Kent Greenawalt was my colleague and friend for half a century. Over those years we shared responsibility both for students at the beginning of their legal studies and for candidates for the doctoral ...degree. The course in Legal Methods, while we each taught it, was an intensive three-week, 39 class hour introduction to legal studies that divided its attention between common law case analysis and statutory interpretation; Kent's nuanced understanding of both profoundly shaped my approach to each. In the doctoral program, he offered a graduate seminar on jurisprudence; my responsibility was for a seminar on legal education. Sharing these few students opened for me a window into his open and balanced approach to a subject easily given to forms of orthodoxy, the affection and deep respect his students had for him, and his extraordinary qualities as a mentor for students who would themselves go on to distinguished positions in legal education.
Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound ...changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within agencies themselves; and the increasing judicial use of analytic techniques invoking the expectations of those who wrote the Constitution so long ago and in such different circumstances. Never easy, finding the appropriate balance between law and politics presents major challenges today.
Crop monitoring is of great importance for e.g., yield prediction and increasing water use efficiency. The Copernicus Sentinel-1 mission operated by the European Space Agency provides the opportunity ...to monitor Earth’s surface using radar at high spatial and temporal resolution. Sentinel-1’s Synthetic Aperture Radar provides co- and cross-polarized backscatter, enabling the calculation of microwave indices. In this study, we assess the potential of Sentinel-1 VV and VH backscatter and their ratio VH/VV, the cross ratio (CR), to monitor crop conditions. A quantitative assessment is provided based on in situ reference data of vegetation variables for different crops under varying meteorological conditions. Vegetation Water Content (VWC), biomass, Leaf Area Index (LAI) and height are measured in situ for oilseed-rape, corn and winter cereals at different fields during two growing seasons. To quantify the sensitivity of backscatter and microwave indices to vegetation dynamics, linear and exponential models and machine learning methods have been applied to the Sentinel-1 data and in situ measurements. Using an exponential model, the CR can account for 87% and 63% of the variability in VWC for corn and winter cereals. In oilseed-rape, the coefficient of determination ( R 2 ) is lower ( R 2 = 0.34) due to the large difference in VWC between the two growing seasons and changes in vegetation structure that affect backscatter. Findings from the Random Forest analysis, which uses backscatter, microwave indices and soil moisture as input variables, show that CR is by and large the most important variable to estimate VWC. This study demonstrates, based on a quantitative analysis, the large potential of microwave indices for vegetation monitoring of VWC and phenology.
This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of "allocation." Because the term ..."deference" muddles rather than clarifies the structure's operation, this Essay avoids speaking of "Chevron deference" and "Skidmore deference." Rather, it argues, one could more profitably think in terms of "Chevron space" and "Skidmore weight." "Chevron space" denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints—that is, its allocated authority. "Skidmore weight" addresses the possibility that an agency's view on a given statutory question may in itself warrant the respect of judges who are themselves unmistakably responsible for deciding the question of statutory meaning. "Skidmore weight" has an underappreciated pedigree. For almost two centuries, American courts have given agency views of statutory meaning considerable weight in deciding for themselves issues of statutory meaning. "Chevron space" reflects our more recent understanding and acceptance that Congress may validly confer on executive agencies the authority to act with the force of law, so long as the legality of their action within the boundaries of their authority can be judicially assured. Within its congressionally authorized space, the agency is the prime actor. From a court's independent conclusion that Congress has delegated authority to an agency—a conclusion that may even be informed by Skidmore weight given to the agency's own understandings of its authority—it follows ineluctably that the reviewing court is to act, not as decider, but as overseer.
