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Articles 1 - 30 of 33
Full-Text Articles in Law
Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann
Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann
Faculty Scholarship
The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote lowcarbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …
Infrastructural Exclusion And The Fight For The City: Power, Democracy, And The Case Of America's Water Crisis, K. Sabeel Rahman
Infrastructural Exclusion And The Fight For The City: Power, Democracy, And The Case Of America's Water Crisis, K. Sabeel Rahman
Faculty Scholarship
No abstract provided.
The Incomplete Ecology Of Hydraulic Fracturing Governance, Gregg P. Macey
The Incomplete Ecology Of Hydraulic Fracturing Governance, Gregg P. Macey
Faculty Scholarship
No abstract provided.
Can Clean Energy Policy Promote Environmental, Economic, And Social Sustainability?, Felix Mormann
Can Clean Energy Policy Promote Environmental, Economic, And Social Sustainability?, Felix Mormann
Faculty Scholarship
Two and a half decades of clean energy policymaking focused primarily on environmental and economic sustainability have yielded considerable environmental and economic benefits. Along the way, however, other policy considerations, such as the social sustainability of the transition to a cleaner, renewably fueled energy economy, have gone largely overlooked. As clean energy technologies continue to gain ever-greater traction in the United States and global energy economies, the social impacts of their enabling policies become more and more salient. Already, ratepayers, taxpayers, and other stakeholders who fear being left behind by the clean energy transition question the “fairness” of today’s renewable …
Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine
Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine
Faculty Scholarship
The joint operating agreement (JOA) in the oil and gas industry helps coordinate joint operation efforts that facilitate exploration and unitization of tracts, and conservation of a depleting resource. Professor Conine’s 1988 article expanded, limited, and defined the property interests of the parties both inside and outside the contract area. This article is an update to those prior works with greater emphasis on the 1989 Form JOA, cases and developments since its publication, and the implications of the revisions to the JOA in the new 2015 Form JOA published by the American Association of Professional Landmen (AAPL).
The purposes of …
Albuquerque Journal Interviews Reed Benson, Supreme Court Hears Nm-Texas Water Dispute, Reed D. Benson
Albuquerque Journal Interviews Reed Benson, Supreme Court Hears Nm-Texas Water Dispute, Reed D. Benson
Faculty Scholarship
Article by Michael Coleman
Quote:
Reed Benson, a University of New Mexico professor specializing in water law, said the Supreme Court’s task in deciding the U.S. government’s role is “very legalistic – very much a technical reading of what is and is not in the compact.”
“I actually have thought that New Mexico’s chances in front of the nine justices may be a little bit better than some people thought,” Benson said. “Some of those justices may be persuaded by the plain text argument – that New Mexico’s obligations are measured at Elephant Butte and once New Mexico delivers to …
Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson
Keeping Power In Charge: Federal Hydropower And The Downstream Environment, Reed D. Benson
Faculty Scholarship
This article examines legal issues regarding hydropower, fish and wildlife at federal water projects in the West. It begins by briefly explaining the legal and institutional framework for federal water projects that generate hydropower. The following section summarizes relevant laws and policies for fish and wildlife protection in relation to federal hydropower operations, focusing primarily on the application of the ESA in this context. The article then considers the case of Glen Canyon Dam, where the Bureau and the National Park Service recently adopted a new operating plan after an extensive review that addressed hydropower, the needs of two very …
New Mexico’S Renewable Portfolio Standard: Analysis Of Existing Policy Design Elements And Compliance Obligations Beyond 2020, Gabriel Pacyniak
New Mexico’S Renewable Portfolio Standard: Analysis Of Existing Policy Design Elements And Compliance Obligations Beyond 2020, Gabriel Pacyniak
Faculty Scholarship
