ELP Colloquia Series
Since 2001, the William S. Richardson School of Law Environmental Law Program (ELP) has sponsored the Environmental Law Colloquia Series. This series brings leading environmental law scholars and practitioners, as well as business, government, and community leaders, to the School of Law to discuss their research, work, and perspectives on current environmental issues.
Spring 2009
Professor Maxine Burkett - "Helping Vulnerable Communities Adapt to Climate Change"
Henry Curtis - "The Anthology of Energy: What Law Students Need to Know"
Fall 2008
Kathy Kealoha - "What's New at OEQC: Making Hawai`i's EIS Law Work Every Day"
Spring 2008
Fall 2007
Leslie Kahihikolo - Environmental Justice, "Hawaiian Style"
Spring 2007
Professor Richard Hildreth - "Achieving Sustainability in U.S. Fisheries"
Jeff Mikulina - "The Impacts of Climate Change in Hawai`i: Global Crisis, Local Solutions"
Dr. Robert Cowie and Dr. George Staples - "Invasive Species 101: Concepts, Examples, and Legalities"
Fall 2006
Spring 2006
Insight on Career Opportunities in Environmental Law
Joel Godfrey, Chief, Environmental Division, U.S. Army Garrison, Hawai`i & Josh Stanbro The Trust for Public Land, Project Manager for the Hawaiian Islands Program
Professor Susan Shearing, Faculty of Law, Macquarie University in Australia
Professor Mingyuan Wang, Associate Professor, Executive Director, Center for Environmental, Natural Resources, and Energy Law Tsinghua University School of Law
Fall 2005
Robert
Kritzman, Executive Vice President & Managing Director - Hawaii Operations,
Norwegian Cruise Line
Dr. Ross Klein, author of Cruise Ship Squeeze:
The New Pirates of the Seven Seas
Prof. Koh Kheng-Lian, National Singapore University
Robert Thomas, esq., Damon Key, and Prof. David Callies, William S. Richardson School of Law
Spring 2005
Suzanne Case, Director, The Nature Conservancy of Hawai`i
Professor Harry N. Scheiber, UC Berkeley (Boalt Hall)
Fall 2004
Director Peter Young, Hawaii Department of Land and Natural Resources
Dr. Yucel Acer, Onsekiz Mart University, Çanakkale, Turkey
Professor Hitoshi Ushijima, Fukuoka University, Japan
Spring 2004
Madelyn D`Enbeau, Deputy Corporation Counsel, County of Maui
Alan Murakami, The Native Hawaiian Legal Corporation
Jon Van Dyke, Professor, William S. Richardson School of Law
Fall 2003
Lisa Munger, Partner, Goodsill, Anderson, Quinn & Stifel
Paul Achitoff, EarthJustice, Honolulu Office
Spring 2003
Patrick Parenteau, Vermont Law School
Marsha Green, Ocean Mammal Institute
Eudora Iris Lee, Environmental Justice Director for the United Church of Christ
Mike Walker, Environmental Protection Agency, Washington D.C.
Professor David Firestone, Vermont Law School
Fall 2002
Professor Stephen E. Roady, EarthJustice, Washington, D.C.
Spring 2002
Cherie P. Shanteau, Esq., Senior Mediator/Program Manager, U.S. Institute for Environmental Conflict Resolution, Tucson, Arizona
Professor Howard Latin, International Environmental Law Professor, Rutgers School of Law at Newark, New Jersey
Spring 2001
Professor Alison Rieser, University of Maine School of Law, Portland, Maine
Professor Dan Tarlock, Chicago-Kent College of Law, Illinois Institute of Technology, Chicago, Illinois
Professor James Salzman, American University, Washington, D.C.
Spring 2009 Series
Stephanie
Showalter - "The National Sea Grant Law Center: Breaking New Ground
through Legal Extension"
(April 23, 2009)
Stephanie
Showalter, Director of the National Sea Grant Law Center
On April 23, 2009, the Environmental Law Program welcomed Stephanie Showalter, Director of the National Sea Grant Law Center, located in Oxford, Mississippi, to Hawai`i, virtually – over Skype! Through this long-distance presentation, Ms. Showalter spoke “live” to our students about the National Sea Grant Law Center while sitting in her office at the University of Mississippi. With a power-point presentation running simultaneously, she explained the extensive range of services provided by Sea Grant and the opportunities for students within and outside of the center. Some services provided by Sea Grant are: outreach and advisory services for regional sea grant networks and constituents, research on current national ocean and coastal law issues, dissemination of information and analysis of ocean and coastal law and policy information, and extension efforts to increase the legal capacity of the individual Sea Grant programs, including the one at the University of Hawai`i. Not only does the National Sea Grant Center provide valuable services all over the United States through the Sea Grant network of universities, but it also provides valuable legal experiences for undergraduate and graduate students all over the country. The Law Center has unpaid research associates, and is looking into having paid research associates; there are also great opportunities for students to be published in the Center’s journals -- the Sand Bar and the Sea Grant Law and Policy Journal. More specifically to law students in Hawai`i, Ms. Showalter explained that she is currently looking into creating joint internship programs through Hawai`i Sea Grant and the new Center for Island Climate Adaptation and Policy (ICAP), which is affiliated with the Environmental Law Program. She stated there is always a need for students to assist with state-level research that cannot be attained through web-based research. We thank Professor Showalter for being our first “virtual” ELP Colloquium speaker and hope that a real visit to Hawai`i will be in her future plans.
To access powerpoint please click here.
Maxine
Burkett - "Helping Vulnerable Communities Adapt to Climate Change"
(April 20, 2009)
Maxine Burkett, Associate Professor of Law, William S. Richardson School of Law, University of Hawai`i at Mānoa
On Monday, April 20, 2009, Associate Professor Maxine Burkett was formally welcomed to the William S. Richardson School of Law through her debut public presentation, in which she explained the role of the new Center for Island Climate Adaptation and Policy (ICAP) and discussed her research on the implications of climate change for vulnerable communities. Professor Burkett was introduced by Law School Dean Avi Soifer, ELP Director and Associate Professor Denise Antolini, and UH Sea Grant Director Gordon Grau. The lecture was co-sponsored with the Law School’s Ka Huli Ao Center for Excellence in Native Hawaiian Law, the Kamakakūokalani Center for Hawaiian Studies, and the Department of Urban and Regional Planning.
As explained by Professor Burkett, the new ICAP was designed by the inter-disciplinary partners at UH Manoa to facilitate a sustainable, climate-conscious future for Hawai`i, the Pacific, and global island communities through innovative research and real-world solutions to island decision-makers in the public and private sectors. ICAP is a partnership of the Law School’s Environmental Law Program, Sea Grant, the College of Social Sciences, the Hawai’inuiakea School of Hawaiian Knowledge, and the School of Ocean and Earth Sciences and Technology.
Maxine Burkett joins the William S. Richardson School of Law as an Associate Professor of Law and serves as the inaugural Director of the ICAP. Professor Burkett attended Williams College and Exeter College, Oxford University, and received her law degree from Boalt Hall School of Law at the University of California, Berkeley. Professor Burkett’s courses include Torts, Climate Change Law and Policy, Environmental Law, Race and American Law, and International Development. She has written in the area of Race, Reparations, and Environmental Justice. Currently, her work focuses on “Climate Justice,” writing on the disparate impact of climate change on poor and of-color communities and the United States’ ethical and legal obligation to these communities nationally and internationally. She has presented her research on Climate Justice throughout the United States, West Africa, and the Caribbean. As the Director of ICAP, she leads projects to address climate change law, policy, and planning for island communities in Hawai’i, the Pacific region, and beyond.
Professor Burkett began the lecture with a review of the latest climate change science, explaining that the countries with the fewest resources are often those that will be most impacted. Professor Burkett then defined and explained the concepts of “environmental justice” and “climate justice,” according to which certain groups have experienced historically uneven exposure to environmental risks. By discussing a few case studies from island nations, Professor Burkett explained the future need to address large-scale reparation for the disparate impacts of climate change. Professor Burkett concluded her lecture by outlining the mission and scope of ICAP, describing opportunities for collaboration at UH, and important research topics for students.
The event was streamed live with the assistance of Ka Huli Ao Center for Excellence in Native Hawaiian Law. Click here to watch the video.
An interview with Professor Burkett was featured in the Honolulu Star Bulletin. Click here to read the article.
Henry
Curtis - "The Anthology of Energy: What Law Students Need to Know"
(April 9, 2009)
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Henry
Curtis, Executive Director, Life of the Land
On April 9, 2009, Henry Curtis, Executive Director of Life of the Land (LOL), visited the William S. Richardson School of Law for an ELP Colloquium to discuss energy issues with law students and faculty. Established in 1970, LOL is a local environmental and community action group advocating for the people and the land of Hawai`i. Mr. Curtis has served as Executive Director since 1995, concentrating on energy, environmental, and social justice issues. He has distinguished himself through his extensive research into and keen understanding of energy issues, and has become the community’s voice on energy concerns. He has successfully brought a community-focused perspective to the Legislature, the Public Utilities Commission, and many other venues. LOL has a strong commitment to Hawai`i’s energy self-sufficiency and social justice.
Mr. Curtis began his engaging discussion with an overview of humankind’s history of energy use and a look at various energy sources throughout time. He then proceeded with a dynamic discussion of climate change and the potential in Hawaii for renewables, such as wind, wave, and solar energy. As Mr. Curtis noted, “Hawai`i is blessed with every form of renewable energy you can think of.” He concluded his vibrant presentation by encouraging students to become active in future climate change and climate adaptation litigation.
Sandra
Dawson - "Environmental Compliance for Large, Complex, Controversial
Science Projects: Outer Space to Mauna Kea"
(March 19, 2009)
Sandra
Dawson,
Site Studies Manager, Mauna Kea Thirty Meter Telescope Project
On March 19, 2009, Sandra Dawson, site manager for the Mauna Kea Thirty Meter Telescope (TMT) project, spoke to law students, faculty from the law school and upper campus, and the community about the environmental review process. At this well-attended event, Ms. Dawson first discussed National Environmental Policy Act (NEPA) and how she worked on NEPA projects with the Jet Propulsion Lab for NASA. Because NASA was new at that time to NEPA and needed guidance, Ms. Dawson became that guidance; as she said, “When you’re the only one who’s read the book, you’re the expert.” Ms. Dawson stated that NASA did not then believe NEPA was “all that important” because the agency’s primary mission was to go to space. However, after the Challenger Disaster, the risk of failed launches that could possibly spread plutonium in populated areas became more important and relevant. Her presentation then covered the challenges of her role of an Environmental Impact Statement (EIS) manager. EIS managers are the liaison between lawyers, preparers of the EIS, and scientists. The manager also makes sure everything needed for the project is in order and is in charge of scheduling and planning. Before discussing her current project in Hilo, Ms. Dawson discussed the unique challenges of large complex science projects. First, she said, they are “one-of-a-kind.” There are few models or similar projects to draw from, so there are always new challenges. Second, the complexities of the project can make it difficult for scientists to put the information into language easily understood by the public. And last, it can be difficult to justify the purpose and need for a project whose goal is scientific knowledge. Ms. Dawson joked about a congressional hearing on NASA’s Galileo Mission when a congressman stated, “You need to show me how work on the space station will cure cancer.” Ms. Dawson pointed out that this is just something out of the scope of many space or astronomical science projects. This lead to a discussion of the Thirty Meter Telescope on the top of Mauna Kea and the EIS process, which Ms. Dawson is currently managing. She stressed that this EIS is under the Hawaii Environmental Policy Act (HEPA, HRS Chapter 343) not NEPA because there are no federal funds and the project is not on federal land. She also emphasized that this project is attempting to approach building on Mauna Kea differently than previous telescopes. Instead of making science the only goal, TMT decided to have four goals: science, sustainability, culture, and education. TMT has also decided to make their state EIS “up to the quality of NEPA” and has conducted more thorough scoping sessions than most projects would under HEPA. Because there is a comprehensive management plan (CMP) underway on Mauna Kea that prohibits any construction on the summit, TMT has not yet published their EIS and is waiting for this CMP to ensure compliance. Another interesting fact pointed out by an audience member was the absence of an Environmental Assessment (EA), which may be required under a strict interpretation of HEPA. Ms. Dawson responded that this leap ahead to the EIS was purposeful because the TMT team knew there would be a significant impact on the environment and instead opted to do a full EIS. All in all it was a great lunch colloquium that helped to shed light on the challenges faced by those working on EISs for large scale and controversial projects.
Professor
Alison Rieser - "Endangered Species and Endangered Cultures: Is Hawai`i
Ready to De-List the Green Sea Turtle?"
(March 3, 2009)
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Alison
Rieser, UH Mānoa Department of Geography Professor
On March 3, 2009, UH Mānoa Department of Geography Professor Alison Rieser spoke to law students and faculty about the potential de-listing of the Hawaiian green sea turtle. Her presentation began with an introduction by William S. Richardson School of Law Professor Jon Van Dyke, who mentioned that not only did Professor Rieser co-author the popular casebook called Ocean and Coastal Law (3d ed. 2007) used by our Law School but that she was the first law professor to be selected as a distinguished Pew Fellow in Marine Conservation by the Pew Institute for Ocean Science. Professor Rieser is the Dai Ho Chun Distinguished Chair in Arts and Sciences, a position that offers her the unique opportunity to build programs at UH Mānoa in which all aspects of ocean and coastal policy, from the legal and political, to the ethical, historical, and scientific, can be used to educate students and to promote greater wisdom in humanity’s relationship to the oceans. She hopes to make environmental policy and ocean management the basis for a cross- and inter-disciplinary curriculum at UH Mānoa, one that will prepare graduates to make significant contributions to important issues of sustainable development in the Pacific region and globally.
In her presentation, Professor Rieser provided an insightful overview of the legal and political significance of the listing and delisting processes under the U.S. Endangered Species Act. She discussed the emergence of the green sea turtle as a conservation icon. She suggested the social status of the turtles indicates that a host of political and legal issues will arise with any proposed delisting, and that federal agencies and the State of Hawai`i do not appear eager to address these issues.
Fall 2008 Series
David
Arakawa - "The Land Use Research Foundation of Hawaii: Promoting
Reasonable, Rational and Equitable Land Use Planning, Law and Policy"
(November 13, 2008)
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David
Arakawa, Executive
Director, Land Use Research Foundation of Hawaii
On November 13, 2008, David Arakawa (WSRSL Class of 1981) visited the Law School to speak to students about his work as Executive Director of the Land Use Research Foundation of Hawaii (“LURF”). Mr. Arakawa was introduced by William S. Richardson School of Law Professor David Callies. LURF is a private, non-profit research and trade association whose members include major Hawaii landowners, developers and a major utility company. Mr. Arakawa has experience with Native Hawaiian rights, land use, environmental laws, government at all levels, a broad based legal practice, and a strong commitment to the local community. He mentioned that he especially enjoys working for LURF because it provides an opportunity to “work for local kama`aina clients who have a stake in Hawaii’s future.” Throughout his career, he has been involved in numerous professional, civic, and community activities. In his presentation, Mr. Arakawa summarized LURF’s “hot topics” in land use including agriculture and food, affordable housing, infrastructure, environmental impact statements, energy, sustainable development, transportation, and water issues. He also specifically addressed topics of interest identified by the students.
