ELP Colloquia Series

The William S. Richardson School of Law Environmental Law Program (ELP) is pleased to sponsor an ongoing Environmental Law Colloquia Series. This series brings leading environmental law scholars to the School of Law to discuss their research and perspectives on current environmental issues.

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

Dr. Thomas King

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 2004 Series

“Land Use Practice After RLUIPA: Special Permits for Religious Use”

Madelyn D'Enbeau, Deputy Corporation Counsel, County of Maui

(April 27, 2004)

“Hawaiians and the Environment: Legal and Political Challenges.”

Alan Murakami, The Native Hawaiian Legal Corporation

(Tuesday, March 16, 2004)

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)

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)

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)

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.

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.

"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.

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.

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) Eudora Iris Lee, Environmental Justice Director for the United Church of Christ 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" Dr. Thomas King (March 7, 2003) 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. Dr. Thomas King   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. Similary, 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. Adjunct Professor Arnold Lum 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. Kanoelani Kane (3L) and Brian Duus (2L)

"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 expereince 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.

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.

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.

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.

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)

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)

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)