This white paper analyzes two elements of New Mexico’s current Renewable Portfolio Standard (RPS) in advance of the state legislature’s consideration of an RPS expansion in the 2019 legislative session. First, the paper surveys key policy design elements of the current RPS, compares those elements to other state RPSs, and identifies “policy considerations” that may inform legislative or regulatory action. Among the findings from this part of the analysis are that: 1) other states have set much higher RPS targets; 2) that New Mexico’s RPS has uniquely restrictive cost-containment measures that limit cost impacts but also prohibit the full RPS …
Imputing Regulatory Failures In Oil And Gas Licensing: A Discussion And Proposal, Joseph A. Schremmer, Charles C. Steincamp
Imputing Regulatory Failures In Oil And Gas Licensing: A Discussion And Proposal, Joseph A. Schremmer, Charles C. Steincamp
Faculty Scholarship
This Article argues that the Commission's legitimate interest in enforcing its oil and gas regulations, especially including well-plugging regulations, does not justify absolute imputation of regulatory liability to third-party operators under Kan. Stat. Ann. § 55-155(c)(4). But, under certain circumstances, the state's interest may justify imputing personal liability on the individual constituents of a license applicant where the individual is culpable for the underlying regulatory violation or the applicant has a business connection with the operator primarily responsible for the violation, and the competing public policies of groundwater protection and limited liability justify the imputation. This Article proposes a procedural …
Peddling Ignorance: A New Falsity Standard For Scientific Knowledge Fraud Cases, Wes Henricksen
Peddling Ignorance: A New Falsity Standard For Scientific Knowledge Fraud Cases, Wes Henricksen
Faculty Scholarship
No abstract provided.
Structured Settlement Sales And Lead-Poisoned Sellers: Just Say No, Karen Czapanskiy
Structured Settlement Sales And Lead-Poisoned Sellers: Just Say No, Karen Czapanskiy
Faculty Scholarship
No abstract provided.
Disclaiming Property, Michael Pappas
Disclaiming Property, Michael Pappas
Faculty Scholarship
Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.
Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural …
Polar Opposites: Assessing The State Of Enviromental Law In The World's Polar Regions, Mark P. Nevitt, Robert Percival
Polar Opposites: Assessing The State Of Enviromental Law In The World's Polar Regions, Mark P. Nevitt, Robert Percival
Faculty Scholarship
No abstract provided.
Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg
Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg
Faculty Scholarship
Forty years since the birth of the environmental justice movement, environmental injustice persists. One reason is the failure to identify a viable constitutional root for environmental justice doctrine in either the Fourteenth Amendment or Commerce Clause. Accordingly, this essay argues that the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice.
Part I will describes how environmental justice’s distributive justice vision was at odds with environmental law’s positivist, proceduralist core, and how that difference helps to account for the constitutional difficulties that followed. Part II describe one of those difficulties: the disparate impact problem and …
Heat Waves: Legal Adaptation To The Most Lethal Climate Disaster (So Far), Michael B. Gerrard
Heat Waves: Legal Adaptation To The Most Lethal Climate Disaster (So Far), Michael B. Gerrard
Faculty Scholarship
The worst heatwave in modern history occurred in Russia in 2010; its rare combination of extreme temperatures and long duration killed an estimated 55,000 people. Under an RCP 8.5 scenario, comparable heat waves could occur every two years in the eastern United States by the end of the century, and by then in Europe, the legendary heat wave of 2003 “would be classed as an anomalously cold summer relative to the new climate.” These increased temperatures and heat waves are not just occurring randomly. The science is clear that human activities – mostly greenhouse gas emissions and deforestation – are …
Legal Tools For Cities To Cope With Extreme Heat, Michael B. Gerrard, Edward Mctiernan
Legal Tools For Cities To Cope With Extreme Heat, Michael B. Gerrard, Edward Mctiernan
Faculty Scholarship
Heat causes more deaths in the U.S. than any other natural hazard – more than floods, hurricanes, or tornadoes. As a result of climate change, it is getting worse. Average annual temperatures are now about 1.8°F higher than they were over the period 1895-2016, they will go up to about 2.5°F by mid-century, and if greenhouse gas emissions continue on the current path, they could rise almost 12°F by 2100, and heat waves that now occur once every 20 years could become annual events, according to the U.S. Global Change Research Program.