Katherine Kealoha - "What's New at OEQC: Making Hawai'i EIS Law Work Every Day" (November 5, 2008)
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Katherine
Kealoha, State
of Hawai'i Office of Environmental Quality Control
On November 5, 2008, Katherine Kealoha (WSRSL Class of 1995) spoke at the Law School about her role as the new Director of the State of Hawaii Office of Environmental Quality Control (OEQC). Ms. Kealoha, with her extensive background in environmental law, as a Honolulu prosecutor working on environmental crimes and in the private sector, is working to make the EIS system in Hawaii more accessible and to clarity the role of OEQC. OEQC reviews environmental assessments (EAs) and environmental impact statements (EISs) in compliance with H.R.S. Chapters 341 and 343. Among other projects, OEQC is working on making EA and EIS documents more accessible via its website, including cataloguing them by island and region. Ms. Kealoha said this would help those doing EAs and EISs in the same or similar areas of islands because her office often reviews documents that lack vital information that could be gleaned from prior EAs/EISs. Ms. Kealoha also discussed the 'Ohana Pale case, which the State Attorney General has interpreted as requiring an EA/EIS for any plan or project that uses federal money or touches state lands. Ms. Kealoha stated that this interpretation has led to many more EAs and EISs coming through the office, which has been taxing on her small staff. This issue of OEQC's capacity and staffing will be among the issues examined in the ongoing University of Hawaii EIS study, in which the Law School's Environmental Law Program is involved. Ms. Kealoha also stated that OEQC, instead of the Department of Transportation, would be the accepting authority on the upcoming Superferry and Oahu's Rail system EISs. She concluded that it is an exciting and interesting time for OEQC, with many changes underway, and she hopes that law students will continue to be involved in the important state EA/EIS process.
Pat Gonzales-Rogers - "Native Rights, Fish, and Wild Things: Law Careers with the U.S. Fish and Wildlife Service" (September 15, 2008)
Mr.
Pat Gonzales-Rogers, U.S. Fish and Wildlife Service
On September 15, 2008, Mr. Pat Gonzales-Rogers spoke to WSRSL students about environmental law careers with the U.S. Fish and Wildlife Service (FWS) and the new Elizabeth Sharpe Fellowship. Mr. Gonzales-Rogers is the FWS Pacific Region Native American Liaison. The Elizabeth Sharpe Fellowship was created to honor a distinguished 2004 graduate of the William S. Richardson School of Law, Elizabeth Sharpe, who also worked for FWS before, during, and after law school. FWS, the Environmental Law Program, and the Ka Huli Ao Center for Native Hawaiian Excellence at the law school worked together to create this unique opportunity for a current student to work in the Honolulu, Portland, or Washington D.C. office of FWS. Students can also split their summer in these locations. Each office focuses on different types of work done by the FWS and offers the student a broad range of experience. Work in the Honolulu office may include helping to create regulations for the new Northwestern Hawaiian Islands Monument, Papahānaumokuākea. Mr. Gonzales-Rogers stated that the fellowship was created to introduce students to the exciting work of FWS, particularly the unique opportunity to gain insight into the agency’s work with tribes and Native Hawaiians.
Spring 2008 Series
Professor George "Rock" Pring - "Greening Law Schools: The Common Sense Case for Smarter and Higher Performance Buildings" (April 16, 2008)
Professor
George "Rock" Pring, University of Denver Sturm College
of Law
On April 16th, Professor Pring from the University of Denver Sturm College of Law came to speak with us about his school’s new, environmentally sustainable law school building and library. The building itself is LEED-certified by the U.S. Green Building Counsel and boasts classrooms, a library, and faculty offices. Professor Pring documented the process of building the new school, starting with his appointment as a “green” building committee member. Professor Pring used much of his past experience in environmental law to ensure sustainability remained a top priority throughout the school’s production. Much of his stories reflected the difficulties of sustainability in society as a whole. For example, he discussed his efforts to balance certain parties' interest in having traditional construction materials such as cooper roofs and oak wood trimming. By participating at every step of construction, he was able to balance those traditional needs, and the law school was able to use many recycled building materials, strategic design to utilize sunlight, non-toxic paints, and more complex and innovative systems such as ground water recycling systems. Overall, Professor Pring stressed two important themes throughout his lecture. First, green building just makes sense, from economic, social, environmental, and engineering perspectives. He pointed out that although some of the materials and methods used cost more up front, they would soon pay for themselves, especially as energy and construction costs increase. Second, he stressed the importance of early and persistent involvement of a “green team” in the planning and construction phases. He mentioned how the University officials were all eager to become the first American university with a LEED-certified law school, but he also told us that we can make a big difference in the sustainable development of our own law school’s future.
The following link provides additional information on the sustainable building project at the University of Denver:
http://lawweb2.law.du.edu/building/documents/sustainable.pdf
Dr. Laura Horn - "Is Litigation an Effective Weapon for Pacific Island Nations in the War Against Climate Change?" (April 10, 2008)
Dr. Laura Horn, University of Western Sydney School of Law
Dr. Horn is a lecturer in Planning and Environment Law, Dispute Resolution, Civil Procedure, and Law of Associations at the University of Western Sydney. Her research interests include Climate Change and International Environmental Law and she has completed a PhD on this topic.
In her presentation, Dr. Horn discussed the potential impacts of climate change and focused her discussion on the impact to Pacific Island nations. She suggested that these regions, in particular, are likely to experience social and economic consequences from global climate change, such as sea level rise, an increase in tropical storms, and coral bleaching. Dr. Horn also discussed a breadth of possible legal remedies for addressing climate change on an international scale. For example, she compared the roles of regulation and litigation in encouraging governments to take action. She also emphasized the importance of urging Small Island Developing States (SIDs) to argue that the irreversible effects of global warming warrant precautionary measures.
Professor Yoshinobu Kitamura - "Abalone Poaching in Japan: Enforcement of Local Fisheries Regulation" (February 14, 2008)
Professor
Yoshinobu Kitamura,
Sophia University School of Law
Professor Kitamura teaches at Sophia University School of Law in Japan. He specializes in administrative law and environmental law and his talk was on abalone poaching in Japan and the enforcement of local fisheries regulation.
Professor Kitamura spoke about the difficulties that prefectures have in enforcing and inspecting abalone fishermen. Regulating abalone is difficult in terms of the area of shoreline involved, measures of capture, and allowable size of abalone. Professor Kitamura described how poaching is a major source of business for local fishermen, fishermen from neighboring prefectures, and even gangsters.
Although poachers have to operate at night, the profits from poaching abalone are great because the demand for abalone meat very high. Professor Kitamura talked about some of the enforcement challenges to apprehending abalone poachers. A few of these challenges are lack of enforcement resources, ambiguous legal jurisdiction between the prefectures and the national government, lack of political will to enforce policies, and the difficulty of people getting paid $4000/month to tell poachers the location of patrol boats.
Professor Kim Diana Connolly - "International Protection of Wetlands: The Ramsar Convention's New Jewel of Kawainui Marsh" (February 1, 2008)
Kim
Diana Connolly, University
of South Carolina School of Law, Member, United States Ramsar Committee
Professor Connolly kicked off our Spring Colloquia Series as a part of a larger effort by ELP to support World Wetlands Day and the recent recognition of Oahu's Kawainui Marsh as a Ramsar-protected wetlands site. The Ramsar Convention on Wetlands was signed in Ramsar, Iran in 1971 and entered into force four years later. Ramsar encourages member nations to promote wetlands conservation, facilitate information and scientific cooperation, provide wise use guidelines, and give access to financial resources. Domestically, most of Ramsar's provisions are implemented through the Clean Water Act and related federal regulation. Although Professor Connolly recognizes some shortcomings of the Clean Water Act, she argues that it is still more protective than similar regulation in other countries. To qualify as a wetlands of international importance, the site must support and be used by significant amounts of wetlands-reliant bird and fish species. There are 1650 Ramsar sites in the world, covering over 350 million acres. In the US, there are 22 Ramsar sites that cover 3 million acres. Benefits of being included as a Ramsar site are increased local awareness, increased funding opportunities for conservation, general support for protection of the site, and increased scientific and tourism activities.
Ramsar's description of Kawainui is as follows: Kawainui and Hamakua Marsh Complex designated February 2, 2005. Sacred to Hawaiians, Kawainui Marsh, the largest remaining emergent wetland in Hawaii and Hawaii’s largest ancient freshwater fishpond, is located in what was once the center of a caldera of the Koolau shield volcano. The marsh provides primary habitat for four of Hawaii’s endemic and endangered waterbirds, and contains archaeological and cultural resources, including ancient walled taro water gardens (lo i) where fish were also cultivated. Kawainui Marsh stores surface water, providing flood protection for adjacent Kailua town, one of the largest towns on the windward side of O ahu. Hamakua Marsh is a smaller wetland historically connected to and immediately downstream of Kawainui Marsh, which also provides significant habitat for several of Hawaii’s endemic and endangered waterbirds.
Professor Connolly finished her presentation by pointing out that James Campbell National Wildlife Reserve, located on the northeastern shore of Oahu, may be the next prime candidate for Ramsar designation in the US. She encouraged students and local groups to expand the reserve and begin to apply for Ramsar designation. She directed students to a guide book she created to help interested parties through the designation process. You can find this guide and more information about Ramsar here: http://www.ramsarcommittee.us/RAMSARWhitepaper.pdf
Fall 2007 Series
Erika Powers - "Complying with the Clean Water Act: The Regulated Community's View of the TMDL Program"(October 22, 2007)
Erika
Powers, Partner
at Barnes & Thornburg, LLP, Former Chair of Chicago Bar Association
Environmental Law Committee
Erika Powers is a partner at the Chicago Office of Barnes and Thornburg, LLP, and a member of their Environmental Department. She concentrates her practice in the area of water quality and advises members of the regulated community – including corporations, trade organizations, and municipalities – on water quality issues nationwide, including water quality standards, the listing and delisting of impaired water bodies, TMDL development and implementation, effluent guidelines for wastewater discharges, and Clean Water Act permitting, compliance, and enforcement issues.
Ms. Powers shared her unique experiences working in the private practice field of environmental law, specifically with the application of the Clean Water Act to regulated industries. TMDL stands for "total maximum daily load," and describes limits placed on pollutants in waters covered by the Clean Water Act. Ms. Powers shared how she advises regulated parties to focus on whether or not the TMDL standard for the affected water appropriately correlates to the water's practical use. By comparing the TMDL process to a road, Ms. Powers pointed out that most litigation over Clean Water Act issues takes place at the 'bottom of the road,' or enforcement level. However, the most effective methods of influencing the TMDL process comes at the 'top of the road,' or initial stages of designating pollutants levels. She discussed the implications for the TMDL listing and standards process, and how affected parties can petition to change the limit levels at the beginning of the regulation procedure where they can be most effective. Ms. Powers pointed out that similar to tactics used by regulated industries, participation by community and environmental groups here in Hawai`i at the highest levels of Clean Water Act implementation can have the most drastic impact on enforcement and results.
Blaine Rogers - "Nabbing Coral Criminals: Tales from my year at the Department of Land and Natural Resources"(October 10, 2007)
Blaine Rogers, Division of Aquatic Resources Legal Fellow 2006-2007, WSRSL graduate 2006
Blaine Rogers is the first annual recipient of the Division of Aquatic Resources Legal Fellowship. The fellowship is a joint venture between HI Coral Reef Initiative (funded by NOAA) and the Environmental Law Program. Blaine sat in the division of aquatic resources at DLNR and reports to the State Attorney General’s office for legal work. Blaine’s position focused on administrative enforcement and statutory/regulatory analysis. He described some of the intriguing cases he has been involved with over the past year. One such case was the Cape Flattery case where a tanker that was grounded off the coast of Barbers Point resulted in reef damage. A coral biologist asked, “Why can’t we make violators like this one pay? Why can’t we go after penalties?” Blaine described the Hawai`i statute and specifically the section on stony corals. The law was written to be aimed at people carving out chunks of coral from reefs to be sold to tourists or for use in the aquarium industry. An individual harming the reef would have to be caught using a hammer, chisel, crowbar or any other implement as written in the law. The vessel hull, however, is not a classic implement and Blaine described the challenge of being able to define it as such.
Another case he described involved a commercial catamaran on Maui. This catamaran went into a natural area reserve for a snorkeling tour. There happened to be a state ranger on shore and a volunteer conducting reef studies that witnessed the catamaran putting its anchor into the reef and allowing the anchor to smash a number of coral heads. The catamaran owner was charged with damaging coral, unlawful use of a commercial motorized vessel and anchoring in a natural area reserve. The commercial operator would have to pay only a $300 fine. Blaine found that the statute would technically allow them to fine an individual $1000 for each specimen. A single coral head, however, is made up of a colony of specimens which would result in massive fines! Instead of going this route, Blaine decided to focus on the coral head or colony as a single specimen and to focus on the damage aspect. He found that 11 coral heads had been broken and this contributed to a $17,000 total fine. The final fine assessed was approximately $7,000 and was the first fine administered for coral damage.
Leslie Kahihikolo - "Environmental Justice, Hawaiian Style" (September 25, 2007)
Leslie Kahihikolo, Environmental Justice Project Coordinator, State of Hawai`i Environmental Council
This colloquium was co-sponsored by ELP and the Center for Excellence in Native Hawaiian Law and featured an important guest speaker on a timely and relevant issue to all Hawai`i residents. The Hawai`i Environmental Justice Initiative was signed into law by Governor Lingle in July, 2006. One aspect of the new law is that it requires "the development of an environmental justice guidance document to ensure that the principles of environmental justice are systematically included in all phases of the environmental review process." This event allowed WSRSL students to give their input on this important new policy document in order to define environmental justice in Hawai`i and develop guidance to address environmental justice in all stages of the environmental review process.
According to the U.S. Environmental Protection Agency, Environmental Justice is: "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, culture, education, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies." Students discussed and gave their input on how this definition should adapt to fit Hawai`i's unique challenges and priorities relating to environmental quality and economic, ethnic, and cultural diversity. Student's comments will be integrated into Leslie's final report, which will be submitted to the Hawai`i State Legislature in January, 2008.
