Recent Publications
The Coastline Paradox
Rutgers University Law Review, Volume 72, Issue 2 (forthcoming 2020)
How long is the coastline of the United States? While it may sound counter-intuitive, there is no objectively true answer to this question. In fact, it is impossible to precisely measure the length of any coastline.
A coastline features an endless array of bays and promontories at all scales, from hundreds of miles to fractions of an inch. Thus, the length of a coastline depends on the unit of measurement being used. The smaller the unit of measurement, the more of these bays and promontories are detected, and thus, the longer the coastline becomes. Follow this logic down to the atomic level, and the length of a coastline – any coastline – approaches infinity.
This phenomenon is known as the “coastline paradox,” and it is more than just a mathematical curiosity. Because coastlines play such a prominent role in legal frameworks, the coastline paradox presents troubling legal implications at all scales. From international maritime jurisdictions to local real estate markets, the complexities created by this phenomenon are disconcertingly understudied. In fact, the coastline paradox has never been considered as a significant source of legal problems.
This article is the first to address the legal implications of the coastline paradox. It begins with an explanation of the coastline paradox and other, similar characteristics of coastlines that defy accurate measurement. Then the legal implications for international, federal, and local legal frameworks are introduced and examined. It is apparent that awareness of the coastline paradox is low, and challenges are scarcely being addressed. While a mathematical solution to the coastline paradox may be impossible, the article concludes with a set of recommendations for coastal stakeholders.
From the Clean Power Plan to the Affordable Clean Energy Rule: How Regulated Entities Adapt to Regulatory Change and Uncertainty
Hofstra Law Review, Volume 47, Issue 3 (2019)
Regulated entities often struggle to adapt to regulatory change and uncertainty. This is particularly true in the power and utilities sectors, where the scope and scale of project-level planning and management is broad, and changes to these processes can be highly disruptive. Regulatory disruption notwithstanding, some companies adapt to regulatory change and uncertainty better than others. Presently, there is a gap in understanding what these regulatory adaptation best practices might be for the power and utilities sectors.
When the federal Environmental Protection Agency (“EPA”) publicly proposed the Clean Power Plan (“CPP”) in 2014, stakeholders in the power and utilities sectors were forced to reckon with the possibility that the CPP would prompt profound changes in the regulatory landscape. As of writing, however, the EPA has since proposed to repeal the CPP and replace it with the Affordable Clean Energy (“ACE”) rule, a decision that significantly relaxes regulatory obligations for power companies. The ACE rule will be challenged in federal court, and its future remains in doubt.
This case study will focus on the CPP as a means of investigating the best practices and ongoing challenges of adapting to regulatory uncertainty. The study will provide an in-depth analysis of the approach taken by three companies whose projects and/or financial investments would be implicated by the CPP. The three companies have been interviewed by the Author, and have developed unique and potentially transformative approaches to regulatory uncertainty, while at the same time offering cautionary tales and lessons learned.
Comparative Cannabis: Approaches to Marijuana Agriculture Regulation in the United States and Canada
McGeorge Law Review, Volume 49, Issue 2 (2017)
The United States and Canada may be friends and allies, but the two countries’ approaches to the regulation of marijuana agriculture has not evolved in tandem. On the contrary, their respective paths toward legalization and regulation of marijuana agriculture are remarkably divergent. In the United States, where marijuana remains a federally prohibited and tightly-controlled substance, legalization and regulation has remained the province of state legislatures and their administrative agencies for decades. In Canada, a succession of court cases paving the way toward medicinal marijuana use has prompted the federal government to develop a national framework committed to “legalize, regulate, and restrict access” to marijuana.
Many jurisdictions attempting to regulate (or exploring the possibility of regulating) the marijuana industry struggle to address the first step in the supply chain – agriculture. This essay will compare and contrast the experiences of the United States and Canada in the regulation of marijuana agriculture. It is evident that there is more than one regulatory approach that can provide a safe and sustainable product to consumers while promoting equity among farmers. Nonetheless, the trials and tribulations of pioneering governments can illuminate the pitfalls, consequences, and drawbacks policymakers are likely to encounter in the future.
