Digital Commons Network^™

The Erosion Of Federal Common Law: Anticipatory Delegation In American Electric Power Company V. Connecticut, Paul Z. Winters

Paul Z Winters

In this year’s Supreme Court decision American Electric Power v. Connecticut, the Clean Air Act was held to preempt the federal common law of nuisance in a claim concerning harm resulting from greenhouse gas emissions. The Court’s decision resulted in an unprecedented incursion onto the territory of federal common law. Though the EPA had not begun to promulgate rules for greenhouse gas reduction from stationary sources, the Supreme Court minted a new doctrine: anticipatory delegation, and held that the federal common law of nuisance had been preempted. The Court's holding leaves future environmental plaintiffs with little hope of redress where …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

Prospects For ‘Cooperation V. Dispute’ Over Water In The Middle East, Yaser Yousef Khalaileh

yaser yousef khalaileh

This paper addresses the prospects of the applicability of Watercourse international regime to achieve cooperation in the Middle East region. In so doing, an assessment of the environmental status of the water medium in the Middle East, and the main reasons for its deterioration, is to be made; an illustration of the basic international law rules that are specifically related to the use of international watercourses is to be deciphered; the extent of protection afforded to this medium under international law is then analysed; and an attempt to discuss the available possibility for applying international laws related to watercourse to …

A Sticky Situation: Tar Sands, Alternative Fuels, Energy Security And The Eisa Section 526 Petroleum Procurement Problem, Surya Gablin Gunasekara

Surya Gablin Gunasekara

The Department of Defense (DOD) is one of the world’s single largest consumers of energy. To support two wars in hostile parts of the world, the DOD’s energy procuring agency, the Defense Logistics Agency Energy (DLA Energy), has been forced into the difficult position of doing business with sheikdoms and petro-dictatorships. This dependence on foreign oil, and the critical need for energy security, has prompted several legislative initiatives aimed at promoting renewable energy and alternative fuels. While much of this legislation has been transformative for DOD energy policy, one provision, in application, has complicated the petroleum procurement process. This article …

Crude Decisions: Re-Examining Degrees Of Negligence In The Context Of The Bp Oil Spill, Blaine Lecesne

Blaine LeCesne

CRUDE DECISIONS: RE-EXAMINING DEGREES OF NEGLIGENCE IN THE

CONTEXT OF THE BP OIL SPILL

Blaine LeCesne

Abstract

The blowout of the Macondo well caused the worst environmental disaster in history and the ensuing high-stakes litigation is the largest ever mass tort case. The pivotal issue in the case is whether this cataclysmic event was caused by the “gross negligence” or “willful misconduct” of the responsible parties. Such a determination could result in exponentially increased compensatory and punitive damages, augmented environmental sanctions and potential criminal liability. These heightened degrees of fault are frequently used in regulatory statutes, like the Clean Water …

Skewed Incentives: How Offshore Drilling Policies Fail To Induce Innovation To Reduce Social And Environmental Costs, Gaia J. Larsen

Gaia Larsen Esq.

The accident at the Deepwater Horizon platform in the Gulf of Mexico in April of 2010 showed the potentially catastrophic damage associated with offshore oil drilling. It also highlighted both the technological advances that have made drilling in deeper and more dangerous waters feasible and affordable, and the lack of similar advances in technology to prevent harm resulting from such drilling. In light of that disaster and current debate over offshore oil drilling, this article looks at the failure of current policies to adequately incentivize investment in innovation to reduce the environmental and social costs associated with offshore drilling. It …

Sustainable Procurement Is Smart Procurement: A Primer For Local Governments To Successfully Implement Sustainable Procurement Policies, Zachary R. Kobrin

Zachary R Kobrin

Most local governments do not understand the benefits of sustainable procurement or how to successfully implement these policies. This article discusses the challenges facing local governments when adopting sustainable procurement policies and makes recommendations to successfully implement sustainable procurement. The U.S. Environmental Protection Agency describes sustainable procurement as the purchasing of products or services that have a lesser or reduced effect on human health and the environment when compared with competing products or services that serve the same purpose. For local governments, sustainable procurement can also be defined by the benefits it will provide the local environment and economy. Before …

Setting The Foundation: How Local Climate Change Adaptation Initiatives Can Pave The Way For A Regulatory Regime That Works, Thomas M. Gremillion