Spring 2007 Series
"Stryker Brigade Lawsuit: Overlaps Between Environmental Law and Native Hawaiian Rights Law"(April 17, 2007)
David Henkin, Earthjustice
Leilmaile & Kamoa Quitevis, Native Hawaiian Practitioners, Expert Witnesses in Stryker Suit
Beau Bassett, Member of Plaintiff group Kipuka, WSRSL '05 Graduate
The Environmental Law Program and `Ahahui o Hawai`i (Native Hawaiian Law Student Organization) co-sponsored an informative event on the current lawsuit against the US Army to stop Stryker Brigade training on sensitive Native Hawaiian cultural sites. ELP and `Ahahui o Hawai`i used this case to highlight the overlaps and potential conflicts between environmental law and Native Hawaiian Rights. The event educated and prepared students for practicing in these often related fields of law.
As a case study, we used `Ilio`ulaokalani Coalition v. Rumsfeld, the lawsuit brought by three Native Hawaiian plaintiff groups against the military for failure to complete an adequate Environmental Impact Statement on the Stryker Brigade. The case continues to be litigated after remand from 9th Circuit Court of Appeals. Students heard from Earthjustice attorney David Henkin on litigating on behalf of Native Hawaiian organizations, who demand an end to all combat training and full monitoring of Native Hawaiian cultural sites for depleted uranium contamination and destruction of sensitive cultural sites.
Native Hawaiian Practioners Leilmaile and Kamoa Quitevis passionately discussed how they were formerly cultural monitors for the Army but were fired as retribution for speaking out against destruction of cultural sites. Now expert witnesses in the case, the Quitevises shared their experiences in working with plaintiff groups and navigating the legal system with the help of Earthjustice attorneys. Following an interactive Q&A session, they also spoke of the overlap with environmental law by explaining the importance of land and environmental quality in their concept of Hawaiian history, culture, and heritage.
Beau Bassett, former Richardson law student, also discussed his involvement with the case and how young members of the Hawaiian community had risen to challenge the Styrykers in order to contribute to evolution of Native Hawaiian Rights, and how central the law school was in preparing him for the overlap between environmental law and advancing Native Hawaiian Rights.
"Invasive Species 101: Concepts, Examples, and Legalities"(March 14, 2007)
Dr. Robert Cowie, Center for Conservation Research and Training, University of Hawaii, Manoa
Dr. George Staples, Botanist, Bishop Museum Biological Survey
The Environmental Law Program welcomed two leading experts on invasive species in Hawai`i, George Staples, Botanist at the Bishop Museum Biological Survey, and Robert Cowie with the Center for Conservation Research and Training at the University of Hawai`i, Manoa. Dr. Cowie and Dr. Staples gave an introductory lecture on the scope and extent of the invasive species problem in Hawai`i. A species is invasive if it exists in an area only as a result of human introduction and become established, spreads rapidly, and causes other serious environmental and human health problems. They gave a scientific introduction and explained the history and impacts of invasive species in the Hawaiian islands, from the first polynesian settlers to modern-day cargo ships. They also described some of the currents vectors of introduction, including both intentional and inadvertent ways in which species spread to and become established in Hawai`i.
The impacts of invasive species are staggering: they decrease biodiversity, increase human health risks, and cost Hawai`i an estimated $300 million annually. Serious gaps in Hawai`i's under-funded invasive species prevention program have allowed species to not only be introduced, but also to spread between islands and become more established and dangerous. One example discussed by Dr. Cowie and Dr. Staples are the introduction of foreign mosquito species from East Asia that can carry Dengue Fever and caused the 2005 outbreak on Maui that sickened dozens. These introductions are exacerbated by a general lack of political will to confront the issue and specifically by the upcoming Superferry, which will increase inter-island travel yet lack the necessary safeguards to prevent civilian and military vehicles from spreading invasive species such as the coqui frog.
"The Impacts of Climate Change in Hawai`i: Global Crisis, Local Solutions" (March 5, 2007)
Jeff
Mikulina, Director
of Sierra Club, Hawai`i Chapter
Jeff Mikulina gave a presentation on the local implications and impacts of global climate change. Jeff was one of three people from Hawai`i selected to receive special training from former Vice President Al Gore on issues of climate change. Gore’s film, An Inconvenient Truth, just took home Oscars for best documentary and best song. Jeff shared a presentation based on An Inconvenient Truth, but modified to focus on the impacts of climate change in Hawai`i.
Jeff's presentation specifically discussed the impacts that rising sea levels will have on Hawai`i's geography, and the increase in infectious diseases and invasive species caused by rising temperatures. Jeff shared some statistics regarding the carbon footprint of the average Hawai`i resident and urged students to take a proactive approach in addressing climate change by decreasing dependence on fossil fuels and supporting locally produced food. Last, Jeff shared some of the Sierra Club Hawai`i Chapter's current efforts to combat climate change at the policy level, including legislation to decrease dependence on cars, increase recycling, support pedestrian and bicycle traffic, and increase use of solar power and other renewable energy sources.
"Achieving Sustainability in U.S. Fisheries"(February 22, 2007)
Professor Richard Hildreth, Director of the Ocean and Coastal Law Center, University of Oregon
Visiting
Professor Richard Hildreth, Director of the Ocean and Coastal Law Center
at the University of Oregon, discussed his research and most recent article
published in the Environmental Law Reporter. Professor Hildreth specializes
in ocean and coastal law, property, comparative environmental law, land-use
law, and water resources law.
He actively engages in research and field-work in Oceania and in 1991 served as the University of Queensland Law Faculty's 50th Anniversary Visiting Fellow. Hildreth has served on the National Research Councils Non-mature Oysters and Coastal Ocean Committees, the Pacific Northwest Regional Marine Research Board, and the editorial advisory boards of the journals Coastal Management and Ocean Development and International Law. Among his many publications are "Institutional and Legal Arrangements for Coastal Management in the Asia-Pacific Region," with Maradale Gale in Coastal Management in the Asia-Pacific Region: Issues and Approaches and "Australian Coastal Management: A North American Perspective," Environmental & Planning Law Journal 15 (1991).
Fall 2006 Series
"The New N.W. Hawaiian Islands Marine National Monument: The Director's Perspective" (November 13, 2006)
`Aulani
Wilhelm, Director, Papahānaumokuākea Marine National Monument
(formerly the Northwestern Hawaiian Islands Marine National Monument)
The Environmental Law Program and The Center for Excellence in Native Hawaiian Law proudly welcomed Richardson School of Law alumni `Aulani Wilhelm, Director of the new Northwest Hawaiian Islands Marine National Monument. Papahānaumokuākea Marine National Monument is the single largest conservation area under the U.S. flag, and the largest marine area in the world. It encompasses 137,792 square miles of the Pacific Ocean - an area larger than all the country's national parks combined. The extensive coral reefs found in the NWHI - truly the rainforests of the sea - are home to over 7,000 marine species, one quarter of which are found only in the Hawaiian Archipelago. Many of the islands and shallow water environments are important habitats for rare species such as the threatened green sea turtle and the endangered Hawaiian monk seal.
The NWHI are also of great cultural importance to Native Hawaiians with significant cultural sites found on the islands of Nihoa and Mokumanamana. Ms. Wilhelm discussed some of the legal challenges involved with creating a regulatory framework for a new monument system and the difficult task of enforcing such regulations. Despite these challenges, she was confident in the new staff being created to enforce the monument and ensure its resources are protected for future generations.
Spring 2006 Series
"ELP
and Career Services join together to offer students insight on Career
Opportunities in Environmental Law"
The Environmental Law Program partnered with the UH Law Career Services to present a panel on Environmental Career opportunities. At the well-attended program, students heard from prominent environmental law attorneys including (L-R) Lorraine Akiba, McCorriston Miller Mukai MacKinnon, Kapua Sproat ‘98, Earthjustice Silas DeRoma, National Oceanic & Atmospheric Administration, and Linda Chow, Attorney General’s Office - Department of Land and Natural Resources. The discussion educated the audience about the wide range of environmental issues and careers that are available. Students found out that attorneys who practice environmental law do not always fit the mold of “environmental activist,” but include corporate and government lawyers. The attorneys finding themselves in these positions sometimes land in the field because of a mid-career change, so the panelists urged students to keep an open mind about their careers. The panelists also suggested that environmental law is expanding and crosses over many disciplines of law. Students interested in environmental law would be wise to take the Environmental Law Clinic, however all of the basic law classes are first and foremost. The hours and compensation, like any area of the law, will depend on where you work. A large private firm may require more hours for more compensation whereas a non-profit will be more flexible. All panelists were very knowledgeable in their field, had a great sense of humor, enjoyed their work, and were happy to share their experiences. Whether working for a non-profit organization, a private firm, the State or Federal government, they agreed that environmental law is an important field where good attorneys are needed.
"Defending Open Space: The U.S. Army's Compatible Use Buffer Program in Hawai`i."
(April
19, 2006)
Joel
Godfrey
Chief, Environmental Division, U.S. Army Garrison-Hawaii
Josh
Stanbro
The
Trust for Public Land, Project Manager for the Hawaiian Islands Program
Joel Godfrey, Chief of the Environmental Division at the U.S. Army Garrison and Josh Stanbro, project manager of the Trust for Public Land in Hawaii jointly presented the ELP Colloquium on April 19, 2006. Although these two organizations traditionally operate on opposite sides of the coin, the Army’s new national Compatible Use Buffer Program has them working in cooperation with each other on land conservation projects in Hawaii. In a win-win deal, the Army contributes funds to partnerships that purchase land so it is protected from development for environmental conservation and can serve as a buffer zone for training purposes.
It is well known that the U.S. Army is in the business of training soldiers. However it is not well known that U.S. Army operates a program called the “Army Compatible Use Buffer Program” or ACUB, with a mission to be good stewards of the land. The ACUB naturally evolved because training grounds need buffer zones; buffer zones are undeveloped lands that have often become a haven for threatened and endangered species, as well as recreational resources.
The Trust for Public Lands (TPL) is a national nonprofit corporation with a mission to preserve land for the public. TPL has offices in 48 states and has protected more than 2,000 acres of beautiful coastline and open space in Hawaii. TPL does not actually hold title to the land; it works with willing landowners at the federal or state level or with local land trust organizations. TPL works with local communities in bringing together resources to raise money for the purchase and management of preservation land. Ka’ala Farms, Haleakala National Park, Waiahole Beach Park, Kilauea Point National Wildlife Refuge, and Volcanoes National Park are some examples of the invaluable sites where TPL has helped preserve the lands through a pass-through purchase that keeps the areas in cultural, environmental, educational and recreational preserves.
Josh and Joel highlighted one particular recent example of their innovative partnership on Oahu. TPL and the Army recently worked together to purchase – in partnership with other entities -- two parcels of land on the North Shore of Oahu – one in Pupukea-Paumalu and the other Waimea Valley. The Army was one of the catalysts in these projects, donating millions without a lot of strings attached. The one condition of the Army’s contribution is that it receives an easement that does not allow development that would interfere with the purpose of a buffer zone. The Army is also prohibited from training in these buffer zones. The cutting-edge ACUB Program have engaged the community in working together to protect the land for public use, and increased morale. Although ACUB is a fairly new program, it has an increasing budget every year and the early successes in Hawaii will help more land to be protected for conservation across the nation.
"Indigenous
Cultural Heritage Conservation in Australia"
Recent Developments and Opportunities Lost
(April 10, 2006)
Professor Susan Shearing,
Faculty of Law
Macquarie University
in Australia
Professor Shearing earned her BA in Media & Communications, her LLB from Macquarie University, and her LLM from the University of Sydney. She started her career in law in 1986, working at a firm in relation to banking, finance and general commercial law issues. She subsequently worked with the New South Wales Attorney General's Department, advising with respect to corporate law matters while undertaking a Master of Laws specializing in environmental and administrative law subjects.
Macquarie University has a strong history of involvement in environmental studies and its Centre for Environmental Law was one of Australia 's first. The Centre's research and teaching is enhanced by its members enjoying a wide range of legal practice and judicial experience in environmental law and related areas. Much of the Centre's research work adopts interdisciplinary and collaborative approaches.
"Developments
in Chinese Environmental Law: Legal Systems for 
Environmental
Right to Know" (February
16, 2006)
Professor
Mingyuan Wang, Associate Professor
Executive
Director, Center for Environmental, Natural Resources, and Energy Law
Tsinghua University School of Law
Prof. Wang
has his B.S. in Environmental Science from Peking University, and his
Master in Law, in the Law of Environment and Natural Resources, from Peking
University. He is a member of the IUCN (World Conservation Union) Commission
on Environmental Law, Director of the China Society of Environment and
Resources Law, and Legal Consultant to the Beijing Bureau of Environmental
Protection.
"Developments in Environmental Law in Korea"
Professor
Jae-Hyup Lee
(February 1, 2006)
“South Korea has a population of more than 48 million people. Although the country is the twelfth largest in the world in terms of international trade volume, it is still regarded as a developing country when it comes to environmental issues. It has recently become more active in implementing environmental protections, but as of yet is not as visible as other countries. Korea is still experiencing the difficulty of trying to strike the right balance between the economy and environmental protection.”
On February 1, 2006, Visiting Fulbright Scholar Professor Jae-Hyup Lee spoke at the Environmental Law Spring Colloquium Series and shared his insights on the rapidly developing field of Korean Environmental Law. Professor Lee is currently the Director of the U.S. Law Program, Graduate School of Pan-Pacific International Studies, at Kyung Hee University. He has extensive experience as a delegate to international conventions, including the U.N. Climate Change Convention Conference of the Parties, the Cartegena Protocol on Biosafety, WTO, and Basel Convention meetings. To continue this article, click here
Fall 2005 Series
"An
Industry Perspective: Environmental Laws for Cruise Ships in Hawaii and
Abroad"
Robert Kritzman, Executive Vice President &
Managing Director - Hawaii Operations, Norwegian Cruise Line
(November 30, 2005)
"The Cruise Ship Squeeze: The New Pirates of the Seven Seas"
Dr. Ross Klein
(November 3, 2005)
"APCEL
& Environmental Capacity Building in Asia-Pacific Region"
Prof. Koh Kheng-Lian, National Singapore University
(November 22, 2005)
On Tuesday, November 22, 2005, Professor Kheng-Lian Koh discussed with ELP students and faculty the topic, capacity building in environmental law in the Asia-Pacific region. Prof. Koh is a member of the Faculty of Law, National University of Singapore (NUS), and is the Director of the Asia-Pacific Centre for Environmental Law (APCEL).
