Energy and Utilities Law Commons^™

Toc

LSU Journal of Energy Law and Resources

No abstract provided.

Masthead

LSU Journal of Energy Law and Resources

No abstract provided.

The Impact Of The Inflation Reduction Act On Energy Justice And Green Energy Development In Indian Country, John Beaty

LSU Journal of Energy Law and Resources

In the past two decades, many American Indian Tribes have been experimenting with generating power from renewable sources on reservations. The growth of tribal green energy is a positive step towards energy justice, but current projects are hampered by insufficient funding, jurisdictional confusion, lack of needed infrastructure, and a baroque permitting process that leaves necessary projects languishing. The recent omnibus spending bill, the Inflation Reduction Act (IRA) was trumped by Congress as the largest investment into tribal green energy ever. This Article critically analyzes the impact of the IRA on tribal energy. While the IRA represents a necessary move towards …

Mail Matters: Posting In The “Oil Patch”, Patrick S. Ottinger

LSU Journal of Energy Law and Resources

No abstract provided.

Faculty

LSU Journal of Energy Law and Resources

No abstract provided.

The Road To Hell Is Paved With Good Intentions (And Master Settlement Agreements): Alternatives To Climate Litigation Informed By Cautionary Tales Of Tobacco And Opioid, Natalie Marionneaux

LSU Journal of Energy Law and Resources

No abstract provided.

The Good, The Bad And The Crude: An Analysis Of Trafigura V. United States And The Per-Barrel Crude Oil Export Tax, Adam Guarisco

LSU Journal of Energy Law and Resources

No abstract provided.

Setting The Record Straight: An Analysis Of The Administrative Procedure Act’S “Record Rule” In Harrison County, Mississippi V. U.S. Army Corps Of Engineers, Levin B. Pinho Jr.

LSU Journal of Energy Law and Resources

No abstract provided.

Wyoming V. Environmental Protection Agency, Ayden D. Auer

Public Land & Resources Law Review

Wyoming v. EPA consolidated two petitions for review of a portion of Wyoming’s plans to reduce visibility impacts from two powerplants, Wyodak and Naughton. First, the Tenth Circuit held EPA was incorrect to disapprove Wyoming’s best available retrofit technology determination for Wyodak because EPA based its disapproval on noncompliance with guidelines that are optional to determine the best available retrofit technology for Wyodak. These same guidelines are nonbinding on Naughton as well, and the court held the petitioners failed to persuade the court that EPA’s approval of Naughton was arbitrary and capricious because the petitioners did not establish why Wyoming’s …

Many Miles To Go Before We Sleep: The Long Road To Creating A Comprehensive Global Plastics Treaty, Dr. Gerry Nagtzaam

Villanova Environmental Law Journal

No abstract provided.

Pest Or Guest, Friend Or Foe? Reframing The "Hard Look" Doctrine's Role In Environmental Pesticide Policy, James J. Burke

Villanova Environmental Law Journal

No abstract provided.

Sackett V. Environmental Protection Agency, Meridian Wappett

Public Land & Resources Law Review

In 2007, the Sacketts began developing a property a few hundred feet from Priest Lake in Northern Idaho by filling their lot with gravel. The EPA determined the lot constituted a federally protected wetland under the WOTUS definition because the lot was near a ditch that fed into a creek flowing into Priest Lake, a navigable intrastate lake. The EPA halted the construction. The Sacketts sued the EPA, arguing the CWA did not apply to their property. The Supreme Court held that the CWA did not apply to the Sacketts property because the CWA only covers wetlands and streams that …

Arizona V. Navajo Nation, Sarah K. Yarlott

Public Land & Resources Law Review

Arizona v. Navajo Nation clarified the United States’ trust duties to protect tribal water rights under the Winters doctrine and the 1868 Treaty with the Navajo. Under the Winters doctrine, Indian reservations are permanent homes that include an implicit reservation of water rights. However, Winters did not elaborate on the United States’ role in securing those rights. In Navajo Nation, the Court settled whether the United States has an implied duty under its trust obligations to take affirmative steps in securing water rights for tribes; the Court held no such implied duty exists.

Energy Justice And Renewable Rikers, Rebecca Bratspies

University of Miami Law Review

Unsustainable energy practices generate the lion’s share of global carbon emissions as well as staggering levels of deadly particulate pollution. Replacing the current dirty, fossil fuel-based system with affordable, clean energy is both a human rights imperative and a climate change necessity. This transition, which has already begun, creates the opportunity to do things differently. By confronting the structural racism embedded in existing energy structures, we can build a just transition rather than just a transition. This Article uses New York City’s Renewable Rikers project as a case study to explore how we might take advantage of the intersections between …

Evolving Legal Conceptions Of “Energy Communities”, Uma Outka

University of Miami Law Review

The concept of “energy communities” has had long-standing and evolving significance in the United States and in other countries around the world. Under the Biden Administration, the term “energy communities” has acquired new legal meanings that differ by context and continue to evolve. This Article traces the shifting meaning of “energy communities” and examines how it relates to other dominant references to “communities” in the context of energy law and policy, including environmental justice, low-income, underserved, and disadvantaged communities, as well as newer community-scale energy system innovations, such as community solar or “advanced energy communities.” International comparisons, such as with …

It's A Soft Shell Life For Me: The Case For Expanding Npdes Permitting To Include Causes Of Ocean Acidification, Natalie L. Nowatzke

Ocean and Coastal Law Journal

Ocean acidification, a lesser-known counterpart to climate change, is primarily caused by the ocean’s absorption of carbon dioxide from the atmosphere. This absorption, in turn, reduces the ocean’s pH, and has detrimental effects on the health of the entire ecosystem. This Comment examines the applicability of the “functional equivalent test,” coined by the Supreme Court in County of Maui v. Hawaii Wildlife Fund, to the causes of ocean acidification. Using this test, this Comment proposes expanding NPDES permitting under the Clean Water Act to cover some landbased sources emitting carbon dioxide.

Calming The Waters: The International Atomic Energy Agency As A Viable Model To Address Water Weaponization, Jenna Beasley

Emory International Law Review

No abstract provided.

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Stakeholder Governance As Governance By Stakeholders, Brett Mcdonnell

Seattle University Law Review

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

How To Interpret The Securities Laws?, Zachary J. Gubler

Seattle University Law Review

In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …