Law Commons^™

Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair

Faculty Scholarship

Achieving widespread adoption of innovative electricity generation technologies involves a complex system of research, development, demonstration, and deployment, with each phase then informing future developments. Despite a number of non-regulatory programs at the federal level to support this process, the innovation premium—the increased cost and technology risk often associated with innovative generation technologies—creates hurdles in the state public utility commission (“PUC”) process. These state level regulatory hurdles have the potential to frustrate federal energy goals and prevent the learning process that is a critical component to technology innovation. This Article explores how and why innovative energy technologies face challenges in …

Designing Co2 Performance Standards For A Transitioning Electricity Sector: A Multi-Benefits Framework, Jonas J. Monast, David Hoppock

Faculty Scholarship

A significant transition is underway within the electricity sector due to several market forces, retirement of certain plants, and regulatory pressures. There is notable overlap between available strategies for mitigating electricity sector risks and potential compliance strategies for states under the Clean Power Plan. This overlap presents regulators with an opportunity to pursue strategies that help manage the transition occurring in the electricity sector and achieve greenhouse gas reductions required under the Clean Power Plan, particularly in the areas of end-use energy efficiency and additional renewable power generation.

Banning Lawns, Sarah Schindler

Sturm College of Law: Faculty Scholarship

Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States. Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that …

Book Review, David R. Boyd, The Right To A Healthy Environment, Revitalizing Canada's Constitution, Bradford Mank

Faculty Articles and Other Publications

Boyd’s new book, The Right to a Healthy Environment, attempts to prove that Canadians would benefit if they amended their constitution to recognize the right to a healthy environment. Throughout this work, he emphasizes the general benefits of recognizing environmental rights as human rights and the positive impact recognizing these rights in the Canadian constitution would have on the lives of Canadian citizens. He examines the gradual domestic emergence of environmental rights both in Canadian law and from a global perspective. By including both viewpoints, Boyd attempts to identify the complexities and intricate questions that arise regarding various environmental issues …

Anti-Waste, Michael Pappas

Faculty Scholarship

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or …

The Role Of Civil Society In Environmental Governance In The United States And China, Robert V. Percival, Zhao Huiyu

Faculty Scholarship

No abstract provided.

Energy Versus Property, Michael Pappas

Faculty Scholarship

This article is the first to detail the balance legislatures and courts have struck between private property rights and the compelling public interest in energy production. By examining how property rights have consistently yielded to energy development from colonial times to the most recent decisions involving hydraulic fracturing (“fracking”), it identifies a coherent energy/property balance that has shaped property expectations to accommodate energy needs. The article then applies this insight to current disputes pitting aggressive renewable energy policies— such as nuisance immunity or mandatory installations on private property— against fundamental property expectations— the right to exclude and the right to …

Performance Track’S Postmortem: Lessons From The Rise And Fall Of Epa’S “Flagship” Voluntary Program, Cary Coglianese, Jennifer Nash

All Faculty Scholarship

For nearly a decade, the United States Environmental Protection Agency (“EPA”) considered its National Environmental Performance Track to be its “flagship” voluntary program — even a model for transforming the conventional system of environmental regulation. Since Performance Track’s founding during the Clinton Administration, EPA officials repeatedly claimed that the program’s rewards attracted hundreds of the nation’s “top” environmental performers and induced these businesses to make significant environmental gains beyond legal requirements. Although EPA eventually disbanded Performance Track early in the Obama Administration, the program has been subsequently emulated by a variety of state and federal regulatory authorities. To discern lessons …

The Social Cost Of Of Inertia: How Cost-Benefit Incoherence Threatens To Derail U.S. Climate Action, Melissa Luttrell

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Next Generation Of Trade And Environment Conflicts: The Rise Of Green Industrial Policy, Mark Wu, James Salzman

Faculty Scholarship

A major shift is transforming the trade and environment field, triggered by governments’ rising use of industrial policies to spark nascent renewable energy industries and to restrict exports of certain minerals in the face of political economy constraints. While economically distorting, these policies do produce significant economic and environmental benefits. At the same time, they often violate World Trade Organization (WTO) rules, leading to increasingly harsh conflicts between trading partners.