Koh gave a brief history of the establishment of APCEL in 1996 by the NUS Faculty of Law, in partnership with the World Conservation Union – Commission on Environmental Law and in collaboration with UNEP (United Nations Environment Programme). This initiative was in response to the call in Agenda 21, (1992) to build capacity in environmental law and to promote awareness of environmental issues. She pointed out that capacity building is vital as many of the multilateral environmental agreements (MEAs) are “framework” and need to be further developed in order to implement them.
Koh pointed to many definitions on capacity building and gave one example from the World Commission on Protected Areas (WPCA) of the World Conservation Union (IUCN):
“Capacity development in environment is a process of change that involves transforming individuals, institutions, and society as a whole. This includes (1) enhancing knowledge, skills and competencies to identify and address threats and opportunities; (2) establishing and supporting institutions with adequate resources to implement management plans and strategies; and (3) developing the enabling environment through sound legal and policy frameworks… ..”
Koh called upon universities to “jazz up” capacity building. The term “jazzing up” was used by J. Gustave Speth (Dean of the School of Forestry of Yale University, in “Global Environmental Governance”, 2002 ) who said; “universities are real maestros of ‘jazz’ in the implementation of environmental law… it is a spirit, a world of unscripted initiatives, decentralized and improvisational.” In the United States of America, stated Koh, environmental law teaching at the universities was being developed in the 1970s, whereas in the Asia – Pacific region, until very recently, there were hardly any experts to teach such a course in the universities. In Pakistan, for example, in the 1990s which had a population of 110 million then, there was not even a single law school with environmental law courses. In Singapore, the first environmental law course was initiated in 1994 and, in other parts of the region, even more recently.
Koh then spoke about the IUCN/APCEL/UNEP
Capacity Building in Environmental Law course for university professors
held in Singapore in 1997 & 1998, sponsored by the Asian Development
Bank. These two courses were intended to have a multiplier effect. Some
63 professors from 15 countries in the region participated and when they
returned to their countries they introduced environmental law teaching
in their faculties. In those countries where environmental law was then
recently introduced, the participants upgraded their teaching and syllabus.
The output from the Singapore course was the publication of Capacity
Building for Environmental Law in the Asian and Pacific Region: Approaches
and Resources (edited by Donna Craig, Nicholas Robinson and Koh Kheng
Lian), Vols I and II, 2002. The materials are relevant for the teaching
of environmental law in the Asia – Pacific region. The book has
since been used by many universities in the region and beyond.
Koh also outlined the numerous capacity building seminars that APCEL has organized for senior officials of various ministries in developing countries. There is now an implosion of activities in environmental law in the region and APCEL together with other organizations are meeting the challenges to develop the concept of sustainable development.
Mary Steiner, Chief Executive Officer, and Bob Loy, Director of Environmental Programs
(November 10, 2005)
Prof.
David Callies, Benjamin A. Kudo Professor of Law, William S. Richardson
School of Law
Robert Thomas, esq., Damon Key Leong Kupchak Hastert and The Pacific Legal
Foundation
(September 22, 2005)
On Thursday,
September 22, 2005, Professor David L. Callies of the William S. Richardson
School of Law and Robert Thomas of the Pacific Legal Foundation discussed
the recent decision of the Supreme Court in Kelo v. City of New London
and its implications on takings and land use law.
Prof. Callies, who has filed an amicus brief on behalf of 13 law professors
at the Supreme Court and has made five national presentations on the case,
gave the audience of students, professors and attorneys a brief overview
of the case. In Kelo, the Court upheld the use of eminent domain for the
purpose of economic revitalization. According to Callies, Justice O’Connor’s
opinion based the decision upon a broad reading of what serves as a “public
purpose” in the taking of land for government use. O’Connor’s
opinion indicates that the generation of a secondary benefit for the public
is a sufficient reason for government to take property from one private
use and give it to another.
Callies stated that there is widespread concern over what the government
can do with this decision. Although states can choose more stringent standards
for eminent domain actions by state or local government, some states have
already adopted the new federal standards, which, according to Callies,
provide little more than a “speed bump” for governments on
the road to compulsory purchase powers.
Robert Thomas, an attorney at Damon, Key, Leong, Kupchak, Hastert, also
takes the side of property rights proponents, representing the Pacific
Legal Foundation. According to Thomas, the Kelo decision has deprived
Americans of an integral part of the traditional American Dream. “Whether
you know it or not, your house is for sale,” stated Thomas. “Eminent
domain is a power of the government, not a right,” stated Thomas,
adding that property ownership, on the other hand, is a Constitutional
right of individual Americans.
Thomas supplied for the audience a PowerPoint
presentation and a handout
that covers all of the points of his discussion. Please visit these links
to learn more about the property rights concerns raised by Kelo.
Spring 2005 Series
"Japanese-U.S. Relations and the Law of the Sea: A Troubled History"
(March 1, 2005)
Professor Harry N. Scheiber, UC Berkeley (Boalt Hall)
"The Role of The Nature Conservancy in Hawai`i and the Pacific: A Partnership Approach to Protecting our Environmental Future" (February 17, 2005)
Suzanne Case, Director, The Nature Conservancy of Hawai`i
On
Thursday, February 17, 2005, Suzanne Case, the Director of The Nature
Conservancy of Hawaii (TNC) introduced students and ELP faculty to the
important role TNC plays in promoting the conservation and preservation
of native species and ecosystems in Hawaii and the Pacific. Before delving
into TNC’s mission, methodology, and accomplishments, Case shared
a little bit of her background with the audience. Case was born in Hilo
and attended Keaukaha Elementary School and Punahou School. She then attended
Williams College and Stanford University, where she graduated with honors.
Case received her J.D. from the University of California—Hastings
College of Law. Following law school, Case remained in California where
she practiced real estate law until 1987, when she accepted a position
at TNC’s San Francisco office. For nearly fourteen years, Case oversaw
TNC real estate transactions, including almost all of TNC’s real
transactions in Hawaii.
In 2001, Case returned to Honolulu to become the Director of TNC’s office in Hawaii. As Director, Case no longer practices law in the traditional sense but assured the audience that conservation work “weaves into the practice of law.” To elaborate, Case pointed out that environmental law is practiced in numerous fora, including: for-profit, non-profit, military, and government. She also stated that environmental law is practiced in a variety ways, such as: advocacy, statutory compliance, legal education, and conservation/preservation. Case pointed out that TNC employs the “green” approach, which involves the promotion of preservation and conservation.
To provide context for her discussion of TNC’s role in Hawaii and the Pacific, Case presented the audience with general information about TNC. She shared that “The Nature Conservancy’s mission is to preserve the plants, animals and natural communities that represent the diversity of life on Earth by protecting the lands and waters they need to survive.” Currently, TNC has approximately one million members, with offices in all fifty states and in about thirty countries.
Case then explained TNC’s methodology. First, TNC sets priorities. This involves mapping out high priority areas and identifying the threats posed to ecosystems and biodiversity richness. Based on this assessment, TNC develops strategies for dealing with these threats and the sources of these threats. Once these strategies are implemented, TNC measures success to pinpoint which strategies are and are not working.
Case explained that, in Hawaii, TNC is especially concerned with the preservation of Hawaii’s native plants and bird species. To emphasize the importance of protecting native species, Case pointed out that 1200 plant species are native to Hawaii, 90% of which can be found nowhere else in the world. Much of the threat posed by non-native plant species in Hawaii is attributed to soil degradation caused by the grazing of introduced hooved animals (ungulates) such as cattle, sheep, and pigs.
Case said that the Hawaii State Government is a huge partner for TNC, but she stressed that a lot more funding for the management of state areas is needed. Therefore, advocating for funding is a large part of what TNC does.
TNC also focuses on “Cooperative Land Transactions.” This involves working hand-in-hand with private landowners, governments, and independently owned nature preserves to acquire land for conservation and preservation. Case used TNC’s recent acquisition of the 112,000 acre Kahuku Ranch on the Big Island as an illustration of the classic cooperative land transaction. Case said that, for decades, TNC had its eye on acquiring the ranch as an addition to Hawaii Volcanoes National Park. TNC worked diligently with the state and federal government to come up with the $22 million needed to purchase the property in 2003. Once the Park Service secured $16 million, TNC stepped in, bought the property, and resold it to the Park Service. Case stated that if TNC had not stepped in, the ranch would have probably been divided up and sold to numerous buyers. Instead, the purchase successfully doubled the size of Volcanoes National Park.
In addition to acquiring land for conservation, TNC has established numerous watershed partnerships with the government and private landowners in Hawaii. She explained that these partnerships are voluntary alliances between public and private landowners that aim to protect forested watershed for water recharge and conservation value.
More recently, TNC has become involved in marine conservation in Hawaii. Approximately two years ago, TNC began to identify the highest priorities in the state and the opportunities that exist to work on these priorities. For example, when a private landowner planned to sell a prime hawksbill turtle nesting site on the Island of Hawai`i, TNC raised money to purchase the site so that the National Park Service could continue to manage it.
In closing, Suzanne Case introduced two of her colleagues, attorneys Carnet Williams and Melinda Ching, who each spoke briefly to the audience about their careers at TNC. Williams, a graduate of the University of Oregon School of Law, is spearheading TNC’s brand new “Clean Trade Project.” He explained that, as a result of globalization, the threat posed to island countries by invasive species has increased. As such, the project seeks to identify what species are being introduced to island countries, and to educate policy makers about the economic and ecological impacts invasive species will have on these countries. Notably, Williams explained that his law school education has been instrumental in his understanding of international regulations, international courts, and multilateral agreements. Moreover, his legal education has helped him to understand that a “major crux” is coming: Namely, which has precedence, environmental agreements or trade agreements?
Lastly, Melinda Ching explained that her job, which she “absolutely loves,” is to oversee TNC’s work in the Asia/Pacific region and to provide support work for Hawaii transactions. Her predominant role in TNC’s legal department is to consult Asian/Pacific communities to help identify goals, risks, and problem areas they may come in contact with. In fulfilling her responsibilities, Ching emphasized the importance of being culturally sensitive. In closing, she also explained that to be a good lawyer for TNC an individual must have a solid working knowledge of real estate transactions and an ability to look at issues in a practical, “how is this going to implemented” way.
ELP Director Professor Denise Antolini noted in closing that she and the other faculty look forward to developing a closer relationship with TNC in the future so that Law School students can further explore TNC’s exciting and important approach to environmental law and policy.
Fall 2004 Series
Peter Young, Director, Hawaii Department of Land and Natural Resources
(November 8, 2004)
On
Monday, November 8, 2004, Peter Young, the Director of the Hawaii Department
of Land and Natural Resources (DLNR) gave students an inside view of the
state’s most important natural resources agency, including challenges
facing the DLNR and its new policy direction. Second-year law student
and former DLNR intern Koa Kaulukukui introduced Young, mentioning Young’s
reputation for his tough style of grilling applicants that come before
the Board or Land and Natural Resources (BLNR) seeking use permits. Appointed
by Governor Linda Lingle in January of 2003, Young now sits on nineteen
different state commissions and task forces (including Chair of BLNR and
Chair of the State Water Commission).
DLNR, said Young, is one of about twenty agencies in Hawaii state government and is responsible for managing all of Hawaii’s publicly owned land and natural resources. Young referred to his position as the “ultimate land management job”-- of the 4 million acres of land in the state, the state owns 1.3 million acres. DLNR regulates and issues permits for all conservation lands, oversees the entire coastline, and manages the ocean up to three miles out. It operates state parks and sets policies regarding their use. DLNR also has a police force, licenses commercial fishers, and manages small boat harbors. Historic Preservation also falls under the “DLNR umbrella,” giving DLNR responsibility for property with structures, artifacts, or other findings over 50 years old.
Young then illustrated some of the policy decisions that face DLNR. Young stated that, although there is currently a push to license resident fishers, DLNR’s policy is to monitor non-commercial fishing without licensing. “I do not want to go up to a family and exercise authority on a child fishing without a license,” said Young. “What we want is to know what kind of fish are being caught and where.”
DLNR recently completed another tough decision concerning the proposed use of Diamond Head Crater State Park for a music concert. Young said that DLNR approved the somewhat controversial requested use of the park because “we like to have people see Diamond Head State Park for the first time, again.” Young pointed out that residents are the minority users of our state parks, constituting only about a third of the parks users. “We wanted to use [the concert] as a way to get people up to the state monument,” Young said.
Young’s current goal is to promote a new attitude within DLNR. He admitted that the current DLNR budget of $70 million is not enough for all of the DLNR’s goals and responsibilities. However, Young said, “I’ve suggested to staff that if our operating budget were to double, it would still not be enough money, so let’s worry about what we do have.”
He introduced his new over-arching theme for DLNR: “ho’o kuleana” – to take responsibility. Young stated that he wants to eliminate the “it is your problem, you go fix it” attitude towards resource management. Ho’o kuleana, Young said, is to give or take responsibility, participate rather than ignore, preserve rather than degrade. Young hopes to use partnerships to care for resources collectively by looking beyond ownership boundary lines. Young recalled an experience he once had flying over Haleakala and seeing the impact of a fence: land on one side that was exposed to ungulates was dry and barren while the protected side was lush and green. “The resources don’t care who puts the fence where,” said Young, “we should be working together to make the best call based on the resources.”
"Maritime Disputes in the Aegean Sea" (October 20, 2004)
Dr. Yücel Acer, Assistant Professor of International Law at the Department of International Relations, Onsekiz Mart University, Çanakkale, Turkey, and Visiting Scholar of the University of Hawaii, William S. Richardson School of Law
On
Wednesday, October 20, 2004, Professor Yucel Acer, author of a recent
book on maritime disputes in the Aegean Sea shared his expertise with
ELP students and faculty. Acer, an Assistant Professor of International
Law at Çanakkale Oneskiz Mart University, Turkey, stated that Aegean
Sea is one of the most complicated sea areas in the world in terms of
maritime boundary delimitation.
Prof Acer started with a general explanation of international maritime
areas under national jurisdiction. These are “internal waters,”
“territorial waters up to 12 miles,” “national straits,”
“archipelagos,” “contiguous zones up to 24 miles,”
“continental shelf up 200 miles or up to the end of continental
margin,” and “exclusive economic zone to 200 miles from the
coast”.
He noted that coastal states have full territorial sovereignty over territorial
waters except for the right to “innocent” passage by ships
of other states. The continental shelf covers the seabed and sub-soil
from the baselines up to the end of the continental margin, within which
coastal states have exclusive rights and related jurisdiction over the
natural resources. The “exclusive economic zone”, which extends
up to 200 nautical miles, attributes exclusive rights to coastal states
over the natural resources in the seabed and the superjacent waters.
