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Environmental Law

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Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team Jan 2019

Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team

Faculty Scholarship

The CarbonSAFE Cascadia project team is conducting a pre-feasibility study to evaluate technical and nontechnical aspects of collecting and storing 50 MMT of CO2 in a safe, ocean basalt reservoir offshore from Washington State and British Columbia. Sub-seafloor basalts are very common on Earth and enable CO2 mineralization as a long-term storage mechanism, permanently sequestering the carbon in solid rock form. Our project goals include the evaluation of this reservoir as an industrial-scale CO2 storage complex, developing potential source/transport scenarios, conducting laboratory and modeling studies to determine the potential capacity of the reservoir, and completing an ...


Heat Waves: Legal Adaptation To The Most Lethal Climate Disaster (So Far), Michael B. Gerrard Jan 2019

Heat Waves: Legal Adaptation To The Most Lethal Climate Disaster (So Far), Michael B. Gerrard

Faculty Scholarship

Globally, the ten warmest years on record have all been since 1998, with the four warmest years occurring since 2014. In the contiguous United States, average annual temperatures are about 1.8°F higher than they were over the period from 1895-2016. This is expected to increase by about 2.5°F before mid-century, regardless of what happens to greenhouse gas levels. If, at the end of this century, greenhouse gas emissions are at the Intergovernmental Panel on Climate Change’s high scenario (termed “RCP 8.5”), average U.S. temperatures could go up by as much as 11.9 ...


Overcoming Impediments To Offshore Carbon Dioxide Storage: Legal Issues In The U.S. And Canada, Romany M. Webb, Michael B. Gerrard Jan 2019

Overcoming Impediments To Offshore Carbon Dioxide Storage: Legal Issues In The U.S. And Canada, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Limiting future temperature increases and associated climate change requires immediate action to prevent additional carbon dioxide being released into the atmosphere and lower the existing atmospheric carbon dioxide load. According to the Intergovernmental Panel on Climate Change, to remain within the 2oC temperature threshold set in the Paris Agreement, emissions must be reduced to “net zero” by mid-century or shortly thereafter and then go “net negative.” This goal could be advanced through carbon capture and storage (CCS), which involves collecting carbon dioxide that would otherwise be released by power plants or similar facilities and injecting it into underground geologic formations ...


Climate Change And Human Trafficking After The Paris Agreement, Michael Gerrard Jan 2018

Climate Change And Human Trafficking After The Paris Agreement, Michael Gerrard

Faculty Scholarship

At least 21 million people globally are victims of human trafficking, typically involving either sexual exploitation or forced labor. This form of modern-day slavery tends to increase after natural disasters or conflicts where large numbers of people are displaced from their homes and become highly vulnerable. In the decades to come, climate change will very likely lead to a large increase in the number of people who are displaced and thus vulnerable to trafficking. The Paris Climate Agreement of 2015 established objectives to limit global temperature increases, but the voluntary pledges made by nearly every country fall far short of ...


Legal Pathways For A Massive Increase In Utility-Scale Renewable Generation Capacity, Michael Gerrard Jan 2017

Legal Pathways For A Massive Increase In Utility-Scale Renewable Generation Capacity, Michael Gerrard

Faculty Scholarship

Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (ELI Press forthcoming 2018), discusses the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Policy Act; state ...


Our Regionalism, Jessica Bulman-Pozen Jan 2017

Our Regionalism, Jessica Bulman-Pozen

Faculty Scholarship

This article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States — through interstate cooperation, organization of federal administrative agencies, and hybrid state-federal efforts — it explores how regions have shaped American governance across the twentieth and early twenty-first centuries. In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to develop its ...


Policy Readiness For Offshore Carbon Dioxide Storage In The Northeast, Romany Webb, Michael Gerrard Jan 2017

Policy Readiness For Offshore Carbon Dioxide Storage In The Northeast, Romany Webb, Michael Gerrard

Faculty Scholarship

Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion, or it can be injected into underground geological formations – e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs – where, it is hoped, it will remain permanently sequestered (“carbon ...


Climate Change And Human Trafficking After The Paris Climate Agreement, Michael Gerrard Jan 2016

Climate Change And Human Trafficking After The Paris Climate Agreement, Michael Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa and other parts of the continent. Climate change can cause displacement in multiple ways. No reliable estimates exist of the number of people who will be displaced partly or wholly by climate change, due to uncertainties concerning the ...


Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, Michael Burger, Ann E. Carlson, Michael Gerrard, Jayni Hein, Jason A. Schwartz, Keith J. Benes Jan 2016

Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, Michael Burger, Ann E. Carlson, Michael Gerrard, Jayni Hein, Jason A. Schwartz, Keith J. Benes

Faculty Scholarship

Under President Barack Obama the U.S. Environmental Protection Agency has promulgated a series of greenhouse gas emissions regulations, initiating the necessary national response to climate change. However, the United States will need to find other ways to reduce GHG emissions if it is to live up to its international emissions reduction pledges, and to ultimately lead the way to a zero-carbon energy future. This paper argues that the success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the ...


Legal & Scientific Integrity In Advancing A "Land Degradation Neutral World", Shelley Welton, Michela Biasutti, Michael Gerrard Jan 2014

Legal & Scientific Integrity In Advancing A "Land Degradation Neutral World", Shelley Welton, Michela Biasutti, Michael Gerrard

Faculty Scholarship

It is no secret that the fight against desertification isn't going well. In the two decades since the United Nations Convention to Combat Desertification (UNCCD) came into force, desertification has worsened considerably. Many within the desertification community and beyond are calling for a fresh approach to the problem: the establishment of a global goal to achieve a "land-degradation neutral world." However, the call for land degradation neutrality has not been universally celebrated, particularly given the questionable track record of past "no net loss" policies. This article looks at ways to advance global land degradation neutrality into a concept – and ...


A Turquoise Mess: Green Subsidies, Blue Industrial Policy And Renewable Energy: The Case For Redrafting The Subsidies Agreement Of The Wto, Aaron Cosbey, Petros C. Mavroidis Jan 2014

A Turquoise Mess: Green Subsidies, Blue Industrial Policy And Renewable Energy: The Case For Redrafting The Subsidies Agreement Of The Wto, Aaron Cosbey, Petros C. Mavroidis

Faculty Scholarship

Canada-Renewable Energy presented the WTO Panel and Appellate Body (AB) with a novel issue: at the heart of the dispute was a measure adopted by the province of Ontario whereby producers of renewable energy would be paid a premium relative to conventional power producers. Some WTO Members complained that the measure was a prohibited subsidy because payments were conditional upon using Canadian equipment for the production of renewable energy. The AB gave them right only in part: it found that a local content requirement had indeed been imposed, but also found that it lacked evidence to determine whether a subsidy ...


Reaching Out For Green Policies: National Environmental Policies In The Wto Legal Order, Petros C. Mavroidis Jan 2014

Reaching Out For Green Policies: National Environmental Policies In The Wto Legal Order, Petros C. Mavroidis

Faculty Scholarship

The WTO does not squarely address the issue of jurisdictional ambit of national policies (affecting trade). And yet, absent some agreement as to what trading nations can and cannot do, the WTO loses much of its effectiveness. In the absence of explicit regulation of the issue in the WTO contract, one would reasonably expect WTO Members to behave in line with the postulates governing allocation of jurisdiction embedded in public international law. WTO practice evidences neither an explicit acceptance nor a refusal of these rules.


Regulating Imports Into Rggi: Toward A Legal, Workable Solution, Shelley Welton, Michael Gerrard, Jason Munster Jan 2013

Regulating Imports Into Rggi: Toward A Legal, Workable Solution, Shelley Welton, Michael Gerrard, Jason Munster

Faculty Scholarship

This white paper evaluates the legal workability and constitutionality of what is frequently considered the most feasible mechanism for RGGI to use in regulating imports: an obligation on RGGI “load serving entities” (LSEs) – those companies responsible for supplying electricity to end-use customers – to purchase allowances to account for the emissions associated with the electricity they sell that is imported. Ultimately, although there are many design complexities yet to be worked out, we find that an LSE-centered approach could present a viable pathway forward for RGGI states’ regulation of imports. It is likely to create long-term price signals about the value ...


Meas In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis Jan 2013

Meas In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This study contributes to the debate concerning the appropriate role of multilateral environmental agreements (MEAs) in WTO law, and in particular, in WTO dispute settlement. The distinguishing feature of the study is that it seeks to address the relationship between MEAs and WTO law in light of the reason why the parties have chosen to separate their obligations into two bodies of law without providing an explicit nexus between them. The basic conclusion is that legislators’ silence concerning this relationship should speak volumes to WTO adjudicating bodies: MEAs should not be automatically understood as imposing legally binding obligations on WTO ...


