Is functional equivalence the solution to the emerging critical habitat problem?
Functional equivalence should have been considered by the Tenth Circuit in Catron County Board of Commissioners, New Mexico v. United States Fish & Wildlife Service. The theory of functional equivalence would have allowed the Fish & Wildlife Service an exemption from environmental assessment requirements under the National Environmental Policy Act, since a similar assessment must be performed under the Endangered Species Act. The case concerned the procedure for designating critical habitat for two threatened fish species, the loach minnow (Tiaroga cobitis) and the spikedace (Meda fulgida).
Publication Name: Natural Resources Journal
Technology transfer and march-in at the National Institutes of Health: introducing uncertainty into an era of private-public partnership
The National Institutes of Health in particular and the federal government in general should not exercise marching-in privileges and seize license rights to technology under licensing agreements with private research partners. Better approaches ensuring the development and transfer of technology for public benefit are to incorporate stricter contractual remedies centered on timeliness issues. Also, the government could use non-exclusive licensing agreements.
Publication Name: Administrative Law Review
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