Small-scale mining – hazards and opportunities in Kyrgyzstan and Mongolia

Small-scale mining is the main source of income for about 100 million people in Asia, Africa and South America. However, the processing of raw materials during this mining activity results in the release of large amounts of mercury to the environment, creating serious environmental problems. Small-scale mining, or artisanal mining, is exploitation using only shovels, picks and hammers, carried out by individuals or small groups. A wide variety of commodities are exploited in this way, ranging from gold, diamonds, precious stones, tin, coal, dimension stones and slate. Small-scale mining is often carried out by labourers with virtually no knowledge of safety procedures. Tunnel cave-ins leading to loss of life are common, and the widespread use of mercury in gold extraction causes many long-term health problems for the miners. It is estimated that about 650 tonnes of mercury are annually released during small-scale mining to the environment, and this figure is likely to increase in the future. Mercury is highly toxic and its use causes health problems not only for the miners, but also to the entire population in areas where small-scale mining takes place. Some miners are aware of the dangers of using mercury, but have no knowledge of recycling procedures. Several international organisations, such as the World Bank, UNIDO (United Nations Industrial Development Organisation), ILO (International Labour Organisation) and UNDP (United Nations Development Programme), have launched programmes to examine the problems associated with small-scale mining. Progress so far has been slow, and much more international awareness of the global mercury pollution of the environment from smallscale mining is required. The Geological Survey of Denmark and Greenland (GEUS) has worked as consultant to the World Bank on projects involving small-scale mining in Kyrgyzstan, Mongolia and Laos, and has also undertaken programmes concerning small-scale mining in Lesotho for UNDP and in Tanzania for the Danish International Development Agency (DANIDA). This paper reports on some of the initiatives carried out in Kyrgyzstan and Mongolia, to secure and sustain the small-scale mining industry in these regions

The Diligent Prosecution Bar to Citizen Suits: The Search for Adequate Representation

To ensure that citizen suits assist but do not replace or overshadow government enforcement actions, all environmental statutes which authorize citizen suits bar such suits in certain circumstances. This short Article examines the relatively narrow but important problems created by one such bar, namely the statutory bar on a citizen suit if the federal or state government is “diligently prosecuting” an action against the same violator. The requirement that a governmental prosecution be diligent protects against two types of undesirable situations. On the one hand, the diligent prosecution bar prevents citizens from bringing simple “me too” actions. One would not want to encourage a citizen organization to wait until a government has investigated and worked up a case and then pile on the violator in the hopes of gaining money for wasteful pet projects and collecting attorneys\u27 fees. On the other hand, by requiring that a prosecution be diligent (and not merely in existence) before the bar applies, the statutes protect valid citizen suits from being wiped out by collusive action between a government and a violator brought specifically by the government to bar the citizen suit and force the citizens to lose the resources they have sunk into the case. Obviously, most cases involving concurrent citizen and government enforcement actions fall somewhere between these two extremes. The goal of this Article is to find a balance between these two ends and to explore means of determining just how diligent a prosecution must be to bar citizen enforcement. In examining this question, I will pay special attention to the diligent prosecution bars in the Clean Water Act because they are the most comprehensive but I will make reference to cases from other environmental statutes as well

A Funhouse Mirror of Law: The Entailment in Jane Austen\u27s Pride and Prejudice

In this Essay, I will first outline the general development of different means used to hold property and keep it within a family in England. This discussion must of necessity be brief and schematic, and therefore readers should not rely on it as a completely accurate, nuanced, and detailed discussion of the historical development of English land law. I will then examine what Austen has to say about Longbourn, the principal property in Pride and Prejudice, which leads me to conclude that Austen probably conceived of Longbourn as being entailed and not secured under a strict settlement. I will also provide another novel, John Galt\u27s The Entail, or the Lairds of Grippy,18 as a relatively contemporary point of comparison to demonstrate that Austen probably conceived of the arrangement for Longbourn similarly. Then, I will explore the implications of Austen\u27s use of the entailment, whether or not she knew of the limitations of the entailment, and whether or not her audience knew of these limitations. My ultimate conclusion is that, whether or not Austen or her audience knew about the ins and outs of the entailment, we have much to learn about the relationship between a society and its law from this literary treatment of law

Wilderness and the Courts

This Article examines how the decisions of four land management agencies governing wilderness areas under the Wilderness Act fare in the federal courts. Agencies normally prevail in the majority of their cases before the federal courts because courts employ doctrines of deference to agencies\u27 decisions. In the context of wilderness management, however, the success rates of the agencies varies drastically depending on the type of challenge brought. The Article provides a historical overview of different schemes for wilderness protection, from administrative regulatory schemes to the adoption of the 1964 Wilderness Act and subsequent enactments. It then examines specific case studies and numeric information from all of the cases decided under the 1964 Wilderness Act. The numbers reveal three striking facts. First, a two-fold gap exists between agency success rates in litigation depending on who brings the challenge and the type of challenge it is. Second, the agencies tend to lose in challenges brought by environmentalists more often than not. Third, the party of appointment for the judges does not appear to affect overall distribution of their votes as measured on a simple pro-wilderness / anti-wilderness axis. After providing some possible explanations for this apparent one-way judicial ratchet favoring wilderness protection - some of which will be examined more thoroughly in future work - the Article offer some observations about whether such a one-way ratchet will always benefit wilderness restoration and protection

Water Wars -- Will Georgia, Alabama and Florida Ever Agree?

