Copyright (c) 2010 All rights reserved. http://works.bepress.com/noahhall Recent documents in Noah D Hall en-us Tue, 16 Nov 2010 09:26:12 PST 3600 http://works.bepress.com/noahhall/15 http://works.bepress.com/noahhall/15 Thu, 18 Mar 2010 09:37:18 PDT The Boundary Waters Treaty of 1909 has now provided the foundation for transboundary United States-Canadian water management for a century. During the one hundred years that the Boundary Waters Treaty has been in place, both the law and the world in which the law operates have changed dramatically. Some of the most relevant and significant changes have been several fold increases in population and thousand fold increases in gross domestic product in North America with correlating increased environmental impacts, the growth of international law and governance institutions, the emergence of modern environmentalism and the resulting creation of domestic and international environmental law, and most recently globalization and new economic trade laws. Despite all of this, the Boundary Waters Treaty has remained totally unchanged, never altered or amended in any way. Yet it continues to be as important and relevant as it was in 1909, and perhaps more so. Noah D. Hall http://works.bepress.com/noahhall/14 http://works.bepress.com/noahhall/14 Tue, 15 Sep 2009 08:08:54 PDT Throughout human history, water has defined our sense of place. American water law reflects the connections between water and local people, communities, and the environment. Against this backdrop, global water markets have developed to sell and export this increasingly precious resource. Water markets are recognized in international trade law and take many forms, from tankers of freshwater crossing the Mediterranean to bottles of spring water coming to America from distant pacific islands. While the scale of water sales and exports is still relatively small, this emerging market represents a new challenge for management of water resources. This article examines the challenge of protecting freshwater resources in the era of global water markets by looking at the most mature and developed example – bottled water. Bottled water in America dates back to colonial times, but over the past decade it has become a massive global industry. As bottled water has grown, so has the backlash against it. The resulting lawsuits and legislation offer a glimpse of the future of domestic water law in the global water market era. Bottled water fights provide important lessons for how the law should (and should not) respond to globalization of water use. By learning from these lessons, we can meet the challenge of global trade in water by developing effective legal protections for our freshwater resources. Noah D. Hall http://works.bepress.com/noahhall/13 http://works.bepress.com/noahhall/13 Fri, 11 Sep 2009 10:06:14 PDT The Great Lakes are a vast resource shared by two countries, ten states and provinces, and hundreds of Indian tribes or First Nations. They are the quintessential commons that have seen their share of tragedies. Addressing competing pressures of economic development and environmental protection is only part of the challenge. The real struggle has been governance: How is management of an international transboundary resource best accomplished under the legal and political limitations of constitutional federalism? This chapter analyses the international agreements, court decisions, interstate compacts, and federal statutes that created a transboundary water regime, considering in detail the Great Lakes– St. Lawrence River Basin Sustainable Water Resources Agreement and Great Lakes–St. Lawrence River Basin Water Resources Compact as models for responding to stresses on transboundary water resources from climate change. Noah D. Hall http://works.bepress.com/noahhall/12 http://works.bepress.com/noahhall/12 Wed, 15 Jul 2009 09:44:33 PDT This article proposes a new state-based policy – interstate environmental impact assessment – that builds on the National Environmental Policy Act’s Environmental Impact Statement process to address interstate environmental harms. Interstate environmental harms, which occur when decisions or actions in one state produce negative environmental impacts in another state, have challenged American environmental law for over a century. Interstate environmental impact assessment would provide a procedural mechanism for an affected state and its citizens to influence the source state and minimize or prevent interstate environmental harms. The process itself would address the underlying problems of inadequate information, public process bias, and traditional economic externalities, and also produce information to improve federal adjudication and regulation when disputes arise over continuing harms. Noah D. Hall http://works.bepress.com/noahhall/11 http://works.bepress.com/noahhall/11 Tue, 14 Apr 2009 09:05:03 PDT Climate change driven by greenhouse gas emissions is substantially altering water availability while increasing water demand. Shifts in domestic energy policy and production, while needed to confront the challenge of climate change, may further stress the nation’s water resources. These changes and new demands will be most severe in regions that are already experiencing water stresses and conflicts. This article examines the extent of the changes in water supply and demand by assessing how water conflicts will be addressed in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water for food security. The analysis suggests that water governance institutions and policies need to be retooled to better accommodate the necessary reallocation of water that will serve the nation’s water security needs. Noah D. Hall Environmental Law http://works.bepress.com/noahhall/10 http://works.bepress.com/noahhall/10 