Sea Level Rise, Saltwater Intrusion and Endangered Fisheries - Shifting Baselines for the Bay Delta Conservation Plan

UC Davis School of Law\u27s March 2015 symposium on The Future of CEQA, out of which this article evolved, focused on how the substantive law governing the operation of the California Environmental Quality Act might change in the coming decades. In my presentation for the symposium\u27s final panel, I suggested that certain changes in CEQA substantive law may well be driven by the increasing recognition that the background conditions against which projects will operate will themselves change significantly in the future

Reconstructing the Marketplace: The International Timber Trade and Forest Protection

This Article proposes a new international regime to help recapture the lost value of native forests and promote global forest protection - the General Agreement on the Timber Trade. Part I outlines the essential differences between native forest conservation and industrial forestry. Part II chronicles the ecological, social, and economic losses resulting from the destruction of native forests. Part Ill reveals the national and international components of the timber trade, and demonstrates how these components contribute to unsustainable logging practices. Part IV assesses the effectiveness of prior and ongoing international efforts to reform the global timber trade and promote sustainable forestry. Concluding that these efforts have been largely unsuccessful, Part V sets forth the framework for a more responsive international regime, the General Agreement on the Timber Trade. Part VI proposes legal strategies for reconciling this new proposed agreement with the trade rules established under the General Agreement on Tariffs and Trade

A Salmon Eye Lens on Climate Adaption

This Article discusses the current gap in climate adaptation law and policy, emphasizing the potential role that the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and California Environmental Quality Act (CEQA) could play in filling this gap. It focuses on the provisions in these laws that establish that agency planning and decision-making should be based on the best available science, and notes that the best available science now confirms that GHG emission-induced climate change is happening now and will continue to happen during this century. This Article posits that the most appropriate and effective way to factor expected climate change into NEPA, the ESA and CEQA analysis and determinations may be through the use of “future baseline conditions,” against which project impacts are evaluated. The use of such future baseline conditions can provide a legal mechanism to ensure that climate adaptation strategies to protect coldwater fisheries are properly incorporated into agency plans and projects. Although the starting point for this Article’s assessment is coldwater fisheries in California, this assessment identifies regulatory questions and offers recommendations that may apply to coldwater fisheries in other states as well

The Conservation/Free Trade Debate Resurfaces: The Uncertain Intersection of the 1992 Driftnet Fisheries Act and GATT

This Comment will explore the legal relationship between GATT and United States environmental legislation, employing the 1992 Driftnet Fisheries Act as an analytic focus. Part I analyzes the 1991 GAIT panel decision, with special attention given to those GATT provisions which were found inconsistent with the MMPA. Part II discusses the international and domestic response to the panel decision. Part III summarizes the 1992 Driftnet Fisheries Act, focusing on the reasons for its adoption and the trade sanctions it contains. Part IV reveals potential inconsistencies between the 1991 GATT panel decision and the Driftnet Fisheries Act. Part V addresses the likely consequences of these inconsistencies. Part VI considers strategies for resolving the conflict between environmentally-based trade embargoes, such as those required under the Driftnet Fisheries Act, and international free trade obligations under GATT

National Incentives to Protect Natural Resources: Preserving Their Place in International Trade

This Dialogue attempts to place the conflict between the principles of negative externalities and comparative advantage in a less theoretical context. To that end, the author examines the relationship between national incentives to protect natural resources and international trade rules that seek to restrict the use of natural resource subsidies. The author further evaluates the extent to which the international trade rules account for the problem of negative externalities, and the extent to which the rules recognize the potentially effective role that national incentive programs can play in correcting market failures. From this evaluation, the author concludes that the legitimacy of green subsidies under international trade rules is uncertain. The current trade rules define green subsidies too narrowly and may discourage the use of national incentive programs to improve protection of natural resources and the environment. Therefore, the author proposes changes to ensure that national incentives to protect natural resources are effectively recognized and preserved under international trade law

Justice For the Sea Turtle: Marine Conservation and the Court of International Trade

On April 10, 1996, the United States Court of International Trade (CIT) issued a landmark decision in Earth Island Institute v. Christopher. In this case, the CIT ordered the U.S. State, Commerce, and Treasury Departments to block the importation of shrimp from all nations that had not adopted adequate policies to protect sea turtles. Worldwide, over one hundred thousand sea turtles are killed each year as a result of shrimp-harvesting operations: the turtles drown trying to escape the shrimp nets. The CIT based its ruling on an interpretation of a 1989 amendment to the federal Endangered Species Act (ESA), § 609.4 Section 609 created a shrimp certification program, wherein nations desiring to export shrimp to the U.S. must be certified by the U.S. government. The U.S. government can only provide this certification if the exporting nation can demonstrate that it harvests shrimp using methods that provide a level of protection to sea tuitles comparable to protection provided for under U.S. conservation laws. Absent proof of comparable turtle protection laws, the U.S. government is required to ban shrimp imports. This article will explore the origins and likely implications of the CIT\u27s ruling in Earth Island. First, it will examine the threat posed to sea turtles by international shrimp fishing practices, and the U.S. Congressional response to this threat. Next, it will summarize the history and outcome of the Earth Island decision. Finally, the article will discuss the emerging conflict between § 609 and the rules of international trade, in particular the rules established under the General Agreement on Tariffs and Trade