Tribal Environmental Sovereignty: Culturally Appropriate Protection or Paternalism?

Article By: Anna Fleder and Darren J. Ranco, JNREL Vol. 19, No. 1

Abstract BY: Anthony Cash, Staff Member

According to popular conceptions in the United States, Native American culture is closely tied to the earth and, therefore, environmental awareness. Thus, it will come to most with little surprise that an examination of cases concerning Native Americans' tribal rights to regulate environmental issues within the Federal system would be illustrative of the larger issues confronting tribal sovereignty. By analyzing the issues and the direction of the court's ruling in Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996), as compared to other recent decisions delineating the place of Native American tribes within the complex environmental regulatory scheme of the United States, one can see the possible solutions to problems posed by the tribal attempts at environmental regulation that affect non-tribal lands and people.

The decision in Browner, was made possible by the 1987 amendments to the Clean Water Act. These amendments allowed states to exercise a certain amount of authority in determining water quality standards and allowed for Native American tribes to be treated as states for certain purposes including the determination of water quality standards. In determining these standards for a five-mile long portion of the Rio Grande, the Pueblo of Isleta Indian Reservation adopted provisions more restrictive than New Mexico. The EPA's enforcement of these standards resulted in serious restrictions being impose on a waste water plant located near Albuquerque. The Tenth Circuit's decision in Browner ultimately sided with the Isleta Pueblo on every issue.

This was clearly a victory for the environment as it enabled tribes to regulate the amount of pollution entering waters which flowed through their lands, but Browner's impact on tribal sovereignty is not so clear. On one hand, Browner did allow tribal authorities to exert power over non-tribal peoples and land. On the other hand, Browner puts tribes in the position of becoming subservient to the Federal government in order to gain control over their own water quality standards. In essence, this puts the tribes in the position of semi-sovereign nations. Thus, tribal sovereignty is threatened at the same time that it is advance.

Browner, makes one thing very clear if tribes are to advance their interests and maintain cultural independence, then they must be willing to engage with the federal government in legal actions. But what legal actions and how to balance the need of tribal sovereignty against the need for cross-cultural dialogue and participation must be determined by the tribe involved on a case by case basis.

Evidentiary Uses for Environmental Agency Inspection Reports in Kentucky: The Dangers Posed by KRE 803(8)

Note By: Henry L. Stephens, Jr., JNREL Vol. 18, No. 2

Abstract By: Mattea Van Zee, Staff Member

The Natural Resources and Environmental Protection Cabinet (NREPC) was created by the Kentucky General Assembly with the aim to protect the natural resources of the Commonwealth. This Cabinet produces Inspection Reports (IRs) and Notices of Violations (NOVs) to communicate to those jurisdictions under its authority the statutory and regulatory provisions. These reports and notices are issued solely within the discretion of the NREPC based upon the nature of the violation. Prater v. Cabinet for Human Resources, 954 S.W.2d 954 (Ky. 1997) explains the seminal differences between KRE 803(6) and KRE 803(8). With this case as a starting ground, Kentucky courts are urged to harmonize these evidence rules to perform judicial scrutiny on the validity of opinions contained in documents such as those produced by NREPC.

The use of IRs and NOVs has the potential to be powerful and dangerous when admitted into evidence without the physical testimony of the author. This outcome is inevitable if either KRE 803(6) or KRE 803(8) is utilized in the admissibility of the documents. Prater indicated that in cases where public agency documents contain opinions and conclusions of agency inspectors, the documents would not be admitted in their entirety due to the insufficient qualifications that fail to meet the status of expert opinions. It remains unanswered as to whether IRs, NOVs, and other agency documents would be admissible via KRE 803(8) in third party litigation where the agency is not a party. Courts should take heed that this particular provision may serve as an open door to the admission of "expert" opinions conveyed by public officials who may have relied on third party hearsay statements. Instead, admissibility should be sought through FRE 803(6) to prevent this outcome.

