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39 Envtl. L. [i] (2009)

handle is hein.journals/envlnw39 and id is 1 raw text is: ENVIRONMENTAL LAW Lewis & Clark Law School VOLUME 39 WINTER 2009 NUMBER 1 ARTICLES United States v. Abrogar: Did the Third Circuit Miss the Boat? ................ David P. Kehoe In United States v. Abrogar, the Third Circuit held that the sentencing enhancements under the U.S. Sentencing Guidelines for the discharge of a pollutant to the environment did not apply to a chief engineer of a foreign- flagged vessel who came into a U.S. port and presented a false document to the United States Coast Guard that covered up the fact that the vessel had dumped oily wastes into international waters in violation of the Act to Prevent Pollution from Ships (APPS). The court held that the Guideline enhancements did not apply to the false document charge under APPS, in part because the discharges occurred outside U.S. waters before the vessel came into port. This Article argues that the Third Circuit's reasoning was flawed, because, among other things, the discharges were an element of the offense for the APPS false document violation charged, and then goes on to explore alternative charging mechanisms and Guideline provisions available to authorize jail time in these cases. Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations (Part I): Ecological Realism and the Need for a Paradigm Shift ......................................... 43 Mary Christina Wood Society's industrial base has demolished natural systems and has pushed the planet to the brink of irrevocable climate heating. These new conditions of Nature present immense challenges for the law. Transformational legal change is inevitable, either because society will choose a sustainable path, or because the present legal institutions will collapse from economic and social disintegration following ecological chaos. This Article, Part I of a two-part work, points to the stunning failure of modem environmental law, which authorizes agencies to issue permits and take actions that destroy the environment. It argues that only an encompassing vision of sovereign obligation carries hope of turning governmental conduct away from disastrous outcomes. The Article draws upon the venerable public trust doctrine to present a fundamental paradigm shift in natural resources and environmental law, advancing the ancient doctrine into today's world through a framework called Nature's Trust.

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