Marijuana Appellations: The Case for Cannabicultural Designations of Origin
Harvard Law and Policy Review, Volume 11, Issue 1 (2017)
As the era of marijuana prohibition draws to a close, one can’t help but wonder how the legal marijuana industry will take shape. The legalization movement is largely driven by ballot initiatives at the state level, and state regulators and lawmakers often lack easy answers to tough questions facing the industry. Marijuana legalization presents challenges on a number of fronts, including distribution, financing and taxation, consumption, security, and public health.
The agricultural dimension of the marijuana industry presents a number of regulatory challenges as well, with important questions that have not been answered. One of these questions is paramount: will marijuana agriculture become consolidated and commoditized, producing vast quantities of indistinct marijuana, or will small-scale farmers thrive by producing unique and localized marijuana?
This Article presents the case for American Cannabicultural Areas (ACAs). Adopting a system of appellations (in which designations of origin are legally protected) offers several benefits to farmers, consumers, and regulators. Appellations protect state and local economies and farming communities, create a market for unique agricultural products, and allow regulatory bodies to establish minimum standards for cultivation to ensure that marijuana agriculture is safe and sustainable. Challenges to this model are significant but not intractable. The legal marijuana industry is still in its infancy, but ACAs represent a promising regulatory model for marijuana agriculture.
Marijuana Agriculture Law: Regulation at the Root of an Industry
Florida Law Review, Volume 69, Issue 2 (2017)
Marijuana legalization is sweeping the nation. As many as thirty marijuana legalization initiatives may appear on election ballots in 2016, legalizing the recreational or medicinal use of marijuana in as many as 17 states and adding to the growing number of states that have already legalized marijuana. Many of these legalization initiatives propose to regulate marijuana in a manner similar to alcohol, and many titles are variations of “the regulate marijuana like alcohol act.” For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot. States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more than a retail product. It is also an agricultural product, and by some measures, the largest cash crop in the United States. Since marijuana prohibition laws were passed long before any regulations for cultivation were developed, states are facing an unprecedented challenge: regulate, for the first time ever, one of the country’s largest agricultural industries.
There are major regulatory challenges ahead, and how states respond to those challenges will shape the course of the marijuana industry. At present there is a gap in understanding the regulatory challenges presented by marijuana agriculture, and the options states have to address them. This Article identifies those challenges and the regulatory approaches most capable of addressing them. The study begins by describing the existing state of marijuana agriculture regulations. States are likely to find that the marijuana industry’s unique characteristics justify a tailored regulatory approach; relying on existing agricultural policies may be ineffectual or lead to perverse outcomes. Next, fundamental questions about the “marijuana fragmentation spectrum” are explored. Will the industry come to be dominated by agricultural conglomerates mass-producing a marijuana commodity, as many have feared? Or will governments and the industry adopt the appellation model favored by the wine industry, to protect local farmers and differentiate between products? The major environmental impacts of marijuana agriculture are analyzed as well, including regulations that address water allocation, water quality, energy, organic certification, and crop insurance. Finally, the study addresses power distribution trade-offs within marijuana agriculture regulation frameworks, including local vs. state, and consolidated vs. fragmented, regulatory authority dilemmas. The findings suggest that responsible and sustainable marijuana agriculture can be fostered at the state level, but only if regulations are responsive to the unique and unprecedented challenges that marijuana agriculture presents.
Weed and Water Law: Regulating Legal Marijuana
Hastings Law Journal, Volume 67, Issue 3 (2016)
Marijuana is nearing the end of its prohibition in the United States. Arguably the country’s largest cash crop, marijuana is already legal for recreational use in Colorado, Washington, Oregon, Alaska, and Washington DC. Between now and election day 2016, an additional 14 states may place marijuana legalization initiatives on their ballots. In addition, 23 states and Washington DC have legalized medical marijuana, with up to seven states pending legislation. The era of marijuana prohibition is rapidly coming to a close.