Differences also arise in the qualification of these reports as factual findings v. factual allegations. As factual allegations, the statements would not be precluded under FRE 803(8). Additionally, with the lack of expert opinion, FRE 803(6) will not provide a route to admissibility. Those attempting to have this type of evidence excluded should not only argue that there is a lack of factual findings, but also that the statements fail to meet trustworthiness standards. For admissibility in third party actions where the agency is not a party, there still remains a viable option under FRE 803(8) for the admission of conclusions or opinions based on factual investigations if the requirement of trustworthiness requirement is met. Practitioners should assume that there will be a liberal interpretation of factual findings.

Daubert v. Merill Dow Pharmaceuticals, 113 S.Ct. 2786 (1993) provides a newer framework for courts to determine the admissibility of these so-called expert opinions. The Kentucky Supreme Court has adopted this framework in FRE 702 analysis. The trial judge is required to satisfy himself of the expertise, credentials, and rationality of the expert's conclusions. Courts should also consider the weigh of depriving the jury from weighing the credibility of the witness when the testimony comes from an agent's report.

Sierra Club v. EPA: Is Changing the American Rule for Attorneys’ Fees Unamerican? The Debate on Congressional Fee-Shifting Statutes

Comment By: Kelly L. Jones, JNREL Vol. 18, No. 2

Abstract By: Zach Greer, Staff Member

The traditional American rule for awarding attorneys' fees to litigants is that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). This rule's rationale is rooted in fairness, meaning that a defendant should not be financially responsible for a plaintiff's unsuccessful lawsuit. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983). However, there are currently more than 150 congressional fee-shifting statutes (i.e., exceptions) that do not adhere to the American rule. Ruckelshaus, 463 U.S. at 684.

This comment focuses on environmental fee-shifting statutes (e.g., Clean Air Act) that permit courts to award attorneys' fees "whenever appropriate." Loggerhead Turtle v. Volusia County, 307 F.3d 1318, 1322-23 (11th Cir. 2002). More specifically, Ms. Jones analyzes a crucial United States Court of Appeals for the District of Columbia Circuit opinion, Sierra Club v. EPA, 322 F.3d 718 (D.C. Cir. 2003), and discusses this opinion's significance and its impact on congressional fee-shifting statutes and their viability.

In Sierra, the court held that the catalyst theory, "plaintiffs can recover attorneys' fees if they 'obtain, through settlement or otherwise, substantial relief prior to adjudication on the merits,'" still applied to the Clean Air Act ("CAA"). Sierra Club, 322 F.3d at 719. Guided by a prior United States Supreme Court case, the Sierra Court reasoned that "Congress found it necessary to explicitly state that the term appropriate 'extended' to suits that forced defendants to abandon illegal conduct, although without a formal court order." Sierra, 322 F.3d at 722. At least with regard to the CAA, the Sierra Court resurrected the catalyst theory and permitted courts to award attorneys' fees based upon fee-shifting statutes that contained the language "whenever appropriate." Id. at 719.

Through her analysis, Ms. Jones shows how practical and advantageous the catalyst theory for awarding attorneys' fees is and further argues that this theory, combined with citizen suits that are encouraged by these congressional fee-shifting statutes, "ensure environmental compliance."

APWU v. Potter as Illustrative of the Jurisdictional Challenges to Bringing a Citizen Suit Under CERCLA

Comment By Ryan Pyles; JNREL Vol. 19, No. 1

Abstract Written By: Jennifer Parker, Staff Member

Imagine yourself working as an employee of the United States Postal Service ("USPS") in the fall of 2001. The United States has just been the victim of a tragic terrorist attack. Anthrax attacks make for breaking news all too frequently. Suddenly, the news is focused on the local processing and distribution center where you work. Your facility has been identified as having processed two parcels with traces of anthrax. You know that postal employees at other facilities have recently died from similar exposure.

Employees at Morgan Processing and Distribution Center ("Morgan") in New York City faced this exact situation, which presented the source of conflict in APWU v. Potter, 343 F.3d 619 (2d Cir. 2003). These employees, through their unions, sought to have their center closed until the anthrax contamination was completely cleaned. This seems like a natural response, so what is the problem? The USPS already took matters into its own hands, instituting a CERCLA removal action for elimination of the contamination at Morgan. But the Morgan employees wanted more, namely further inspection and testing of their workplace.

