Law Journal
North Carolina Law Review
Ocean and Coastal Law Journal
Ocean Development and International Law
Public Land and Resources Law Review
SMU Law Review
Stanford Environmental Law Journal
Stanford Journal of International Law
Sustainable Development Law and Policy
Syracuse Law Review
UCLA Law Review
University of Richmond Law Review
Vermont Journal of Environmental Law
Villanova Environmental Law Journal
Virginia Environmental Law Journal
William and Mary Environmental Law and Policy Review

TABLE OF CONTENTS, LAW & POLICY DIGEST, NO. 7, VOL. 1

I.        ALTENATIVE ENERGY
II.       AQUACULTURE
III.      CLIMATE CHANGE
IV.     COASTAL HAZARDS

V.      COASTAL MANAGEMENT
VI.      CORAL REEFS
VII.     ECOSYSTEM MANAGEMENT
VIII.    ENDANGERED SPECIES

IX.      ENVIRONMENTAL LAW
X.       FISHERIES MANAGEMENT  
XI.      LAW OF THE SEA
XII.     MARINE PROTECTED AREAS
XIII.    MARINE SECURITY  
XIV.   MARITIME BOUNDARIES
XV.    OCEAN GOVERNANC
XVI.    POLLUTION
XVII.   SHIPPING
XVIII.  SUSTAINABILITY
XIX.    WATER LAW
XX.     WETLANDS

I. ALTERNATIVE ENERGY

Brown, Brit T., and Benjamin A. Escobar. “Wind Power: Generating Electricity and Lawsuits.” 28 Energy Law Journal 489 – 515 (2007).
In light of soaring fuel costs and increased concern over emissions, wind energy is an increasingly attractive alternative to traditional fuels. Despite the benefits of wind energy, it has faced increasing opposition in the courts, legislatures, and state and federal agencies. Brown and Escobar examine trends in wind power litigation and legal issues that impact the development of wind power. The article provides a review of four proposed offshore wind farms and details litigation regarding one of the wind farms, the Cape Wind Project. 

Hadam, Jacquelyne. “The Latest Development in the Debate over Nantucket Sound: Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board.” 13 Ocean and Coastal Law Journal 121 – 134 (2007).
Hadam looks at hurdles hindering wind energy projects in the United States, using the permitting process for the Cape Wind Project in the Nantucket Sound as an example. She analyzes the Massachusetts Supreme Judicial Court’s recent decision, Alliance to Protect Nantucket Sound, Inc. v. Energy Facilities Siting Board, which dealt with the construction of underground and undersea transmission cables for the Cape Wind project. The author concludes that the court acted reasonably under the circumstances and suggests that the successful development of an offshore wind energy project would require the federal government to develop a comprehensive permitting and regulatory framework.

Walsh, Michael B.  “A Rising Tide in Renewable Energy: The Future of Tidal In-Stream Energy Conversion (TISEC).” 19 Villanova Environmental Law Journal 193 – 226 (2008).
Hydropower is the largest source of renewable energy in the United States.  The first fully functioning tidal turbines, called Tidal In-Stream Energy Conversion (TISEC) devices, were installed in New York City’s East River in December 2006. Walsh focuses on the possibility of creating commercially viable, mainstream tidal energy and the obstacles that must first be overcome.

II.  AQUACULTURE

Davies, Lynne D. “Revising the National Offshore Aquaculture Act of 2007: Using State of Maine Aquaculture Laws, Regulations, and Policy Recommendations as a Prototype for the Proposed Framework.” 13 Ocean and Coastal Law Journal 95 – 120 (2007).
In recent years, the United States’ demand for seafood has increased dramatically. Davies suggests that the implementation of a national offshore aquaculture industry would help alleviate the pressure on commercial fish stocks. The article includes background information on the country’s regulatory environment and an analysis of the National Offshore Aquaculture Act of 2007.  She suggests a potential framework for creating a successful offshore aquaculture program based on the state of Maine’s aquaculture laws. The article provides an in-depth look at the state’s aquaculture laws and regulations.