Associate Professor Peter Appel outlines the current status of the ongoing water wars between Georgia, Alabama and Florida

The Embarrassing Rule Against Perpetuities

The Rule Against Perpetuities offers an opportunity for those who teach property or trusts and estates to review some of the major schools of jurisprudence and how accurately or inaccurately those schools characterize law and legal development. At first blush, the idea that the rule can be used to advance a student\u27s mastery or consideration of theory seems absurd. But this essay will outline an innovative approach to the rule that allows those who teach it to mix theory in with the difficult problems that the rule creates. The modern pedagogical approach to the rule treats it as an embarrassment -- the difficult family problem that is not discussed in public. Teachers see it as bad medicine that must be dispensed and swallowed quickly, and different teachers vary on how much of the rule\u27s technicalities they think the student should master (or at least endure). Students share the bad medicine view of the rule. Ask students what subject within property they hated most, and most will answer that it was the Rule Against Perpetuities. Indeed, it might rank as the most-hated doctrine studied in the first year of law school (although the Erie doctrine might give it a run for its money). Arcane in origin, difficult to understand and apply, unintuitive, and seemingly random in its effect, the rule brings together many of the difficulties that students have in adjusting to the rigors of legal study. Students joke about it, have nightmares about it, and learn through rumor that the rule is so complicated that, when they are in practice, they will not be held liable for malpractice if they draft an instrument that is subsequently held void because of the rule. Graduating third-year students frequently say-in all seriousness-that they will gladly spot the bar examiners any perpetuities problems and try to gain credit elsewhere on the exam rather than try to relearn the rule. In sum, students cannot understand why they have to endure the rule except as some kind of horrible historical accident of which they are the most recent victims. They certainly cannot explain what the rule means or does not mean from a jurisprudential standpoint-if ever they consider or are invited by their teachers to contemplate jurisprudence. Of course, some might question the propriety of introducing jurisprudence into the first year. Some people believe that the first year should consist primarily of building-block courses, i.e., courses that introduce students to basic legal rules that will appear in private practice and on the bar exam. Others believe that the first year should introduce students to legal skills or to legal reasoning and schools of jurisprudence more generally, giving the students a broader view of law as a whole before they leap into a specific advanced area. These approaches are not mutually exclusive, and teachers often use basic courses in the first year as an introduction to a school or several schools of jurisprudence along with an introduction to doctrine and skills. The typical courses offered in the first year lend themselves to this approach, and Property is no exception. For example, nuisance provides good material to introduce students to the Coase theorem and law and economics; marital property law provides good material to introduce feminist jurisprudence; zoning provides good material to illustrate concepts in public choice theory. Textbooks for Property offer the teacher tools for taking this approach to introducing jurisprudence. The Dukeminier and Krier text has an excerpt of Harold Demsetz\u27s economic account of the development of private property (along with critiques of it); Joseph Singer\u27s text offers a good overview of the law-and-economics approach to nuisance law, as well as a critique of that approach; and the Cribbet text begins with two chapters devoted to different views of what constitutes property and what are the attributes of property. Once the text hits the Rule Against Perpetuities, however, theory apparently stops, and I suspect that theory stops in classroom instruction as well. Property texts attempt to streamline presentation of the rule more through problems than through cases. Most property teachers gear their teaching of the rule to its basic mechanics, simply to get their students through the material, prepare them for the questions that they might face on the bar exam, and thus help them avoid embarrassment. Because of its complexity, the rule has generated its own set of specialized secondary study materials simply to explain how the rule works. Students can use CALI exercises or buy supplemental texts, workbooks, flashcards, outlines, or sample problems, to help them through these rough waters, all in an effort to avoid embarrassment on the final exam or on the bar exam. Property teachers whose primary field is not property or trusts and estates might also hew closely to the text and prepared problems to avoid being embarrassed themselves because they do not know the answer to a variation on one of the problems. There is, however, another deeper embarrassment that the rule creates: no major school of jurisprudence can comprehensively explain the origins of the rule, why such a complicated rule continues to persist, why the rule does not appear in jurisdictions other than those with an English common law heritage but why it does not appear in all of those, and why it has not been abolished or reformed until recently, and why reform or abandonment has occurred where it has occurred and when it has occurred. Each school of jurisprudence may be able to answer one or more of the preceding questions, but none provides a comprehensive explanation for the existence and persistence of this complicated conundrum. The rule thus provides property teachers an opportunity to invite their students to take a step back from staring into the abyss of perpetuities problems and consider different theoretical attempts to define why the law looks the way it does and whether different schools of theory accurately capture the entire picture. The Rule Against Perpetuities might embarrass not just law professors and law students; it might also embarrass schools of legal thought. In this essay I start by briefly describing the history of the rule, the standard problems that students confront, and some of the places where the rule is found geographically. The conclusions of this discussion are that the rule is fairly incoherent from a policy perspective and that it has not been widely adopted except in portions of the British Commonwealth and the United States. I then identify a few modern schools of jurisprudence -- specifically law and economics, public choice theory, critical legal/race/feminist studies, the theory of legal transplants, and comparative institutional analysis -- and show how each fails to explain the rule comprehensively

