Developing a Suitable Water Allocation Law for Pennsylvania
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Public Trust Doctrine Implications of Electricity Production
Michigan Journal of Environmental & Administrative Law Volume 5 Issue 1 2015 Public Trust Doctrine Implications of Electricity Production Lance Noel University of Delaware, [email protected] Jeremy Firestone University of Delaware, [email protected] Follow this and additional works at: https://repository.law.umich.edu/mjeal Part of the Energy and Utilities Law Commons, Natural Resources Law Commons, Property Law and Real Estate Commons, and the Public Law and Legal Theory Commons Recommended Citation Lance Noel & Jeremy Firestone, Public Trust Doctrine Implications of Electricity Production, 5 MICH. J. ENVTL. & ADMIN. L. 169 (2015). Available at: https://repository.law.umich.edu/mjeal/vol5/iss1/4 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Environmental & Administrative Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. \\jciprod01\productn\M\MEA\5-1\MEA104.txt unknown Seq: 1 4-JAN-16 9:52 PUBLIC TRUST DOCTRINE IMPLICATIONS OF ELECTRICITY PRODUCTION Lance Noel* & Jeremy Firestone** ABSTRACT The public trust doctrine is a powerful legal tool in property law that re- quires the sovereign, as a trustee, to protect and manage natural resources. His- torically, the public trust doctrine has been used in relationship to navigable waterways and wildlife management. Despite electricity production’s impact on those two areas and the comparatively smaller impacts of renewable energy, elec- tricity production has garnered very little public trust doctrine attention. This Article examines how electricity production implicates the public trust doctrine, primarily through the lens of four states—California, Wisconsin, Ha- waii, and New Jersey—and how it would potentially apply to each state’s electric- ity planning and policies. -
Europe and Eurasia
E u r o p e a n d E u r a s i a 1 4 European Union Law L u d w i g K r ä m e r ( A ) I n t r o d u c t i o n Th e European Union legal system 1 4 . 0 1 Th e European Union (‘EU’) is a regional integration organisation consisting at present of twenty-seven European Member States that have transferred part of their sovereignty to the EU. Th e EU is based on international treaties – the Treaty on European Union (‘TEU’) and the Treaty on the Functioning of the European Union (‘TFEU’) – and its power to act is laid down in the various provisions of these treaties; there is no ‘common law’ applicable to it. In this regard, the EU is similar to a civil law country. 1 4 . 0 2 A n u m b e r o f s p e c i fi c features distinguish the EU from traditional international organisations. First, the TEU and TFEU address not only the relations between the Member States and the EU insti- tutions, but also establish rights and obligations for individuals. Second, though legislative decisions in climate change matters are taken by majority vote in the European Parliament – whose members are directly elected – and the Council, which consists of the governments of the twenty-seven Member States, the adop- tion of legislation on climate change is only possible on the basis of a proposal by the European Commission. Th e Commission oversees the application of EU law in the Member States, and has the duty to act in the general interest of the EU rather than in the interest of the individual Member States. -
Water Is NOT a Commodity, Water Is a COMMON Resource: the Rationale for States to Hold Groundwater in the Public Trust
COMMON RESOURCES Water Is NOT a Commodity, Water Is a COMMON Resource: The Rationale for States to Hold Groundwater in the Public Trust Fact Sheet • June 2012 any communities have had no option but to go to court to try and protect their Mgroundwater from corporate water bottlers. These legal battles can be extremely expensive and time consuming,1 and water-bottling schemes have torn towns apart.2 Although some communities have banned commercial water extraction,3 not all towns have had such success. States should not allow the interests of multinational a means to protect natural resources, including water, bottled water companies to take precedence over the from environmental degradation and privatization.10 interests of the public, and all water should be under the Over time, the doctrine has expanded,11 and Hawai’i, dominion of the public and not under the control of pri- New Hampshire, Tennessee and Vermont apply the pub- vate companies. States can better protect their ground- lic trust doctrine explicitly to groundwater.12 water resources and act in the public’s best interest by Water bottlers’ pumping operations can harm the envi- placing groundwater in the public trust. ronment and natural resources that communities may rely on for local farming or residential recreation. Even Water as a Commons though groundwater is not “navigable,”13 groundwater and the Public Trust Doctrine sources are often connected to navigable surface wa- The public trust doctrine puts public interests before ters,14 and when an aquifer is over-pumped, -
