“The Conflict Between Local Fishing Industry and the Protection of Marine Fishery Resources in Recreational Fishing Alliance v. Evans”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Michael Russell. The following abstract was written by staff member Cara Houlehan.

Local fishing communities and federal wildlife conservation authorities share a mutual goal - to maintain a productive and healthy fishing environment. However, these groups have widely disparate views of how to accomplish this objective. Recreational Fishing Alliance v. Evans, 172 F. Supp. 2d 35 (D.D.C. 2001) illustrates the perspectives of each of these parties with regard to federally mandated fishing retention limits. Specifically, members of a local recreational fishing industry challenged the 1999 Highly Migratory Species Fishery Management Plan for Atlanta Tunas, Swordfish, and Sharks (HMS FMP), regulations which were implemented by the U.S. Secretary of Commerce and promulgated by the National Marine Fisheries Service (NMFS). Plaintiffs contended that the HMS FMP set shark and tuna retention limits in violation of the Magnuson-Stevens Act and the Regulatory Flexibility Act (RFA). The United States District Court for the District of Columbia granted defendants' motion for summary judgment, however, holding that plaintiffs had failed to show that the HMS FMP violated either Act.

The Magnuson-Stevens Act was enacted in response to increased fishing of highly migratory species of fish, and includes both conservation and management measures to protect them. In part, the Act states that the Secretary of Commerce must assess the potential effects of conservation efforts on participants in affected fisheries and, if possible, lessen disadvantages to U.S. fishermen as compared to foreign competitors. Further, the Act promulgates National Standards to direct future conservation plans and subjects the actions taken by the Secretary of Commerce to judicial review. The RFA requires agencies to assess the effects of regulations on small business entities.

Plaintiffs in Evans argued that the HMS FMP violated the Magnuson-Stevens Act by falling short of several of the National Standards and the requirement to minimize foreign competition. Furthermore, they claimed that the retention limits violated the RFA because the NMFS failed to consider small business concerns or the economic impact of retention limits on the industry.

In granting defendants' motion for summary judgment, the court stated that plaintiffs had provided insufficient evidence and did not offer adequate justifications for any of their claims. The court showed deference to the Secretary of Commerce due to the strong governmental interest in conservation and regulation of marine resources. They acknowledged the reasonableness of the regulations and the broad discretion of the NMFS in setting the retention limits.

The result in Evans reveals not only the weight of governmental interests in the fishing industry, but the difficulty local fisheries face in collecting sufficient evidence to substantiate their claims with very limited resources. While the government must be receptive to the plight of the industry, local fisheries may ultimately benefit from stringent regulation through the protection of the species on which their livelihood depends. Though fisheries' primary concern is their economic welfare, Evans
suggests that perhaps the only way to reconcile the conflict is to employ a forward-looking approach and recognize the long-term benefits of conservation. Meanwhile, in order to best serve the fishing environment, Congress must aim to protect local businesses as well as the fish on which they depend.

“What’s Up Doc?: A Critique of Veterinarian Experts Addressing Toxic Torts in the Environment Under the Daubert Threshold Inquiry”

This note appearing in JNREL Vol. 21 No.2 was written by former staff member Michael Marsch and confronts the Daubert threshold inquiry in the context of toxic torts that affect farmers' livestock. Staff member Derek Leslie wrote the following abstract.

The Daubert threshold inquiry acts as the vehicle through which many courts address the principles behind the Federal Rule of Evidence 702, which requires that for expert testimony to be admitted, (1) the testimony must assist the trier of fact, and (2) the expert must be qualified to offer such testimony. The U.S. Supreme Court elaborated upon these principles by developing what is now known as the Daubert threshold inquiry. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The inquiry takes the shape of pre-trial motions in limine, where one party attempts to discredit and thus exclude the testimony of the other side's expert witness. The court, when considering whether scientific evidence is to be admitted, considers "(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community." Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert, 509 U.S. at 592-94).

Unfortunately, the Daubert threshold inquiry actually heightens the standard required by FRE 702. Where FRE 702 essentially required that the expert be qualified and that her methodology be reliable, the Daubert threshold inquiry's fourth prong, general acceptance, requires more: that the science behind the testimony has wider acceptance in the scientific community. While it may sound innocent enough, it runs contrary to the evolving nature of science, and effectively closes the door on innovative and novel scientific techniques and evidence, despite its use by a qualified expert using a reliable methodology. Moreover, the inquiry relies upon the judge, who is in no better position than the jury to weigh the merits of competing scientific assessments, to sort out these difficult scientific questions.