The Aegean Sea is a part of the Mediterranean Sea that extends between
Greece and Turkey. Two straits, namely the Bosphorous and the Canakkale
Strait (the Dardanelles), link the Aegean Sea and the Black Sea. The Aegean
Sea is a semi-enclosed sea and serves as a maritime link to all the countries
abutting the Mediterranean. According to Acer, the Aegean Sea is not considered
to be rich in fish stock although it is valuable for a few fish species.
The location and amount of possible mineral and oil resources are unclear.
The Aegean Sea is also distinctive in terms of the number of islands.
There are around 3000 islands accommodating a population of about half
a one million altogether. Almost all of the islands within the sea belong
to Greece. Only two major islands belong to Turkey.
Prof. Acer referred to the Aegean as a “sea of disputes” and
outlined them as involving baselines, the extent of Greek territorial
waters, delimitation of the continental shelf and the possible exclusive
economic zones, title to some Aegean islands, the extent of Greek national
airspace and jurisdiction over air traffic control.
In his presentation, he focused mainly on the dispute between Greece and
Turkey over the extent of Greek territorial waters and the delimitation
of the continental shelf. According to Prof. Acer, Greece argues that
conventional and customary law entitles the coastal states to an unconditional
12-mile territorial waters, and that no legal reason exists for not applying
that limit to the Greek territorial waters in the Aegean Sea. The Turkish
view, said Prof. Acer, is that there is no unconditional absolute right
in both conventional and customary international law to 12-mile territorial
waters. Turkey also argues that Greece’s extension of the present
6-mile limit of the territorial waters would be an “abuse of rights.”
Prof. Acer commented that although 12 miles is the maximum limit for territorial
waters under international law, there is no absolute right under international
law to an unconditional 12-mile limit in all circumstances, citing Article
300 of the 1982 Law of the Sea Convention, which prohibits the use of
all rights in the Convention in an abusive manner. In the Aegean Sea,
if Greece extended its territorial waters to 12 miles, there would be
no high seas left for free navigation and no continental shelf areas left
to be divided between Greece and Turkey.
As to the continental shelf dispute, according to Acer, the main problem
is said to be the role of the Greek islands in the delimitation of the
continental shelf. Greece takes the position that all the Greek islands,
including those which are very close to the Turkish mainland, should be
treated equally as the Turkish mainland. Turkey disagrees that the Greek
islands especially those in the eastern Aegean Sea should be given equal
continental shelf or EEZ areas. As this would cut off the continental
shelf of the Turkish mainland in a considerable manner, these islands
should not have any significant area of continental shelf. Accordingly,
Turkey proposes a boundary that would go through the Aegean Sea halfway
between the mainland countries. According to Prof. Acer this seems to
be the equitable delimitation because Turkey, which has a mainland coastal
length in the Aegean Sea is equal to that of Greece, would be able to
get “some” continental shelf areas although Greece would still
get the larger maritime areas in the Aegean Sea.
In the last part of his presentation, Prof Acer outlined why the two sides
have not been able to settle the disputes in the Aegean Sea for many decades.
First, he pointed out that the Aegean Sea is a very complex sea area for
maritime boundary delimitation as it is dotted with thousands of islands,
almost all of which belong only to Greece. Secondly, the perceptions and
feelings that originate basically from the long history of the relations
between the countries prevent the two sides from engaging in deep negotiations
and making some concessions towards a settlement. Third, the Cyprus Dispute
is said to be having a very negative impact on the relations between the
two sides. (The island has been divided between Greeks and Turks since
the 1960s.) This makes the negotiations over the Aegean Sea disputes even
more difficult. In concluding, Professor Acer expressed his belief that,
as Turkey becomes a full member of the European Union, it will move toward
settling the maritime boundary disputes as well as other disputes in the
Aegean Sea.
"Comparing the Evolution of Regulatory Styles: Public Voluntary Programs for Environmental Cleanup in the United States and Japan"
Hitoshi Ushijima, Professor of Law, Fukuoka University, Japan
(September 1, 2004)
On September 1, 2004, Professor Ushijima shared with the Environmental
Law Program his comparative research on regulatory approaches to voluntary
environmental hazardous waste site clean-ups in Japan and the United States.
Ushijima explained that three common themes are found in the voluntary
cleanup programs of either country. First, agency policy initiatives and
legislative support for these initiatives reflect the country’s
legislative style. Second, the programs are devolutionary in nature and
rely on public and private partnerships. Third, the programs utilize non-adversarial
dispute resolution to cope with serious environmental harms. Ushijima
also theorized that voluntary programs in both countries are shifting
towards a hybrid system of both public and private enforcement.
Ushijima described the American regulatory style, “adversarial legalism,” as heavily dependent on frequent enforcement and heavy sanctions. As an example, Ushijima pointed out that the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) has an adversarial stance towards business. CERCLA liability has encouraged “brownfields”—contaminated sites that businesses are discouraged from developing for fear of potential liability. With the new brownfields programs, the potential for clean-up of these under-utilized sites is encouraged.
In contrast, Ushijima described Japan’s style as non-adversarial. Ushijima noted that, while corporate regulation exists, it relies on social norms behind or beyond the legal system to control corporate behavior. Japan had no comprehensive legal framework for hazardous-substance contamination liability until 2002. Ushijima emphasized that this lack of regulation is a sign of Japan’s deliberative attitude toward new social programs. The national government set up nonbinding standards and local government employed these standards. Developing national legislation was founded on these “extra-legal” experiences.
U.S. voluntary cleanup plans, according to Ushijima, are working for several reasons. Limited liability brings economic incentives to private parties. Voluntary participation reduces the necessity for adversarial enforcement by state agencies. Flexible risk-based performance cleanup standards and compensation by environmental insurance in the case of cleanup make voluntary programs more accessible by private parties. Allowing private entities to contribute to policy-making increases private participation.
In Japan, Ushijima explained, private parties usually follow non-binding administrative guidance requests for voluntary site-assessment and remediation of any found contamination. Landowners usually have sufficient funds due to the high value of land in Japan. They can avoid potential risk of liability under civil suits brought by third parties, protect their reputation and nurture their business relationships by remedying contamination.
Ushijima concluded that both countries may be heading towards a “golden mean.” The US is an example of an adversarial system preferring coercive enforcement while Japan is a non-adversarial system preferring social enforcement. However, amendments to CERCLA in the U.S. have leaned towards cooperative measures while Japan’s recent reforms have made the society more accommodating to the rule of law. “Each voluntary program demonstrates a shift toward a hybrid system of public/private collaboration and enforcement,” said Ushijima. He posited that elaborate programs comprised of collaboration and enforcement can overcome the weaknesses seen in other private/public regulatory relationships. “The availability of more policy tools will better equip each country to face the challenging task of environmental cleanup,” said Ushijima, “and may even provide an ideal model for other types of social regulation.”
Spring 2004 Series
“Land Use After RLUIPA: Special Permits for Religious Use” (April 27, 2004)
Madelyn D'Enbeau, Deputy Corporation Counsel, County of Maui
On
April 27, 2004, Madelyn D’Enbeau, Deputy Corporation Counsel for
the County of Maui and 1977 WSRSL graduate, shared with ELP guests and
members the legal complexities of RLUIPA-governed religious rights to
land use. D’Enbeau first guided her listeners through a brief history
of RLUIPA and how religious rights to land usage developed. She then discussed
constitutional concerns brought to light by recent RLUIPA litigation in
Maui County.
D’Enbeau explained that churches are generally concerned with the financial burden of complying with zoning and land use restrictions. While zoning plans typically designate specific areas where churches may develop as a legitimate exercise of police power for the health, safety and welfare of citizens, limiting land use for churches presents a special challenge because of historical separation of church and state. The First Amendment prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” A complex doctrine has since evolved, partially because of the wide range of conceivable interpretations for key terms of the clause.
The landmark decision of the United States Supreme Court in Marbury v. Madison, 1 Cranch 177, 2 L.Ed. 60, gave the Supreme Court authority to review Constitutional issues. In Reynolds v. United States, 98 US 145, 162 (1879), the Court ruled that a law limiting a religious exercise must have a rational basis for its enactment. This standard is still the law today, except for cases regarding employment benefits for terminations founded on religiously motivated behavior and cases involving hybrid rights (IE: rights of parents to educate their children according to their religious beliefs). For these types of cases alone, the strict scrutiny standard exists.
However, after receiving pressure to protect religious freedoms, Congress, in November 1993, passed the Religious Freedom Restoration Act (RFRA) to reinstate the compelling interest test (the strict scrutiny standard) for application in all cases where free exercise of religion is substantially burdened.
Soon after, the Supreme Court invalidated RFRA as it applied to the states, ruling that RFRA contradicted vital principles necessary to maintain separation of powers and the federal balance, and freed religious exemptions from all conceivable civic duties. The Court ruled that a law which is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.
Three years later, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). RLUIPA warrants litigation in cases 1) that involve federally funded programs or activities, 2) where there is a substantial burden on commerce with foreign nations, among states, or with Native American tribes, 3) or where there is a system of land use regulations involving individualized assessments of the proposed uses for the property.
Under RLUIPA, the religious person or entity has the burden of proving that the governmental action “substantially” burdens religious exercise. The Seventh, Ninth and Eleventh Circuits have recently issued varying opinions on the “substantial burden” requirement.
A recent Maui case, Hale O
Kaula Church v. County of Maui, reveals a possible discrimination problem
with RLUIPA. A religious organization called Hale O Kaula applied for
a special use permit to build a church on agricultural land in Kula, Maui.
The Maui County Planning Commission denied the permit. The group, represented
by D.C.’s Beckett Foundation, filed suit in federal court against
County and individual Commission members, claiming that their religious
beliefs, which involve farming the land, require building on agricultural
land. The court granted the county’s motion for summary judgment,
but only after the court initially rejected the county’s motion
for legislative immunity on the grounds that review of a conditional use
permit application is ad hoc rather than legislative. The court later
dismissed the commissioners on quasi judicial immunity grounds. The case
is now in settlement mode and, according to D’Enbeau, the Planning
Commission will probably consider the application again in November of
2004 after additional evidence is presented to the hearing officer.
The federal government is also suing the County of Maui under its power
to enforce RLUIPA on behalf of Hale O Kaula and the trial date is set
for July 2005.
D’Enbeau commented that allowing a church to locate on agricultural land because of a belief and denying another religious group without that belief would be a form of discrimination based on religious doctrine. Prior to RLUIPA, most federal courts held that “religious exercise” must be a central tenant of an established faith; and that particular locations and buildings are not protected. RLUIPA states that the term “religious exercise” includes any exercise of religion, whether or not compelled by or central to a system of religious belief; and that the use, conversion or building of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.
D’Enbeau explained that a process that allows for individual assessments creates a subtext for racial/religious exclusion. Decisions could secretly be made on impermissible grounds, and this possibility raises the issue of how necessary the process is. D’Enbeau pointed out that the RLUIPA “any exercise” clause has, in one instance, been stretched as far as the creation of a church as a venue for rock and roll concerts. In an environmental context, land use entitlements are very difficult to come by and there is the possibility of RLUIPA abuse by people who want to get on the fast track to an entitlement.
Additionally, D’Enbeau said that, because the government is telling citizens what they can do on church land, the separation between church and state has been violated. As there have been over fifty state and federal court decisions since Congress enacted RLUIPA, D’Enbeau predicts that the Supreme Court will soon clarify the “free exercise” and “establish” clauses of the First Amendment.
“Hawaiians and the Environment: Legal and Political Challenges.”
Alan Murakami, The Native Hawaiian Legal Corporation - (Tuesday, March 16, 2004)
On
Tuesday, March 16, Alan Murakami of the Native Hawaiian Legal Corporation
shared part of his extensive knowledge on Hawaii’s culture and environment
with students and guests of Environmental Law Program. Murakami, introduced
by Professor Casey Jarman as the “quintessential public interest
lawyer,” has been director of litigation at NHLC for the last 17
years. Named in the Hawaii’s Star Bulletin as among “10 people
to make a difference in 2003”, Murakami is widely recognized as
a top legal expert on water and land resource issues in Hawaii.
In his talk, “Hawaiians and the Environment,” Murakami depicted how Hawaii’s environmental law collides with real-world economics and politics. Murakami set forth two paradigms for development in Hawaii: development accomplished in harmony with culture and tradition in Hawaii and development pursued without respect to culture and environment. He asserted that although Hawaii law is developed to protect and preserve culture and environment, economic and political pressures surrounding development often conflict with the law when development is out of harmony with these values.
Alan Murakami discusses legal issues related to native Hawaiian culture and the environment
Murakami demonstrated that Hawaiian tradition and culture have been and are at the foundation of Hawaii’s legal system since the transition from oral to written law in Hawaii. For example, early kingdom water law was intended to correct abuses of land by landowners. Thus, early water law was designed to preclude agents monopolizing all of the water from being enriched at the expense of lower classes. This protected the auwai system of irrigation for taro growing, which was premised on freely-flowing stream water and its timely application to fields.
Subsequent Hawaii laws carried forth this intent. The Kuleana Act of 1850 ensured tenants’ rights by recognizing that, without water, land value was significantly reduced. Today, this same act is embodied in Hawaii Revised Statutes Section 7-1.
Case law further delineated protection of cultural environmental rights to water. McBryde provided limits for Mahele grants of title to water. The court restricted water use by sugarcane and pineapple plantations and clarified that the ownership of water remained in the public good. In Robinson v. Ariyoshi, the court held that by sovereign reservation a public trust could be imposed on all waters. In the recent Waiahole Ditch case, a dispute over water formerly used by a sugar plantation, the Hawaii Supreme Court, in a reaffirmation of earlier cases, recognized that the enforcement of native Hawaiian rights is a public trust purpose.
Hawaiian law embodies the
intent set forth by kingdom law to protect culture and environment. Even
what appeared to be the anomalous recognition of a right to the fisheries
in Hawaii’s property law early in the 20th century has been acknowledged
by U.S. Supreme Court Justice Holmes to be a property right, which, if
sanctioned by legislation, he affirmed as valid law. HRS §1-1 declared
English common law to be Hawaiian common law except for that fixed by
judicial precedent or established by Hawaiian usage.
Art. XI §1 of Hawaii’s Constitution affirms that for the benefit
of present and future generations, Hawaii shall preserve and protect resources
in the interest of conservation and self-sufficiency of state. In addition,
Art XII §7 provides that the state shall protect and reaffirm rights
traditionally exercised for religious, cultural, and subsistence purposes.
The Hawaii Supreme Court has regularly reaffirmed these rights and recognizes
the fundamental need to protect them as part of the public trust.
Murakami provided examples of development pursued without respect to culture and environment, which predictably resulted in catastrophic consequences. Cultural rights such as traditional subsistence gathering and fishing often depend on the environment and have been managed over centuries by Hawaiians. In more modern times, developers have ignored culture and tradition by desecrating cultural resources, preventing access to beaches and polluting fishing waters.