Antimicrobial resistance (AMR) is a public health issue attributed to the misuse of antibiotics in human and veterinary medicine. Since AMR surveillance requires a One Health approach, we sampled ...nine interconnected compartments at a hydrological open-air lab (HOAL) in Austria to obtain six bacterial species included in the WHO priority list of antibiotic-resistant bacteria (ARB). Whole genome sequencing-based typing included core genome multilocus sequence typing (cgMLST). Genetic and phenotypic characterization of AMR was performed for all isolates. Eighty-nine clinically-relevant bacteria were obtained from eight compartments including 49 E. coli, 27 E. faecalis, 7 K. pneumoniae and 6 E. faecium. Clusters of isolates from the same species obtained in different sample collection dates were detected. Of the isolates, 29.2% were resistant to at least one antimicrobial. E. coli and E. faecalis isolates from different compartments had acquired antimicrobial resistance genes (ARGs) associated with veterinary drugs such as aminoglycosides and tetracyclines, some of which were carried in conjugative and mobilizable plasmids. Three multidrug resistant (MDR) E. coli isolates were found in samples from field drainage and wastewater. Early detection of ARGs and ARB in natural and farm-related environments can identify hotspots of AMR and help prevent its emergence and dissemination along the food/feed chain.
Understanding the role of soil moisture and other controls in runoff generation is important for predicting runoff across scales. This paper aims to identify the degree of non‐linearity of the ...relationship between event peak runoff and potential controls for different runoff generation mechanisms in a small agricultural catchment. The study is set in the 66 ha Hydrological Open Air Laboratory, Austria, where discharge was measured at the catchment outlet and for 11 sub‐catchments or hillslopes with different runoff generation mechanisms. Peak runoff of 73 events was related to three potential controls: event precipitation, soil moisture and groundwater levels. The results suggest that the hillslopes dominated by ephemeral overland flow exhibit the most non‐linear runoff generation behaviour for its controls; runoff is only generated above a threshold of 95% of the maximum soil moisture. Runoff generation through tile drains and in wetlands is more linear. The largest winter and spring events at the catchment outlet are caused by runoff from hillslopes with shallow flow paths (ephemeral overland flow and tile drainage mechanisms), while the largest summer events are caused by other hillslopes, those with deeper flow paths or with saturation areas throughout the year. Therefore, the response of the entire catchment is a mix of the various mechanisms, and the groundwater contribution makes the response more linear. The implications for hydrological modelling are discussed.
The non‐linearity of the relationships between event runoff peak and its controls depends on the runoff generation mechanisms: Ephemeral overland flow systems are the most non‐linear and related to soil moisture; tile drainage and wetland systems are less non‐linear; more linear behaviour occurs as the catchment size increases.
DOMESTICATING GUIDANCE Strauss, Peter L.
Environmental law (Portland, Ore.),
06/2019, Volume:
49, Issue:
3
Journal Article
This Essay, written for an occasion celebrating the scholarship of Professor William Funk of Lewis & Clark Law School, builds in good part on his analyses of soft law documents—statements of general ...policy and interpretive rules—that today one generally finds discussed under the rubric “guidance.” These are agency texts of less formality than hard law regulations adopted under the procedures of 5 U.S.C. § 553, that inform the public how an agency intends to administer its responsibilities, as a matter of policy or (what may seem just one instance of that) via the interpretation of its governing statutes or regulations. The APA is explicit that in adopting these texts, agencies are not required to use the notice and comment process ordinarily required for the adoption of regulations having the force of law; but it also signals that, like agency caselaw precedent, guidance may be relied upon to a private party’s disadvantage if it has been published or come to its actual notice. Guidance documents, revealing agency policy and perhaps showing the way to safe compliance, can structure the behavior of agency staff and be highly influential for the regulated; but they are not in themselves enforceable against actors in the outside world—hence, soft law. Typically, they are the product of agency staff, and do not (as regulations do) require the imprimatur of the agency’s political leadership for their adoption
Documents like these are common worldwide in regulatory contexts, much more numerous than regulations (as regulations are more numerous than statutes). In American administrative law they have often been caught up in disputes whether the notice and comment procedures engaging the agency’s political leadership needed to have been used for their adoption. Judicial concerns are that ostensible soft law has often been used to evade the increasingly demanding obligations associated with notice and comment rulemaking. A common test has been whether, although nominally soft law, they are “practically binding.” The basic arguments of this Essay are, first, that this approach fails to differentiate highly desirable internal agency law (that is, policies “binding” on some agency staff) from what impermissibly “binds” the public; and, second, that soft law instruments can often be found “final” for purposes of judicial review—if they are, in effect, the agency’s internal law—and that use of the equitable standards for declaratory judgment long ago endorsed for pre-enforcement review of rulemaking will then permit dealing with the legality of soft law on its merits, and not as a matter of procedural compliance. Questions about “Auer deference” that the Supreme Court addressed in Kisor v. Wilkie twelve weeks after the celebration of Professor Funk are also briefly addressed.
Our study examines the source aquifers and stream inputs of the seasonal water and nitrogen dynamics of a headwater agricultural catchment to determine the dominant driving forces for the seasonal ...dynamics in the surface water nitrogen loads and concentrations. We found that the alternating aquifer contributions throughout the year of the deep and shallow aquifers were the main cause for the seasonality of the nitrate concentration. The deep aquifer water typically contributed 75% of the total outlet discharge in the summer and 50% in the winter when the shallow aquifer recharges due to low crop evapotranspiration. The shallow aquifer supplied the vast majority of the nitrogen load to the stream due to the significantly higher total nitrogen concentration (11mg-N/l) compared to the deep aquifer (0.50mg-N/l). The main stream input pathway for the shallow aquifer nitrogen load was from the perennial tile drainages providing 60% of the total load to the stream outlet, while only providing 26% of the total flow volume. The diffuse groundwater input to the stream was the largest input to the stream (39%), but only supplied 27% to the total nitrogen load as the diffuse water was mostly composed of deep aquifer water.
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•There is nitrogen seasonality in streams in headwater agricultural catchments.•We measured the major nitrogen point inputs contributing to the stream.•We applied an endmember mixing model for the source water seasonal dynamics.•Tile drainage and the diffuse groundwater inputs had significant seasonal variability.•Seasonality of the nitrate was due to the alternating aquifer source contributions.
Previous validation studies have demonstrated the accuracy of the Metop-A ASCAT soil moisture (SM) product, although over- and underestimation during different seasons of the year suggest a need for ...improving the retrieval algorithm. In this study, we analyzed whether adapting the vegetation characterization based on global parameters to regional conditions improves the seasonal representation of SM and vegetation optical depth ( τ ). SM and τ are retrieved from ASCAT using both a seasonal (mean climatological) and a dynamic vegetation characterization that allows for year-to-year changes. The retrieved SM and τ are compared with in situ and satellite SM, and with vegetation products (SMAP, AMSR2, and SPOT-VGT/PROBA-V). The study region is set in an agricultural area of Lower Austria that is characterized by heterogeneous land cover and topography, and features an experimental catchment equipped with a SM network (HOAL SoilNet). We found that a stronger vegetation correction within the SM retrieval improves the SM product considerably (increase of the Spearman correlation coefficient r s by 0.15 on average, and r s comparable to SMAP and AMSR2). The vegetation product derived with a dynamic vegetation characterization compares well to the reference datasets and reflects vegetation dynamics such as start and peak of season and harvest. Although some vegetation effects cannot be corrected by the adapted vegetation characterization, our results demonstrate the benefits of a parameterization optimized for regional conditions in this temperate climate zone.
In the European Union, soil erosion is identified as one of the main environmental threats, addressed with a variety of rules and regulations for soil and water conservation. The by far most often ...officially used tool to determine soil erosion is the Universal Soil Loss Equation (USLE) and its regional adaptions. The aim of this study is to use three different regional USLE-based approaches in three different test catchments in the Czech Republic, Germany, and Austria to determine differences in model results and compare these with the revised USLE-base European soil erosion map. The different regional model adaptations and implementation techniques result in substantial differences in test catchment specific mean erosion (up to 75% difference). Much more pronounced differences were modelled for individual fields. The comparison of the region-specific USLE approaches with the revised USLE-base European erosion map underlines the problems and limitations of harmonization procedures. The EU map limits the range of modelled erosion and overall shows a substantially lower mean erosion compared to all region-specific approaches. In general, the results indicate that even if many EU countries use USLE technology as basis for soil conservation planning, a truly consistent method does not exist, and more efforts are needed to homogenize the different methods without losing the USLE-specific knowledge developed in the different regions over the last decades.
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