At the same time, traditional doctrines of water law are struggling to cope with the modern realities of water scarcity. Administrative agencies lack capacities to monitor and enforce water rights in real-time amid rapidly changing conditions. As marijuana cultivation leaves the black market and enters state regulatory frameworks, legal doctrines and administrative agencies will need to adapt in order to balance existing water rights with the demands of marijuana production. Failure to do so will encourage producers to remain clandestine while perpetuating existing conflicts between legal and illegal water users. At present there is a gap in understanding the relationship between water rights and marijuana legalization, despite their rapid convergence.
This Article is the first to systematically address that gap. The study begins by describing status quo marijuana production taking place outside the context of state water law doctrines, and the unsustainable conditions that often result. Sections III and IV envision a legal marijuana market governed by the predominant doctrines of US water law: prior appropriation and riparianism. In Section V the theoretical becomes reality, as California’s complex water laws are put to the test by the largest marijuana cultivation community in the United States. Section VI concludes with recommendations for states in the process of legalization. Broadly speaking, this Article finds that both common law and regulatory approaches to water allocation are capable of accommodating legal marijuana cultivation, but to minimize disruptions to existing water rights and the marijuana industry, state agencies will need to proactively adapt to the new realities of the legal marijuana economy.
Structuring Water Governance Reform: A Case Study of the Trou-Du-Nord Watershed in Northern Haiti
Aqua-LAC, Volume 8, Issue 2 (2017)
Many national and subnational governments struggle to sustainably manage water resources. Accurately analyzing available water resources while distributing rights and enforcing responsibilities among water users is notoriously complex. These tasks are even more challenging when human or financial resources are scarce and regulatory capacities are low. As a result, water governance reform is often hailed as the solution to contemporary water challenges.
Unfortunately, water governance reform can be elusive, in part because water governance structures can take many different forms. This is true in the Republic of Haiti, where water challenges are numerous, and water management is often ineffective. In the Trou-du-Nord watershed in northern Haiti, in particular, institutional capacities for water management are low, and governance reforms are being considered by the watershed’s stakeholders. This study provides an overview of Haiti’s water governance framework, and proposes three institutional reform alternatives for management of the Trou-du-Nord watershed.
Cooperative Federalism in Biscayne National Park
Natural Resources Journal, Volume 56, Issue 1 (2016)
Biscayne National Park is the largest marine national park in the United States. It contains four distinct ecosystems, encompasses 173,000 acres (only 5% of which are land), and is located within densely populated Miami-Dade County. The bay has a rich history of natural resource exploitation, but aggressive residential and industrial development schemes prompted Congress to create Biscayne National Monument in 1968, followed by the designation of Biscayne National Park in 1980. When the dust settled the state of Florida retained key management powers over the park, including joint authority over fishery management. States and the federal government occasionally share responsibility for regulating natural resources, but Biscayne National Park represents a unique case study in cooperative federalism. This article explores these cooperative federalism contours in order to assess whether the park’s management paradigm provides a model worthy of replication. A diverse range of materials were reviewed for this project, including literature and jurisprudence on traditional models of cooperative federalism, federal natural resources laws, national park regulations and policy, Biscayne National Park’s statutory frameworks and legislative history, state and federal management plans, inter-agency communications, and direct stakeholder interviews. They combine to tell a story of cooperative federalism that has been frustrating and, at times, incoherent. But the story also shows that shared responsibility over fishery management has produced beneficial results for the park and its stakeholders by forcing state and federal officials to work together on planning and enforcement, diversifying human and financial resources, and incorporating federal, state, and local interests into park management and policy. The research suggests that future applications of the Biscayne National Park model of cooperative federalism, in which states and the federal government share joint authority over marine resources in some capacity, may enjoy similar success.
