Law Commons^™

Behavioral Public Choice And The Carbon Tax, Gary M. Lucas Jr.

Utah Law Review

In response to the historic Paris Agreement on climate change and to the Environmental Protection Agency’s recently finalized Clean Power Plan, economists and other climate policy experts have renewed the call for the United States to adopt a carbon tax. Opposition among the public presents a major obstacle. While a majority of the public supports government action on climate change, most people favor the use of “green” subsidies and command-and-control regulations — a fact that frustrates economists of all political stripes who contend that a carbon tax would be much cheaper and more effective. This Article argues that a cognitive …

An Empirical Study Of The Impact Of The Renewable Fuel Standard (Rfs) On The Production Of Fuel Ethanol In The U.S., Jay P. Kesan, Hsiao-Shan Yang, Isabel F. Peres

Utah Law Review

The Renewable Fuel Standard (RFS) program, which mandates the commercialization of biofuels through 2022, is the United States’ most significant piece of legislation regarding renewable energy. It was first passed in 2005 and revised and expanded in 2007 in order to create a viable market for biofuels based on the policy goals of enhancing domestic U.S. energy security, reducing transportation-related greenhouse gas (GHG) emissions, and stimulating rural economic development.

The RFS requires minimum levels of consumption for different kinds of biofuels and requires increasing blending amounts of biofuels into gasoline and diesel fuels by producers and importers each year. Mandates …

Eliminating Passive Disposal: Equalizing Liability Among Current And Prior Owners And Operators In The Comprehensive Environmental Response, Compensation, And Liability Act Of 1980, Joe Amadon

Utah Law Review

It seems clear, through the 1986 SARA, that Congress did not want innocent parties who conducted due diligence in inspecting the land to be liable under CERCLA. Thus, expanding CERCLA’s definition of disposal to attach liability to passive conduct is inconsistent with Congress’s intent. Therefore, in order to align enforcement of CERCLA with its dual purposes and Congress’s intent in enacting the Act, disposal should be interpreted to exclude passive migration of hazardous substances when the owner or operator knows nothing of the presence of the hazardous substance that is spreading.

The Role Of Natural Gas In The Clean Power Plan, Lincoln L. Davies, Victoria Lumen

Utah Law Faculty Scholarship

This article overviews the role that natural gas has played over time in the United States. It identifies and surveys five key historical roles that natural gas has served: (1) as an early competitor for lighting, (2) as a nuisance byproduct in oil production, (3) as a heating and appliance fuel, especially as pipeline technology improved, (4) as a catalyst for legal change during the energy crises, and (5) as an increasingly important fuel for electricity production. The article then examines the likely role of natural gas as way to address climate change in the United States, using the ideas …

Incomplete Integration: Water, Drought, And Electricity Planning In The West, Lincoln L. Davies, Victoria Luman

Utah Law Faculty Scholarship

The water-energy nexus is increasingly important as climate change alters social, policy, and economic tradeoffs and choices. This is particularly true in the arid western United States. This article provides an original empirical assessment of 33 integrated resource plans (IRPs) of electric utilities in that region. The analysis shows that only a minority of utilities address the risk of drought in their IRPs. Even fewer use their IRPs to develop concrete plans to address drought risk. Consequently, we suggest four different strategies for utilities to better integrate water and electricity planning. Importantly, our analysis reveals that legal and policy changes …

Climate Regulation Of The Electricity Industry: A Comparative View From Australia, Great Britain, South Korea, And The United States, Lincoln L. Davies, Penelope Crossley, Peter Connor, Siwon Park, Shelby Shaw-Hughes

Utah Law Faculty Scholarship

Climate regulation of the electricity sector is one of the most important growing — and rapidly changing — areas of law and policy today. This is both because of the critical role that electricity plays in modern society, acting as economic lifeblood, and because of electricity’s part in driving climate change, accounting for more greenhouse gas (GHG) emissions globally than any other activity. This article provides an introduction to different methods of regulating climate emissions from the electricity sector. It does so through detailed, comparative accounts of climate regulation of electricity in four different jurisdictions: Australia, Great Britain, South Korea, …

Land Use Federalism's False Choice, Michael C. Pollack

Faculty Articles

Debates about land use federalism — like those about federalism more broadly — often focus on whether policies and priorities ought to be set at the national or local level. But such categorical judgments about national intervention are inadequate because they obscure the diversity of mechanisms by which nationalization can and does occur. This Article draws attention to the importance of this underappreciated legislative design choice and develops a framework within which to evaluate it. This Article observes that nationalization can take the form of rules that either displace local decisionmaking or channel it, and that those rules can be …

Stranded Costs And Grid Decarbonizaiton, Emily Hammond, Jim Rossi

Brooklyn Law Review

Energy law is well equipped to facilitate the transition to a decarbonized grid. Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each transition for the energy system. The current transition to …

Attaching Domestic Assets To Remedy High Seas Pollution: Rule B And Marine Debris, Jonathan M. Gutoff

Roger Williams University Law Review

No abstract provided.