This Article presents a comprehensive analysis of these emerging conflicts, arguing that they represent a sharp break from past trade and environment disputes. It examines the causes of the shift …

Endogenous Decentralization In Federal Environmental Policies, Howard F. Chang, Hilary Sigman, Leah G. Traub

All Faculty Scholarship

Under most federal environmental laws and some health and safety laws, states may apply for “primacy,” that is, authority to implement and enforce federal law, through a process known as “authorization.” Some observers fear that states use authorization to adopt more lax policies in a regulatory “race to the bottom.” This paper presents a simple model of the interaction between the federal and state governments in such a scheme of partial decentralization. Our model suggests that the authorization option may not only increase social welfare but also allow more stringent environmental regulations than would otherwise be feasible. Our model also …

An Empirical Analysis Of Cost Recovery In Superfund Cases: Implications For Brownfields And Joint And Several Liability, Howard F. Chang, Hilary Sigman

All Faculty Scholarship

Economic theory developed in the prior literature indicates that under the joint and several liability imposed by the federal Superfund statute, the government should recover more of its costs of cleaning up contaminated sites than it would under nonjoint liability, and the amount recovered should increase with the number of defendants and with the independence among defendants in trial outcomes. We test these predictions empirically using data on outcomes in federal Superfund cases. Theory also suggests that this increase in the amount recovered may discourage the sale and redevelopment of potentially contaminated sites (or “brownfields”). We find the increase to …

Climate Change Securities Disclosures In Australia, Amanda Liu

Sabin Center for Climate Change Law

This working paper looks at the extent to which current securities filings regulations with the Australian securities authorities require (or alternatively, recommend) listed Australian Securities Exchange (ASX) entities to disclose climate change risks on the performance of a listed entity. The paper also reviews what in practice is being reported for the 2013 reporting year.

Green Siting For Green Energy, Amy Wilson Morris, Jessica Owley, Emily Capello

Articles

No abstract provided.

Climate Change And Business Law In The United States: Using Procurement, Pay, And Policy Changes To Influence Corporate Behavior, Marcia Narine

Articles

No abstract provided.

Creatures Of Circumstance: Conflicts Over Local Government Regulation Of Oil And Gas, Alex Ritchie

Faculty Scholarship

Scholars periodically note the impending upsurge in local oil and gas regulation, offering various reasons for increased local action. Papers written only a few years ago attribute greater local action in the West to population growth, increased urbanization, and increased demand for energy. Consider, however, more recent phenomena. First, population migration from more liberal states to more traditionally conservative producing states likely plays a role, as new residents [11-4] bring perspectives opposing drilling activity. Second, while the suburbs continue to expand into the oil patch, the oil patch has expanded into the suburbs and urban areas as well. Hydraulic fracturing …

Environmental Issues In The Allocation And Management Of Western Interstate Rivers, Reed D. Benson

Faculty Scholarship

No abstract provided.

Identifying Legal, Ecological And Governance Obstacles, And Opportunities For Adapting To Climate Change, Barbara Cosens

Articles

No abstract provided.

Adaptive Water Governance Project: Assessing Law, Resilience And Governance In Regional Socio-Ecological Water Systems Facing A Changing Climate, Barbara Cosens

Articles

No abstract provided.

A Decade Of Adaptive Governance Scholarship: Synthesis And Future Directions, Barbara Cosens

Articles

Adaptive governance is an emergent form of environmental governance that is increasingly called upon by scholars and practitioners to coordinate resource management regimes in the face of the complexity and uncertainty associated with rapid environmental change. Although the term “adaptive governance” is not exclusively applied to the governance of social-ecological systems, related research represents a significant outgrowth of literature on resilience, social-ecological systems, and environmental governance. We present a chronology of major scholarship on adaptive governance, synthesizing efforts to define the concept and identifying the array of governance concepts associated with transformation toward adaptive governance. Based on this synthesis, we …

Virtual Water, Water Scarcity, And International Trade Law, Edith Brown Weiss, Lydia Slobodian

Georgetown Law Faculty Publications and Other Works

We are facing a fresh water crisis during this century. In less than two decades, by 2030, the requirements for fresh water are expected to exceed the currently available and accessible fresh water supplies by 40%. Many countries are expected to be water stressed later in this century; some areas of the world already are. Some people may even lack water to meet basic human needs, such as drinking, washing, and sanitation. In rural areas in certain regions, people may lack water to grow good food crops, even for their own consumption. This has major implications for the welfare of …

How The Supreme Court Uses The Certiorari Process In The Ninth Circuit To Further Its Pro-Business Agenda: A Strange Pas De Deux With An Unfortunate Coda, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article examines the proposition that the Roberts Court has an unusually strong pro-business slant through the lens of the Court's certiorari process. The Article uses data from the grant or denial of certiorari petitions filed in environmental cases over a sixteen-year period in both the Ninth and District of Columbia Circuits, selected because each court hears a large number of environmental cases. The recent record in the Ninth Circuit, where environmentalists win below only to lose in the high court, or lose below and subsequently have their petitions denied, is quite different from that in the D.C. Circuit. In …

Voluntary Commitments As Emerging Instruments In International Environmental Law, Edith Brown Weiss

Georgetown Law Faculty Publications and Other Works

Today we confront a critical environmental challenge: how to protect the human environment for ourselves and future generations in the face of our unprecedented capacity to alter fundamental physical cycles with global and longrange implications for the robustness of our planet.