Thu, 02 Apr 2009 08:07:52 PDT Despite the complexities of climatology, certain consistent themes emerge with implications for water availability: as the world gets warmer, it will experience increased regional variability in precipitation, more frequent heavy precipitation events, becoming more susceptible to drought. This article focuses on how climate change will impact Great Lakes water resources. It explores what a changing climate will mean for the Great Lakes, including possible lowering of lake levels, impacts on fisheries and wildlife, changes in Great Lakes shorelines, and reduction of groundwater supplies. Climate change will also reduce water supplies in other parts of the country, creating increased pressure to divert Great Lakes water to other regions. As the Great Lakes and other regions struggle with loss of water supplies, demand for water is expected to increase unless water conservation laws and policies are adopted. Unfortunately, current laws and policies intended to protect Great Lakes water resources from diversions and overuse within the basin are not up to the new challenges posed by climate change. The region can better protect and manage Great Lakes water resources in a future of climate change by adopting new water resource policies that (1) emphasize water conservation as water becomes more scarce and valuable; (2) protect aquatic habitat for fisheries and wildlife in changing conditions; (3) provide strong legal protections against diversions of Great Lakes water to other regions; and (4) create regional governance institutions that can help adaptively manage water resources as new scientific information becomes available. The article concludes by examining how the proposed Great Lakes Compact gives the region an opportunity to make these improvements in water resource policy and better protect the Great Lakes from the pressures of climate change. Noah D. Hall http://works.bepress.com/noahhall/9 http://works.bepress.com/noahhall/9 Fri, 15 Aug 2008 09:28:42 PDT This testimony is offered in strong support of Senate Joint Resolution 45, “Expressing the consent and approval of Congress to an interstate compact regarding water resources in the Great Lakes-St. Lawrence River Basin.” In this testimony, I provide: (1) an overview of managing water resources with interstate compacts in the United States; (2) background on the existing policies and laws regarding interstate Great Lakes water management; and (3) a summary and analysis of the key provisions of the Great Lakes-St. Lawrence River Basin Water Resources Compact. Noah D. Hall Environmental Law http://works.bepress.com/noahhall/8 http://works.bepress.com/noahhall/8 Fri, 14 Dec 2007 08:17:20 PST Water bottling is big business and getting bigger, growing by about ten percent annually over the past five years. The most important environmental concerns from a legal and regulatory perspective relate to the impact of water extraction to fill the billions of bottles Americans purchase every year. While water bottling has almost no impact on the total national freshwater supply, the majority of bottled water comes from groundwater which has a direct hydrologic connection to springs and other vulnerable surface waters. Thus, even relatively small water withdrawals for bottled water can produce significant impacts at the local scale on other water users and the environment. Bottled water is regulated by the federal government as a food product by the Food and Drug Administration (FDA). FDA regulations provide for source identity labeling of bottled water. Consumer preferences seem to favor bottled water labeled as spring water over bottled water from other sources, including municipal supply. This has inadvertently led to increased pressures on vulnerable spring resources. The FDA should immediately begin a process to review and revise its source identity rule to consider the impact of bottled water withdrawals on springs and other vulnerable water resources. Noah D. Hall http://works.bepress.com/noahhall/7 http://works.bepress.com/noahhall/7 Fri, 30 Nov 2007 07:02:51 PST Climate change is certain to put additional stress on freshwater resoursources in the United States. In the Great Lakes region, climate change may lead to lower lake levels, impacts on fisheries and wildlife, changes in Great Lakes shorelines, and reduction of groundwater supplies. Climate change will also create severe water shortages in other parts of the country, potentially raising new pressures to divert Great Lakes water to other regions. As the Great Lakes and other regions struggle with loss of water supplies, demand for water is expected to increase unless water conservation laws and policies are adopted. Noah D. Hall http://works.bepress.com/noahhall/6 http://works.bepress.com/noahhall/6 Thu, 01 Nov 2007 08:48:57 PDT The Earth’s climate is warming. This is the unequivocal conclusion of climate scientists. Despite the complexities of climatology, certain consistent trends emerge with implications for water availability: as the world gets warmer, it will experience increased regional variability in precipitation, with more frequent heavy precipitation events and more susceptibility to drought. These simple facts will have a profound impact on freshwater resources throughout the United States, as the warmer climate will reduce available water supplies and increase water demand. Unfortunately, current water law and policy are not up to the new challenges of climate change and resulting pressures on freshwater resources. To adapt to climate change, water law and policy will need to embrace fundamental reforms that emphasize water conservation and more efficient and environmentally-sound allocation at the local, regional, and national scales. Noah