Thomas, Kelly O.  “The Sustainable Oceans Act: Will Fish Farmers Take the Bait?”   38 McGeorge Law Review 149 – 157 (2007).
Aquaculture has become the fastest growing animal-food producing industry in the world. California does not currently have any offshore fish farms, but a few states do.  Aquaculture operations in other countries have shown that marine fish farming may significantly impact the environment. In anticipation of marine fish farms, the California Legislature enacted the Sustainable Oceans Act (SOA), which establishes the most stringent aquaculture standards in the nation. Thomas examines whether the SOA will be sufficient to resolve regulatory and user conflicts.

III. CLIMATE CHANGE

Caldwell, Meg, and Craig Holt Segall. “No Day at the Beach: Sea Level Rise, Ecosystem Loss, and Public Access along the California Coast.” 34 Ecology Law Quarterly 533 – 578 (2007).
Caldwell and Segall argue that global warming will cause higher water, more powerful storms, and increased coastal erosion along the California coast. Climate change also presents the California Coastal Commission (CCC) with new challenges in its goal to protect coastal resources. The authors contend that the CCC and the State of California should plan now for sea level rise. Caldwell and Segall discuss the current threats to the coast and then suggest policy responses that the CCC and other land use bodies should consider adopting.

Farber, Daniel A. “Adapting to Climate Change: Who Should Pay.” 23 Journal of Land Use and Environmental Law 1 – 37 (2007).
Most environmentalists are concerned with mitigating the effects of climate change. Farber examines the possibilities for adaptation to climate change. He points out that in Massachusetts v. EPA, the states asked for regulatory action and the court did not consider the issue of cost allocation. In the article, he first addresses the challenges of adaptation and asks who should absorb the cost for climate change. Farber looks at possible solutions to cost allocation, concluding that the “emitters pay” principle would be the most successful. 

Few, Roger, et. al. “Climate Change and Coastal Management Decisions.” 35 Coastal Management 255 – 270 (2007).
The integration of climate change adaptation considerations into management of the coast poses major challenges for decision makers. This article reports on a case study undertaken in Christchurch Bay, UK, examining local capacity for strategic response to climate risks, with a particular focus on issues surrounding coastal defense. Drawing primarily on qualitative research with local and regional stakeholders, the analysis identifies fundamental disjunctures between generic concerns over climate change and the adaptive capacity of local management institutions. Closely linked with issues of scale, the problems highlighted here are likely to have broad and continuing relevance for future coastal management elsewhere. Abstract courtesy of Coastal Management

Hand, Jacqueline P. “Global Climate Change: A Serious Threat to Native American Lands and Culture.” 38 Environmental Law Reporter 10329 – 10337 (2008).
Hand discusses the effects of climate change on Native American lands and culture. She describes how the Native American population in the Arctic Region will face a more immediate threat than the general population. Hand explains the value of including tribal knowledge and expertise in forming adaptive mechanisms to climate change. Finally, she examines tribal responses to climate change. 

Kaswan, Alice. “Environmental Justice and Domestic Climate Change Policy.” 38 Environmental Law Reporter 10287 – 10315 (2008).
Kaswan suggests that legislators and regulators should consider environmental justice concerns when forming climate change policies. She discusses the environmental benefits and risks of cap and trade programs, noting how environmental justice concerns may be incorporated into the programs without upsetting the balance of equity and efficiency. Kaswan also looks at economic risks and opportunities in other climate change policies. Finally, she describes environmental justice risks in new technologies, such as ethanol. 

Kostyack, John, and Dan Rohlf. “Conserving Endangered Species in an Era of Global Warming.” 38 Environmental Law Reporter 10203 – 10213 (2008).
Kostyack and Rohlf examine the strength of the Endangered Species Act (ESA) in the face of global warming. The authors suggest necessary changes to the ESA for the Act to continue to protect biodiversity. The article contains a description of the effects of climate change on certain species and suggests management responses. The authors also include policy recommendations for climate change legislation and adaptive management practices.  

Openchowski, Charles. “The Next Greenhouse Gas Executive Order?” 38 En­vi­ronmental Law Reporter 10077 – 10088 (2008).
Openchowski notes that five presidential Executive Orders involving greenhouse gas emissions have been signed since the Kyoto Protocol was drafted. Several state governors have signed similar orders. He predicts what the next Executive Order related to greenhouse gases might contain and examines the growing impact of climate change on political and economic issues.  

