Law Commons^™

Sustainable Development And The Reconciliation Of Opposites, Alison Peck

Alison Peck

This essay proposes a shift in thinking about the project of sustainable development. Many legal scholars have lamented the limitations of the concept: In cases where no win/win outcome can be identified even after the most careful and coordinated measurement, they argue, the old power struggles between proponents of economics, environment and equity will be entrenched. This essay agrees that sustainable development, by definition, encompasses irresolvable tensions. But this fact becomes less troubling if we abandon the Enlightenment-influenced rationalism that demands such resolution, and instead consider sustainable development through more anti-rationalist traditions: the analytical psychology of Carl G. Jung, and …

Market Power In Power Markets: The Filed Rate Doctrine And Competition In Electricity, Sandeep Vaheesan

Sandeep Vaheesan

State and federal initiatives have opened the American electric power industry to competition over the past four decades. Although the process has not occurred uniformly across the country, wholesale markets exist everywhere today. Independent power producers can now construct generation facilities and sell their output to utilities and direct purchasers through bilateral contracts. In many regions, centralized power markets have also been established and facilitate the sale of billions of dollars in electricity annually through hourly auctions.

As market forces have replaced direct price regulation in electricity, antitrust enforcement, however, has not expanded its role commensurately. Even though a lack …

Renewable Energy: A Solution With Its Own Problems, Michael L. Elion

Michael L Elion

The United States faces crises of energy availability and environmental degradation caused by its dependence on fossil fuels for energy. Despite these realities, the United States’ antiquated infrastructure continues to carry energy generated predominantly by fossil fuel-burning and nuclear power plants to homes and businesses. The threats the U.S. electric system poses to the environment are grave, yet the U.S. energy industry has failed to take full advantage of new electrical engineering technologies that would upgrade the electrical system. Why, in this era of rapid climate change and rising electricity costs have policy-makers, energy-producers, and government regulators failed to implement …

Climate Change Litigation: Potential Reasons Canada Lags Behind The United States, Morgan Mcdonald

Morgan McDonald

Despite the overwhelming evidence that climate change threatens our environmental security, governments have neglected to enact comprehensive legislation regulating greenhouse gas (GHG) emissions. Since the political realm has failed to act, climate litigants have turned to the judicial branch to force GHG reform. Although the US and Canada support similar GHG emitting corporations and have similar legal systems, their experience in climate litigation is strikingly different. While US courts have seen approximately five hundred climate change actions, Canada has seen only two cases. The remarkable absence of climate litigation in Canada is concerning because these actions play an essential role …

Market Power In Power Markets: The Filed Rate Doctrine And Competition In Electricity, Sandeep Vaheesan

Sandeep Vaheesan

State and federal initiatives have opened the American electric power industry to competition over the past four decades. Although the process has not occurred uniformly across the country, wholesale markets exist everywhere today. Independent power producers can now construct generation facilities and sell their output to utilities and direct purchasers through bilateral contracts. In many regions, centralized power markets have also been established and facilitate the sale of billions of dollars in electricity annually through hourly auctions.

As market forces have replaced direct price regulation in electricity, antitrust enforcement, however, has not expanded its role commensurately. Even though a lack …

Does The Federal Government Own The Pore Space Under Private Lands In The West? Implications Of The Stock-Raising Homestead Act Of 1916 For Geologic Storage Of Carbon Dioxide, Kevin L. Doran, Angela Cifor

Kevin L Doran

This paper establishes that pursuant to the mineral reservation contained in the Stock-Raising Homestead Act of 1916 (SRHA), as well as U.S. Supreme Court jurisprudence that has further defined the scope of that reservation, the federal government likely holds title to some 70 million acres of subsurface pore space located under private land in the West. In addressing the issue of pore space ownership, scholars and regulators have focused on the question of who owns the pore space when the mineral estate has been severed from the surface estate. This approach, however, overlooks the critical fact that for the approximately …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …

Ripening On The Vine: North Carolina's Renewable Energy And Energy Efficiency Portfolio Standard Should Be Left Unchanged Ahead Of 2012 Compliance Deadline, Patrick Thomas Buffkin, Bob W. Kaylor

Patrick Thomas Buffkin

This article focuses on North Carolina’s renewable energy and energy efficiency portfolio standard (REPS) statute. The REPS statute stands out as the first enacted by a Southeastern state. Moreover, the implementation of the REPS statute in North Carolina presents an opportunity for understanding energy policy in a state that grew by 18.5% from 2000-2010 to become the 10th most populous in the nation. This article examines the development and implementation of the REPS as the first important compliance deadline approaches in 2012. First, the article provides a case study of the legislative process to inform state and federal policy-makers of …