Hoover Institution Newsletter Spring 2004
HOOVER INSTITUTION SPRING 2004 NEWSLETTERNEWSLETTER FEDERAL OFFICIALS, JOURNALISTS, HOOVER FELLOWS HOOVER, SIEPR SHARE DISCUSS DOMESTIC AND WORLD AFFAIRS $5 MILLION GIFT AT BOARD OF OVERSEERS MEETING IN HONOR OF GEORGE P. SHULTZ ecretary of State Colin Powell dis- he Annenberg Foundation has cussed the importance of human granted Stanford University $5 Srights,democracy,and the rule of law Tmillion to honor former U.S. secre- when he addressed the Hoover Institution tary of state George P. Shultz. Board of Overseers and guests on Febru- The Hoover Institution will receive $4 ary 23 in Washington, D.C. million to endow the Walter and Leonore Powell told the group of more than 200 Annenberg Fund in honor of George P. who gathered to hear his postluncheon talk Shultz, which will support the Annenberg that worldwide political and economic Distinguished Visiting Fellow. conditions present not only problems but The Stanford Institute for Economic also great opportunities to share American Policy Research (SIEPR) will receive $1 values. million for the George P. Shultz Disserta- Other speakers during the day included tion Support Fund, which supports empir- Dinesh D’Souza, the Robert and Karen ical research by graduate students working Rishwain Research Fellow, who discussed on dissertations oriented toward problems Colin Powell the future of American conservativism. of economic policy. Reflecting on the legacy of Ronald ing values and virtues that have sustained “In all of his capacities, George has Reagan’s presidency, he pointed to endur- American society for more than 200 years. given unstintingly to this institution over continued on page 8 continued on page 4 PRESIDENT BUSH NAMES HENRY S. -
SECTION 1.0 Summary of California Water Rights
SECTION 1.0 Summary of California Water Rights 1.1 Types of Water Rights In California, the different types of water rights include: 1.1.1 Prescriptive Water use rights gained by trespass or unauthorized taking that ripen into a title, on a par with rights to land gained through adverse possession.1 1.1.2 Pueblo A water right possessed by a municipality that, as a successor of a Spanish-law pueblo, is entitled to the beneficial use of all needed, naturally occurring surface and groundwater of the original pueblo watershed.2 1.1.3 Groundwater The Dictionary of Real Estate Appraisal, defines groundwater as “all water that has seeped down beneath the surface of the ground or into the subsoil; water from springs or wells.”3 This is an adequate working definition if the “springs or” is eliminated because once water issues out of a spring it becomes surface water, not groundwater. As is also indicated in the following text, it is not water flowing in an underground channel. Groundwater should be thought of as the water that occupies the space between soil particles beneath the surface of the land. Groundwater is extracted exclusively by means of wells. Whenever groundwater reaches the surface in a natural manner, whether through springs or seepage into a surface water stream channel or lake, it ceases to be groundwater and becomes surface water. The jurisdiction of the SWRCB [State Water Resources Control Board] to issue permits and licenses for appropriation of underground water is limited by section 1200 of the California Water Code to “subterranean streams flowing through known and definite channels.” If use of underground water on nonoverlying land is proposed and the source of the water is a subterranean stream flowing in a known and definite channel, an application pursuant to the California Water Code is required. -
Chapter 17 CLIMATE CHANGE in the COURTS: JURISDICTION and COMMON LAW LITIGATION
Chapter 17 CLIMATE CHANGE IN THE COURTS: JURISDICTION AND COMMON LAW LITIGATION SYNOPSIS I. The Uncertain Future of Climate Change Litigation II. Article III Standing A. Standing in Early Climate Change Cases B. Massachusetts v. EPA C. Post-Massachusetts Standing Analysis III. Is Climate Change a Nonjusticiable Political Question? IV. Are Claims Displaced or Preempted by the Clean Air Act? A. Federal Common Law Displacement B. Are State Law Claims Preempted? V. Could Common Law Doctrines Apply to Climate Change? A. Public Nuisance and Other Tort Claims 1. Breach of Duty: The Reasonableness of Defendants’ Actions 2. Causation 3. Damages B. The Atmospheric Trust 1. The Atmospheric Trust Theory 2. Atmospheric Trust Litigation I. THE UNCERTAIN FUTURE OF CLIMATE CHANGE LITIGATION In the 1990s, states and environmental groups began using litigation as a strategy to compel agency action to reduce greenhouse gas emissions or to force large greenhouse gas emitters to reduce their emissions or pay damages for the harm they caused. Suits against agencies typically arose under federal environmental statutes, most importantly the Clean Air Act. Suits against emitters typically proceeded under tort law and primarily alleged that the emitters had caused or contributed to a public nuisance. Despite the prevalence of environmental litigation in modern society and the long history of using the common law to remedy environmental harms, courts have struggled to fit climate change into statutory frameworks and common law doctrines. In particular, courts have displayed a reticence to accept jurisdiction over cases involving climate change. As this chapter explores, this reticence seems to have increased even after the Supreme Court found climate change claims justiciable in Massachusetts v. -