Murakami’s most dramatic examples involved the development polluting fishing waters. In Hulopoe Bay, Lanai, a golf course was constructed next to the ocean. Engineers promised they would prevent soil erosion and that their plastic silt fences would hold back the soil. However, in that instance, a small irrigation line broke, the fences failed and thick mud traveled into the ocean, staining rocks that left evidence of these failed promises. In the formerly pristine Hulopoe Bay, at least ten dump truck loads of mud entered the ocean. Similarly, on the Kona Coast of Hawaii, the city engineer exempted golf course developers from an ordinance establishing a 20-acre at a time maximum development restriction. As a result, erosion caused significant soil runoff into Class AA waters off Hokulia on two occasions.
In addition to erosion, the diversion of freshwater streams along the East Maui coast, and the digging of ditches and drilling of wells has negatively impacted taro farming dependent and marine life dependent on that same water. These diversions have upset the fragile balance of the fish food pyramid. According to Murakami, the plain lesson is that developers “shouldn’t play with mother nature.”
Murakami also talked about the disrespect shown by the Hokulia developer for ancient Hawaiian burial sites. Exposed gravesites left poorly protected by plastic fences and tarps failed and ancestral bones washed away during torrential downpours. Archaeologists only discovered a mass burial of what appeared to be hundreds of potential burial remains after bulldozing for a golf course. Due to the failure to accurately map burial lava tubes, the developer went forward nonetheless and built its 7th fairway over a burial tube. In the same development, the State Historic Preservation Division of the Department of Land and Natural Resources refused to protect the burial site of a grandmother of Queen Liliokalani by authorizing the developer to use about one-third of the mass burial site on Pu’u, Ohau unprotected. In another instance, the developer removed historic Alaloa stones without permission by the SHPD to conform to the design of the 16th fairway of the golf course until Third Circuit Judge Ibarra ordered the developer to restore it.
Murakami concluded with optimism, emphasizing that although development continues to ignore culture and tradition at the risk of Hawaiian culture and nature, development in harmony with these values is possible and can be accomplished in Hawaii.
"The Wai`ola Water Rights Decision--Protecting the Rights to Water of the Native Hawaiian People"
Jon Van Dyke, Professor, William S. Richardson School of Law
(February
19, 2004)
On February 19, 2004, the Environmental Law Program was pleased to have
Professor Jon Van Dyke make a presentation on the Hawai`i Supreme Court’s
recent decision in Wai`ola O Molokai (2004)—an important water rights
victory for Native Hawaiians on Moloka`i. Professor Van Dyke served as
counsel for the Office of Hawaiian Affairs (“OHA”) in the
Wai`ola O Molokai case and has also been assisting in the pending companion
case, Kukui (Molokai) Inc.
Professor Van Dyke explained
that the entire island of Moloka`i was designated as a Water Management
Area in 1992. This classification requires all water users to register
their water uses and to seek permission from the Commission on Water Resources
Management (“Water Commission”) for any new uses of water.
The applicant in the case, Molokai Ranch, owns Wai`ola O Molokai, Inc,
as well as approximately 40% of land on Moloka`i. OHA contested plans
by Molokai Ranch developers to build a new well at Kamiloloa that would
draw 1.25 million gallons of water a day (“mg/d”) from the
Kualapu`u aquifer system.
Four groups joined as interveners in the case to help protect the water
rights of Moloka`i homesteaders: OHA, The Department of Hawaiian Home
Lands (“DHHL”), Native Hawaiians represented by EarthJustice,
and Native Hawaiians represented by the Native Hawaiian Legal Corporation.
The Wai`ola O Molokai Decision
“MR–Wai`ola
was obligated to demonstrate affirmatively that
the proposed well would not affect native Hawaiians’ rights.”
~ Wai’ola O Molokai (2004)
After reviewing the Water Commission’s decision, the Hawai`i Supreme Court remanded the case back to the Water Commission for further proceedings on Molokai Ranch’s request to develop a new well in central Molokai. The Hawai`i Supreme Court ruled that the Commission’s decision had “violated DHHL’s reservation rights as guaranteed” by the Hawai`i Constitution, the Hawaiian Homes Commission Act, and Hawaii’s Water Code. The Court wrote: “MR-Wai’ola had the burden of establishing…that the proposed use would not interfere with DHHL’s 2.905 [mg/d] reservation of water in the Kualapu`u aquifer system.” The Court held that the Commission had not adequately evaluated whether the new well would interfere with the rights of DHHL to develop water sources for its lands on Molokai in the future; therefore, the Commission “clearly erred” in issuing a water permit to Molokai Ranch.
The Court explained that the “reservation” of 2.905 mg/d that had previously been granted to DHHL was a “public trust purpose” and “an essential mechanism by which to effectuate the State’s public trust duty” and was thus “entitled to the full panoply of constitutional protections afforded by the other public trust purposes enunciated by th[e] Court in Waiahole.” The Court’s decision extended the “public trust” protections that it had previously affirmed in the 2000 Waiahole Ditch case to the water rights of the Native Hawaiian people and confirmed that the State’s Water Commission was obligated to ensure that all its actions protected the rights of Native Hawaiians. Reconfirming that Native Hawaiians are in a special category, the Court’s ruling stated: “We have consistently recognized the heightened duty of care owed to the native Hawaiians.”
Professor Van Dyke also discussed issues raised in Kukui Molokai Inc., a companion case to Wai`ola O Molokai that is presently before the Hawaii Supreme Court (as of Feb. 19, 2004).
Fall 2003 Series
"Hawaii's Environmental Response Law and Voluntary Response Program: Forging Alliances with Business and the Environment"
Lisa Munger, Partner, Goodsill, Anderson, Quinn, & Stifel - (October 15, 2003)
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Lisa Munger enthusiastically explains how the Environmental Response Law works. |
U.H. Manoa Zoology Professor Sheila Conant (left) asks Munger a few questions after her presentation. |
The Environmental Law Program continued its Fall Colloquia Series with an insightful presentation by Lisa Woods Munger, a partner at the law firm of Goodsill Anderson Quinn and Stifel. Ms. Munger has practiced in the fields of environmental law, antitrust law and commercial litigation since 1978. To learn more about Lisa Munger and her achievements visit www.goodsill.com. Ms. Munger has been very supportive of the Environmental Law Program and we were honored to have her speak to a group of students, professors, and community members.
She began the Colloquium by posing the question “How can you join the business community in Hawaii and still do wonderful things for the environment?” Ms. Munger explained that those in the local business community can help the environment by cleaning up sites contaminated with hazardous materials and setting up businesses on these sites. In this way, we can preserve more pristine lands by taking off pressure to develop them.
Ms. Munger explained that Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to assist in the clean up of these sites. She believes that Hawaii is behind the rest of the country in terms of taking advantage of this law. Nationally more time and money is being spent to clean up areas affected by hazardous waste. In her view more can be done to take advantage of CERCLA. If businesses are not encouraged to use these sites, they will go to undeveloped land to construct their businesses.
She went on to describe how the National Brownsfield Initiative works. It is a program that will release the property owner from future liability under CERCLA. The government monitors the clean-up and gives the property owner a letter stating that the land is sufficiently treated. There are exclusions to this program, it is not available to people who have already bought land, if the site is on the EPA’s National Priority List, or if the property owner is under a court order to clean up the land. The New York Giants Ball Park, Oakland’s Jack London Square, and the San Francisco Presidio are all examples of previous Brownsfields that were cleaned up using this program.
In 1989, the State of Hawaii passed the Environmental Response Law to establish a similar program at the state level. Then in 1997, Hawaii enacted the Voluntary Response Program (VRP) as an amendment to the Hawaii Environmental Response Program. The EPA gave DBEDT over $2 million to administer programs, but according to Ms. Munger, the state is currently working at a snail’s pace and is not taking full advantage of the program. The Office of Hazard Evaluation and Emergency Response administers the VRP and more information can be obtained by visiting their webpage at http://www.hawaii.gov/doh/eh/heer/index.html.
Home Depot was the first company to take advantage of the VRP in Hawaii. This project took previously vacant contaminated land in Iwilei and cleaned it up and developed the land. Ms. Munger explained how this is a good example of how Hawaii business has taken positive steps to enhance Hawaii’s environment.
Dawn Nekoba, 3L
“Environmental Advocacy: Differences, Advantages, and Disadvantages of Working within a Public Interest Organization versus within a Private Law Firm”
Paul Achitoff, Managing Attorney, EarthJustice, Honolulu Office
(September 17, 2003)
The
Environmental Law Program was pleased to kick off its Fall Colloquia Series,
focusing on environmental challenges facing Hawaii, with a presentation
by Paul Achitoff. Achitoff, the Managing Attorney for EarthJustice’s
Honolulu Office, spoke to a group of twenty students, professors, and
attorneys about his experiences working for both a private firm and public
interest organization. Achitoff began his talk with the proposition that
the purpose of a private firm is to attract clients and maximize profits,
not necessarily to pursue justice; without such bottom-line pressures,
a public interest organization, on the other hand, has the freedom to
truly advocate for controversial, grass-roots environmental causes.
Achitoff painted a bleak picture of firm life and its attendant pressures to win and produce income for the firm. Whether a firm takes on a client has much to do with the financial benefits that would follow a victory in court. Achitoff also related his criticism of the pro bono opportunities within firms. While it is true that firm attorneys have the freedom to pursue pro bono work, many don’t have the time. Achitoff said that in many firms, all pro bono must be done on an attorney’s own time. Moreover, in taking on pro bono clients, the firm attorney must be wary of creating a conflict of interest with the rest of the firm’s clients. For that reason, most pro bono work within firms involves family law, not cases that stir up political hostility or threaten the commercial interests of the firm. Pro bono work, therefore, rarely involves environmental advocacy, a political hot button in Hawaii. Inevitably, Achitoff became disillusioned with firm life, the amount of control clients exert over firm attorneys, and their lack of gratitude for his services. He jokingly recalled never receiving a “fruit basket” for his efforts. Although he recognizes that the firm’s clients deserve a defense, he no longer wanted to be the attorney called upon to provide it.
By contrast, work for EarthJustice, a public interest environmental law firm, has energized Achitoff. Within a public interest organization, business principles regarding maximizing profits simply don’t apply. There is no pressure to win or to take on clients who would increase the bottom line. Achitoff is paid a straight salary, commensurate with the amount of years that he has been out of law school. EarthJustice itself is funded through donations and the occasional attorney’s fee award. The organization’s main purpose in advocating for its clients is to defend Hawaii’s environment, not winning or even collecting attorneys’ fees. To that end, the relationship between attorney and client is collaborative and rewarding, in Achitoff’s opinion. EarthJustice most frequently challenges the government for not obeying or enforcing environmental laws. Some of its most important cases involve Clean Water Act violations in Kailua and Honouliuli, as well as the landmark Waiahole Ditch case, which is currently on appeal to the Hawaii Supreme Court for a second time. To emphasize his point that money doesn’t drive EarthJustice’s work, Achitoff made it clear that EarthJustice will not, by statute, collect any attorneys’ fees in the Waiahole Ditch case, even though over a million dollars in work has been invested in that case. EarthJustice’s work revolves around what is at stake, be it a threatened resource, public health, or endangered species, when government fails in its responsibility to the environment. To Achitoff, work within a public interest organization has provided him with more compelling litigation and greater satisfaction than firm life could have.
Spring 2003 Series
"The Endangered Species Act"
Professor Patrick Parenteau, Vermont Law School
(May 7, 2003)
The
Environmental Law Program presented its last colloquium for the academic
year on May 7, 2003. The featured speaker was Professor Patrick Parenteau,
a professor (and former director of the Environmental Law Center) at Vermont
Law School. Professor Parenteau received his B.S. in business administration
from Regis College, his J.D. from Creighton University, and his L.L.M.
from George Washington University. He has worked as an attorney for the
Legal Aid Society of Omaha, the National Wildlife Federation, and the
U.S. EPA Region I in Boston. Professor Parenteau’s many specialties
include citizens’ suits, the Endangered Species Act, biological
diversity, wetlands, and property rights and takings, to name a few.
Parenteau, who was in Hawaii to deliver the keynote speech at the Seminar Group conference on the Endangered Species Act, took time to share his unusual experiences with law students and faculty from the William S. Richardson School of Law and from the Zoology Department of the University of Hawaii at Manoa. Parenteau has been involved in numerous high-profile environmental law cases around the nation.
Parenteau spoke about protecting the whooping crane from the adverse effects of a highway development project, setting wetlands precedent in the Sweedens Swamp/Attleboro Mall case, and defending Native American lands. Not all of his environmental litigation experiences were successful, however. Parenteau was on the briefs for the U.S. Fish and Wildlife Service for the Tellico Dam case, which he considers one of the worst environmental law decisions made by the U.S. Supreme Court to date.
In his irrepressible and animated way, Parenteau went on to describe what it was like to be of Special Counsel to the U.S. Fish and Wildlife Service in the spotted owl case before the “God Squad” in 1992. He recounted coming face-to-face with a gigantic Oregon logger on the morning of the proceedings. Parenteau, who thought he would be “returned to the earth” at that moment, recalled that the logger had only this to say to him: Where were you ten years ago? His message to the audience was that, in the name of sustainability, both environmentalists and loggers have an interest in saving forests from exploitation.
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After his presentation, Parenteau entertained questions from the audience and conversed with students and professors on campus. He spent the rest of the week speaking at the Seminar Group conference and enjoying Hawaii with his family. Photo (from left to right): Andrew McClung, Graduate Student, U.H. Manoa Zoology Department; Adjunct Professor Arnold Lum; Sheila Conant, Chair of U.H. Manoa Zoology Department; Professor Patrick Parenteau; Professor Denise Antolini. |
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"The Effect of the Navy's Planned Low Frequency Active Sonar (LFAS) on Marine Mammals and the Marine Environment"
Dr. Marsha Green
(March 12, 2003)
The Environmental Law Program was pleased to present a colloquium entitled "The Effect of the Navy's Planned Low Frequency Active Sonar (LFAS) on Marine Mammals and the Marine Environment" by Dr. Marsha Green on March 12, 2003.
ELP Professor Jon Van Dyke introduced Green, a professor of psychology and psychobiology at Albright College. She is the founder of Albright College's Psychobiology and Environmental Psychobiology programs. She is also the founder and president of the Ocean Mammal Institute, a non-profit organization dedicated to conducting ecologically sensitive research on marine mammals and their interactions with humans. Dr. Green has done extensive studies of social vocalizations in humpback whales. Her recent presentations at the Fourteenth Bienniel Meeting of the Society for Marine Mammalogy included "Relationship of Social Vocalizations to Pod Size, Composition and Behavior in the Hawaiian Humpback Whale" and "Singing Humpback Whales Associate with Mothers and Calves." Dr. Green's current research focuses on the effect of noise pollution on marine mammals. She recently co-authored a paper with Whitlow Au, entitled "Acoustic Interaction of Humpback Whales and Whale Watching Boats" in Marine Environmental Research. As a result of this research, she became concerned about the impact of sonar on cetaceans.
