Environmental Law Commons^™

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

Faculty Scholarship

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 solar ...

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

Faculty Scholarship

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 ...

Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker

Public Land & Resources Law Review

In Friends of Animals v. United States Fish & Wildlife Service, the Ninth Circuit held that the plain language of the Migratory Bird Treaty Act allows for the removal of one species of bird to benefit another species. Friends of Animals argued that the Service’s experiment permitting the taking of one species––the barred owl––to advance the conservation of a different species––the northern spotted owl––violated the Migratory Bird Treaty Act. The court, however, found that the Act delegates broad implementing discretion to the Secretary of the Interior, and neither the Act nor the underlying international conventions limit ...

Public Employees For Environmental Responsibility V. United States Epa, F. Aaron Rains

Public Land & Resources Law Review

Prior to 2016, the EPA acknowledged that human activities significantly contribute to climate change. However, on March 9, 2017, EPA Administrator Scott Pruitt announced that significant debate regarding the issue remained in the scientific community. In response to these statements, a nonprofit organization filed a FOIA request with the EPA seeking any documents or records Pruitt may have used when formulating his statements or substantiating his position. The EPA refused to comply with the request, citing undue burden and improper interrogation and this action followed. Upon review, the District Court for the District of Columbia found the plaintiff’s FOIA ...

Net Neutrality Powers Energy And Forestalls Climate Change, Catherine J.K. Sandoval

San Diego Journal of Climate & Energy Law

Drawing on my experience as a Commissioner of the California Public Utilities Commission (CPUC) from January 2011 to January 2017, this Article explores the interdependence of the electricity sector and the open and neutral internet. Section II of this Article discusses the evolution of critical infrastructure laws and policies. Section III examines California’s energy loading order adopted in 2003 to increase energy reliability and protect the environment. Section IV analyzes the evolution of federal and state Smart Grid policies to infuse communications and information technologies including the internet into the energy ecosystem. Section V discusses FERC’s authorization of ...

A Broader Vision For Climate Policy: Lessons From California, Alice Kaswan

San Diego Journal of Climate & Energy Law

Given the multiplicity of California’s numerous policies, this Article provides an overview—not a full exploration of all the twists and turns that have marked each legislative debate and administrative policy. Moreover, it is too soon to assess implementation of many recent programs, with expectations varying widely. Nonetheless, this Article provides a relatively comprehensive picture of the most significant policies and highlights the opportunities and issues they raise. Part I introduces California’s initial climate policies and the important role that environmental justice concerns played in garnering a legislative majority for the state’s early efforts. Part I then ...

The Trump Effect On Power Plant Carbon Dioxide Emissions, Thomas O. Mcgarity

San Diego Journal of Climate & Energy Law

This Article will probe the legal, technological and economic underpinnings the Trump Administration initiatives and the viewpoint that their initiatives will have little impact on CO2 emissions from power plants. Part II will highlight the Trump Administration’s views on the extent to which human activities are the leading contributing factor. Part III will describe the radical change in direction that that the Trump Administration is taking with respect to regulations designed to reduce GHG emissions from power plants. Part IV will offer predictions about the likely effect of the Trump Administration’s rollbacks on the electric power and coal ...

Judicial Review In An Age Of Hyper-Polarization And Alternative Facts, David A. Dana, Michael Barsa

San Diego Journal of Climate & Energy Law

This Article is organized as follows: Part I reviews the case law and commentary on judicial review of agency shifts in policy or practice, focusing on the technocratic case for deference and how recent political realities call such deference into question. Part II sets forth the background and history regarding fuel economy standards, leading to the Obama Administration’s adoption of standards in 2012 and the “midterm” review of those standards that Obama’s EPA declared final as of January 2017. Part II also reviews the legal issues surrounding Trump’s EPA’s “re-opening” of the midterm review. We suggest ...

Hope On The Horizon For Offshore Wind Development? An Examination Of The Regulatory Framework Rhode Island Navigated To Make The Nation’S First Offshore Wind Farm A Reality, And The Implication For California’S Ability To Adopt A Similar Approach Under The Coastal Zone Management Act, Lauren Perkins

San Diego Journal of Climate & Energy Law

After establishing the reasons for why creating a more efficient permitting system is crucial, this Article examines the question of under what conditions BOEM, the lead agency in the offshore wind permitting process, delegates authority to a state so that it may permit a project in federal waters under the CZMA without running into federal preemptory roadblocks. This question is of utmost significance in California and Hawaii where projects utilizing floating turbine technology are proposed to be located in federal waters to take advantage of optimal wind gusts farther offshore. After examining the conditions favorable for federal delegation of the ...

Swamp Money: The Opportunity And Uncertainty Of Investing In Wetland Mitigation Banking, Elan L. Spanjer

Northwestern University Law Review

In recent years, the wetland mitigation banking program has emerged as a favored mechanism for protecting the nation’s aquatic resources while allowing for economically beneficial development projects to proceed. Mitigation banks generate wetland credits, which in turn can be sold at a profit to developers who need them to offset wetland impacts. The number of mitigation banks has grown significantly in recent years, and the market has seen an influx of institutional investment. However, investors face significant risks and uncertainty, and many prospective investors lack access to information about wetland credit prices—which are neither reported to the regulatory ...

Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey

Public Land & Resources Law Review

The Indian Reorganization Act of 1935 is the proper avenue for Tribes pursuing restoration of their historic trust lands. The Oneida Indian Nation of New York long sought to reassert tribal jurisdiction over its historic homeland in Central New York. These efforts were largely unsuccessful until 2008 when the United States took 13,000 acres of this historic homeland into trust on behalf of the Tribe under the Indian Reorganization Act. This case affirms the federal government’s plenary powers over Indian Tribes, and that neither state sovereignty principles, nor the Enclave Clause upset that authority.

Moving Beyond The Wto: A Proposal To Adjudicate Gmo Disputes In An International Environmental Court, Marguerite A. Hutchinson

San Diego International Law Journal

This Article begins with a brief summary of the scientific basis of creating GMOs and its historic precursors. The second section provides an overview of risks to humans and the environment. The third part of this Article analyzes the arguments put forward by both the United States and the E.U., which have defined the conflict between blocs of countries pushing GMOs abroad and those who persistently reject them. The fourth section evaluates the respective regulatory schemes imposed on GMOs by the United States and Europe, domestically and by international treaty. The success of these systems is evaluated in the ...

California Sea Urchin Commission V. Bean, Thomas C. Mooney-Myers

Public Land & Resources Law Review

In California Sea Urchin Commission v. Bean, the Ninth Circuit upheld the Fish and Wildlife Service’s decision to end an experimental sea otter colony and translocation program. Commercial fishing groups sought reversal of the decision due to their interest in maintaining the translocation program which reduced otter predation on commercially valuable shellfish. While the Ninth Circuit held the group had standing, it then applied the Chevron test and determined the agency’s actions were reasonable.

California Department Of Toxic Substances Control V. Westside Delivery, Llc, Mitch L. Werbell V

Public Land & Resources Law Review

The Ninth Circuit’s recent decision in California Department of Toxic Substances Control v. Westside Delivery, LLC reminds prospective purchasers of tax-defaulted property of their responsibility for due diligence.The case addressed the reach of the third-party defense to a CERCLA cost recovery action. The court determined that CERCLA’s third-party defense did not apply to a company which purchased a contaminated property at a tax auction because of its “contractual relationship” with the former owner-polluter and because the relevant contaminating acts occurred “in connection with” the prior polluter’s ownership of the site.

Buffalo Field Campaign V. Zinke, Hallee C. Kansman

Public Land & Resources Law Review

Despite years of litigation and legislation, the protection status of bison in and around Yellowstone National Park remains unsettled. Buffalo Field Campaign, a non-profit group, has spent decades spearheading the fight to list the species as either endangered or threatened under the Endangered Species Act. Buffalo Field Campaign v. Zinke tests the scope of agency directives and the strictness of the statutory language which guides agency actions.

Western Organization Of Resource Councils V. Zinke, Daniel Brister

Public Land & Resources Law Review

Due to advances in climate science and an increased understanding of coal’s role as a greenhouse gas, Appellant conservation organizations sued the Secretary of Interior for failing to supplement the 1979 Programmatic EIS for the Federal Coal Management Program. The D.C. Circuit Court held neither NEPA nor the APA required a supplemental EIS and that the court lacked jurisdiction to compel the Secretary to prepare one. Expressing sympathy for the Appellants’ position, the D.C. Circuit took the unusual step of offering advice to future plaintiffs on how they might succeed on similar claims.

Making Sustainability Disclosure Sustainable, Jill E. Fisch

Faculty Scholarship at Penn Law

Sustainability is receiving increasing attention from issuers, investors and regulators. The desire to understand issuer sustainability practices and their relationship to economic performance has resulted in a proliferation of sustainability disclosure regimes and standards. The range of approaches to disclosure, however, limit the comparability and reliability of the information disclosed. The Securities & Exchange Commission (SEC) has solicited comment on whether to require expanded sustainability disclosures in issuer’s periodic financial reporting, and investors have communicated broad-based support for such expanded disclosures, but, to date, the SEC has not required general sustainability disclosure.

This Article argues that claims about the relationship ...

The Debate Over Bears Ears National Monument, Emilie Johnson, Nicholas Joy

GGU Law Review Blog

President Trump attempts to reduce the size of Bears Ears National Monument.

California Climate Change Lawsuits: Can The Courts Help With Sea-Level Rise, And Who Knew What When?, Robin Kundis Craig

Utah Law Faculty Scholarship

Between 1900 and 2005, sea level along the extensive California coast rose seven inches (17.8 centimeters), and sea level rise there is still accelerating. Indeed, as the U.S. Global Change Research Program reported in 2014, the California coast faces a multitude of economic and ecological challenges as a result of climate change.Small wonder, then, that the State of California and several California communities—especially those in the San Francisco Bay area—have brought a series of lawsuits against some of the biggest sources of greenhouse gas (GHG) emissions, seeking both to slow the pace of climate change ...

Governor's Remarks, George Pataki

Pace Law Review

Remarks by Gov. George Pataki on Law Day at Pace University School of Law, May 1, 1996.