Law Commons^™

Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood

Jonathan Wood

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …

Proposed Implementing Procedures For Restore Act Awards Under Nepa, Sara Mammarella

Sara Mammarella

On April 20, 2010, what has been described as “the worst oil spill in U.S. history,” the BP Deepwater Horizon oil spill, occurred off the Louisiana coast, affecting a five-state area in the Gulf region (Florida, Alabama, Louisiana, Mississippi, and Texas), dumping an estimated 4.9 billion barrels of oil into the Gulf of Mexico. In response, Congress enacted the federal RESTORE Act to set up a mechanism for compensating the victims of the oils spill and to Repair the environmental harm caused by the oil spill.

This article will examine the effectiveness of the regulatory scheme in place that was …

Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre

Jorge A Mestre

No abstract provided.

Offshore Safety And Environmental Regimes: A Post-Macondo Comparative Analysis Of The United States And United Kingdom, Jeffery R. Ray

Jeffery R Ray

Abstract This paper uses a selected review of United States (US) laws resulting from the issues presented by the Deepwater Horizon, or Macondo, incident. Regulatory issues based on engineering concerns are analysed in the second half of the US Chapter. The analysis questions whether the US has truly dealt with Macondo issues or if the issues were effectively tabled. The current state of the US regime indicates that it is either in a transitional phase or it has failed to implement key measures to effectively utilize the post-Macondo regulations. The United Kingdom (UK) offshore safety regime followed by selected environmental …

The Collaborative Forest Landscape Restoration Program: A Panacea For Forest Service Gridlock Or A New Name For Old Saws?, Brett M. Paben

Brett M Paben

No abstract provided.

Policy Tailors And The Rookie Regulator, Sarah Tran

Sarah Tran

Commentators have long lamented the lack of policy tailoring in the patent system. But unlike other administrative agencies, who regularly tailor regulatory policies to the needs of specific industries, the U.S. Patent and Trademark Office (“PTO”) was widely believed to lack the authority and institutional competence for such policymaking. This Article provides the first comprehensive analysis of recent legislative reforms to the PTO’s policymaking authority. It shows the reforms empower the PTO to have a larger say in patent policy than ever before. The big question is thus: to what extent is it good policy for a rookie regulator to …

The Oil And Gas Evolution: Learning From The Hydraulic Fracturing Experiences In North Dakota And West Virginia, Joshua P. Fershee

Joshua P Fershee

This Article discusses major differences and similarities in U.S. oil and gas extraction via hydraulic fracturing through a comparison of the experiences in North Dakota and West Virginia. Although there are other parts of the country experiencing growth in oil and gas extraction, Pennsylvania and Texas as but two examples, North Dakota and West Virginia are particularly apt for comparison. Both states have relatively small populations, meaning that the impact of large-scale energy extraction in each state is likely to have a large impact on the state, economically, environmentally, and socially.

This Article focuses on three main areas of comparison. …

In Third Parties We Trust? The Growing Antitrust Impact Of Third-Party Green Building Certification Systems For State And Local Governments, Darren Prum, Robert Aalberts, Stephen Del Percio

Darren A. Prum

According to the American Institute of Architects, there has been a 50 percent increase in the number of municipalities with a green building program in place since 2007. And 24 of the country's 25 largest metropolitan areas are built around a city with green building legislation on its books. Reducing buildings' environmental impact is a noble - and critical - goal. But governments' reliance on private, third-party standard-setting organizations - and the rating systems that they promulgate - as the basis for that legislation may be legally problematic.

This Article reviews one of those potentially problematic bases: antitrust. In order …

Breaking Ground On The New Green Deal, Erin Ryan

Erin Ryan

This op-ed urges reluctant members of Congress to act on stimulus proposals to invest in a renewable energy economy.

Carbon Regulation And Its Impact On The Appalachian Basin: Why The Coal-Fired Energy Industry In Appalachia Should Embrace, Prepare For, And Help Shape A Comprehensive Legislative Scheme That Limits Greenhouse Gas Emissions, Mark L. Belleville

Mark L. Belleville

The premise of this article – the coal-fired energy industry in Appalachia should embrace, prepare for, and help shape a comprehensive federal legislative scheme that limits carbon dioxide and other greenhouse gas emissions – may sound counterintuitive. Why would an industry that emits greenhouse gases (GHGs) get on board with a national plan to limit GHG emissions? The reason is threefold. First, some form of regulation limiting emissions is inevitable. Second, in many respects, a comprehensive federal scheme is preferable to the current patchwork that exists. Finally, a comprehensive federal scheme can be tailored to be advantageous (or at least …