In the cases involving toxic torts affecting farmers' livestock, the Daubert threshold inquiry often invites the exclusion of veterinarian testimony, effectively precluding the plaintiff-farmer from making his case to the jury. In these cases, courts often apply the Daubert threshold inquiry with respect to the conclusions rather than the methodology of the expert witness. The central premise of the plaintiff-farmer's case, causation, is left unsupported without an expert witness to expound that theory.

Because the Daubert inquiry invites misapplication, and tempts judges to decide factual questions about causation, it should be abandoned. The alternative, obviously, is to rely on FRE 702 itself. If a qualified witness' testimony will assist the trier of fact in coming to a determination, the witness should be allowed to testify in front of a jury. Of course, this also permits the other party to present their own qualified expert witnesses with their own conclusions, leaving the jury to resolve the problem of which parties' expert came to the sounder scientific conclusion. Here, in the case of toxic torts affecting livestock, the plaintiff-farmer would at least be able to present his argument with respect to causation. This approach simplifies the issues surrounding expert testimony, and results, ultimately, in a fairer trial.

“International Pollution: Can We Really Just Blame Canada?”

This comment was written by former Comments Editor Jamie Wilhite appearing in JNREL Vol. 21 No. 2. Staff member Andrew Leung wrote the following abstract.

In deciding Pakootas v. Teck Cominco Metals, Ltd., 452 F.3d 1066 (9^th Cir. 2006), the Ninth Circuit extended liability under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") to a foreign corporation when the disposal at issue occurred outside of the United States. "International Pollution: Can We Really Just Blame Canada?" explains the court's analysis and logic in making this revolutionary step for the environment.

The alleged polluting party in Pakootas is Teck Cominco Metals ("Cominco"), also a party to the infamous Trail Smelter Arbitration, a landmark case of international environmental law. Between 1906 and 1995, Cominco dumped smelting waste product ("slag") into the Canadian portion of the Columbia River. River currents then carried the slag and associated pollutants downstream into American territory, where the harm is alleged to have occurred. After investigation, the Environmental Protection Agency ("EPA") ordered Cominco to perform a remedial investigation/feasibility study of the area. When Cominco refused and the EPA failed to compel action, two members of the Colville Indian Tribes brought suit, seeking damages and injunctive relief.

CERCLA was enacted in 1980 by Congress as a remedial statute. "CERCLA promotes the cleanup of polluted areas and attaches strict liability for clean-up costs to those responsible for the pollution." The United States District Court for the Western District of Washington found that Cominco could be held liable either as a "generator" or an "arranger" potentially responsible party ("PRP"). The Ninth Circuit found that CERCLA liability could be extended to Cominco only if three conditions were satisfied: (1) a "facility" where the release or threatened release of hazardous waste occurred; (2) a "release" or "threatened release" of waste at aforementioned facility; and (3) a defendant that falls within one of the enumerated PRP categories.

The requirement of a "facility" is met when plaintiff demonstrates that defendant has a site where CERCLA hazardous materials are disposed of. The court found that Cominco's "facility" qualified because of the "extent of contamination in the United States associated with the Upper Columbia River." Although it in undisputed that Cominco released mining waste and byproduct into the Canadian portion of the Columbia River, courts have held that CERCLA liability only arises when there is a domestic release. To meet that requirement the Ninth Circuit found that an adequate domestic "release" occurred within American territory when chemicals and hazardous substances leached out of the slag after it had traveled downstream.

"Arranger" PRP liability applies only to "any person who by contract, agreement, or otherwise arranged for disposal or treatment, of hazardous substances owned or possessed by such party, by any other party or entity." Cominco argued that the act of disposing of one's own hazardous material falls without the scope of CERCLA "arranger" liability because it does not involve "any other party or entity." The Ninth Circuit rejected this interpretation, holding that it would seriously restrict CERCLA's reach and provide environmental agencies without recourse against companies that disposed of their own waste illicitly.

Pakootas v. Teck Cominco Metals, Ltd. is groundbreaking in that it is the first application of CERCLA to a foreign entity when the disposal of waste occurs outside of the United States. However, as a practical matter, CERCLA will not soon be extended to foreign entities across the globe whose activities will eventually have an effect on American soil.

“2006 Eminent Domain Ballot Initiatives: Citizens’ Voice or Crying Wolf?”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Ryan Daugherty. The following abstract was written by staff member Kyle Hermanson.