Water Governance in Haiti: An Assessment of Laws and Institutional Capacities
Tulane Environmental Law Journal, Volume 29, Issue 2 (2016)
The Republic of Haiti struggles to sustainably manage its water resources. Public health is compromised by low levels of water supply, sanitation, and hygiene, and water resources are often contaminated and unsustainably allocated. While poor governance is often blamed for these shortcomings, the laws and institutions regulating water resources in Haiti are poorly understood, especially by the international community. This study brings together and analyzes Haitian water laws, assesses institutional capacities, and provides a case study of water management in northern Haiti in order to provide a more complete picture of the sector. Funded by the Inter-American Development Bank as part of the Water Availability, Quality and Integrated Water Resources Management in Northern Haiti (HA-T1179) Project, this study took place from January-July 2015, with the help of local experts and participating stakeholders. The results indicate that Haiti’s water law framework is highly fragmented, with overlapping mandates and little coordination between ministries at the national level, and ambiguous but unrealistic roles for subnational governments. A capacity assessment of institutions in northern Haiti illustrates that while local stakeholders are engaged, human and financial resources are insufficient to carry out statutory responsibilities. The findings suggest that water resources management planning should engage local governments and community fixtures while supplementing capacities with national or international support.
Droughts, Floods, and Wildfires: Paleo Perspectives on Disaster Law in the Anthropocene
Georgetown International Environmental Law Review, Volume 27, Issue 3 (2015)
Humanity’s impact on the earth has become so pronounced that momentum is building toward adopting a new term for the modern geological age — the “Anthropocene.” The term signifies that human activity has reached a scale that it is now a planetary force capable of shaping ecosystems and natural processes. And yet, anthropocentric natural resources management and environmental lawmaking in the United States reveals a lack of control in managing natural systems and fostering resilience to extreme events. These systems do not easily conform to the whims of reactionary environmental policies. Droughts, floods, and wildfires, in particular, are often conceptualized as unforeseeable disasters when in fact their occurrence is a typical feature of the American landscape. The manner in which environmental laws have evolved to respond to these natural systems reveals a strong belief that nature can be adapted to modern human activities, instead of adapting human activities to nature. Legal frameworks are consequently reactive in disposition when control proves impossible, relying on subsidized insurance programs and disaster relief funds that do little to build resilience. This article examines contemporary legal doctrines and policies governing management of droughts, floods, and wildfires from a paleoenvironmental and paleoanthropological perspective. Hundreds of thousands of years of hunter-gatherer resilience strategies provide a conceptual model through which modern approaches and reforms can be assessed. The resilience model suggests that drought, flood, and wildfire laws can more adequately enhance societal resilience by prioritizing mobility, diversification, and awareness of changes in the surrounding environment.
The United Nations Watercourses Convention on the Dawn of Entry Into Force
Vanderbilt Journal of Transnational Law, Volume 47, Issue 5 (2014)
The United Nations Watercourses Convention entered into force in August 2014. Despite overwhelming support when signed in 1997, the ratification process has been slow. As a binding treaty, the Watercourses Convention provides hope that its provisions will articulate legal principles of transboundary water management capable of promoting cooperation and regional agreements. Despite entry into force, however, global support for the Watercourses Convention is weak, concurrent efforts to develop treaty regimes governing water resources create competition for resources and may obscure understandings of international water law, and the foundational principles of the Watercourses Convention remain ambiguous. These limitations are illustrated in a case study of the discordant hydropolitics of the Nile River Basin – perhaps the most significant watercourse lacking a cooperative management agreement. This article provides an analysis of international water law and the limitations of the Watercourses Convention, considering the implications of entry into force. While the Watercourses Convention creates a workable framework for negotiating regional agreements, low levels of support from UN member states, competing treaty instruments, and ambiguous legal principles limit the potential impact of the Watercourses Convention.
