From the Editors

Dear Readers,

As noted in Volume 39 of the Journal, the Editorial Board instituted certain changes effective with the publication of that issue. The changes are designed to provide information to Section Members and Journal subscribers in a more timely manner, including making information more quickly available on the Section’s website (www.texenrls.org), and to achieve our goal of “catching up” on our production schedule.

The Journal is now published on a triannual basis (Fall, Winter, and Spring & Summer) to reflect the recurring down time during summer. However, it is our intent to increase the number of articles and notes in the three annual issues to more than offset the reduction in the number of issues per volume.
Also, to provide our Recent Development columns more “recently,” we will post them on the Section’s website once complete, but often before they are combined into a published issue of the Journal.

Again, to provide information more rapidly as the internet allows, we are moving the Changes in the Environment Section of the Journal to the Section’s website.
For our “catch-up” plan, we are combining Issue Numbers 1, 2, and 3 of Volume 40 into this one published issue.

In one of our lead articles for this combined issue, Paul G. Gosselink provides a “Solid Waste Update.” His article focuses on three “game-changers,” two U.S. Supreme Court cases and one Environmental Protection Agency rule. These three game changers are: (1) the case of Burlington Northern and Santa Fe Railway Co. v. United States, which arguably redefined “arranger liability” and “apportionment” in federal Superfund cases; (2) the case of United Haulers Ass’n v. Oneida-Herkimer Solid Waste Authority, which held that a flow control ordinance that mandated that all the municipal waste collected within particular jurisdictional boundaries be taken to a specific facility because it is public, did not violate the dormant commerce clause; and (3) the latest version of the EPA’s Definition of Solid Waste Rule and the legal challenges that have been brought against that rule. Each game changer “will likely result in a change in the way environmental lawyers evaluate business opportunities and/or risks and in a change in the advice environmental lawyers give to their clients.”

Our other lead article is by Mary W. Koks and Tim Million and is entitled “Environmental Issues in Bankruptcy.” Their article provides an analysis of how two bodies of law — Bankruptcy and Environmental — mesh to allow environmental liabilities to be handled in the bankruptcy context. The authors point out that “the analysis of the nature and extent of environmental obligations in a bankruptcy case and how those obligations will be treated can be extremely complex and will many times depend on not only the type of debtor, the type of obligation, when the obligation arose, or the type of creditor, but even on public policy involved in the case.” They note that practitioners need to give extra care in considering the position that the government or potentially responsible party creditors should take prior to asserting any obligation against a debtor in bankruptcy.

In one of our three student notes, “Wind Severance,” Michael J. Stephan examines a relatively new issue. In his note, Mr. Stephan tries to fill gaps in the legal issue of wind severance left by legislative, judicial, and academic responses to the issue. His opinion is that the severance of wind rights should be allowed because “it harmonizes with many normative interests that our law pursues, and because it is supported by existing legal schemes.” He believes that the extraordinariness of wind energy fits comfortably into existing legal structures.

Our second student note, “Categorizing Environmental Crimes: Malum in Se or Malum Prohibitum?” is by Michael Parker. The author’s purpose for his note is “to examine society’s sentiments towards environmental crimes and to analyze what, if any, objectives society has set for itself.” Mr. Parker explores whether the justifications on which governmental entities base their promulgation of environmental legislation and regulations match society’s justifications for punishing environmental crimes. Mr. Parker proposes that “although many governments and academics currently view environmental crimes as malum prohibitum and merely regulatory, to accurately reflect society’s attitude towards environmental crimes, governments must treat environmental crimes as malum in se, morally repugnant, offenses.”

David Webster examines a green, alternative energy source in our third student note, “Achieving the High-Water Mark of Wave Technology.” In the United States, wave energy is not yet a commercially viable method of supplying power. Mr. Webster’s note analyzes the barriers to the development of wave energy and other offshore energy sources such as ocean wind farms. The note also investigates recent developments in technology, financial incentives, and environmental impacts. The note examines these factors both at the federal level and in Texas — where wave-energy development benefits from an unusual regulatory exemption. Based on his findings, Mr. Webster argues that wave energy and other forms of ocean-based energy production may indeed be a viable alternative resource in the future. His caveat is that continued technological and environmental challenges may substantially slow this sector’s growth.

We hope that the materials in this issue provide you a valuable tool in your practice and/or educational insight and substance for discussion.

Jimmy Alan Hall
Editor-in-Chief

Beckie Brice
Student Editor-in-Chief (2009-2010)

Elizabeth Hundt
Managing Editor (2009-2010)

Russell Murdock
Administrative Editor (2009-2010)

William “Trey” Edwards
Lead Article Editor (2009-2010)

Adrian Shelley
Student Note Editor (2009-2010)

Crystal Le
Recent Developments Editor (2009-2010)