Law Commons^™

Energy Competition: From Commodity To Boutique & Back, James W. Coleman

Faculty Journal Articles and Book Chapters

Energy products such as power, gas, and oil have long been the world’s premier commodities. Consumers demand that power and fuel are available when they want it and they prefer to pay less for it. Few know or care where their fuel or power comes from. So for years energy companies believed that efforts to differentiate their products were mostly ineffective — they were re-signed to compete on price in fierce global commodity markets. But in recent years, a new focus on regulating how energy commodities are produced has begun to splinter previously integrated energy markets, creating markets for boutique …

Pipelines & Power-Lines: Building The Energy Transport Future, James W. Coleman

Faculty Journal Articles and Book Chapters

The United States is in the middle of three profound energy revolutions — with booming production of renewable power, natural gas, and oil. The country is replacing coal power with renewable and natural gas power, reducing pollution while saving consumers money. And it has dramatically cut its oil imports while becoming, for the first time in half a century, an important oil exporter. The U.S. is on the cusp of an energy transformation that will provide immense economic and environmental benefits.

This new energy economy will require massive investment in energy transport — especially power lines to bring wind and …

How Cheap Is Corporate Talk? Comparing Companies' Comments On Regulations With Their Securities Disclosures, James W. Coleman

Faculty Journal Articles and Book Chapters

When companies face adverse proposed rules, they may want to convince regulators that the proposed rules are unworkable and should be changed while, at the same time, reassuring investors that the rules will be manageable. These conflicting incentives may lead to inconsistent messages in regulatory comments and securities disclosures, fueling a perception that corporate submissions to regulators are cheap talk. Despite this perception, there has been no empirical study comparing statements to these two audiences. This project performs such a study, taking the example of comments submitted on the Environmental Protection Agency's Renewable Fuel Standard. This standard provides an ideal …

Calibrating Liquefied Natural Gas Export Life Cycle Assessment: Accounting For Legal Boundaries And Post-Export Markets, James W. Coleman, Adebola Kasumu, Jeanne Liendo, Vivian Li, Sarah Marie Jordaan

Faculty Journal Articles and Book Chapters

The climate impact of liquefied natural gas (LNG) export from North America is one of the most pressing questions for Canadian and world energy policy today. This paper performs the first life cycle assessment (LCA) of the greenhouse gas emissions from LNG exports from Canada, assuming that importing countries use the natural gas for electricity generation. It shows that the climate impact of LNG depends on where it is sent. If LNG from Canada displaces electricity in coal-dependent countries, it will likely lower global greenhouse gas emissions. If it displaces electricity from countries that rely on low carbon sources such …

The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(1)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. Determination of the appropriate cause of action has consequences for the standard of liability, the statute of limitations, and the protection afforded parties who settle with the government.

The relationship among these causes of action has been the source …

Importing Energy, Exporting Regulation, James W. Coleman

Faculty Journal Articles and Book Chapters

This Article identifies and addresses a growing contradiction at the heart of United States energy policy. States are the traditional energy regulators and energy policy innovators — a role that has only grown more important without a settled federal climate policy. But federal regulators and market pressures are increasingly demanding integrated national and international energy markets. Deregulation, the rise of renewable energy, the shale revolution, and new sources of motor fuel precursors like crude and ethanol have all increased interstate energy trade.

The Article shows how integrated national energy markets are driving states to regulate imported fuel and electricity based …

Unilateral Climate Regulation, James W. Coleman

Faculty Journal Articles and Book Chapters

It is now plain that decades of negotiation toward a binding global climate treaty have failed. Yet, at the same time, many nations are adopting a range of unilateral policies to address climate change. The existing literature on climate policy neglects these unilateral climate regulations because it focuses on the necessity and possible design of a multilateral climate treaty. But these domestic regulations present a unique puzzle: given that climate outcomes are determined by global emissions, and that unilateral regulations inevitably influence incentives to regulate elsewhere, how can domestic action achieve the greatest marginal reduction in global emissions? In other …

Exporting Waste: Regulation Of The Export Of Hazardous Wastes From The United States, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

The international trade in hazardous wastes has been a subject of controversy for decades. Notorious examples of hazardous wastes being improperly disposed of in Africa have created concern about the legitimacy of developed western countries “dumping” the hazardous byproducts of their industrial development on less-developed countries.

This article examines the legal bases for EPA’s regulation of the exports of hazardous waste under the Resource Conservation and Recovery Act. It contains a detailed examination of EPA’s complex sets of export regulations and provides data on the actual scope of exports reported to EPA. It examines a series of questions regarding EPA’s …

Rethinking Recycling, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

Subtitle C of the Resource Conservation and Recovery Act (RCRA) establishes the so-called “cradle to grave” regulatory program over hazardous “solid wastes.” Although not obviously wastes, the United States Environmental Protection Agency (EPA) has consistently asserted jurisdiction to regulate some class of recyclable materials under Subtitle C. It has done this through a regulatory definition of “solid waste” that establishes a complex and confusing scheme that includes, excludes, and exempts recyclable materials from regulatory requirements in an almost incomprehensible fashion. In 2008, EPA added to this complexity by promulgating a new set of conditional exclusions that exempts certain reclaimed materials …

Would It Be Unethical To Dump Radioactive Wastes In The Ocean? The Surprising Implications Of The Person-Altering Consequences Of Policies, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

This article examines whether policy-making is constrained by ethical obligations to future generations. While there is broad consensus that we have ethical obligations to implement policies that benefit distant future generations, the author deems it impossible to formulate a satisfactory rationale for this position based solely on conventional ethical premises. The author reaches this conclusion after considering the ethical implications of the pervasiveness of person-altering consequences.

