Complementary Legal Strategies for Public Trust Advocacy
Local battles over application of the core public trust doctrine to navigable waterbodies are still the front lines of public trust advocacy in several states. For example, the Indiana Supreme Court is just now deciding basic questions such as whether the state owns Indiana’s shore of Lake Michigan below the Ordinary High Water Mark (OHWM), whether the public trust encumbers title to the shore and how the OHWM should be defined. In other localities, the public trust is being applied to national and global resources well beyond the core doctrine inherited from England. Most notable is the “atmospheric trust” litigation, as in the ongoing case of Juliana v. United States. Not only do the resources targeted by public trust litigation range from local the global, but the litigation strategies themselves range from local, to national, to global in scope. The panel will present a range of legal strategies for advocating and advancing the public trust doctrine and will discuss future directions for such advocacy.
Panelists: Jeffrey B. Hyman, Ph.D., J.D., Conservation Law Center; Mary Christina Wood, Philip H. Knight Professor University of Oregon School of Law; Nate Bellinger Staff Attorney, State Program Manager, Our Children’s Trust
The Endangered Species Act, Wind Power, and Endangered Bats
The increase in wind power production in the United States has increased significantly in the past decade. While wind energy has many benefits, it can have negative impacts on endangered species, especially bats and birds. Hawaii currently has seven operational wind farms, with two more in the final stages of approval. Multiple future projects, both on-shore and off-shore, are under consideration. All Hawaiian wind farms and some mainland wind farms are expected to take bats protected under the U.S. Endangered Species Act (ESA). Ensuring that these projects effectively minimize and compensate for take is difficult. We discuss what the ESA expects and requires when take of listed bats occurs or is expected to occur, as well as discussing some of the problem areas for ensuring avoidance, compliance, and mitigation. We also discuss the need for fact-checking the science used to support proposed wind farms. Key topics will include take estimates, ensuring accuracy in monitoring/compliance, minimization efforts related to Low Wind Speed Curtailment, and how to mitigate for bat take.
Panelists: Jeffrey B. Hyman, Ph.D., J.D., Conservation Law Center; Loyal A. Mehrhoff, Ph.D., The Center for Biological Diversity; Maxx E. Phillips, Esq., Hawaii State Senate