Ross, Christina, et. al. “Climate Change Liability and the Allocation of Risk: Limiting Liability in the Greenhouse: Insurance Risk-Management Strategies in the Context of Global Climate Change.” 43 Stanford Journal of International Law 251 – 318 (2007).
In light of liability concerns regarding the impacts of climate change, Ross and coauthors tackle the issue of liability insurance risks. Specifically, the authors examine risks to insurers from claims of third parties alleging property damage after natural disasters linked to climate change. The authors identify risk-management strategies that will help insurers mitigate their exposure to climate change liability.

Ruhl, J.B. “Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future.” 88 Boston University Law Review 1 – 62 (2008).
Climate change will have an unpredictable effect on ecological systems. Ruhl looks at how climate change will affect the Endangered Species Act (ESA) and the primary agency that administers it, the U.S. Fish and Wildlife Service (FWS). He first looks at threats species will face and likely consequences from the changes. Next, he provides an in-depth examination of the effects of climate change on the FWS’s decisionmaking process. The article then examines the FWS’s discretion to make policy decisions under the ESA. Finally, he proposes a way that the ESA may be used to establish protective measures for endangered species affected by climate change. 

Wood, Mary Christina. “Nature’s Trust: A Legal, Political and Moral Frame for Global Warming.” 34 Boston College Environmental Affairs Law Review 577 – 603 (2007).
Wood examines the impact of environmental law on global warming and provides an overview of the history of global warming. She concludes that the current regulatory system has contributed to the problem and proposes a property-based framework to measure a government’s responsibility for climate change. 

IV.  COASTAL HAZARDS

Carrasco, A.R. et. al. “Historic Monuments Threatened by Coastal Hazards at Boca do Rio, Algarve, Portugal.” 35 Coastal Management 163 – 179 (2007).
The coastal stretch of Boca do Rio, western Algarve, Portugal, is experiencing shoreline retreat. Roman ruins are located along the beach section of the coast, and a 17th-century fort is positioned over the cliff section. Both historic monuments are being destroyed by erosion but need to be protected due to their heritage status. Aerial photograph analysis was used to define the evolution of the coast for the period 1945-2001. Shoreline retreat of 0.3 m/year was measured for the sandy coast and 14 mass movements in the cliff face were identified. Considering the rate and style of shoreline evolution, several types of management scenario were evaluated, with the favored measures being the removal of the Roman ruins to a museum and the relocation of the fort inland.
Abstract courtesy of Coastal Management

Costonis, John J. “Two Years and Counting: Land Use and Louisiana’s Post-Katrina Recovery.” 68 Louisiana Law Review 349 – 386 (2008).
In this report, Costonis examines legal issues in Louisiana’s land use and coastal management system in light of Hurricanes Katrina and Rita. He explains the importance of the issues and gives an overview of the legal challenges that must be overcome to address the issues. Costonis looks at regional land use and land use powers and local governments. The article analyzes the amendments to the Louisiana Constitution involving the state’s eminent domain power and suggests possible legal challenges that might lie ahead.

Klein, Christine A., and Sandra B. Zellmer. “Mississippi River Stories: Lessons from a Century of Unnatural Disasters.”   60 SMU Law Review 1471 – 1537 (2007).  
Klein and Zellmer focus on three stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. The authors note that these stores include important lessons, including the inadequacy of engineered flood control structures such as levees and dams, the perverse incentives created by the national flood insurance program, and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers. Klein and Zellmer argue that property owners in flood-prone areas “take” taxpayer dollars through two sometimes overlapping mechanisms. The article concludes with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.