Multilateral Environmental Agreements In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis Jan 2013

Multilateral Environmental Agreements In The Wto: Silence Speaks Volumes, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This study contributes to the debate concerning the appropriate role of multilateral environmental agreements (MEAs) in in WTO dispute settlement. Its distinguishing feature is that it seeks to address this relationship in light of the reason why the parties have chosen to separate their obligations into two bodies of law without providing an explicit nexus between them. The basic conclusion is that legislators’ silence concerning this relationship should speak volumes to WTO adjudicating bodies: MEAs should not be automatically understood as imposing legally binding obligations on WTO Members, but could be used as sources of factual information.


The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer Jan 2013

The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

The United States is expected to become the world’s largest oil producer by 2020, overtaking Saudi Arabia, and the world’s top natural gas producer by 2015, surpassing Russia. In the past decade, energy companies have learned to tap previously inaccessible oil and gas in shale with “hydraulic fracturing” (“fracturing” or “fracking”), pumping fluid at high pressure to crack the shale and release gas and oil trapped inside. This “shale revolution” has created millions of jobs, enhanced our energy independence, and reduced U.S. greenhouse gas emissions by substituting natural gas for coal.

Even so, fracturing is controversial. It ...


Courts Uniformly Support Climate Science And Scientists, Michael Gerrard Jan 2013

Courts Uniformly Support Climate Science And Scientists, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this ...


The Opportunities For And Hurdles To Combined Heat And Power In New York City, Alexis Saba, Bianca Howard, Michael Gerrard, Vijay Modi Jan 2013

The Opportunities For And Hurdles To Combined Heat And Power In New York City, Alexis Saba, Bianca Howard, Michael Gerrard, Vijay Modi

Faculty Scholarship

This paper first seeks to quantify the potential for CHP development in New York City and describe the primary hurdles to optimal deployment in Parts I and II. Part III provides policy solutions for overcoming these hurdles and recommendations for how stakeholders can use information and analysis to maximize the opportunities for CHP.


The End Of Energy: The Unmaking Of America's Environment, Security, And Independence – Chapters 11 And 12, Michael J. Graetz Jan 2011

The End Of Energy: The Unmaking Of America's Environment, Security, And Independence – Chapters 11 And 12, Michael J. Graetz

Faculty Scholarship

With the permission of MIT Press, this document includes Chapters 11 and 12 from my 2011 book, The End of Energy: The Unmaking of America’s Environment, Security, and Independence. These two chapters discuss some of the history and merits of taxes, subsidies, and regulation (including cap and trade) as mechanisms to implement policies to curb greenhouse gases. In light of the renewed interest in and discussion of command and control regulations and carbon taxes, these chapters may be useful to readers who do not have the book. The bibliographic material relating to these chapters is contained in the book ...


Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill Jan 2011

Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

The Chicago Lakefront, along Grant Park, is internationally regarded as an urban gem. Its development – or, perhaps more accurately, lack of development – has been the result of a series of legal challenges and court rulings, most famously involving the landmark U.S. Supreme Court decision, Illinois Central R.R. v. Illinois (1892), and four decisions of the Illinois Supreme Court, from 1897 to 1910, involving Aaron Montgomery Ward. The former invented the modern public trust doctrine, which continues as much the favorite of environmental groups; the latter involved the now largely forgotten public dedication doctrine. This article begins with a ...


Prevailing Academic View On Compliance Flexibility Under § 111 Of The Clean Air Act, Gregory Wannier, Jason A. Schwartz, Nathan D. Richardson, Michael A. Livermore, Michael B. Gerrard, Dallas Burtraw Jan 2011

Prevailing Academic View On Compliance Flexibility Under § 111 Of The Clean Air Act, Gregory Wannier, Jason A. Schwartz, Nathan D. Richardson, Michael A. Livermore, Michael B. Gerrard, Dallas Burtraw

Faculty Scholarship

EPA will soon propose performance standards under Section 111 of the Clean Air Act for greenhouse gas pollution from the two largest emitting stationary source sectors – fossil-fueled power plants and petroleum refineries. The form these standards will take remains unclear. A key issue that will shape the effectiveness of the regulations is the degree to which they enable regulated entities to use flexible approaches to achieve the standards. This discussion paper provides the content of a letter to EPA Administrator Jackson that describes areas of general academic agreement on the EPA’s authority to use compliance flexibility options under Section ...


"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel A.F. Bently, Jane C. Ginsburg Jan 2010

"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel A.F. Bently, Jane C. Ginsburg

Faculty Scholarship

This study of author’s reversion rights begins with the Statute of Anne and the debates that led up to the adoption of section 11, which vested in the author a second fourteen-year term, provided he or she was still alive at the end of the initial fourteen-year term. The study then will address the impact of the author’s reversion right on publishing practice and authors’ welfare in the United Kingdom through the eighteenth century to the demise of the reversion right in 1814. We will suggest that the apparent lack of use of the reversion right by authors ...