'You Can't Negotiate with a Beetle': Environmental Law
\\server05\productn\N\NMN\50-1\NMN107.txt unknown Seq: 1 12-OCT-10 10:25 MARY CHRISTINA WOOD* “You Can’t Negotiate with a Beetle”1: Environmental Law for a New Ecological Age ABSTRACT Environmental law has failed in its most basic purpose: to keep human activities in compliance with nature’s requirements. Ecologi- cal systems are collapsing across the globe, and climate crisis threat- ens the continued viability of human civilization as we know it. Across the United States, agencies at all jurisdictional levels use dis- cretion provided in their governing statutes to allow continuing damage to the atmosphere and other natural resources. Government officials routinely approach environmental protection as a matter of political discretion—and private, singular interests usually win the day over the long-term public good. This article suggests infusing public trust principles into government institutions to hold officials accountable, as trustees, for protecting crucial natural resources. It offers a modern version of the ancient public trust doctrine that is holistic, organic, and uniform across all environmental agencies. This article is adapted from the introductory chapter that will appear in Professor Wood’s book, Nature’s Trust, forthcoming by Cam- bridge University Press in 2011. INTRODUCTION “You can’t negotiate with a beetle. You are now dealing with natural law. And if you don’t understand natural law, you will soon.”2 * Philip H. Knight Professor of Law, University of Oregon School of Law, Faculty Director of the Environmental and Natural Resources Law Program. The author wishes to thank Orren Johnson and Naomi Rowden for research assistance. -
Landowner's Guide to Washington Water Rights
2019 / THIRD EDITION LANDOWNER’S GUIDE TO WASHINGTON WATER RIGHTS 2019 LANDOWNER'S GUIDE TO WASHINGTON WATER RIGHTS TABLE OF CONTENTS Chapter 1 – Introduction Chapter 6 – Valuing & Selling Your Water Right A Landowner’s Story, p. 3 Valuing Your Water Right, p. 29 Purpose, p. 4 Leasing or Selling Your Water Right, p. 29 Washington’s Water Challenge, p. 5 Chapter 7 – Water Rights Adjudications, p. 30-31 Chapter 2 – Water Right Basics What is a Water Right? p. 6-7 Chapter 8 – Instream Flows & Trust Water Rights Key Water Right Concepts , p. 8-15 Instream Flows and Instream Flow Rules, p. 32-33 How Is a Water Right Established? p. 16 Interruptible Rights, p. 32 Washington Trust Water Rights Program, p. 34-35 Chapter 3 – Understanding Your Water Right Learning About Your Water Right, p.18 Chapter 9 – Exempt Wells, p. 36-37 Evaluating a Water Right, p. 19-23 Buying Land, p. 24 Chapter 10 – Win-Win Water Solutions, p. 38-39 Chapter 4 – Managing Your Water Right Appendix A – Glossary, p. 40-43 How Do You Keep Your Water Right? p. 25-26 Metering Your Water Right, p. 27 Appendix B – Legal Descriptions, p. 44-45 Chapter 5 – Changing or Transferring Your Water Right Appendix C – Resources, p. 46 Changes and Transfers, p. 28 Water Conservancy Boards, p. 28 Acknowledgements, p. 47 Trout Unlimited – Washington Water Project is a nonprofit organization working to create solutions for instream flow, community, and agricultural water needs. We work with private landowners on voluntary projects, and we provide water expertise to NGOs, government agencies, and tribal entities. -
Instream Flows and the Public Trust
Instream Flows and the Public Trust Timothy M. Mulvaney* I. INTRODUCTION ................................................................................. 316 II. A FRAMEWORK FOR INSTREAM FLOW MANAGEMENT .................... 321 A. Traditional Water Rights Systems .......................................... 322 1. Riparian Rights ............................................................... 322 2. Appropriative Rights ...................................................... 324 B. Conversion to Regulated Riparianism ................................... 327 1. An Initial Foray into Appropriation ............................... 327 2. The Existing Regulated Riparian System ..................... 328 a. Agency Structure for Managing Instream Flows ....................................................................... 329 b. The Water Permit System ...................................... 331 c. Water Management Planning ................................ 334 III. CURRENT USE OF THE 7Q10 METHOD FOR PRESERVING INSTREAM FLOWS ............................................................................. 336 A. Importance of Maintaining a Relatively Natural Flow ......... 337 B. Principles of Instream Flow Protection .................................. 338 C. Documented Failures of 7Q10 in Protecting Instream Flows ........................................................................................ 339 D. State Departures from 7Q10 ..................................................... 340 E. Contemporary Stresses on Surface Waters ........................... -
