Vol 43 No. 2

A Fracking Mess: Just Compensation for Regulatory Takings of Oil and Gas Property Rights

Kevin J. Lynch – The law of takings receives much attention from courts and scholars.  Yet much of that attention focuses on the questions of whether or not a taking has occurred, or whether the taking was for a public use.  Less attention has focused on the appropriate measure of just compensation.  This is understandable, because in many cases the requirement to pay just compensation would be too burdensome on the government, particularly in the more recent line of regulatory takings cases, and so if a taking is found, the government simply abandons its regulation and pays no or reduced compensation.   Nevertheless, courts have attempted to grapple with the just compensation question and developed a variety of approaches that might be used to determine damages for takings on a case-by-case basis.  Yet the lack of clear guidance from the courts and the potential for high damages awards due to the […]

Corrupt at Its Core: How Law Failed the Victims of Waste Dumping in Côte d’ Ivoire

Rebecca Bratspies – On August 19, 2006, citizens of Côte d’ Ivoire woke to suffocating odors. Overnight, five-hundred tons of hazardous waste had been illegally dumped across the country’s largest city, Abidjan.  Thousands were sickened.  The incident stands as one of the most flagrant environmental crimes in recent memory.  Now, more than a decade later, it is past time to examine the tragedy as an act of environmental corruption and to use the incident to draw lessons about the failures of global environmental governance.  The case is particularly instructive because the multi-national oil-trading company involved, Trafigura, has recently been back in this news; this time because of South Korean allegations that the company was involved in oil shipments to North Korea in violation of United Nations (“UN”) Sanctions. With regard to the dumping in Côte d’ Ivoire, Trafigura “strenuously maintains that it did nothing wrong and its staff acted in […]

Executive Review and the Youngstown Categories: Vulnerability of Environmental Regulations to Unbounded Executive Review

Lee C. Rarrick – [C]omprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country . . . . -Justice Jackson The power of executive review remains imperfectly limited and defined—it therefore holds such potential dangers and advantages.  By executive review I mean the power of the President to interpret the law and determine for himself whether a given law or provision is constitutional.  Most commentators agree that this power exists legitimately in one form or another.  But some argue that it is virtually unbounded, save for the president’s own sense of deference to the other branches and his self-interest to remain in office.  Such a comprehensive power surely is as dangerous as that of which Justice Jackson warns in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, if not more so.  Moreover, if fully utilized, executive review would leave the judiciary with no […]

Federal Indian Reserved Water Rights and the No Harm Rule

Christian Termyn – Most American Indian rights to water trace their origins to 19th century treaty negotiations with the United States.  The 1908 Supreme Court case Winters v. United States established that the federal statutes and treaties setting aside land for Indian reservations also impliedly reserved sufficient water to fulfill the purpose of those reservations.  In the century since Winters, the development of a legal doctrine around reserved water rights has centered largely on defining and quantifying the amount of water to which tribes are entitled.  With an increasing number of tribes holding quantified water rights, a more recent project (and the broad focus of this Note) seeks to integrate tribal water use within the dominant system of western water law: state prior appropriation doctrine. Where water is scarce, even a slight change in practice by one water user may affect the availability of water to other users of a […]