Florida Water Management Districts and the Florida Water Resources Act: The Challenges of Basin-Level Management
Kentucky Journal of Equine, Agriculture, and Natural Resources Law, Volume 7, Issue 1 (2014)
Florida’s plentiful freshwater resources are indispensable to the state’s municipal, agricultural, and environmental interests. As such, decision-makers presiding over complex water management decisions wield extraordinary powers. The Water Resources Act of Florida vests these powers in five water management districts drawn according to hydrological (not political) boundaries. The water management districts have robust technical, financial, and regulatory powers, and hold the key to Florida’s sustainable development. But with the stakes so high, Florida’s water management districts are at the center of a broader fight for control of water resources. In particular, transboundary water conflicts, political pressure, and ecological needs show that while the water management districts are institutionally mature, external forces can exert significant influence on basin-level water management.
Subsidiarity in Principle: Decentralization of Water Resources Management
Utrecht Law Review, Volume 10, Issue 2 (2014)
The subsidiarity principle of water resources management suggests that water management and service delivery should take place at the lowest appropriate governance level. The principle is attractive for several reasons, primarily because: 1) the governance level can be reduced to reflect environmental characteristics, such as the hydrological borders of a watershed that would otherwise cross administrative boundaries; 2) decentralization promotes community and stakeholder engagement when decision-making is localized; 3) inefficiencies are reduced by eliminating reliance on central government bureaucracies and budgetary constraints; and 4) laws and institutions can be adapted to reflect localized conditions at a scale where integrated natural resources management and climate change adaptation is more focused. Accordingly, the principle of subsidiarity has been welcomed by many states committed to decentralized governance, integrated water resources management, and/or civic participation. However, applications of decentralization have not been uniform, and in some cases have produced frustrating outcomes for states and water resources. Successful decentralization strategies are heavily dependent on dedicated financial resources and human resource capacity. This article explores the nexus between the principle of subsidiarity and the enabling environment, in the hope of articulating factors likely to contribute to, or detract from, the success of decentralized water resources management. Case studies from Haiti, Rwanda, and the United States’ Florida Water Management Districts provide examples of the varied stages of decentralization.
International Water Law Principles and Frameworks: Perspectives from the Nile River Basin
The Nile River Basin: Ecohydrological Degradation, Climate Change and Hydropolitics (2014)
With the current body of international water law limited to customary principles and nascent treaty instruments, the potential for major transboundary water resources conflict is high. Nowhere is this more apparent than in the Nile River Basin. At about 6,825 km long, the Nile is the longest river in the world, sustaining the livelihoods of more than 180 million people in 11 riparian countries. And yet, the Nile River continues to flow without a binding cooperative management treaty or agreement. While the Nile Basin Cooperative Framework Agreement (CFA) may soon come into force, it lacks the support and participation of two of the largest players in the region, downstream Egypt and Sudan. Meanwhile, basin countries’ interpretations of customary international water law highlight the inherent and predictable difficulties of reconciling the principles of equitable use and no significant harm. Considering the Nile River Basin’s critical importance to the economic development of basin states, the absence of a binding cooperative management agreement places the Nile River Basin at risk of conflict and continued mismanagement. This chapter analyzes the legal status of Nile River Basin water allocations through the lens of contemporary international water law, a developing body of law struggling to resolve transboundary disputes such as those found in the Nile River Basin.
Harmonizing International Water Law: Current Challenges and Future Prospects
Instrumentos Jurídicos Para a Implementação do Desenvolvimento Sustentável - Legal Instruments for the Implementation of Sustainable Development (2012)
Development of an international legal regime governing water resources is, at present, an uncoordinated and inconsistent practice. While the 1997 United Nations Convention on the Law of Non-Navigational Uses of International Watercourses made an attempt to codify international norms relating to water, the Convention remains unratified fifteen years later. As a result, successive efforts to promote the development of international water law have been faced with the unenviable task of either reconciling the Convention’s status with current understandings of customary international law (e.g., the 2004 Berlin Rules on Water Resources) or progressing in spite of it (e.g., the 2008 Draft Articles on the Law of Transboundary Aquifers). A harmonization of the various legal instruments – principally, the Watercourses Convention and the Law of Transboundary Aquifers – would strengthen existing principles and lay a foundation for the development of a more robust and synergistic regime.