It's Not Just An Offshore Wind Farm: Combining Multiple Uses And Multiple Values On The Outer Continental Shelf, Robin Kundis Craig

Utah Law Faculty Scholarship

Marine aquaculture and marine-based alternative energy, especially offshore wind, are increasingly competing for space on the Outer Continental Shelf and the water column above it with each other and with more traditional ocean uses. The laws governing this increasingly crowded space need to become better aware of changing uses of and values for the ocean and to promote rational planning of how this space is used in the future.

In one approach, various regions of the U.S. coast are actively engaged in comprehensive marine spatial planning. Marine spatial planning is a process designed to prioritize, balance, and rationally allocate the …

Amici Curiae Brief Of Law Professors, Belk V. Commissioner, U.S. Court Of Appeals For The Fourth Circuit, Nancy Mclaughlin

Utah Law Faculty Scholarship

Amici Curiae Brief of five law professors filed in the U.S. Court of Appeals for the Fourth Circuit in support of affirming of the Tax Court's holding in Belk v. Commissioner, T.C. Memo 2013-154, and Belk v. Commissioner, 140 T.C. 1 (2013).

Wringing Wonder From The Arid Landscape Of Law, Robert L. Fischman

Articles by Maurer Faculty

Charles Wilkinson’s estimable contribution to public land law scholarship is widely cited but only partly understood. From the mid-1970s to the mid-1980s he upended the field by elevating the diffuse public interest, displacing creation and adjudication of private property interests as the field’s focus. However, his subsequent scholarship grappled with an even more important challenge that has been far less noted. Beginning in the late 1980s, Wilkinson explored how legal institutions should determine the pluralistic, public interest. In trailblazing articles and books, he rose to the challenge with site-specific details, compelling narratives, and aspirational themes. This work undermined the dominance …

New Strategies For Reducing Transportation Emissions And Preparing For Climate Impacts, Gabriel Pacyniak, Kathryn Zyla, Vicki Arroyo

Faculty Scholarship

The transportation sector is becoming the largest source of greenhouse gas ("GHG") emissions in the United States. The Obama Administration put in place federal vehicle and fuel standards that are significantly reducing emissions. However, these regulations will be insufficient to put the United States on track to achieve needed reductions needed long-term. This is especially true if the 2025 standards announced by the Obama Administration are rolled back by the new Trump Administration. Because current federal standards alone will not attain ambitious climate goals and may be rolled back, state and local activity is essential to make progress towards meeting …

Defining And Closing The Hydraulic Fracturing Governance Gap, Joshua Galperin, Grace Heusner, Allison Sloto

Articles

As recent examples in Texas and Colorado have shown, if local governments ban fracking, they risk pushback from state governments. This pushback, in turn, can result in preemption making an outright local ban on fracking self-defeating because it could ultimately result in less local control over the impacts of hydraulic fracturing. Given this potentially self-defeating nature of local fracking bans, local governments should address the impacts of fracking through more traditional local governance mechanisms that do not pose as great a risk to local authority.

On this premise, this Article seeks to make the case for the importance of, and …

Little Streams And Legal Transformations, Dave Owen

Utah Law Review

In 1972, Congress passed a statute whose text offered sweeping protection for waterways across the nation. In theory, those protections extended to little streams. Actual practices were different, not just in the 1970s but also well into the 1990s. But over the past twenty years, small streams have become a central focus of regulatory protection, with the extent and type of those protections continuing to evolve to this day, and with additional changes still possible. The future of that evolution is uncertain, and it may hang in the balance; Congress, the incoming administration, or the courts could nip much of …

Immovable-Associated Equipment Under The Draft Mac Protocol: A Sui Generis Challenge For The Cape Town Convention, Benjamin Von Bodungen, Charles W. Mooney Jr.