Citizens of the United States view the right to own and use land as a fundamental right. While strong property rights are a valued ideal, too strong a grip on this view could be injurious to society as a whole. In 2006, a handful of states passed, or nearly passed, radical reactionary ballot initiatives in response to the United States Supreme Court decision in Kelo v. New London, 545 U.S. 469 (2005). Citizens voted for these initiatives aiming to prevent their state courts from applying the broad definition "public use" used by the U.S. Supreme Court in Kelo in their states. In Kelo, the Supreme Court held that the promotion of economic development qualified as a "public use" under the Just Compensation Clause of the U.S. Constitution. However, the ballot measures passed in response to Kelo are far more potent then they appear, challenging the concept of land use planning as a whole.

Ballot initiatives can be a powerful tool for citizens. Measures authorizing direct popular participation in law-making are liberally construed, often cannot be vetoed by the governor, and allow the measure's sponsors to construct the initiative as they wish, so long as it complies with state conditions and procedures. The 2006 eminent domain ballot initiatives include either one or both of two components: a provision outlawing "Kelo- style eminent domain," and a provision that introduces a "pay-or-waive scheme." Outlawing "Kelo-style eminent domain" means banning the taking of private property or residences for use by a private or quasi-private entity and a "pay-or-waive" scheme requires the government to waive any newly enacted regulations on the use of land or pay just compensation to the land owner. These kinds of ballot initiatives were passed in Oregon and Arizona and defeated in Washington and California.

The consequences of these measures are beginning to be felt in the states that passed them. In Oregon, where the measure required that certain listed takings be construed in favor of compensation, there were over six billion dollars worth of unpaid claims against the state as of November 2006. In Arizona, the measure did not include an exception allowing takings for conservation purposes without required compensation. This forces the state government to compensate landowners for conservation-based restrictions on the use of their land. As a result, government officials will be fiscally unable to enforce new conservation regulations.

In Kentucky, state legislators have redefined eminent domain in response to Kelo as "the right of the Commonwealth to take for a public use." "Public use" in Kentucky means "ownership, possession, occupation or enjoyment of the property by a local government entity; removal of blighted properties; or for use by a public utility," and "[p]rohibits the transfer of private property to another private entity for economic development purposes." This clarification makes a ballot initiative clearly unnecessary, as state statute prevents a "Kelo-style" invasion in Kentucky. However, property protections in Kentucky could use further reform, as the definition of "blighted area" is too broad, including such subjective features as inadequate street layout or improper subdivision. Furthermore, the legislature has not clearly delineated allowable or prohibited public uses of property subject to eminent domain. Kentucky's responded with moderation to Kelo, but the people may still want stronger provisions.

“Save Our Mountains: The Impact of Save Our Cumberland Mountains v. Kempthorne in Encouraging NEPA Efficiency”

Former staff member Lindsay Yeakel wrote this comment appearing in JNREL Vol. 21, No. 2. The following abstract was written by staff member Nick Kloiber.

On January 1, 1970, Congress enacted the National Environmental Policy Act ("NEPA"), requiring that any proposed action involving federal funds or permits must be approved by the proper federal agency, which may require an environmental assessment (EA) or a published environmental impact statement (EIS). The overall effect of this law has required agencies to consider environmental concerns in their decision making process.

In Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (6th Cir. 2006), the question was raised about how far agencies must go to be in compliance with NEPA. The plaintiffs challenged an agency's ruling of no significant impact in relation to a coal mining permit application, arguing that the decision was arbitrary and that EA issued by the Agency was incomplete in that it didn't consider sufficient alternatives to the proposal.

The Sixth Circuit held that the agency met the requirements of NEPA in reaching its decision of no significant impact. The agency considered environmental impact, issues of resulting damage if the permit were issued, and looked at studies of comparative mining operations to decide that the current application would have no significant impact, and thus did not abuse its discretion or reach the decision arbitrarily.

The Court did, however, side with the plaintiffs in holding that the agency failed to consider sufficient alternatives to the proposal. The agency had argued it had a binary choice between granting and denying, whereas NEPA required it to study alternatives available. The Court reasoned that the agency could limit the scope of their review to reasonable alternatives, while not limiting it to a binary choice alone.

The decision in Kempthorne provides a better understanding of just what an Agency must do to satisfy the requirements of NEPA. It encourages companies seeking permits to do environmental studies prior to submitting an application, allowing the agency to incorporate the information into an EA without having to spend time and money on a full EIS. It also requires all agencies to look at reasonable alternatives to the proposal they are evaluating, instead of just granting or denying the application. This helps to ensure EA's accomplish their goals and that agency findings of no significant impact aren't arbitrary but are backed up by not just research but by consideration of alternatives. The overall cost, time, and effort savings encouraged by Kempthorne are a win-win for agencies, the environment and industry alike.