Employees like those at Morgan are unable to even bring such a challenge once a CERCLA removal action has been instituted. Section 113(h) of CERCLA prohibits the review of any challenges to removal actions already underway. Such is the case in APWU v. Potter, thus leading the Second Circuit to affirm the District Court's disallowance of the employees' action.

When imagining oneself in the place of one of the Morgan postal workers, the result seems unfair. However, the purpose behind this jurisdictional challenge restriction is understandable. CERCLA removal actions typically require efficiency and expediency. Pausing those actions to deal with challenges in court could potentially result in more harm being done by putting clean-up on hold.

APWU v. Potter illustrates the tension between the concerns of employees on an individual level and concerns of governmental agencies on a broader level. It is difficult to understand the rigid jurisdictional bar to individual challenges to CERCLA removal actions, particularly when you imagine yourself in the naturally panicked state of a postal employee with anthrax exposure. However, adherence to this statutorily prescribed restriction is necessary in order to be sure the problem at hand is properly dealt with to avoid further panic and inefficiency.

2010 Annual Banquet and Awards!!!

Tonight both KJEANRL and the Kentucky Law Journal celebrated the year with a banquet and awards ceremony. Kentucky Supreme Court Chief Justice John Minton was the keynote speaker and discussed judicial independence. The speech also focused on discussing the history of Kentucky's unified court system and how this ties into the concept of judicial independence.

The following staff members won awards for outstanding service to KJEANRL this year:
Best Comment: Matt Cocanougher

Best Note: Meghan Tyson

Outstanding Third Year Staff Member: Jen Parker

Outstanding Second Year Staff Member: Stephanie Wurdock

Staff Assistant April Brooks was honored for her assistance in helping both law journals get published. Mrs. Brooks started working for the University in November and stepped right into her role with a positive attitude and great initiative that both journals greatly appreciate.

Faculty Advisor Mark Kightlinger was honored for providing guidance in shifting the focus of our law journal. Additionally, he provides numerous topic ideas for blog posts which are greatly appreciated.

Though they were not honored at the banquet I would like to thank Assistant Online Editors Zach Becker and Kim Coghill who have assisted me in ensuring that the blog maintains a consistent production schedule. They both make up assignments and hand them out to staff members on a weekly basis. The pieces are then edited by both of them and given to me for review. Without their hard work this blog would not be possible.

Also Administrative Editor Anna Girard deserves accolades. She assigns all blog posts to staff members and helps ensure that all assignments are received in a timely fashion.

Congrats everybody on a great year!

Two Steps Forward and One Step Back: Has the Supreme Court’s Decision in Tahoe-Sierra Preservation Council Unnecessarily Muddled the Waters of Takings Law Analysis or Restored Penn Central to a Place of Prominence?

Note By: C. Phillip Wheeler, Jr.; JNREL Vol. 19 No. 1

Abstract By: Erin M. Boggs, Staff Member

Few issues rile the general public more quickly than the idea that the government can, whether through regulation or a physical taking, deprive a property owner of the ability to do what he wishes with a parcel of property. The Supreme Court has approached this problem in a variety of ways, and integrating these multiple approaches into a coherent view of regulatory takings law has proven difficult. C. Phillip Wheeler, however, closely examines the Court's decisions in this area to offer a somewhat historical perspective and a more firm grasp on the state of the law. He contends that Tahoe-Sierra Pres? Council v. Tahoe Regional Planning Agency, 535 U.S. 305 (2002), offers a firm reaffirmation of some precedent and severely limits others, hopefully clarifying the law in this area.