The Power of Congress Without Limitation : The Property Clause and Federal Regulation of Private Property

Congress has overlooked a powerful tool for regulating within state jurisdictions: the Property Clause of the United States Constitution. The United States Government owns land in every state and approximately thirty percent of the total land in the United States. The federal government\u27s authority to regulate its property within states derives from the Property Clause and has been described by the Supreme Court as without limitation. Professor Appel traces the historical development of the Constitution\u27s Property Clause, from its pre-constitutional origins through modern Supreme Court decisions and academic conceptions. Professor Appel compares the narrow view of Property Clause scholarship - that the federal government is vested only with the powers of an ordinary proprietor - with the broader view - that the federal government is both proprietor and sovereign over its property. Appel concludes that both history and Supreme Court precedent support the broader view, yet its implications go unrealized by Congress and most constitutional scholars. The Article goes on to suggest that the federal government\u27s jurisdiction over extraterritorial matters should be viewed by anaology to the Commerce Clause, while federal action over its own property and activities thereon is most analogous to Congress\u27s spending power. The Article suggests that, although the federal government\u27s ability to regulate intrastate activities has recently been curtailed in Commerce Clause jurisprudence, the expansive - and often ignored - Property Clause could empower Congress where the Commerce Clause fails to provide such foundation. The Article contends that application of the reformulated view of the Property Clause would vest in the government broad authority to regulate its property in direct contravention of state law. This Article concludes that the broad authority conferred by the Property Clause could furnish an alternative basis for federal authority over environmental regulations

Intervention in Roman Law: A Case Study in the Hazards of Legal Scholarship

In this Article, I offer a case study of one of the hazards presented by legal scholarship in law reviews as it has evolved over the last century. The standard law review article typically begins with an overview of the author\u27s subject, frequently involving a historical perspective or a chronology of the development of a doctrine. This background section stems from a number of causes, but many attribute it to the fact that most law reviews are student-edited. In order to evaluate an author\u27s argument, students need a brief course in, say, the basics of trade law and pollution control statutes before the author can advance her or his argument about how the two should intersect or how the courts have botched the job of merging the two.... If an error creeps into a background section, then, other scholars might simply repeat the error without critical injury. I discovered such an error while preparing an article in this standard format.... Part I documents the error that these three men made.... Readers who wish to escape the tedium of the argument of whether Roman law had intervention and the extent to which it did may wish to skip to the more sprightly Part II, which documents instances in which other scholars--both eminent and not--have repeated the mistake.... Finally, Part III provides some reflections on the broader significance of the mistake

Sustainable Commerce: Local /State Government and Industry Using Existing Public and Private Legal Systems to Construct Globally-Competitive Green Economies

Professor Peter Appel and Dr. T. Rick Irvin, J.D., Managing Principal - Registry Consultants, LLC, presented several case studies, discussed environmental impacts, and revenue projections at the Sustainable Commerce Seminar held at Mercer University School of Law. Click the Download button for the PowerPoint presentation. An audio only recording of the presentation is linked below

Administrative Procedure and the Internal Revenue Service: Delimiting the Substantial Understatement Penalty

In the early 1980\u27s, Congress faced the mounting problems of tax shelters and other forms of tax avoidance. It responded by passing a series of laws.1 One of these provisions, section 6661 of the Internal Revenue Code, penalizes substantial understatement of tax liability.2 While section 6661 may appear to be a typical, innocuous tax code provision, close examination reveals that the substantial understatement penalty threatens to expand quietly the power of the Internal Revenue Service (IRS) over taxpayers, violating the spirit of the Administrative Procedure Act (APA) in the process. Section I of this Note explores the background of section 6661 and its interpretation by the Department of Treasury. Section II explains the first problem with the Regulation, namely the compulsion of taxpayer deference to IRS interpretative rules. Section III discusses how Treasury\u27s interpretation of 6661 limits the authorities that taxpayers may cite to avoid the penalty, excluding some authorities that taxpayers may refer to when they are trying to escape substantive tax liability. Section IV explores whether the proposed solutions could come from courts or whether they must emanate from Congress. The deference courts pay to administrative agencies suggests that judicial adoption of this Note\u27s proposed reading might be precluded. This conclusion might provide impetus to Congress to revisit not only the words of section 6661 but also the issue of judicial deference to administrative agencies generally