An American company recently entered into a contract with the town of Sitka, Alaska to export 2.9 billion gallons of freshwater per year from the Blue Lake Reservoir to an unannounced water hub on the west coast of India. If the venture is successful, the company will become the first in the world to ship large-volume exports of water by tanker. As a result, bulk water—large-scale international shipment of water by man-made diversion—may, for the first time, be subject to international agreements, such as the North American Free Trade Agreement and the General Agreement on Tariffs and Trade. This has the potential to cause interference with the American water rights regime, where states control the allocation of water resources. The Note argues that the best remedy to solve the tension between international trade law and state regulation of water resources is the application of the public trust doctrine to the allocation of permits for international trade. The Note asserts this is the best remedy because the doctrine can override a legislative decision that a court finds is not in the best interest of the public. The public trust doctrine should be applied in this circumstance because water is already a public good for the purposes of allocations, and bulk water sales implicate two traditional areas of concern where the doctrine has been applied. First, the doctrine has been used when a state government has the may receive a short-term economic gain that is not in the best interest of the public. Second, the doctrine has been employed in circumstances where the state government may divest its traditional authority to regulate a public resource to a foreign entity.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]