Preempting Parochialism And Protectionism In Power, Sandeep Vaheesan

Sandeep Vaheesan

In the twenty-first century, the electric power industry is becoming increasingly regional in geographic scope. Due to the creation of wholesale power markets and the development of renewable energy resources, greater quantities of power flow across state lines today than at any time in the history of the industry. With this growth in the interstate trade in power, expanding the transmission grid can yield significant regional benefits. New transmission lines can enhance system reliability, reduce the level and volatility of power prices, and improve the environment on a local and global scale. While the benefits of new transmission are broadly …

The Future Of U.S. Geothermal Development: Alternative Energy Or Green Pipe Dream?, Jeremiah Williamson

Jeremiah Williamson

As a result of increasing evidence of anthropogenic causes of climate change, federal and state governments enacted policies supporting the development of alternative, lower emission energy sources. These policies led to considerable growth in renewable energy development. Wind and solar energy in particular have led the growth, but neither is able to provide reliable baseload electric power due to their intermittent nature. In this regard, geothermal presents an important component in the creation of a renewable U.S. energy portfolio. Geothermal, like solar and wind, has grown rapidly in recent years, but it remains uncertain whether the recent renaissance in geothermal …

Energy (In)Efficiency In The Local Food Movement: Food For Thought, Lauren B. Kaplin

Lauren Kaplin

“Eating local” is a growing trend in the American food system, with environmentalists and foodies alike advocating for shorter food transportation distances from farm to table (the average in the United States is about 1,500 miles ). Not only have local food systems gained followers through farmer’s markets, locally sourced restaurants, and community supported agriculture (“CSA”) enterprises, but the locavore trend has begun to gain momentum on Capitol Hill as well: various federal and state programs support local food initiatives, the United States Department of Agriculture (the “USDA”) has published materials considering the impact of going local, and the Obamas …

The Role Of The Judge In Endangered Species Act Litigation: District Judge James Redden And The Columbia Basin Salmon Saga, Michael C. Blumm, Aurora Paulsen

Michael Blumm

After rejecting three federal biological opinions (BiOps) for favoring federal Columbia Basin hydroelectric operations over salmon protected by the Endangered Species Act (ESA), Judge James A. Redden has retired, passing oversight of the litigation to a new federal judge. This complex case, which concerns the accommodations the world’s largest hydropower system must give to the region’s signature natural resource, has now spanned nearly twenty years and five different BiOps. For his part, Judge Redden worked closely with the parties in an attempt to arrive at improvements in salmon survival. In this managerial role, he acted perhaps as the archetypical federal …

The Oil And Gas Evolution: Learning From The Hydraulic Fracturing Experiences In North Dakota And West Virginia, Joshua P. Fershee

Joshua P Fershee

This Article discusses major differences and similarities in U.S. oil and gas extraction via hydraulic fracturing through a comparison of the experiences in North Dakota and West Virginia. Although there are other parts of the country experiencing growth in oil and gas extraction, Pennsylvania and Texas as but two examples, North Dakota and West Virginia are particularly apt for comparison. Both states have relatively small populations, meaning that the impact of large-scale energy extraction in each state is likely to have a large impact on the state, economically, environmentally, and socially.

This Article focuses on three main areas of comparison. …

Promoting An All Of The Above Approach Or Pushing (Oil) Addiction And Abuse?: The Curious Role Of Energy Subsidies And Mandates In U.S. Energy Policy, Joshua P. Fershee

Joshua P Fershee

President Bush declared America “addicted to oil” in his fifth State of the Union address, uttering what is now a common refrain used to urge the development of alternative fuel sources. Before progress can be made to modernize the U.S. fuel mix, though, it is important to consider how and why the current fuel mix came to be. To do so, this article first considers whether the United States is, in fact, addicted to oil. The article looks to the medical definitions of addiction and analyzes the U.S. relationship with oil to assist in analyzing the potential effectiveness of U.S. …

A Darwinian Approach: Interpreting An Operator's Obligations Under The A.A.P.L. Model Form Operating Agreement From And Evolutionary Perspective, Christopher A. Tumminia

Christopher A Tumminia

This paper examines the current interpretation of the A.A.P.L. Model Form Operating Agreement in comparison to its previous editions and proposes revised Articles V.A. and VII.A. to resolve issues of ambiguity.

A New And Improved Energy Reality—It's No Pipedream, Daniel Hare

Daniel Hare

In this paper, I propose an original policy solution to the complicated issue of permitting and regulatory review for cross-border natural resource projects to allow for a smoother, quicker approval process for certain types of projects. I have specifically designed this new procedure so as to focus on political compromise and minimize political partisanship, while instead concentrating on achieving results. By modifying the current regulatory standard to a more streamlined model, deserving cross-border natural resource projects can swiftly gain approval, yet environmental, economic, foreign policy, national security, and other significant concerns will still receive the attention and thorough evaluation they …