Thomas M Gremillion

Climate change is here and with it a growing awareness of the need to adapt to impacts that are already occurring. At the same time, efforts to establish an international regulatory program to reduce or mitigate greenhouse gas (GHG) emissions have all but collapsed. This article argues that climate change adaptation at the local level, particularly in urban areas, represents a logical step forward. In addition to managing risk, adaptation can stimulate a needed shift in emphasis towards a more pluralist or polycentric approach to climate regulation, laying the groundwork for future national and global regulatory regimes. Examining some of …

Integrated Eastern States Water Management: Borrowing From The Coastal Zone Management Act, Robert H. Abrams

Robert H Abrams

More robust planning and management is needed to confront new patterns of water use and increasingly extreme and less predictable variations in water availability. Items such as water allocation law, an incomplete array of water management objectives, and the comparatively rigid operating rules for water facilities, that in the past had barely mattered, are now much more important. Neither the water law of most Eastern states nor the existing water institutions are adequate to the needs of a less stable, and possibly shorter, water supply. The failure of adaptation has the potential to cause serious economic and environmental harm if …

When The Law Is Silent, Trespassers W… : Law And Power In Implied Property Rights, Ann Brower

Ann Brower

In the daftly magical world of Winnie the Pooh, Piglet lives in a house signposted “TRESPASSERS W.” The golden silence that follows the W allows Pooh and his friends to wonder about the sign’s meaning, which Piglet insists honors his grandfather, Trespassers William. Piglet’s grandfather aside, silence in the law allows competing interpretations to arise and flourish in the realms of rhetoric, narrative, power and politics. In this paper we combine interest group politics, political ecology, property theory, and narrative assertion to propose a theory of implied property rights – how they work, whom they benefit, and when and why …

Rising Together: Clarifying The International Environmental Marketing Claim Regulatory Landscape So That Developing Country Exporters May More Effectively Market Their Environmentally Responsible Products, Jeffrey J. Minneti

Jeffrey J Minneti

This article focuses attention on national and international state and non-state actor environmental marketing claim criteria setting bodies to assess whether and to what extent the actors consider developing country interests in their schemes. Finding that many firm-specific and industry-specific non-state actors fail to offer any consideration of developing country interests in their standardization and certification schemes, likely because they lack any legal obligation to do, the article suggestes two clarifications to the World Trade Organization’s Agreement on Technical Barriers to Trade (TBT), that will at least incentivize non-state actors to integrate developing country interests into their schemes. First, the …

Of Pigs, Plain Text, And Pyrrhic Victories: National Pork Producers Council V. United States Environmental Protection Agency, Christopher Ralph Brown Jd Mpa

Christopher Ralph Brown JD MPA

Any court charged with defining the scope of the Environmental Protection Agency’s (EPA’s) authority to enforce the Clean Water Act should do so in light of the Act’s ultimate purpose: to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” So much is certain in statutory construction: if one possible statutory construction serves to frustrate the purpose of the statute according to its own terms, one should go back to the drawing board. This article evaluates the legal reasoning of a recent decision by the United States Court of Appeals for the Fifth Circuit in light …

Et Tu Lisa Jackson? An Economic Case For Why The Epa’S Sweeping Environmental Regulatory Agenda Hurts Animal Welfare On Factory Farms, David E. Solan

David E Solan

Over the last several years, animal protection groups have increasingly partnered with environmentalists to ratchet up the environmental regulation of factory farms. This alliance has manifested itself in two primary ways: first, leading animal protection groups have supported the bold activism of Lisa Jackson, the Administrator of the EPA, in seeking to lasso factory farms into compliance with environmental laws; and second, these groups have engaged in a litigation strategy of suing factory farms under environmental statutes.

The Article aims to challenge the popular wisdom among the animal protection community that increased collaboration with the environmental movement confers mutual benefits. …

Signs, Signs, Everywhere Signs: How The Wilderness Society V. Kane County Leaves Everyone Confused About Navigating A Right-Of-Way Claim Under Revised Statute 2477, Hillary M. Hoffmann

Hillary M Hoffmann

The Tenth Circuit’s recent decision in The Wilderness Society v. Kane County has changed the landscape of litigation arising out of Revised Statute 2477, a provision of the Mining Act of 1886 repealed by the Federal Land Policy and Management Act of 1976. Prior to this decision, the presumption was that the United States owned all federal public lands unless an adverse claimant proved otherwise. Moreover, any adverse claimant was required to bring an action under the Quiet Title Act to divest the federal government of title to its property. This decision turns both of those presumptions inside-out, provided that …