All Faculty Scholarship

UNIDROIT is in the process of adopting a fourth Protocol under the umbrella of the Cape Town Convention, the MAC Protocol, which will cover mining, agricultural and construction equipment. This article addresses a challenge faced by the MAC Protocol that was not encountered in the development of the previous Protocols - the potential for MAC equipment to be associated with immovable property in ways that result in the holder of an interest in the immovable property acquiring an interest in the associated MAC equipment under the law of the State in which the immovable property is located. The article first …

Risk And Regulatory Calibration: Wto Compliance Review Of The U.S. Dolphin-Safe Tuna Labeling Regime, Cary Coglianese, André Sapir

All Faculty Scholarship

In a series of recent disputes arising under the TBT Agreement, the Appellate Body has interpreted Article 2.1 to provide that discriminatory and trade-distortive regulation could be permissible if based upon a “legitimate regulatory distinction.” In its recent compliance decision in the US-Tuna II dispute, the AB reaffirmed its view that regulatory distinctions embedded in the U.S. dolphin-safe tuna labeling regime were not legitimate because they were not sufficiently calibrated to the risks to dolphins associated with different tuna fishing conditions. This paper analyzes the AB’s application of the notion of risk-based regulation in the US-Tuna II dispute and finds …

Introduction To The 10th Marine Law Symposium, Julia Wyman

Roger Williams University Law Review

No abstract provided.

The Polycentric Turn: A Case Study Of Kenya's Evolving Legal Regime For Irrigation Waters, Daniel H. Cole, Stefan Carpenter, Elizabeth Baldwin

Articles by Maurer Faculty

Formal legal systems comprise a major part, but not the only part, of the “rules of the game” that structure social and social-ecological interactions. Throughout the twentieth century, centralization and consolidation of legal authority were dominant themes among many, if not all, legal systems. That process may have been successful in some cases, but in others the presumed economies of scale from consolidation and centralization either did not materialize or were offset by other social costs, including the failure to accommodate local knowledge, expertise, and preferences. In what could become a theme of the twenty-first century, many countries, including developing …

Illicit Exploitation Of Natural Resources - Art. 28l Bis Of The Malabo Protocol, James G. Stewart, Daniëlla Dam

All Faculty Publications

Article 28A(1)(13) of the Protocol to the Statute of the African Court of Justice and Human Rights lists ‘Illicit exploitation of natural resources’ as a criminal offense within the Court’s jurisdiction. In conjunction with the new mandate of the African Court, which includes the exercise of jurisdiction over corporations for the first time in an international treaty, the prohibition of “illicit exploitation of natural resources” creates an offense with especially sharp teeth, for business people, their corporations, military actors and politicians. The crime constitutes an important innovation in international law, since it offers a distinct legal basis for prosecution of …

Report And Recommendations Concerning Environmental Aspects Of The New York State Constitution, New York State Bar Association Environmental And Energy Law Section, Mary L. Lyndon

Faculty Publications

The purpose of the Report is to inform and enrich understanding of environmental issues which may be considered at a Constitutional Convention (should one occur) or with respect to proposals to amend the Constitution through the legislative process.

Rising To The Level Of Climate Science: Rhode Island, The National Flood Insurance Program, And Sea Level Rise Projections, Nicole E. Rohr

Roger Williams University Law Review

No abstract provided.

Alienation And Reconciliation In Social-Ecological Systems, Ann M. Eisenberg

Faculty Publications

After rancher Ammon Bundy’s forceful occupation of the Malheur National Wildlife Refuge to protest federal “tyranny” in 2016, mainstream commentary dismissed Bundy and his supporters as crackpots. But the dismissal of the occupation as errant overlooked this event’s significance. This conflict: 1) involved a clash over scarce natural resources, of the type that will likely gain more frequency and intensity in the face of climate change; and 2) highlighted the popular idea that the federal government and federal environmental regulations are the enemy of the (white, rural, male) worker. This thread of antienvironmental, anti-federal alienation among many working people has …

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 …

Railroad Land Grants In An Incongruous System: Corporate Subsidies, Bureaucratic Governance, And Legal Conflict In The United States, 1850-1903, Sean M. Kammer

Sean Kammer

No abstract provided.

No-Analogue Future: Challenges For The World Of Nature In A World Without Precedent, Sean M. Kammer

Sean Kammer

No abstract provided.

The "Right" Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana

Deepa Badrinarayana