Tahoe-Sierra involved the interaction of property owners surrounding the highly-visited Lake Tahoe and the Tahoe Regional Planning Agency. In response to concerns about runoff into the lake, TRPA placed a moratorium on new building in the area from August 24, 1981 to August 26, 1983. Tahoe Sierra, 535 U.S. at 306. A second, more restrictive moratorium went into effect August 27, 1983 and lasted until April 25, 1984. Id. The majority of the court found that the moratorium did temporarily strip property owners of the development rights of the subject of the regulation. Id. Nevertheless, despite this finding, the Supreme Court ultimately held that the owners had not suffered a taking, relying particularly on the temporary nature of the regulation. Id. at 332.

Wheeler contends that the Court in reaching this holding clarified the test required by the law when it relied on its holdings in Penn Central and its progeny and severely limited the Lucas line of cases. Penn Central Transportation Company v. New York City, 434 U.S. 104 (1978). In order to reach this conclusion, he traces the development of the law through the modified twelve-factor test of Penn Central and the exceptions carved out in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Wheeler's careful examination of the opinions in the regulatory takings cases, including concurring and dissenting opinions shows both the confusion of the law and the necessity of its clarification in Tahoe-Sierra. By showing the Court's historical arc and close examination of the principles that Tahoe-Sierra reaffirms, Wheeler offers a guide for understanding the narrow reach of the Lucas test and the primacy of the Penn Central test in regulatory takings law. Although Penn Central represents a flexible factor test that can have variable results, this coherent presentation of the law can assist scholars and practitioners alike in evaluating their actions by at least showing the Court's apparent choice of the Penn Central test for all regulatory takings cases.

Taxing Coal in India to Fund Renewable Energy

By: Matt

Cocanougher

, Staff Member

When I drive to Kroger for my weekly grocery trip hoping that I remember to get all the necessities, the last thing on my mind is the pollution caused by the exhaust of my car. This is not because I somehow enjoy polluting or harbor resentment toward the natural environment. Instead, it is a negative externality, which is defined as "a consequence or side effect of one's economic activity, causing another to. . . suffer without compensation." Black's Law Dictionary 272 (3rd pocket ed. 2006). The idea is that because I do not have to pay for the pollution I am causing, I will drive to Kroger as many times as is necessary because there are no negative economic consequences for my trip. If the legislature decided that they wanted to make me pay for my pollution, then the solution would be to impose some cost on my Kroger trip, which would force me to decide whether it was worth the cost to make the trip each time I went.

The above rationale used to curb my Kroger trips is being used on a much wider scale in India to encourage renewable energy projects at the cost of the coal industry. India's Finance Minister, PranabMukherjee, announced in his annual budget speech to parliament that "[a] clean energy tax of 50 rupees ($1) a metric ton will be imposed on domestic and imported coal," which will be used to start a national fund to support renewable energy projects. Natalie Obiko Pearson and Gaurav Singh, India to Start Clean Energy Fund by Taxing Coal Use, Bloomberg, Feb. 26, 2010, available at http://www.bloomberg.com/apps/news?pid=20601091&sid=awGQrKRFV_PQ. Based on information from Emergent Ventures, a climate change consulting company, this new tax could raise around 25 billion rupees. Id. But this increase in revenue will not come without its costs, and those costs are, in fact, a major reason underlying the new levy. As AshutoshPandey, an employee of Emergent Ventures, states, the new tax will "help encourage the development of cleaner energies and impose some kind of cost on users of coal." Id.

This new initiative comes as India, the world's fourth largest polluter, has set a voluntary goal of cutting its carbon intensity "by as much as 25 percent by 2020 from its 2005 levels." Id. Whether this goal can be met by 2020 or not, India is clearly showing that it finds the negatives of carbon emissions from coal use destructive enough to warrant imposing a great deal of new costs on coal companies, which will likely be passed down to the coal company's customers resulting in higher energy bills. It will be interesting to see how India's coal industry will react and whether this decision will be a step forward for alternative energy projects.