How Lawsuits Could Ignite An Energy Market: The Case Of Anaerobic Digestion, Catherine Keske

Catherine Keske

This article focuses on anaerobic digestion—a technology that converts biomass into methane that can be captured and used as biogas, or that can be converted into electricity through a generator. The biogas and electricity can be used at the facility where the biomass is collected, or the electricity could be sold to the grid if net metering policies are available. Currently, anaerobic digestion is not feasible in many areas of the nation, including the U.S. West, where energy prices are relatively low. This article demonstrates how anaerobic digestion can help agricultural operations avoid the costs associated with a nuisance lawsuit. …

International Water Law: Reasonable Utilization, Margaret J. Vick

Margaret J Vick

Reasonable utilization of shared waters is a centuries old principle of riparian law. It is one half of the foundational principle of international water law that requires the equitable and reasonable utilization of international waters. The principle of equitable utilization is extensively developed through treaties, conventions, case law and the writings of scholars of the law of non-navigational uses of international watercourses. However, the principle of reasonable utilization has received little attention. This article examines the relationship and commonalities between riparian reasonable use and the principle of international law and traces the inclusion of the requirement of reasonable utilization in …

The Need For More Stringent Regulation Of Biodiesel Fuel In California, Steven Goodman

Steven Goodman

Bioidiesel is an alternative fuel made from sources other than petroleum that can be used in diesel engines. It is a rapidly growing part of the fuels consumed in both California and the United States, and this consumption will continue to increase over time. This increased consumption warrants a greater focus on this fuel and the consequences of its use. Scientific evidence has established that biodiesel is not the clean, “green” fuel that some have purported it to be. Studies have found that biodiesel fuel causes increased nitrogen oxide (NOx) emission levels, resulting in higher levels of ozone and particulate …

Promoting Clean Energy In The American Power Sector: A Proposal For A National Clean Energy Standard, Joseph E. Aldy

Joseph E Aldy

The difficulty of coming to agreement on comprehensive energy and climate change legislation highlights the need for a more targeted and incremental approach. One promising intermediate step would be a technology-neutral national clean energy standard for the power sector. I propose a standard that would lower carbon dioxide emissions by as much as 60 percent relative to 2005 levels over twenty years, streamline the fragmented regulatory system, generate fiscal benefits, and finance energy innovation. Through a simple design and transparent implementation, the national clean energy standard would provide certainty about the economic returns to clean energy that would facilitate investment …

The Real Story Behind The Columbia Basin Salmon Debacle: Preserving Dams Under The Endangered Species Act, Michael Blumm

Michael Blumm

This review of Steven Hawley’s provocative book, Recovering a Lost River: Removing Dams, Rewilding Salmon, Revitalizing Communities, examines Hawley’s claim that the best way to recover endangered Snake River salmon is by removing the four Lower Snake River dams. These dams, managed by the U.S. Army Corps of Engineers, impede access to over 5300 miles of prime salmon habitat and operate with enormous public subsidies, largely to maintain a seaport 465 miles inland at Lewiston, Idaho. Hawley’s book not only shows that additional public subsidies in the form of river dredging and new levees will be necessary to maintain the …

"Cost Savings" As Proceeds Of Crime: A Comparative Study Of The United States And The United Kingdom, Richard C. Alexander

Richard C Alexander

The article begins by comparing and contrasting the provisions relating both to asset forfeiture and money laundering under U.S. Federal law and the law of the United Kingdom (in this area, the differences between the provisions of the three jurisdictions making up the United Kingdom are not significant). Some reference is also made to Florida state law, but principally by way of example rather than analysis. It then analyzes the U.S. case law relating to costs saved through the commission of a criminal offense and considers the possible effect of the amendment, made in 2009, to 18 U.S.C. §1956, before …

The Answer Lies In Admiralty: Justifying Oil Spill Punitive Damages Recovery Through Admiralty Law, Brittan J. Bush

Brittan J Bush

No abstract provided.

Challenges To The Development Of Wind Power, Monica Rizo

Monica Rizo

This paper will discuss several issues currently being debated by various industry and governmental advocates of the development of wind power in the U.S., specifically, the issues of the planning, siting and cost allocation of transmission lines.

Zoning In The Marcellus Shale Formation, Benjamin L. Knauff

Benjamin L Knauff

The growing practices of horizontal drilling and hydraulic fracturing have unlocked previously unrealized potential in natural gas-rich shale formations deep underground across the U.S. This growth stands in contrast to lagging regulation of the energy sector. This article explores the potential environmental and health risks of natural gas extraction in shale formations, and the need for legislative changes in Pennsylvania, where activity is rapidly gaining momentum.