Since the late 1980's Dr. Green has been studying the effect of engine noise, as measured in decibels, on the behavior of humpback whales. She discovered that when engine noise reaches 120 dB (the noise level of an average Zodiac boat engine), whales swim away from the source two to three times faster than normal speed. Her research is consistent with that of other researchers who now accept 115-120 dB as the level at which marine mammals display avoidance behavior.
In 1998, Green found out that the Navy was planning to test LFAS off of the Big Island. LFAS produces long-lasting "pings" of noise that measure 240 dB at the source. To a human being, 240 dB is equivalent to the noise one hears standing next to a Saturn 5 rocket upon take-off (assuming that cetacean and human hearing systems are comparable). The Navy had tested LFAS secretly twenty-two times before the Natural Resources Defense Council (NRDC) heard about it. The NRDC suggested that the Navy write an Environmental Impact Statement (EIS) or face a lawsuit. The Navy then tested the sonar on blue, fin, and gray whales off of California and on humpback whales off of Hawaii in 1997 and 1998. In 1998, Dr. Green sent teams of researchers to Hawaii to study the effect on marine mammals. Results included the separation between mothers and calves and changes in vocalization and migration patterns. To Dr. Green, these changes in behavior reflect a probable harmful impact on mating and feeding.
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Dr. Marsha Green |
Downplaying these findings, the Navy concluded in its EIS that there was a negligible impact on whales and that it was safe to deploy LFAS. The Navy reasoned that 240 dB will decrease in intensity to 180 dB one kilometer away from the source, and that 180 dB was a safe level of exposure for marine mammals. 180 dB is one million times louder than 120 dB. Curiously, the Navy did not test LFAS at 180 dB. Rather, they tested it at levels no louder than 155 dB. The Navy notes, in a sentence in the EIS appendix, that their lack of empirical data for effects of 155-180 dB on marine mammals presents "an issue." |
After writing the EIS, the Navy applied for a permit from the National Marine Fisheries Service (NMFS) to deploy LFAS. Under the Marine Mammal Protection Act (MMPA), a permit was necessary, because LFAS has the potential to harass, injure, or kill marine mammals. The Navy received that permit in July 2002 and was allowed to deploy LFAS in 75% of the world's oceans. In September 2002, fifteen Cuvier's beaked whales beached themselves on the Canary Islands, where the Navy, with NATO, was conducting sonar testing. According to necropsies of the whales, their deaths were consistent with acoustic trauma. The NRDC went to court to enjoin the use of LFAS, noting that LFAS would surely affect large numbers of marine mammals over a wide geographic area and that the NMFS permit should not have been given. They argued that permits are only allowable if they affect a small group of marine mammals over a limited geographic area. Federal Magistrate Judge Elizabeth LaPorte issued a preliminary injunction in November 2002, allowing the Navy to deploy LFAS only in the one million square miles surrounding the Mariana Islands. The judge's final decision is pending.
In the meantime, other environmental organizations have been successful in battling LFAS in court. Consequently, the Navy and Department of Defense (DOD) have drafted legislative proposals that would give them broad exemptions from many of the nation's environmental laws. Coincidentally, the MMPA is up for reauthorization this year, and the Navy and DOD seek to amend it to weaken the definition of "harassment." Proposed amendments also include broad exemptions for the Navy for specific kinds of testing.
Emily Gardner, Dr. Marsha Green, and Professor Jon Van Dyke |
Dr. Green said that these legislative proposals are currently being fast-tracked through Congress. In addition to proposing amendments to the MMPA, the military is also asking for exemptions from the Endangered Species Act, the Clean Air Act, and the Resource Conservation and Recovery Act. She calls these legislative proposals one of the biggest assaults on our environmental laws in recent memory. The proposals are included in the "Readiness and Range Preservation Initiative" which will probably be a rider on one of the Defense Appropriation Bills, currently in the House and Senate Sub-Committees on Armed Services.
The military's main argument is that environmental laws have a detrimental effect on military readiness. Dr. Green disagrees with this, stating that the military is already exempt from these laws during emergencies. EPA Director Christine Todd Whitman and the General Accounting Office have also made similar statements that environmental laws do not impede military readiness in any way.The citizens of Hawaii, she said, wield much influence with regard to these legislative proposals. Of the twenty-five members of Congress that NRDC has singled out as crucial voters on the proposals, three of them-- Senators Inouye and Akaka and Representative Abercrombie-- are from Hawaii. In closing, Dr. Green asked the audience to write or call these legislators to voice their opposition to LFAS and the additional proposed military exemptions from environmental laws.
"Environmental Justice: Peace, Justice, and the Environment"
Eudora Iris Lee - (March 12, 2003)
The Environmental Law Program, in conjunction with the Church of the Crossroads, sponsored an evening lecture entitled, "Environmental Justice and the Environment: Peace, Justice, and the Environment."
"Pitfalls and Pratfalls in Section 106 Consultations under the National Historic Preservation Act" (March 7, 2003) - Dr. Thomas King
The
William S. Richardson School of Law's Environmental Law Program, the Environmental
and Cultural Resources Law Practice Group of Alston Hunt Floyd & Ing,
and the State of Hawaii Historic Preservation Division of the Department
of Land and Natural Resources were proud to present a colloquium entitled
"Pitfalls and Pratfalls in Section 106 Consultations under the National
Historic Preservation Act" by Dr. Thomas King on March 7, 2003. Dr.
King, trained as an archaeologist, is a nationally recognized expert on
the National Historic Preservation Act (NHPA). He has authored and co-authored
numerous books on traditional cultural properties under Section 106 review.
He travels the country, teaching classes on Section 106 compliance to
federal agencies and other interested groups.
Dean Larry Foster, ELP Co-Director Professor Casey Jarman, and Lea Hong, a partner in Alston, Hunt, Floyd, and Ing, welcomed the overflowing crowd of practicing attorneys, judges, professors, and students. Holly McEldowney, Acting Director of the State Historic Preservation Division of the Department of Land and Natural Resources, introduced Dr. King.
Casey Jarman |
Lea Hong |
Holly McEldowney |
Dr. King started his presentation with this basic concept: Section 106 reviews are necessary when landowners propose any federal or federally assisted undertaking that might have a potential effect on historic properties. He then structured his presentation around the language of the NHPA's Section 106 requirement, codified as 19 U.S.C. 470(f), highlighting phrases that, in practice, have produced confusion. The regulation reads as follows: |
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval or the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment with regard to such undertaking.
The first pitfall with Section 106 review is misunderstanding the meaning of "undertaking subject to review." "Undertaking" includes anything done with assistance from, obtaining a license from, or under delegation or oversight by a federal agency. "Subject to review" means that the action undertaken might have a "potential effect" on historic properties. Landowners often mistakenly believe that if no known historic properties (designed under NHPA) exist on their land, then they don't have to do a review. Dr. King stressed that the review is necessary to evaluate whether the undertaking is the kind of action that could affect historic properties, known or unknown. Similarly, landowners often think that because their property is excluded from the National Environmental Policy Act (NEPA) review, then a Section 106 review is unnecessary. Dr. King cautioned against confusing NEPA with NHPA, two distinct statutes. Another common problem is that landowners assume that a "potential effect" on historic properties means an effect upon historic buildings or upon archaeological sites. Dr. King said these tendencies reflect "architecto-bias" and "archaeo-bias," respectively. The effect, he explained, is not simply a direct physical effect upon land and structures, but extends to such other effects as visual, auditory, and olfactory effects, effects on traffic, land use, and natural resources, and the cumulative effects of all of these factors.
| Once an agency decides that the undertaking is subject to review because it has a potential effect on historic properties, the next step is to coordinate with other agencies (like NEPA), consult potentially affected parties (like the State Historic Preservation Office, or SHPO), and involve the public. The second set of pitfalls include waiting to complete a NEPA review before embarking on a Section 106 review (the two should be contemporaneously executed), not consulting with enough affected parties (such as consulting only with SHPO), and not involving the public at all. In his opinion, hearings and invitations for comments on drafts should be encouraged. |
Jennifer Benck (1L), Jessica Stabile (1L), and Dean Larry Foster |
This coordination and consultation step leads to the next step in Section 106 review, which is defining the Area of Potential Effects (APE) and the scope of the research into potential effects. Potential pitfalls in this third stage include underestimating the geographic size of the APE and the scope of potential effects on the land. On the other hand, landowners might overestimate the APE and the scope, thinking that they must identify every possible potential effect, which is unnecessary and results in expense and delay. Dr. King emphasized the importance of consulting with people who are more knowledgeable of the area and the scope of potential effects.
After the APE and scope are defined, yet a fourth area poses problems for many Section 106 reviews- determining if the plan involves adverse effects on land. Dr. King warned against confusing the "adverse effects" determination under NHPA with the "significant impact" determination under NEPA. Again, the two statutes' requirements are distinct. Should an adverse effect be recognized, landowners may continue consultation with affected groups, implement a Memorandum of Agreement (MOA), or invite comments from the Advisory Council on Historic Preservation (ACHP) in order to further their plans.
Section 106 review is complicated, and landowners haled into court must show that they avoided the following particular pitfalls: failure to recognize the need for Section 106 review, a late start, inept NEPA coordination, too narrow an APE, failure to consider the full range of effects, leaving Section 106 review to the SHPO, and failing to involve the public. On the other hand, defendant landowners may avoid violating the same statute if they can show that they recognized the need for review and started the Section 106 review process early, effectively coordinated with NEPA, defined the scope and area of potential effects well, involved as many potentially affected groups as possible, considered all types of properties and effects, and reached a MOA or got ACHP comment.
After explaining the pitfalls and pratfalls of Section 106 review and giving practical guidance for plaintiffs' and defendants' attorneys alike, Dr. King opened the floor to questions from the audience. Adjunct Professor Arnold Lum, 3L Kanoelani Kane, and a number of practicing attorneys posed questions to Dr. King, who graciously answered them. The Environmental Law Program was honored to co-host such a renowned authority on Section 106 review.
Prof. Arnold Lum (left photo); Kanoelani Kane (3L) and Brian Duus (2L) (right photo)
"How to Get Started on a Career in Environmental Law"
Mike Walker, Environmental Protection Agency
(March 6, 2003)
Mike Walker, the EPA's Senior Enforcement Counsel for the Office of Enforcement and Compliance Assurance, spoke with WSRSL students on March 6, 2003 about summer opportunities at the EPA and how to get started on a career in Environmental Law. Mr. Walker runs the EPA Headquarter's summer law clerkship program, which hired sixty-one students during the summer of 2002. Working under the supervision of EPA attorneys, law clerks handle enforcement of laws related to clean air, clean water, and hazardous waste, environmental crimes, international issues, environmental justice, and policy.
In his lively presentation, alternating between theatrical flair and deadpan humor, Mr. Walker spoke about his experiences in law school and beyond, and the qualities that make for a good environmental lawyer. He admitted to yawning through Civil Procedure and Administrative Law, but noted that, ironically, what he learned in these classes forms the basis of his current practice. A good environmental lawyer, he said, is one who is first and foremost "a good lawyer." Mr. Walker advised students to work hard in all of their classes to gain a solid foundation. He impressed upon students the importance of attention to detail by recounting humorous but painful mistakes that lawyers often make in bringing administrative claims. He also recommended that students take advantage of opportunities to gain practical legal experience through externships, hone their writing skills through participation in law reviews or other publications, network early and often with practicing attorneys, and continue to educate themselves on legal issues that matter to them. When searching for jobs, students should tailor resume information to reflect past experience with environmental work, show a willingness to learn more, and demonstrate a passion and enthusiasm for the environment.
Mr. Walker encouraged students to think broadly and creatively about possible environmental jobs. The EPA itself has numerous job opportunities within each of its ten regional offices; and each office has independent hiring power, so a student interested in working for the EPA should apply to the various regions of interest. The U.S. Government also hires lawyers to handle environmental compliance for the Postal Service, the Department of Energy, and other government agencies. Environmental law comes up in many surprising contexts. He mentioned that corporations like Wal-Mart and Home Depot now have environmental lawyers who are working on issues of security (the vulnerability of their pesticide supplies against the threat of terror, for example), and compliance. In Washington D.C., lawyers for defendant corporations are making millions of dollars doing FIFRA work. The possibilities are limited only by how broadly one is willing to look. Whatever job one chooses, the bottom line, he said, is that the field of environmental law offers an opportunity to do something interesting and meaningful.
From left to right: Professor Casey Jarman, Ranae Doser (1L), Jessica Stabile (1L), Karen Dunai (1L), Mike Walker, Chad Jaffe (1L), Adrienne Iwamoto Suarez (1L), Professor Denise Antolini
"International Environmental Law: Sustainable Development and Third World Countries"
Professor David Firestone, Vermont Law School - (February 14, 2003)
Professor David Firestone of Vermont Law School recently spoke to an audience of William S. Richardson School of Law students, professors, and friends at an Environmental Law Program Colloquium entitled "International Environmental Law: Sustainable Development and Third World Countries."
Professor Firestone founded one of the first Environmental Law programs in the nation in the early 1970s, a time period that ELP Co-Director Professor Denise Antolini referred to in her introduction of Professor Firestone as the "primordial soup" of the environmental movement. He has been teaching at Vermont Law School since 1973, authored Environmental Law for Non-Lawyers, and is currently working on his next book, Global Environmental Law. Professor Firestone has traveled the world extensively to investigate ways to raise environmental awareness in Third World countries.
| Before delving into his current interest in Global Environmental Law, Professor Firestone traced the history of environmental law within the United States. He noted that environmental awareness developed in the 1960s, Congress enacted environmental legislation in the 1970s, and courts interpreted environmental law in the 1980s. The 1990s marked a shift in Congress' approach to regulation from "command-and-control" to "market-based economic incentives" for companies to protect the environment. Firestone commended the relative success of environmental protection in the United States. Though constant vigilance is necessary on the domestic front, he sees the future challenges of environmental protection emerging most prominently in Third World countries. According to Firestone, "The environment is a global concern. There is no 'us or them.' Pollution know no boundaries; it moves through the air, the water, and the food chain, affecting all of us." |
Professor Firestone |
People can't begin to "indulge" themselves in environmental awareness when the need to survive overshadows all else. The answer, said Firestone, is sustainable development. The U.S. and other nations have come to regard "development" as a dirty word, he stated. For Third World countries, though, sustainable development could offer people a higher standard of living, stability, future security, and the choice to engage in environmental protection.