Be Careful What You Don’t Ask For, Because You Just Might Get Seventy-Five Million Dollars: Why the Federal Claims Court Got It Wrong in Stearns Co., Ltd. v. United States

Comment By: Kevin A. Floyd; JNREL Vol. 19, No. 1

Abstract By: Tanner James, Staff Member

The Fifth Amendment, in establishing the Takings Clause, prohibits the government from taking private property "for public use, without just compensation." U.S. Const. amend. V. Determining what it means to take, however, may present some difficulty for courts. An overly narrow construction may expose private individuals and corporations to unjust governmental control. An overly broad construction, as was seen in Stearns Co., Ltd. v. United States, 53 Fed. Cl. 446 (2002), may put the Treasury at the mercy of the litigious.

In Stearns, the Federal Claims Court found that implementation of the Surface Mining Control and Reclamation Act of 1977 (SMCRA)—specifically, the restriction of mining within the boundaries of national forests—was sufficient to constitute "taking" of Stearns Co.'s property in violation of the Fifth Amendment. Notably absent from the court's analysis, however, was the fact that Stearns, Co. had bargained away its sovereign control over the mines when it sold the tract(s) of land to the Federal Government prior to the passing of the SMCRA. These self-imposed limits suggest that the plaintiff corporation contemplated subjecting itself to government regulation similar to the SMCRA. Furthermore, the court failed to address the relevant elements of claims that arise under the Takings Clause, and failed to support its ruling with sufficient, relevant precedent.

Whereas the holding in itself may not pose a substantial threat to the government, the risk of opening the door to this kind of precipitous, overbroad interpretation of the Takings Clause does. While the common sentiment is that the government should be limited in its powers, these limitations, if construed too broadly, could render the government helpless against hefty lawsuits...even when they have taken precautions through previous agreements.

Is President Bush’s Vision Impaired? An Analysis of President Bush’s ‘Climate VISION’ Initiative

By: Brittany Howell; article originally appeared in JNREL Vol. 19, No. 1

Abstract By: Ramsey Groves, Staff Member

The Department of Energy introduced the Bush Administration's "Climate VISION" initiative in February 2003. "VISION" represents "Voluntary Innovative Sector Initiatives: Opportunities Now." And its purpose is to encourage American businesses and industries to reduce the ratio of greenhouse gases (GHG's) by eighteen percent. However, because change is voluntary as opposed to mandatory, there is a concern that Climate VISION will have little positive impact on the environment.

Climate change references fluctuations in temperature, precipitation, and wind, and the impacts of these variations can be incredibly problematic. For example, experts predict that climate change will cause severe weather events, such as hurricanes, to occur more often. The earth's climate changes naturally due to variations in the concentration of certain gases in the atmosphere. However, humans can contribute to climate change when they engage in activities that emit greenhouse gases. Many of these gases are products of industrial activity, and thus a number of industries have a stake in the regulation of greenhouse gases.

Affected industries are not in favor of mandates requiring them to reduce emissions because this would be very costly. Further, the Bush Administration opposed policies that required reductions in emissions because of a fear that mandatory targets could harm economic growth. For instance, experts predict a considerable rise in gasoline and electricity prices in the event of emission regulation. The energy, manufacturing, transportation, and forest sectors of the economy would all be affected by mandates requiring emission reductions. While each of these sectors have taken some steps to reduce the ratio of greenhouse gases, many people feel that this voluntary program is not what is needed.

Opponents of the Climate VISION initiative take issue with, among other aspects, the fact that the program is voluntary. In the past, there have been several failures of voluntary initiatives. Few, if any, companies will voluntarily take steps to limit production in a way that will place them at a disadvantage relative to competition. Further, President Bush appears to have been influenced by friends in affected businesses. Critics claim that the Bush Administration consulted with oil companies concerning their climate change policy. These opponents argue that the input of oil companies resulted in an ineffective initiative.

Several viable alternatives to the Climate VISION initiative have been suggested by experts. One proposal is to begin a practice of carbon sequestration. Basically, this process entails storing carbon, a greenhouse gas, so that the buildup of carbon dioxide in the atmosphere will slow. Another alternative is to promote biomass energy.

While the Climate VISION initiative is a step in the right direction, it simply is not enough. Although we cannot implement a program that will negatively affect our struggling economy, other alternatives must be considered. Our legislators and policymakers must assume the task and make effective changes.