D. Hall Environmental Law http://works.bepress.com/noahhall/5 http://works.bepress.com/noahhall/5 Thu, 26 Apr 2007 14:44:46 PDT Interstate environmental harms, which occur when decisions or actions in one state produce negative environmental impacts in another state, have challenged environmental law and American federalism for over a century. While even the strongest advocates of state primacy in environmental policy concede that interstate environmental harms necessitate federal governance, federal adjudication and regulation have done little to address the problem. This is due, in part, to a failure to fully understand the causes of interstate environmental harms. This article provides a new framework for understanding interstate environmental harms as political externalities caused by a combination of inadequate information, public process bias, and traditional economic externalities. To address these causes, this article proposes a new state-based approach termed interstate environmental impact assessment. Interstate environmental impact assessment would provide a procedural mechanism for an affected state and its citizens to influence the source state and minimize or prevent interstate environmental harms. The process itself would address the causes of the political externality, and also produce information to improve federal adjudication and regulation when disputes arise over continuing harms. Noah D. Hall Environmental Law http://works.bepress.com/noahhall/4 http://works.bepress.com/noahhall/4 Thu, 18 Jan 2007 18:35:36 PST Citizen participation is critical in environmental law compliance. While citizens often have a major role in advancing compliance with domestic environmental law, citizens have historically had a much more limited role in international environmental law. However, a new model is emerging North America. The role of citizens in United States-Canadian international environmental law compliance has expanded greatly over the past several decades. Beginning in the 1970’s with increased public participation in binational governance agreements and expanding in the past two decades to formal roles in monitoring implementation of international environmental agreements, citizen participation is now central in the United States-Canadian international environmental legal regime. Noah D. Hall Environmental Law http://works.bepress.com/noahhall/3 http://works.bepress.com/noahhall/3 Thu, 18 Jan 2007 18:29:20 PST The United States and Canada have one of the strongest bilateral relationships in the world, and the history of cooperation and diplomacy on environmental matters has been a major part of their relationship. However, as some recent efforts to resolve U.S.- Canadian pollution disputes through diplomacy and international law have failed, environmental advocates have looked to domestic litigation in U.S. courts to vindicate their rights. Is this a welcome development for environmental protection or a troubling trend for bilateral diplomacy? This essay explores the recent developments with a historical perspective and provides some recommendations for balancing the competing interests of national sovereignty, bilateral diplomacy, and environmental protection. Noah D. Hall Environmental Law http://works.bepress.com/noahhall/2 http://works.bepress.com/noahhall/2 Thu, 18 Jan 2007 18:18:01 PST Addressing transnational pollution requires both international and domestic law. Transnational pollution is an international problem that demands and deserves the attention of international legal mechanisms such as treaties, agreements, arbitration, and international management and governance. At the same time, transnational pollution problems can often be addressed more effectively and efficiently through the domestic legal system. An ideal approach is to harmonize transnational pollution management and dispute resolution under international and domestic law. This article seeks to provide pragmatic, feasible, and politically realistic solutions to transnational pollution by harmonizing international and domestic law. However, given the diversity in geography, domestic legal systems, and political realities that frame transnational pollution problems around the world, a specific pragmatic solution in one region may be useless or impossible in another region. Thus, this article focuses on transnational pollution problems and harmonizing the relevant international and domestic laws of one transnational region, the United States-Canada border, with the hope that it may provide lessons and potential models that will be valuable to policy makers and scholars elsewhere. Noah D. Hall Environmental Law http://works.bepress.com/noahhall/1 http://works.bepress.com/noahhall/1 Mon, 15 Jan 2007 14:10:58 PST This article presents a new model for environmental policy, called cooperative horizontal federalism. The cooperative horizontal federalism approach utilizes a constitutional mechanism for states to bind themselves to common substantive and procedural environmental protection standards, implemented individually with regional resources and enforcement. Here, the concept of cooperative horizontal federalism model is illustrated through the recently proposed Great Lakes-St. Lawrence River Basin Water Resources Compact. Under this proposed compact, the eight Great Lakes states would cooperatively manage the world’s largest freshwater resource under common minimum standards, which are then incorporated into state law and implemented individually. This cooperative horizontal federalism approach avoids the ‘race to the bottom’ that often undermines individual state efforts, but still allows states the flexibility to craft environmental policies best suited to their specific needs and preferences. Noah D. Hall Environmental Law