University of Colorado Law Review

Volume 79, Issue 3, Spring 2008

FOREWORD

As in years past, the University of Colorado Law Review has chosen to devote an entire issue to natural resources and environmental law topics.  This decision reflects not simply our desire to perpetuate tradition, but also our recognition of the vital significance of these issues in today’s world.  Revealing the regional, national, and global importance of developments in natural resources and environmental law, the articles here span the gamut of topics from a look at Crested Butte, Colorado’s ongoing fight to prohibit molybdenum mining on Mt. Emmons, to a pragmatic evaluation of the challenges to, and likely success of, bringing climate change litigation nationally and internationally.

In our first article, The Frontier of Eminent Domain, Alexandra B. Klass examines the relationship between natural resource development takings and the law of eminent domain.  According to Professor Klass, although natural resource development takings helped shape the Supreme Court’s decision in Kelo v. City of New London, public reaction to Kelo has focused heavily on government takings while largely ignoring private takings for the development of coal, oil, and other natural resources by mining companies in western states.  After examining Kelo-influenced legislative and judicial reforms in the West, such as additional rights for land owners in eminent domain actions and surface owners on split-estate lands, Professor Klass contends that western states can still do more and suggests they reconsider providing a per se public use designation for natural resource development.  She concludes by endorsing a number of state-specific reform proposals involving the creation of state or local government level public forums that would weigh development interests against the economic, environmental, and social interests of public use decisions.

Our next article, A Realistic Evaluation of Climate Change Litigation Through the Lens of a Hypothetical Lawsuit, by Shi-Ling Hsu, assesses the probable outcomes of climate change litigation from a more practical perspective than previous work in this area.  To navigate the inescapable complexities and vast array of legal issues involved in the many forms of climate change litigation, Professor Hsu focuses his article by hypothetically pitting the Inuit people, a strong plaintiff, against U.S. electric companies, vulnerable defendants.  Professor Hsu recognizes, however, that even with a strong plaintiff and a weak defendant, climate change lawsuits will be difficult to win because of the many obstacles to bringing this type of litigation, whether in an international forum or a domestic forum like the United States or Canada.  In the end, Professor Hsu concludes that because of the questionable bases of climate change liability under current law and the difficulty in finding appropriate parties aside from those he discusses, this type of litigation is not likely to be a major force in the larger battle to combat global climate change.
 
In our third article, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the Chevron Doctrine in Environmental Law, Jason J. Czarnezki examines the forces that shape judicial decision making in environmental law cases.  Moving beyond just the commonly discussed decisions of the D.C. Circuit and the role of ideology in judicial review of environmental law cases, Professor Czarnezki looks to the environmental law decisions of the United States Courts of Appeals from 2003 to 2005 to see what legal and institutional, as well as ideological, factors affect these courts’ review of administrative agency interpretations of environmental statutes.  He states that recent data suggest that some judges in environmental cases use the flexible Chevron doctrine to achieve policy-driven outcomes.  According to Professor Czarnezki, however, judges are not systematically using a single mechanism like the Chevron doctrine to realize their policy preferences.  Instead, he concludes that judicial decision making in environmental law cases is a multifaceted practice in which judges consider not only political ideology, but also the specific rules being used, the flexibility of those rules, and the nature and complexity of the particular interpretation or finding at issue.

Climate Change, Regulatory Fragmentation, and Water Triage, by Robin Kundis Craig, brings to light problems caused by legal and jurisdictional divisions of regulatory authority over water.  Professor Craig describes how largely localized, non-prioritized, and uncoordinated water resources management causes a diminution in both the quantity and quality of water as it flows from its source to its terminus.  She explains that the flawed management of water resources in the Colorado River basin, for example, is destroying ecosystems at the Colorado’s end point, the Gulf of California in Mexico.  Professor Craig discusses how competing demands for consumptive and in situ uses of water will only increase as climate change restricts the availability of water in certain regions and argues that the likely increase in demand underscores the need to improve the current flawed water resources management system.  She specifically identifies two weaknesses in the present structure: a  lack of any public debate or comprehensive balancing of cross-jurisdictional interests in water use, and a failure to consider ocean ecosystems when regulating and managing water resources.  Further, Professor Craig points to the regulatory focus on inputs (human activities) rather than outputs (particular environmental goals) as a source of these problems.  To remedy these failings, Professor Craig outlines the potential value of “water triage,” which she describes as a comprehensive and public process of quick decision making in times of climate change-induced water shortage to determine essential water priorities—a process that she argues must take into consideration marine ecosystems.
 
In our student casenote, The Fight to Save Red Lady: Does the 1872 Mining Law Impliedly Preclude Review of Patent Protest Determinations?, Michelle Albert discusses the ongoing efforts of the town of Crested Butte, Colorado and its residents to forestall corporate plans to mine molybdenum on Mt. Emmons, known locally as the “Red Lady.”  She focuses on the Tenth Circuit case of High Country Citizens Alliance v. Clarke (“HCCA”), in which the court, relying on the U.S. Supreme Court’s decision in Block v. Community Nutrition Institute, held that third-party protests to patent applications (like the town’s and others’ protests to the mineral patents issued here by the Bureau of Land Management) are impliedly precluded by the 1872 Mining Law when the protesters do not have competing property interests in the underlying land.  Ms. Albert takes issue with the Tenth Circuit’s holding in HCCA, in so far as it transforms the presumption of review in Block to a standard closer to a sufficiency of the evidence analysis.  Ms. Albert argues that this modification of Block is problematic because it denies communities the ability to challenge agency actions directly affecting them, which in turn diminishes these communities’ sense of identity and autonomy and imposes enormous real-life consequences.  Illustrating these consequences, Ms. Albert details the probable impact of large-scale mining on the face of Mt. Emmons, which includes air and noise pollution, contamination of the town’s only water supply, and hardship to the town’s largely tourism-based economy caused by both restricted access to popular skiing and hiking trails and diminution of the town’s natural beauty.

James P. Eckels
Editor-in-Chief