Generally Illegal: Npdes General Permits Under The Clean Water Act, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

Under the Clean Water Act, it is unlawful for a point source to discharge pollutants without a National Pollutant Discharge Elimination System (“NPDES”) permit. Most NPDES permits are issued to individual facilities, but since 1979, EPA and States have had a process of issuing “General Permits” to satisfy the requirements of the Clean Water Act. These General Permits may contain enforceable effluent limitations and other requirements, but, unlike individual permit, they may apply to large numbers of sources discharging into many different bodies of water. The conditions of a General Permit are developed through a “notice and comment” process similar …

United States V. Atlantic Research: The Supreme Court Almost Gets It Right, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Environmental Law, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

New Sources, New Growth And The Clean Water Act, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

This Article is discusses the means by which the federal Clean Water Act addresses the problem of growth in connection with the achievement and maintenance of water quality standards. The article discusses those existing water quality standards requirements that most directly affect the issue of growth. These include two distinct, and largely unrelated, sets of requirements. First, the Article discusses those provisions that affect the regulation of new or expanded discharges on waters not yet meeting water quality goals. These include, among others, the provisions of the TMDL process that address the allocation of waste loads to account for growth, …

We Do Not Hold The Earth In Trust, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Regulation By Bootstrap: Contingent Management Of Hazardous Wastes Under The Resource Conservation And Recovery Act, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

In the last few years, EPA has increasingly employed the questionable technique of “contingent management” to regulate wastes under the federal Resource Conservation and Recovery Act (RCRA) in order to limit the costs and avoid the stigma of hazardous waste classification. Through the technique of contingent management, EPA has exempted materials from classification as hazardous waste on the condition that the materials are managed in the particular manner specified in the regulation. The ultimate bootstrap, contingent management allows EPA to regulate non-hazardous wastes over which it has no statutory jurisdiction. Perhaps more troubling, contingent management allows EPA to avoid the …

South Camden And Environmental Justice: Substance, Procedure, And Politics, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Environmental Ethics And Our Moral Relationship To Future Generations: Future Rights And Present Virtue, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

A central issue in environmental ethics is characterization of our “moral relationship” to future generations. What, if any, obligations do we owe to the future? How should our present actions be influenced by their impact on the future?

The purpose of this article is to characterize and hopefully clarify certain aspects of this “moral relationship.” First, the article identifies those distinctive qualities that distinguish a moral analysis of our relationship to future generations from the moral analysis that will apply to an assessment of our actions on our own generation. It suggests that the issue of our moral relationship to …

Tax Deduction Of Hazardous Waste Cleanup Costs: Harmonizing Federal Tax And Environmental Policies, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

The issue of the deductibility of environmental cleanup costs involves the complex and painful intersection of tax and environmental law. The basic issue is whether environmental remediation costs may be immediately deducted as ordinary and necessary expenses or whether they must they be capitalized as improvements to land. A recent revenue ruling by the IRS, Rev. Rul. 94-38, addresses a relatively simple situation but basically leaves the most difficult issues unresolved.

This article discusses whether cleanup expenses may be immediately deducted when the payments were made by the current landowner and 1) the contamination was caused and cleaned up by …

The Mixture And Derived-From Rules Under Rcra: Once A Hazardous Waste Always A Hazardous Waste, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Gwaltney Is Full Of Baloney: Protection From Citizen Suits For Past Npdes Violations May Not Be Much Protection At All, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Solid Waste And Recycled Materials Under Rcra: Separating Chaff From Wheat, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Recovering Hazardous Waste Cleanup Costs: The Private Cause Of Action Under Cercla, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a broadly defined group of landowners, transporters, and generators of hazardous waste are liable for the costs of cleaning up hazardous waste sites. CERCLA provides the government with powerful tools to impose this liability. The United States Environmental Protection Agency (EPA) has the authority both to compel responsible parties to clean up the site or to clean up the site itself and recover its expenses from these parties.

The government is not the only party, however, that can impose liability for hazardous waste cleanup costs. Section 107(a)(4)(B) of CERCLA provides …

Federal Supervision Of State Water Quality Standards Under The Clean Water Act, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

The water quality standards provisions of section 303 of the Clean Water Act establish one of the basic mechanisms by which restrictions can be placed on the discharge of pollutants to the nation’s waters. This article discusses the history of the water quality standards program, and the role and structure of water quality standards under the Clean Water Act. Although nominally established by states, water quality standards are subject to review and approval by the Environmental Protection Agency. The article specifically addresses EPA policies that establish minimum requirements for approval of state water quality standards. Among other things, the article …

Regulation Of Municipal Solid Waste Through Taxation: The New York Recycling Incentive Tax, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.