Scientists observe that we are leaving the stable Holocene Epoch, embarking on a new geological epoch, the Anthropocene, in which humans are the major force for change to the planet. There is evidence that the fundamental carbon and nitrogen cycles are accelerating significantly, and that the hydrological cycle is speeding up. The latter can lead to devastating impacts from …

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

UF Law Faculty Publications

In Koontz v. St. Johns River Water Management District, a 5-4 majority of the United States Supreme Court reversed a state court decision that had limited the application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan concern the imposition of regulatory conditions on proposed development, also called exactions, which commonly occurs in land use regulation. In Koontz, a property owner challenged a regulatory agency's denial of his permit application following failed negotiations over exactions. The Florida Supreme Court had concluded that Nollan and Dolan did not extend to conditions that …

The Day After Tomorrow: A Survey Of How Gulf Coast State Utility Commissions And Utilities Are Preparing For Future Storms, Katherine Carey

Sabin Center for Climate Change Law

With widespread outages caused by devastating natural disasters such as Superstorm Sandy and Hurricane Ike in the nation’s recent memory, the public wants to know that the electric utility industry is prepared to withstand and respond to the storms of the future. But is the industry prepared? The government’s role in regulating the electric utility industry makes it impossible to properly analyze why industry players are prepared or unprepared without looking at the actions and decisions of the state regulatory officials. The industry’s actions are inherently tied to the regulations it is required to follow and the costs it is …

Reverse Environmental Assessment Analysis For The Adaptation Of Projects, Plans, And Programs To The Effects Of Climate Change In The Eu Evaluation Of The Proposal For An Eia Directive, Teresa Parejo-Navajas

Sabin Center for Climate Change Law

It is clear that mitigation measures are not enough to tackle climate change effects and, therefore, some adaptation measures will be needed to improve resiliency. The new Reverse Environmental Impact Assessment (REIA) analysis, so named by Professor Michael B. Gerrard1, evaluates the impacts that the “transformed environment” – a result of the adverse effects of climate change – may cause to a project, plan, or program, in order to allow those undertaking these activities to act proactively.

There are many countries that have taken action accordingly. The EU has elaborated “Guidances” on integrating climate and biodiversity into either the Environmental …

New York Environmental Legislation And Regulations In 2013, Michael B. Gerrard

Faculty Scholarship

New laws were signed by Governor Andrew Cuomo in 2013 regarding notice requirements in the Brownfield Cleanup Program, Bottle Bill enforcement, mercury thermostats, oversized lobsters, shark fins, and Eurasian boars, among other things. On the regulatory front, the state promulgated final regulations concerning New York’s participation in the Regional Greenhouse Gas Initiative and regulatory relief for certain dairy farms, and proposed regulations for liquefied natural gas facilities and invasive species.

This annual survey describes new environmental laws that were enacted in New York in 2013, as well as several significant regulatory developments. The survey identifies the laws by their chapter …

Us Federal Climate Change Law In Obama’S Second Term, Michael B. Gerrard, Shelley Welton

Faculty Scholarship

This commentary details the United States’ progress in advancing climate change law since President Barrack Obama’s re-election in 2012, in spite of congressional dysfunction and opposition. It describes how the Obama administration is building upon earlier regulatory efforts by using existing statutory authority to regulate greenhouse gas emissions from both new and existing power plants. It also explains the important role the judiciary has played in facilitating more robust executive actions, while at the same time courts have rejected citizen efforts to force judicial remedies for the problem of climate change. Finally, it suggests some reasons why climate change has …

Solving The Cso Conundrum: Green Infrastructure And The Unfulfilled Promise Of Federal-Municipal Cooperation, Casswell F. Holloway, Carter H. Strickland Jr., Michael B. Gerrard, Daniel M. Firger

Faculty Scholarship

Faced with mounting infrastructure construction costs and more frequent and severe weather events due to climate change, cities across the country are managing the water pollution challenges of stormwater runoff and combined sewer overflows through new and innovative "green infrastructure" mechanisms that mimic, maintain, or restore natural hydrological features in the urban landscape. When utilized properly, such mechanisms can obviate the need for more expensive pipes, storage facilities, and other traditional "grey infrastructure" features, so named to acknowledge the vast amounts of concrete and other materials with high embedded energy necessary in their construction. Green infrastructure can also provide substantial …

Weathering Nepa Review: Superstorms And Super Slow Urban Recovery, John Travis Marshall

Faculty Publications By Year

Delays in implementing long-term neighborhood housing recovery measures following urban disasters profoundly disrupt a city's revitalization and resurgence. Following recent large-scale urban disasters, some blame the National Environmental Policy Act environmental and historical review requirement for greatly slowing the long-term recovery process. They claim that the National Environmental Policy Act review is ill suited for the exigencies of disasters. Finding effective ways to advance urban disaster recovery as quickly as possible, while not compromising key environmental quality objectives, is a central challenge to implementing effective post-disaster recovery plans. This Article addresses how best to balance necessary regulation with critical disaster …