Main, Michiru A. and Philip Dearden. “Tsunami Impacts on Phuket’s Diving Industry:  Geographical Implications for Marine Conservation.” 35 Coastal Manage­ment 467 – 481 (2007).
This article examines the impacts of the December 26, 2004 Indian Ocean tsunami on the scuba diving industry in Phuket, Thailand. Interviews were carried out to determine tsunami effects on dive tour companies, and post-dive questionnaires were distributed to ascertain recreational diver perceptions of tsunami effects on dive sites. Of the 65 companies in December, 2004, 42 were fully operational in April 2005. During the post-tsunami high season, 35 companies lost an average of 63.6 ± 40.5% days of diving, compared to an average season, amounting to a total of 4631 diving days. During this time, the diving industry was instrumental in post-tsunami rescue, relief, and restoration efforts. Despite high expectations for damage, tsunami effects on dive sites were not noticed by most recreational divers. Using a geographical perspective, this study highlights how tsunami effects on the diving industry have several implications for marine conservation in Thailand.
Abstract courtesy of Coastal Management

Miller, Jeffrey G. “Remedying Our Fragmented Governmental Structures to Deal With Our Nation-on-Edge Problems.” 38 Environmental Law Reporter 10187 – 10192 (2008).
Miller defines “nation-on-edge” problems as problems stemming from development in disaster-prone areas. He argues that a flexible federal framework would effectively remedy those problems, rejecting the assumption that local problems require local solutions. He suggests a regime modeled on the Clean Water Act’s point source pollution control framework. 

Platt, Rutherford. “Learning From Disasters: The Synergy of Law and Geography.” 38 Environmental Law Reporter 10150 – 10157 (2008).
Platt explains that regulatory schemes for natural disaster mitigation are generally created in the aftermath of specific disasters, such as the flood control rules for the Lower Mississippi after the Great Mississippi River Flood of 1927. He discusses how natural disasters have shaped land use planning over the past several centuries and examines the evolution of several management policies. 

Salkin, Patricia E. “Sustainability at the Edge: The Opportunity and Responsibility of Local Governments to Most Effectively Plan for Natural Disaster Mitigation.” 38 Environmental Law Reporter 10158 – 1017 (2008).
Salkin explores the role of local governments in natural disaster mitigation. The article includes an explanation of how local governments may use local land use power to mitigate natural disasters. Salkin gives an overview of provisions regarding local land use planning in the Disaster Mitigation Act of 2000, noting that the Act offers financial incentives for states working with local governments when planning for growth and disasters. She also includes case studies in which states have formed links among federal, state, and local entities that facilitate disaster mitigation.

Schwab, Anna K., and David J. Brower. “Increasing Resilience to Natural Hazards: Obstacles and Opportunities for Local Governments under the Disaster Mitigation Act of 2000.” 38 Environmental Law Reporter 10171 – 10186 (2008).
Schwab and Brower examine how decisions about local land use planning can mitigate the effects of natural hazards. The authors explain the differences between resistance and resilience, noting that efforts at resisting the forces of nature through containment or control usually fail. Looking at the Disaster Mitigation Act of 2000, Schwab and Brower explore the planning tools available to local governments. 

Worachananant, Suchai. “Impacts of the 2004 Tsunami on Surin Marine National Park, Thailand. 35 Coastal Management 399 – 412 (2007).
The impacts of the tsunami in 2004 on the reefs in Surin Marine National Park, Thailand, varied with the location and exposure of the reefs. Channel areas between islands were severely damaged. Areas with steep reef slopes were damaged by sand slides or coral collapse more than areas with low slopes. Massive, sub-massive, and encrusting corals were more resistant and resilient to the direct impact of the tsunami than branching, tabulate, and foliose life forms whereas the latter were more tolerant of temporary coverage by sand. Sub-massive corals were the most tolerant overall and survived sand coverage, breakage, and overturning. Live coral cover measured three months after the tsunami was significantly greater than immediately post-tsunami as broken, moved, or sand-covered corals, recorded as impacted in the initial survey, had survived and were regenerating. Low turbidity, lack of pollution, and mild currents possibly contributed to rapid recovery and limited long-term effects of the tsunami. Impact assessment shortly after a major disturbance may give an initial measure of damage but subsequent surveys must be undertaken to identify long-term effects. Understanding patterns of reef damage can help to formulate reef zoning and protection strategies in response to catastrophic events, but also in advance of such events to improve likely resilience of the marine park to disturbance.
Abstract courtesy of Coastal Management

University of Mississippi