adversarial_legalism - The Kirp/Kagan Exchange on...

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The Kirp/Kagan Exchange on Adversarial Legalism Framework: The issue – Dredging the harbor channels of Oakland port deeper to enable large container ships to reach the docks. Legal Framework: Funding comes from congress, and each project is approved separately – causing delays. Dredging cannot be initiated until a comprehensive analysis assessing potential environmental impacts and methods of mitigating negative impacts has been prepared by the Corps of Engineers and circulated for comments. The corps must, before issuing a permit, consult with: (a) U.S. Fish and Wildlife Service, satisfying no harm to wildlife/mitigating measures. (b) National Marine Fisheries Service (guarding commercial and recreational fishing interests). (c) The Federal Environmental Protection Agency (EPA), can veto if effects on environment are too large. (d) The state agency charged with protecting water quality. (e) The state Coastal Zone Management Agency. (f) Others. The Corps must make the plans available for public review and conduct public hearings for locally affected interests. Whoever feels statute requirements have not been complied with can seek judicial reviews. Judges have serious powers. Concrete Facts: 11.84– Corps completed cost-benefit analysis and environmental impact statement on the project. 1987 – Congress authorize funding. 1986 – California water quality and fish and game agencies concerned about effects if dredged segments dumped on site planned – near Alcatraz Island. blocked in-bay disposal. Corps selected Ocean disposal site – double costs to 39 mil.$. EPA refused authorization. Risk of lawsuits. 1.88 – port of Oakland officials convened meetings of the various Regulatory Agencies, environmental groups & Fishing Organizations. No compromise. 3.88 – EPA & corps convene expert panel in Washington to review scientific questions. The panel made a political decision – use different site for first 500,000 cubic yards, enabling accommodation of the first larger ships. Meanwhile, further research would be conducted to decide about the rest. 4.88 – Half Moon Bay Fishermen's Marketing Association filed suit against corps in federal court, alleging that dumping material at new site would disrupt a valuable fishing ground, and that the environmental impact statement was insufficient. 5.5.88 – judge denied request for restraining order. Association appealed. Finally, no stop order. 16.5.88 – suit in state court – temporary restraining order against dredging issued. 15.7.88 – appellate court reject port's appeal. August - Officers pressurized (paying for dredging equipment, for train tunnels to
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carry cargo), announce disposal plan for first 440,000 stuff, in a Sacramento River Delta site, 50% more expensive than in the ocean. Needed environmental impact report by state law.
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