Harmonizing Climate Change Policy And International Investment Law: Threats, Challenges And Opportunities, Daniel M. Firger, Michael Gerrard Jan 2010

Harmonizing Climate Change Policy And International Investment Law: Threats, Challenges And Opportunities, Daniel M. Firger, Michael Gerrard

Faculty Scholarship

This chapter responds to a chorus of commentary about the potential for conflict between the international investment law regime and an array of national and international actions being undertaken to mitigate and adapt to global climate change. Contrary to conventional wisdom, while some climate-friendly regulations may indeed be facially incompatible with the obligations imposed on states by typical international investment agreements (IIAs), many climate policies – especially those related to clean energy finance and technology transfer – involve principles common to foreign investment law and are largely compatible with that regime. Moreover, pending the unlikely negotiation of a single global agreement on ...


Burden Of Proof In Environmental Disputes In The Wto: Legal Aspects, Henrik Horn, Petros C. Mavroidis Jan 2009

Burden Of Proof In Environmental Disputes In The Wto: Legal Aspects, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

This paper discusses allocation of burden of proof in environmental disputes in the WTO system. Besides laying down the natural principles that (i) the complainant carries the burden to (ii) make a prima facie case that its claim holds, WTO adjudicating bodies have said little of more general nature. The paper therefore examines the case law of relevance to environmental policies, to establish the rules concerning burden of proof that are likely to be applied in such disputes. Evaluating this case law, the paper makes two observations,: First, in cases submitted under the GATTWTO, adjudicating bodies have committed errors regarding ...


The Permissible Reach Of National Environmental Policies, Henrik Horn, Petros C. Mavroidis Jan 2008

The Permissible Reach Of National Environmental Policies, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Trading nations exchange tariff concessions in the context of trade liberalizing rounds. Tariffs, nonetheless, are not the only instrument affecting the value of a concession. Domestic instruments affect it as well, but public order is not negotiable, and, consequently, is not scheduled. Public order is unilaterally defined, but must respect the default rules concerning allocation of jurisdiction which are common to all WTO Members and bind them by virtue of their appurtenance to the international community. In this paper, we focus on the interaction between trade and environment. The purpose of this study is to highlight how these rules and ...


Cleaning Up Lake River, Victor P. Goldberg Jan 2007

Cleaning Up Lake River, Victor P. Goldberg

Faculty Scholarship

A casebook favorite for exploring the liquidated damage-penalty clause distinction is Lake River v. Carborundum in which Judge Posner found a minimum quantity clause to be an unenforceable penalty clause. In this paper I argue that the case was framed improperly. Had the litigators recognized that the contract afforded one party an option, the result should have been different. The contract was for the provision of a service – setting aside capacity – which was valuable to the buyer and costly to provide for the seller. The primary purpose of the minimum quantity clause was the pricing of that service. The case ...


Reconfiguring Industrial Policy: A Framework With An Application To South Africa, Ricardo Hausmann, Dani Rodrik, Charles F. Sabel Jan 2007

Reconfiguring Industrial Policy: A Framework With An Application To South Africa, Ricardo Hausmann, Dani Rodrik, Charles F. Sabel

Faculty Scholarship

The main purpose of industrial policy is to speed up the process of structural change towards higher productivity activities. This paper builds on our earlier writings to present an overall design for the conduct of industrial policy in a low- to middle-income country. It is stimulated by the specific problems faced by South Africa and by our discussions with business and government officials in that country. We present specific recommendations for the South African government in the penultimate section of the paper.


The Story Of Vermont Yankee: A Cautionary Tale Of Judicial Review And Nuclear Waste, Gillian E. Metzger Jan 2005

The Story Of Vermont Yankee: A Cautionary Tale Of Judicial Review And Nuclear Waste, Gillian E. Metzger

Faculty Scholarship

This Essay explores the puzzle of Vermont Yankee v. NRDC. Vermont Yankee stands as a definitive rejection of judicial efforts to control burgeoning informal rulemaking by adding to the procedural requirements contained in the Administrative Procedure Act. Yet judicial expansion of the APA's procedural requirements has continued apace, and the Court's simultaneous sanction of searching substantive scrutiny sits oddly with its excoriation of the D.C. Circuit for that court's perceived procedural excesses. To understand Vermont Yankee, the Essay puts the decision in its administrative and judicial context, exploring the case law and practical dilemmas facing administrators ...


Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss Jan 2004

Citizens To Preserve Overton Park V. Volpe, Peter L. Strauss

Faculty Scholarship

This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen ...