A paper 3L Douglas Naftz wrote for Professor Robin Craig’s Water Law course was recently awarded third place in the Smith-Babock-Williams Writing Competition. In the interview below, Naftz discusses the issue of naturally occurring asbestos, describes how Professor Craig helped him to focus the work, and praises the excellence of the College of Law’s legal writing classes.
How did you first become aware of the competition and what inspired you to enter?
The Smith-Babcock-Williams Writing Competition is organized by the Planning & Law Division of the American Planning Association, and is open to law students and planning students writing on a question of significance in planning, planning law, land use law, local government law, or environmental law. I became aware of the competition at the end of the Spring 2013 semester, when my water law professor, Robin Craig, encouraged me to enter the competition upon finishing the final draft of my paper for her class. After I finished my spring coursework, I looked up the information on the writing competition, incorporated some additional changes based on Professor Craig’s feedback from my final paper, and entered the competition.
The paper has a rather lengthy title, “Transboundary Deposition of Naturally Occurring Asbestos from the United States into Canada: A Case Study and Analysis of Possible Legal Responses.” Can you briefly explain its subject for a lay audience?
The issue of naturally occurring asbestos discussed in the paper is quite complex, and is the result of multiple unfortunate events that are not easily solved by a single regulatory regime. Basically, the problem involves a slow-moving landslide on the western slope of a mountain in the Northwestern corner of Washington State (Sumas Mountain). The landslide, which was activated sometime in the 1930s, contains asbestos fibers in its sediment (a phenomenon that isn’t all that uncommon–asbestos is mined, like other minerals). The landslide deposits over 100,000 cubic yards of asbestos-laden sediment annually into a nearby creek known as Swift Creek (enough to fill about 8,333 standard-size dump trucks). Geologists estimate that the landslide will continue for the next 400 to 600 years, and have stated that it “represents a functionally unlimited sediment supply.” Much of this sediment is then carried into the Sumas River, which flows north into Canada where it reaches a confluence with the Fraser River ten miles north of the USA-Canada border. Beginning in 2004, hazardous levels of asbestos were measured along Swift Creek. Subsequent testing has identified hazardous levels of asbestos along the Sumas River all the way up to the Canadian Border. Unfortunately, there is no easy solution to the problem and there have been no serious attempts to remedy the situation in the U.S. due in part to the high cost of mitigation measures combined with the fact that the hazardous material was not disposed by a potentially responsible party (e.g. a chemical company), and is instead naturally occurring.
My paper analyzes the issue of asbestos deposition from Sumas Mountain into Canada under international law, including the Boundary Waters Treaty of 1909 between the U.S. and Canada, the Pacific Salmon Treaty, and customary international environmental law. It concludes that, although most of the international law applicable to transboundary asbestos deposition from the U.S. into Canada is non-binding, it might prove to be an effective mechanism for implementing a long-term comprehensive sediment management solution at Swift Creek.
How did Professor Craig help? For example, what kinds of guidance or editorial suggestions did she provide? What was the genesis of the article?
Professor Craig was a big help. Although I came up with the underlying research question, Professor Craig was a great resource, providing me with research tips and focusing my analysis.
I first encountered this unique issue as an undergraduate student at Western Washington University, where I wrote my senior thesis on the regulatory issues created by naturally occurring asbestos deposition at Swift Creek. After I graduated in 2009, I continued to follow the news stories about Swift Creek, and observed that the scope of the problem was growing without a viable solution in sight. When it came time to choose a topic for my water law paper I proposed to research what could be done to encourage a comprehensive solution to the naturally occurring asbestos issue under international environmental law, and Professor Craig approved the topic.
You’re entering your final year of law school. What are your plans after graduation?
For the past two summers I have worked as a Summer Associate at Parsons Behle & Latimer in Salt Lake City. In addition, I spent half of my summer this year working as an intern in the Legal Enforcement Program at EPA Region 8 in Denver, Colorado. Upon graduation, I plan to practice environmental and natural resource law at Parsons Behle & Latimer in Salt Lake City.
How did your education at the College of Law prepare you to write this paper and receive this honor?
I think the combination of the excellent first year writing courses at the College of Law and the multiple course offerings in the environmental and natural resources subject areas made this paper possible. One of the strengths of the first year curriculum at the College of Law is the legal research and writing course (Legal Methods) where students get the opportunity to go through multiple drafts of a legal memorandum, receiving comments from their professors throughout the year. In addition, the environmental and natural resources courses offered at the College of Law provide a great foundation for researching interesting and complex environmental problems like the one at Swift Creek. Finally, the small class size and the great Stegner Center faculty makes it easy for students to obtain comprehensive and insightful feedback on their research.
Anything else you would like to add?
I would like to thank Professor Craig for her thoughtful insight and valuable comments throughout the writing process and for encouraging me to enter the Smith-Babcock-Williams Writing Competition. In addition, I would also like to thank the American Planning Association and Professor Alan Weinstein, Chair of the Smith-Babcock-Williams Writing Competition, for supporting student research and writing in the fields of planning, land use, and environmental law.