Wind Turbine Wakes, Wake Effect Impacts, And Wind Leases: Using Solar Access Laws As The Model For Capitalizing On Wind Rights During The Evolution Of Wind Policy Standards, Kimberly E. Diamond, Ellen J. Crivella

Ellen J Crivella

Wind rights and access to natural wind flow raise important legal issues, policy questions, opportunities, and financial risks for landowners and their neighbors, as well as for wind facility developers. This is particularly evident with respect to the phenomenon called wake effect (downwind effect), as natural wind flow access between adjacent developers and the rights and income streams that flow with it, can be adversely impacted and can influence such developers’ decision as to whether or not to construct a wind project. Applying precedents founded on litigation-based legal theories invites confrontation between impacted parties and may not be the best …

Dead Zones: A Global Threat To Marine Ecosystems, Ashley Peterson

Ashley Peterson

Dead zones are so named because the deeper waters near the ocean floor have little or no oxygen and very few organisms can survive in such hostile conditions. This article focuses specifically on the Gulf of Mexico, Baltic Sea, Black Sea and Pacific Northwest Coast dead zones and the legislative strategies and environmental programs being implemented worldwide to combat the size of the dead zone. Unfortunately, dead zones are not decreasing in number despite these implemented strategies and programs on an international level; however evidence has shown the harmful effects of the dead zones can be reduced if steps are …

Legal Nature Of The Traded Units Under The Emissions Trading Systems And Its Implication To The Relationship Between Emissions Trading And The Wto, Wen-Chen Shih Dr

Wen-chen Shih Dr

With regard to the relationship between emissions trading and the WTO, most existing literature focuses on the emissions trading system under the Kyoto Protocol without analysing existing or forthcoming domestic or regional emissions trading systems. Furthermore, these analyses also did not differentiate between different types of emissions trading systems, in particular the possible different legal nature of various types of the ‘units’ that are being traded under different types of emissions trading system. Is this an over-simplified approach in terms of analysing the relationship between emissions trading and the WTO? This is the main research question of this article. By …

Winters And Water Conservation: A Proposal To Halt “Water Laundering” In Tribal Negotiated Settlements In Favor Of Monetary Compensation, Jesse H. Alderman

Jesse H Alderman

In the century since the U.S. Supreme Court, in Winters v. United States, granted Indian tribes reserved water rights, few tribes have received the promised delivery of water, while at the same time, the Department of Interior—the same agency tasked with a fiduciary duty to hold all tribal assets in trust—constructed massive, multibillion-dollar water projects without cognizance of senior Indian rights. The water transformed much of the West, from arid desert to a green expanse of farmland and steel-and-mirrored urban centers with populations rivaling cities in the water-rich East. However, the rapacious pace of development has placed unsustainable strain on …

Reducing Carbon Emissions From The Developing World Through Compensated Moratoria: Ecuador’S Yasuní Initiative And Beyond, Thomas M. Gremillion

Thomas M Gremillion

This articles suggests that a proposed alternative for reducing greenhouse gas (GHG) emissions—paying developing countries to forego fossil fuel exploitation in tropical forests, or “compensated moratoria”—could serve an important role in future climate change regulation. The article details Ecuador’s proposal to impose a moratorium on oil exploration in the Amazon rainforest—the Yasuní Initiative—and looks at the implications for broader climate change policy. The article briefly explores the shortcomings of prevailing policy mechanisms for mitigating GHG emissions in developing countries, and discusses how compensated moratoria could help to improve on these shortcomings. The article concludes that compensated moratoria should receive serious …

Redd, Pinc And Other Shades Of Green: Institutional Requirements For An International Forest Carbon Sequestration Treaty In A Post-Kyoto World, Kenneth R. Richards, Liz Baldwin

Kenneth R. Richards

The article examines the services needed to support an effective international forest carbon sequestration (IFCS) treaty. The international community has committed to including an IFCS program in the post-Kyoto climate change regime, but has not yet agreed on a specific structure for an IFCS agreement. Nonetheless, billions of dollars have been mobilized and funneled through existing institutions to support IFCS activities. The climate change literature includes much debate about the ideal policy approach to IFCS, but relatively little on the legal, scientific and political institutions needed to implement the various approaches. This article adds a valuable discussion of the services …