Landowner's Guide to Washington Water Rights
2019 / THIRD EDITION LANDOWNER’S GUIDE TO WASHINGTON WATER RIGHTS 2019 LANDOWNER'S GUIDE TO WASHINGTON WATER RIGHTS TABLE OF CONTENTS Chapter 1 – Introduction Chapter 6 – Valuing & Selling Your Water Right A Landowner’s Story, p. 3 Valuing Your Water Right, p. 29 Purpose, p. 4 Leasing or Selling Your Water Right, p. 29 Washington’s Water Challenge, p. 5 Chapter 7 – Water Rights Adjudications, p. 30-31 Chapter 2 – Water Right Basics What is a Water Right? p. 6-7 Chapter 8 – Instream Flows & Trust Water Rights Key Water Right Concepts , p. 8-15 Instream Flows and Instream Flow Rules, p. 32-33 How Is a Water Right Established? p. 16 Interruptible Rights, p. 32 Washington Trust Water Rights Program, p. 34-35 Chapter 3 – Understanding Your Water Right Learning About Your Water Right, p.18 Chapter 9 – Exempt Wells, p. 36-37 Evaluating a Water Right, p. 19-23 Buying Land, p. 24 Chapter 10 – Win-Win Water Solutions, p. 38-39 Chapter 4 – Managing Your Water Right Appendix A – Glossary, p. 40-43 How Do You Keep Your Water Right? p. 25-26 Metering Your Water Right, p. 27 Appendix B – Legal Descriptions, p. 44-45 Chapter 5 – Changing or Transferring Your Water Right Appendix C – Resources, p. 46 Changes and Transfers, p. 28 Water Conservancy Boards, p. 28 Acknowledgements, p. 47 Trout Unlimited – Washington Water Project is a nonprofit organization working to create solutions for instream flow, community, and agricultural water needs. We work with private landowners on voluntary projects, and we provide water expertise to NGOs, government agencies, and tribal entities. -
Land Use and Zoning—Who Owns the Beach? Massachusetts Refuses to Join the Trend of Increasing Public Access
Urban Law Annual ; Journal of Urban and Contemporary Law Volume 11 January 1976 Land Use and Zoning—Who Owns the Beach? Massachusetts Refuses to Join the Trend of Increasing Public Access Follow this and additional works at: https://openscholarship.wustl.edu/law_urbanlaw Part of the Law Commons Recommended Citation Land Use and Zoning—Who Owns the Beach? Massachusetts Refuses to Join the Trend of Increasing Public Access, 11 Urb. L. Ann. 283 (1976) Available at: https://openscholarship.wustl.edu/law_urbanlaw/vol11/iss1/11 This Comment is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Urban Law Annual ; Journal of Urban and Contemporary Law by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. WHO OWNS THE BEACH? MASSACHUSETTS REFUSES TO JOIN THE TREND OF INCREASING PUBLIC ACCESS The right of the public to use ocean beaches has recently received widespread attention. Most state courts have found extensive public rights to beach access, but only at the expense of the private beachfront owner.' In In re Opinion of the Justices,2 an advisory opinion 3 rendered in response to a question propounded by the Massachusetts House of Representatives, 4 however, the Supreme Judicial Court of Massa- chusetts ruled that a proposed statute5 creating an on-foot free right of passage along the beach between the line of mean high tide and extreme low tide would violate the constitutional prohibition against taking private property without compensation. 6 Although the court found 1. -
The Evolution of Water Rights
Volume 35 Issue 4 Fall 1995 Fall 1995 The Evolution of Water Rights Anthony Scott Georgina Coustalin Recommended Citation Anthony Scott & Georgina Coustalin, The Evolution of Water Rights, 35 Nat. Resources J. 821 (1995). Available at: https://digitalrepository.unm.edu/nrj/vol35/iss4/4 This Article is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For more information, please contact [email protected], [email protected], [email protected]. ANTHONY SCOTT* GEORGINA COUSTALIN The Evolution of Water Rights ABSTRACT This article looks at the evolution of water rights since early medieval times in England, North America and Australia. Different water rights characteristicssuch as quality of title, exclusivity and transferability are traced. Bases of two water regimes-types are identified: riparianland ownership (community of users) and actual use of the streamwater(priority of use). We identify periods in which one or the other of these types of regimes prevailed and suggest a "twists and turns" pattern of alternation between them. Aspects common to all periods, such as prescription and seniority, are described. Finally, after looking at the dynamics of change from one base to another, we project into the future a new property regime which could respond to increased and more varied demands to use water, conserve it and protect the water shed. PART I: INTRODUCTION A water right can be widely defined as the right to use or enjoy the flowing water in a stream.