Law Commons^™

Who Decides Where The Renewables Should Go?: A Response To Danielle Stokes’ Renewable Energy Federalism, Michael B. Gerrard

Faculty Scholarship

One of the central tasks in addressing the climate crisis is transitioning from an energy system based on fossil fuels to one that mainly uses renewable energy. In her article “Renewable Energy Federalism,” Professor Danielle Stokes has highlighted one of the key impediments to this transition — delays in state and local permitting of renewable energy facilities. She has proposed a new approach that would give more authority to the federal government. Stokes’ approach has much to commend it. However, I differ on some aspects.

I will begin by describing the magnitude of the problem — the amount …

West Virginia V. Environmental Protection Agency: The Agency's Climate Authority, Michael B. Gerrard, Joanne Spalding, Jill Tauber, Keith Matthews

Faculty Scholarship

On February 28, 2022, the U.S. Supreme Court heard oral arguments for the landmark West Virginia v. EPA case, involving the scope of powers delegated to the U.S. Environmental Protection Agency (EPA) through the Clean Air Act. The Court’s decision will affect administrative law, and could have major consequences for environmental law, particularly the Agency’s power to regulate greenhouse gas emissions and take action on climate change. On March 1, the Environmental Law Institute hosted a panel of leading experts to discuss the case, the arguments, and what form the decision may take. Below, we present a transcript of that …

Permitting Seaweed Cultivation For Carbon Sequestration In California: Barriers And Recommendations, Korey Silverman-Roati, Romany M. Webb, Michael B. Gerrard

Faculty Scholarship

Interest is growing in seaweed cultivation and sequestration as a carbon dioxide removal strategy. This white paper explores the barriers to seaweed permitting for carbon sequestration in California, including a complex, costly, and time-consuming lease and permitting process. Other states in the U.S., namely Maine and Alaska, have permitting systems designed to be more supportive of seaweed cultivation. This paper describes the legal framework for seaweed cultivation permitting in California and discusses the permitting systems in Maine and Alaska. The paper then explores possible reforms to streamline California’s permitting process, while maintaining appropriate environmental and other safeguards.

New York Environmental Legislation In 2021, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

This annual survey of New York environmental legislation describes numerous new laws on single-use plastics, lead exposure, drinking water, fuel oil, climate resilience, solar energy, invasive species and other areas that were signed into law in 2021.

Removing Carbon Dioxide Through Artificial Upwelling And Downwelling: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

A 2022 report by the Intergovernmental Panel on Climate Change warned that, to keep global average temperatures within 1.5oC above pre-industrial levels, emissions must reach net-zero by mid-century. The report concluded that achieving net-zero emissions will require the removal of carbon dioxide from the atmosphere “to counterbalance hard-to-abate emissions” from sectors like agriculture, aviation, and shipping. The report further noted that, if deployed at large scales, carbon dioxide removal (“CDR”) could also be used to achieve net negative emissions and thus effectively reduce the atmospheric concentration of carbon dioxide.

A variety of CDR techniques, both terrestrial and ocean-based, have been …

Removing Carbon Dioxide Through Ocean Fertilization: Legal Challenges And Opportunities, Korey Silverman-Roati, Romany M. Webb, Michael Gerrard

Faculty Scholarship

Carbon dioxide removal (“CDR”) will be needed, alongside deep emissions cuts, to achieve global temperature goals. According to a 2022 report by the Intergovernmental Panel on Climate Change, to keep global average temperatures within 1.5°C above preindustrial levels, carbon dioxide and other greenhouse gas emissions must reach net-zero by mid-century. Scientists have proposed a number of land- and ocean-based CDR techniques. This paper focuses on ocean fertilization, which involves adding iron or other nutrients to the ocean to stimulate the growth of phytoplankton that uptake carbon dioxide and convert it into organic carbon. The hope is that the organic carbon …

Three New Federal Laws Aid New York’S Compliance With Climate Goals, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The New York Climate Leadership and Community Protection Act of 2019 (CLCPA) requires total statewide greenhouse gas emissions to be reduced 40% from 1990 levels in 2030 and 85% in 2050, with a goal (aided by offsets) of 100% by 2050. It also requires 70% of electricity demand in 2030 to be met by renewables, and 100% from “zero emissions” sources (meaning renewables plus nuclear) in 2040.

A Time For Triage, Michael B. Gerrard

Faculty Scholarship

The world is desperately behind in the energy transformation needed to avoid the worst impacts of climate change. Catching up requires a massive buildout of wind and solar power and associated infrastructure, but in the United States many impediments stand in the way. Among them, ironically enough, are environmental laws. Here I argue that we must accept difficult tradeoffs, sacrificing some of what we consider precious in order to avoid far worse impacts.

Panel: Climate Change And Climate Justice, Alice Kaswan, Michael B. Gerrard, Monica Esparza, J.B. Ruhl

Faculty Scholarship

This article is a transcript of a panel discussion from the 2022 Richmond Public Interest Law Review's Symposium on Environmental Justice.

Legislature Expands State’S Jurisdiction Over Freshwater Wetlands, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Regulation of wetlands is one of the most significant ways that the government controls land use. While federal jurisdiction over wetlands is buffeted by the political and judicial winds, the New York Legislature has just expanded considerably the authority of the State Department of Environmental Conservation (DEC) to protect these areas and inhibit development there.

Lands, commonly labelled as bogs, swamps or marshes, which are inundated with water frequently enough to develop particular soils, hydraulic regimes or vegetative communities are generally classified as “wetlands” under certain environmental laws. The Tidal Wetlands Act and Freshwater Wetlands Act, added to the New …

Regulation Of Polyfluoroalkyl Chemicals In New York, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are two polyfluoroalkyl chemicals (PFAS) – a class of over 7,000 compounds with unique chemical structures that repel lipids and water. As a result, PFOA and PFOS have been used in numerous household products, such as nonstick cookware and stain-resistant carpets, and commercial applications such as firefighting foam. PFOS and PFOA are frequently referred to as “emerging contaminants,” a label with no precise regulatory definition but generally understood to refer to chemicals for which there are few published standards designed to protect human health and the environment from perceived hazards. Many PFAS compounds …