“King Fish: Pushing the Limits of Judicial Authority in National Wildlife Federation v. National Marine Fisheries Service.”

Former staff member Stuart Lipke wrote this comment appearing in JNREL Vol. 21 No. 2. Staff member Matt Cocanougher wrote the following abstract.

The salmon industry in the Northwest United States serves many different purposes at the same time. This fish has historically been a part of Native American religion and has currently become a major source of income for the area. Unfortunately, operation of the Colombia River's hydroelectric dams has begun to kill many of the salmon, as they swim into the dam's turbines. Because of this problem, several different species of salmon have been added onto the list of endangered species protected by the Endangered Species Act ("ESA").

National Wildlife Federation v. National Marine Fisheries Service, 422 F.3d 782 (9th Cir. 2005) (per curiam) was a result of a decision by an Oregon federal district court to grant an injunction which required the dam administrators on five dams along the Snake River to increase spill over as a way to protect the salmon. The dam administrators, Federal Columbia River Power System ("FCRPS"), were forced to follow four procedures outlined in the ESA. FCRPS was first obligated to consult an agency to determine whether an action is likely to threaten an endangered species. Next, the ESA requires that the agency which is actually carrying out the consultation use the best scientific and commercial data available. After the first two steps, the consulting agency issues a biological opinion outlining the anticipated impact on the species and the future risk to the species. Finally, the consulting agency makes a jeopardy determination which looks to the potential cumulative effects of the proposed action coupled with the current status of the species or habitat.

In this case, the National Wildlife Federation (NWF), along with the State of Oregon and others brought suit in federal court alleging that the National Marine Fisheries Service ("NMFS"), the consulting agency for FCRPS, failed to conduct a proper jeopardy determination during their consultation for their biological opinion of 2004. After finding several failures on NMFS's part, the district court granted a preliminary injunction, ordering FCRPS and other agencies to increase summer spill for several dams. NMFS appealed this preliminary injunction to the Ninth Circuit Court of Appeals. The Ninth Circuit rejected NMFS's arguments on appeal. It held that when Congress passed the ESA, it decided to tip the balance in favor of the endangered species in the event of hardships between the species and other industries. Next, the court found that the district court did not abuse its discretion in this case because it reasonably found that irreparable harm would result from inaction, and its actions were in furtherance of the ESA. Lastly, the court concluded that the district court's argument was narrowly tailored to fit the circumstances at hand, especially as NMFS failed to raise this issue during the injunction hearing.

This case highlights two key issues. The first is whether the district court's proactive role in granting the preliminary injunction crosses over into the realm of the executive branch's enforcement power. The second is what would happen if the district court actually determined that breaching the dams was necessary to carry out the ESA, which has not been done by a court before. Both of these issues remain politically contested and their resolution will have a big impact on the salmon industry.

“A Tough Row to Hoe: What Partlo v. Johanns Means for the Organic Food Industry”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Karen Campion. Staff Member Natasha Camenisch wrote the following abstract.

Organic farming has become a popular sector of agriculture in the United States. Organic farmers do not use chemicals on their crops and "currently draw a premium of anywhere from 10% to 130% over the price of conventional produce" because of their farming methods. Since organic farmers are making a huge profit off their crops, the amount of cropland dedicated to growing certified organic crops, fruits, and vegetables is continually growing. As a result of the benefits of organic farming, many consumers have sought to protect the integrity of this agriculture practice.

Congress enacted the Crop Loss Disaster Assistance Program (CLDAP) to provide "emergency assistance to all farmers who lost crops due to a disaster, as soon as practicable." Partlo v. U.S., 2006 WL 1663380 at *33 (D.D.C. 2006). In 1995, the CLDAP established separate payment rates and yields were established for different end uses of the same crop. The rates were meant to reflect the differences in price that produce would have commanded on the open market but for having been ruined in a disaster.

In 1998, organic farmers suffered a serious setback. The Secretary of Agriculture issued regulations specifying that "in spite of differences in yield or values," separate rates would not be established for "crops with different cultural practices, such as organically or hydroponically grown." Id. at *4. In Partlo v. Johanns, the court determined that there was no duty on the Secretary to establish distinct rates.

Organic farming has a number of health and environmental benefits. The Partlo decision could make organic farming less attractive for farmers and consumers alike. In her comment titled, "A Tough Row to Hoe: What Partlo v. Johanns Means for the Organic Food Industry," Karen Campion analyzes the court's explanation of why the plaintiff's Equal Protection rights were not violated and how the Administrative Procedures Act was not violated.

“The Terminator a Trendsetter? How California’s Global Warming Solutions Act Will Impact California, the United States, and the World.”

Appearing in JNREL Vol. 21, No. 2 this Note was written by former JNREL Technical Editor Keeana Sajadi. Staff member Jessica Drake wrote the following abstract.

In September of 2006, Arnold Schwarzenegger, Governor of the state of California, signed into law the most comprehensive greenhouse emission reduction program in the United States at that time, the Global Warming Solutions Act (GWSA). The Act would require reporting of the current emissions and a detailed timeline to reduce pollution rates in California to 1990 levels by the year 2020. The state established itself as a leader who would, through their efforts and projected success in such reductions as well as increases in overall energy expenses and job creations, gain governmental following by the United States and the world.

Because California is the twelfth largest emitter in the world of this pollution, it will use GWSA to reduce the associated stigma with that status and minimize its role in the harsh effects resulting from greenhouse emissions made by the state itself, other states of America, and counties around the world. Besides GWSA's establishment of short-term goals for reductions, it also allows the California Air Resources Board, created by GWSA to implement a specific reduction plan and timeline, to provide future guidance to the Governor once the 2020 goal is attained. Further, it applies the program with an eye toward creating a workable market-based compliance mechanism, limiting emissions through automobiles, and minimizing leakage of emission to surrounding areas because of reductions in California.

The implementation of such a bold step in environmental protection incites opposition from individuals and industries that will be currently affected. Farmers, power companies, and car manufacturers argue against this drastic plan that will require major changes for their operations. However, the benefits for the state, country and world-at-large overshadow those concerns. Because the program indirectly provides lower long-term energy costs, major increases in employment opportunities, better economic spending and saving, and progression in innovative technology that should ensure a better future for our natural environment, it is well worth the short-term discomfort for such industries today. Although there are critics with legitimate concerns, the GWSA benefits will outweigh any burdens imposed.

For a more specific and thorough analysis of California's monumental effort to reduce these emissions and encourage others to follow its lead, read Keeana Sajadi's "The Terminator a Trendsetter? How California's Global Warming Solutions Act will Impact California, the United States and the World," JNREL Vol. 21, No. 2.

“Parental Control: The Impact of the Sarbanes-Oxley Act Upon Environmental Disclosure Requirements of Public Companies”

This Note was written by former staff member Dawn R. Franklin. The abstract was written by staff member Tanner James.

A law is only as good as its enforcement, and in the world of publicly-traded corporations, poor enforcement invites exploitation and noncompliance. In the context of the environment, this creates one unsuspecting loser: the shareholders. Through delayed, misleading, or simply nonexistent reports, companies dupe shareholders in to paying premium prices per share while hiding environmental violations that, once made public, will result in plummeting share value.

As protection, shareholders must rely on regulatory statutes and policies that are often more bark than bite. Regulation S-K and Financial Accounting Standard No. 5 ("FAS 5") both explicitly require routine environmental status reports, especially if a liability may reasonably exist. Furthermore, there are also implied disclosure requirements in the Securities Exchange Acts of 1933 and 1934, as well as Environmental Protection Agency policies that exist to stimulate more frequent, honest, and accurate environmental reporting. Unfortunately, although the guidelines and requirements are well-established, the incentive to break or circumvent the rules (e.g., more investors) has long outweighed the risk of violation.

Times have changed, however. The adoption of the Sarbanes-Oxley Act of 2002 ("SOX") heralded a new era of corporate disclosure. The rules remain the same—Regulation S-K, FAS 5, etc., all exist unchanged. The key difference is in the enforcement. Specifically, SOX gave the old rules new teeth.

To encourage compliance, SOX introduced a new element of accountability: the consequences of failure to comply are shared by the company and their senior officers. For instance, willful false certification of required reports could result in a $5 million dollar fine and 20 years in prison for a guilty officer. Few CEOs are willing to risk their money and freedom in exchange for temporarily-misled stockholders.

While the incentive for better reporting is a key benefit to SOX, the trickle-down effect is just as important. More accountability at the top turns in to more accountability throughout, and, in turn, better organization. Ultimately everything comes together to paint a much happier, fairer picture for both shareholders and the environment, alike. No longer do shareholders have to rely on illusory protection from unenforced regulations. With corporate officers finding themselves under the intense heat of the SOX spotlight, shareholders can invest with confidence, knowing that there are not any hidden environmental catastrophes looming.