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Firestone concluded his talk by suggesting that the role of the lawyer in a Third World country is to persuade the judiciary to balance the needs of the environment while promoting a better way of life for people. The judiciary provides a necessary check on typically corrupt law-making bodies in Third World countries. He also stressed the necessity of change from within, led by lawyers native to the countries they will serve. |
Professors David Callies, David Firestone, Denise Antolini, and Bruce Wilcox (of the UH Medical School). |
After the colloquium, a First-Year student remarked, "[Professor Firestone] was so inspirational to me, not just in relation to environmental law but to law in general, and beyond that, to thinking in general." The Environmental Law Program was honored to host Professor Firestone for this informative and timely presentation.
Fall 2002 Series
"The New Wave of Ocean Advocacy--Developments in the World of National NGO Marine Law and Policy"
Professor Stephen E. Roady, EarthJustice, Washington, D.C.
(September 18, 2002)|
Professor Steve Roady, attorney with Earthjustice in Washington D.C. and long-time Adjunct Professor at American University College of Law, visited the University of Hawaii School of Law during the Fall 2002 semester. Professor Roady taught Domestic Ocean and Coastal Law. Professor Roady, who has litigated several important cases under federal statutes that implement ocean policy, founded the Ocean Law Project (supported by The Pew Charitable Trusts) and served as founding President of Oceana, a non-profit international ocean conservation organization dedicated to protecting life in the sea through public education, advocacy, communications, science and litigation. He also serves on the Advisory Board for the Duke University Marine Laboratory at Duke's Nicholas School of the Environmental and Earth Sciences. His experiences also include serving as counsel to a United States Senator on environmental matters in the Senate Committee on Environmental and Public Works (1989-90) and assisting companies in complying with environmental laws. |
L to R--Professor Roady with Dean Larry Foster (foreground). Sherwood Maynard and Adjunct Professor Arnold Lum (background). |
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Professor Roady explaining the effects of the summer flounder crash. |
Professor
Roady began his talk about the world's oceans by highlighting a history
of environmental litigation. From 1776 through 1969, virtually all
environmental litigation fell under the common law nuisance doctrine.
One exception was the Rivers and Harbors Act, established in 1899,
which set criminal penalties for pollution. Unfortunately, the act
was never really invoked. In 1969, everything changed as an avalanche
of federal environmental legislation began to be passed--NEPA, CAA,
FWPCA, ESA, CZMA, etc.
Two groups utilized the new regulatory scheme: industry, seeking to challenge the new laws as too onerous, and citizen groups, challenging the ineffectual responses of the agencies responsible for enforcing the new laws. However, virtually none of this litigation had to do with oceans, with one exception--a suit by the Conservation Law Foundation (CLF) challenging mandatory reduced fishing effort. Concern over ocean trends was beginning, and it was focused in the arena of over fishing. |
In the 1970s, environmental groups took a closer look at the world's oceans and began working towards their protection utilizing federal statutes through litigation. In 1998, carefully targeted lawsuits were aimed at the federal government to further protect the oceans. The focus was usually on protecting the ocean as habitat for the creatures that lived there, using environmental statutes already in existence and sometimes combining them. The sea turtle bycatch concern (in Hawai'i) fell under the Endangered Species Act. The drop in Steller sea lion population came under the Marine Mammal Protection Act. And, the summer flounder and groundfish drop in numbers (in New England and the Pacific Coast) were related to under-regulation by the Magnuson-Stevens Fisheries Act.
| Professor Roady recognized the necessity and importance of litigation in the above contexts, but also pointed out how litigation can promote political backlash. One solution is to foster more public education. A number of environmental groups are now devoting more resources to education, realizing a strong need for it. Also, a need exists for more and better science and research. New technologies, such as aquaculture, have some significance for change, but the current methods raise more problems that must be resolved. The technological, political, and legislative schemes must address these concerns. Finally, lawyers must educate themselves on the issues, so that needless and provocatory litigation does not occur without investigating other, perhaps more productive, methods for change and compliance. |
UH Professor Danielle Conway-Jones (in red shirt) asks Professor Roady a question.
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Spring 2002 Series
"An Introduction to Conflict Resolution"
Cherie P. Shanteau, Esq., Senior Mediator/Program Manager, U.S. Institute for Environmental Conflict Resolution, Tucson, Arizona
(April 9, 2002)
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Cherie P. Shanteau, attorney and mediator/facilitator, joined the U.S. Institute for Environmental Conflict Resolution in June of 2001. Her responsibilities at the U.S. Institute include collaborative process management; mediation and facilitation services; ADR; and negotiation training relating to attorneys, the courts, the Department of Justice and Attorneys General, and the corporate sector. Her areas of subject matter expertise include property and real estate law, environmental law, Superfund, Western public lands, wilderness issues, grazing and endangered species. Before joining the U.S. Institute, Cherie spent more than 17 years in private practice, including two and one-half years as in-house legal counsel and the Dispute Resolution Manager for a Fortune 500 company owning grocery and drug stores throughout the United States. She has successfully mediated numerous litigated and non-litigated matters, represented clients in mediation, and facilitated several large public disputes. Cherie is on the mediation panels of the American Arbitration Association, U.S. Federal District Court for the District of Utah, Utah State Courts Mediation Program, and the U.S. Postal Service. She has taught mediation, negotiation, conflict resolution and communication skills to law students and other individuals, corporations, and organizations in the United States and Europe. |
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Cherie received a B.S. in Anthropology from the University of Utah and a Juris Doctor degree from the University of San Francisco School of Law. She was admitted to the Utah State Bar in 1984. She is a member of the Association for Conflict Resolution and the Association for Psychological Type. She is qualified to administer the Myers-Briggs Type Indicator. Since its inception in 1998 the U.S. Institute has been involved in more than 100 cases and projects in 30 states, two territories, the District of Columbia, border regions of Canada and Mexico, as well as several regional and nationwide projects. The Institute was established by Congress as an independent executive agency to assist parties in resolving environmental, natural resource, and public land conflicts with a federal interest. The purpose of the Institute is to serve as an impartial non-partisan actor providing professional expertise, services, and resources to all parties involved in environmental disputes, regardless of who initiates or pays for assistance. |
From left: Chuck Crumpton (Stanton Clay Chapman Crumpton & Iwamura), Lisa Bail (Goodsill Anderson Quinn & Stifel), Professor Denise Antolini (Co-Director, UH Environmental Law Program), Cherie P. Shanteau (Senior Mediator, US Institute for Environmental Conflict Resolution, Tucson, Arizona), Professor Casey Jarman (Co-Director, UH Environmental Law Program), Howard Latin (Visiting Scholar, Rutgers School of Law at Newark) |
The institute provides services such as Conflict Assessment, Process Design, Consultation, Convening, Referral, Consensus Building, Facilitation, Mediation, Training, System Design, Program Development, and Evaluations. The Institute also has a mandate to increase the National Capacity for conflict resolution. The capacity building process includes the creation of a national roster as well as creating a Federal Partnership Program and ECR Participation Program.
The Institute is involved in both ECR and Alternative Dispute Resolution (ADR). Ms. Shanteau distinguished ADR from ECR in that ADR is a specific from of ECR. ADR is a negotiation assisted by an impartial third party; whereas, ECR encompasses any method of resolving environmental disputes other than adjudication. ECR tends to connote a broad set of processes and issues when applied to the environmental arena.
The benefits of ECR are noted in the results, parties, and resources/time. No single party has complete control over the situation; non-parties must be included in the ultimate solution; and the framework creates a relative balance of power among the parties. Also, relationships are preserved between parties that have or may have an on-going association. Results are tailored by the agencies involved and are promoted by the current political environment. Resources are used more efficiently; for example rather than employing 'dueling experts', joint inquiries are made.
"Fundamental Dilemmas of Environmental Law"
Professor Howard Latin, International Environmental Law Professor, Rutgers School of Law at Newark, New Jersey
(February 19, 2002)
| I. INTRODUCTION
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Professor
Howard Latin |
Is it possible that most law professors, lawyers, and law students know virtually nothing about Environmental Law (EL) except the tautology that it deals with various aspects of the environment? As a heuristic device to explain why EL is uniquely challenging, this Article identifies five "fundamental dilemmas" that arise from the underlying circumstances, conditions, and values in varied environmental contexts.
II. DILEMMA ONE: MULTIPLICITY OF LEGALLY PROTECTED INTERESTS
EL must recognize and accommodate a broader range of legally protected interests than any other field of law. EL not only encompasses a wider range of legally protected interests than other legal fields, but it is the only field that must deal with legally protected interests that are not exclusively focused on human effects and benefits. The multiplicity, incommensurability, and unquantifiable character of many environmental interests requires legislative policy-makers and administrative officials to balance diverse competing factors under nebulous decisional criteria. The resulting decisions are certain to be controversial whether they seek to include all conflicting environmental, economic, and social interests or to exclude some relevant interests.
III. DILEMMA TWO: INAPPROPRIATE POLITICAL AND TEMPORAL BOUNDARIES
From an environmental viewpoint, the political and legal boundaries created over hundreds of years to serve human needs are inappropriate and often irrational. Most of our geopolitical boundaries were created long before ecology and toxicology were recognized as sciences and these boundaries impose arbitrary jurisdictional barriers that constantly impede effective environmental planning and regulation. The time-frames or temporal boundaries associated with most human activities and institutions are similarly inappropriate for many environmental processes. EL must somehow function despite numerous mismatches between political, legal, temporal, geological, and ecological boundaries.
IV. DILEMMA THREE: THE TRANSITION FROM PERCEIVED ABUNDANCE TO PERCEIVED SCARCITY
For many environmentalists, America is no longer perceived as "the land of plenty." With regard to natural resources depletion and related ecological degradation, proponents of continued natural resources exploitation rightly claim that their livelihoods, homes, communities, businesses, preferred life-styles, and personal autonomy are at stake. Environmental advocates rightly reply that natural resources exploitation activities are destroying irreplaceable ecological features and systems, and current practices will inevitably impose massive long-term social and environmental losses if they are allowed to continue on a non-sustainable basis. Where is the middle ground between these sets of politically powerful arguments?
V. DILEMMA FOUR: PERVASIVE COMPLEXITY AND UNCERTAINTY
In addition to the complicated human and organizational relationships at the core of other legal fields, EL must confront innumerable complexities and uncertainties arising from interactions between human behavior and environmental phenomena. Critical processes, whether systemic or random, at the boundary-lines between natural conditions and human activities, such as global climate change, deforestation, species habitat destruction, and natural resources depletion, typically lack adequate baseline data and adequate scientific understanding. Environmental agencies and reviewing courts must therefore grapple with complicated economic issues, including present and future industry profitability, foreign competition effects, ability to attract capital for investments, and retention of competitive market structures.
VI. DILEMMA FIVE: THE NEED TO REVERSE CENTURIES OF PRO-DEVELOPMENT POLICIES AND PRACTICES EMBEDDED IN AMERICAN LEGAL DOCTRINES
As one prominent EL scholar noted some years ago, EL is inescapably subversive. For centuries, established legal doctrines and practices have promoted development and have failed to protect nature or human satisfactions derived from non-consumptive interactions with nature. The law for centuries provided essentially no legal rights to environmental protection or to ecological sustainability except for the right to buy a tract of land and then not develop it. In recent decades, environmentalists have attained sufficient political influence to adopt thousands of statutes and regulations intended to overturn previous legal impediments to environmental protection. Yet, there can be no doubt that pro-entrepreneurial, pro-development biases are still dominant in the great majority of American legal contexts. EL must therefore continue to challenge the historical, doctrinal, and ideological underpinnings of a legal system that actively encouraged so many environmentally destructive practices to flourish in the past.
VII. CONCLUSION
it must be emphasized that all of these dilemmas complicate environmental decision-making concurrently and continuously. The fundamental dilemmas generate or strongly influence a much larger set of specific legal problems that routinely arise in environmental contexts. The aim of this Article is not only to describe central themes and constraints that unite diverse areas of Environmental Law and to demonstrate that EL is an independent legal field with many fascinating characteristics, but also to show that a better understanding of the fundamental dilemmas of EL can help professors, lawyers, and students involved in other legal fields. To paraphrase Clemenceau's famous dictum about war and generals, Environmental Law is too important a subject to be understood only by EL specialists. Environmental Law is a challenging field worthy of much greater academic recognition and respect than it now receives, and lawyers working in many other legal fields can understand their own subjects better if they expand their knowledge of the multifaceted dimensions and dilemmas of EL.
Spring 2001 Series
"When Is It Ever Proper to Apply the Public Trust Doctrine to the Allocation of Water? The Waiahole Ditch Case"
Professor Dan Tarlock, Chicago-Kent College of Law, Illinois Institute of Technology, Chicago, Illinois
(February 26 2001)
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Professor Dan Tarlock taught Property Law and Second-Year Seminar at the William S. Richardson School of Law in Spring 2001. He is a Distinguished Professor of Law and the Co-Director of the Program in Environmental and Energy Law at the Chicago-Kent College of Law. He is an internationally recognized expert in environmental law and the law of land and water use. He has published a treatise, Law of Water Rights and Resources, and is a co-author of four casebooks: Water Resource Management, Environmental Law, Land Use Controls, and Environmental Protection: Law and Policy.
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Professor Dan Tarlock (center) with Environmental Law Program Professors Jon Van Dyke and Co-Director, Denise Antolini. |
Professor Tarlock gave his presentation on the Waiahole Ditch Case, which involved a dispute over water rights in Hawai'i. He stated that this case was a very important one with national and international implications and has entered into a universe of significant cases. Professor Tarlock focused his talk on whether the decision in the case was legitimate or not. He also stated that the Waiahole Ditch case is significant because the Hawai'i Supreme Court has integrated the California public trust doctrine in the Hawaiian statutory water regime. The bottom line is that the trust reinforces statutory duties to protect surface and ground water, placing conservation duties on the state. |
Professor Dan Tarlock talks about the Waiahole Ditch case. |
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“Beyond the Smokestack: Environmental Protection in the Service Economy” Professor James Salzman, American University, Washington, D.C.(January 29, 2001)Professor James Salzman is a leading international environmental law scholar at the Washington College of Law at American University in Washington, D.C. He received his J.D. from Harvard University and has written numerous articles and books on the subject of environmental law. Professor Salzman gave his speech on the shifting regime to a service based economy and its potential impacts on the environment. He addressed the extent to which service is increasing, the implications for the environment, and its meaning. He pointed out that the Environmental Protection Agency does not look at the service industry because it is thought of as a "clean" industry. He then broke down the universe of services into three categories: smokestack services, cumulative services, and leverage services. |
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Professor James Salzman |
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