Responsive Regulation And Resiliency: The Renewable Fuel Standard And Advanced Biofuels, Nadia B. Ahmad
Responsive Regulation And Resiliency: The Renewable Fuel Standard And Advanced Biofuels, Nadia B. Ahmad
Faculty Scholarship
No abstract provided.
Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo
Balancing Sustainability, The Right To Regulate, And The Need For Investor Protection: Lessons From The Trade Regime, Elizabeth Trujillo
Faculty Scholarship
Recent initiatives for investment reform demonstrated by the 2016 United Nations Conference on Trade and Development and 2018 World Investment Reports have raised key issues for sustainable development in the context of investment in natural resources and energy. Where there has been increasing convergence between trade and environmental norms as trade regimes confront domestic regulatory measures for environmental protection and climate change mitigation, similarly investment regimes also have had to address such domestic measures but with little progress towards normative convergence. At the same time, there’s an increasing skepticism for the traditional models of globalization of the 1990s and more …
Going Negative: The Next Horizon In Climate Engineering Law, Tracy Hester, Michael B. Gerrard
Going Negative: The Next Horizon In Climate Engineering Law, Tracy Hester, Michael B. Gerrard
Faculty Scholarship
As the global community struggles to turn the Paris Agreement’s commitments into meaningful emission reductions and the United States turbulently reverses its climate policies, the potential role of “negative emissions technologies” and other climate engineering approaches is drawing increasingly serious attention. These technologies are engineering on the grandest scale: climate engineering seeks to offset the effects of anthropogenic climate change by either altering the solar radiation reaching the earth’s surface or changing the composition of the atmosphere itself. Specifically, negative emissions technologies would directly remove greenhouse gases (GHGs) from the ambient air and help to remove accumulated atmospheric carbon dioxide …
The Long Environmental Justice Movement, Jedediah Purdy
The Long Environmental Justice Movement, Jedediah Purdy
Faculty Scholarship
The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put …
Whose Lands? Which Public?: The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah Britton-Purdy
Whose Lands? Which Public?: The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah Britton-Purdy
Faculty Scholarship
President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. …
Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo
Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo
Faculty Scholarship
As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …
Climate Change And Human Trafficking After The Paris Agreement, Michael Gerrard
Climate Change And Human Trafficking After The Paris Agreement, Michael Gerrard
Faculty Scholarship
At least 21 million people globally are victims of human trafficking, typically involving either sexual exploitation or forced labor. This form of modern-day slavery tends to increase after natural disasters or conflicts where large numbers of people are displaced from their homes and become highly vulnerable. In the decades to come, climate change will very likely lead to a large increase in the number of people who are displaced and thus vulnerable to trafficking. The Paris Climate Agreement of 2015 established objectives to limit global temperature increases, but the voluntary pledges made by nearly every country fall far short of …
Is The First Amendment Obsolete?, Tim Wu
Is The First Amendment Obsolete?, Tim Wu
Faculty Scholarship
The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.
Today, in the internet and social media age, it is no longer speech that is scarce – rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on …
State Authority To Preempt Local Laws Regulating Renewable Energy Projects, Michael B. Gerrard, Edward Mctiernan
State Authority To Preempt Local Laws Regulating Renewable Energy Projects, Michael B. Gerrard, Edward Mctiernan
Faculty Scholarship
The New York State Energy Plan, announced by Gov. Andrew Cuomo in 2015, calls for a doubling to 50 percent of the portion of the electricity used in the state that comes from renewable sources by 2030. This would lower greenhouse gas emissions, create jobs, and reduce the use of fossil fuels, especially natural gas.
Much of this new renewable energy would be generated by wind and solar projects. Some if it would be from wind facilities to be built offshore in the Atlantic Ocean; the rest would be on the land.
Patterns Of Climate Change Litigation During Trump Era, Michael B. Gerrard, Edward Mctiernan
Patterns Of Climate Change Litigation During Trump Era, Michael B. Gerrard, Edward Mctiernan
Faculty Scholarship
Litigation about climate change took off in the early 2000s. Its focus has varied with the occupant of the White House. Under George W. Bush, most suits were brought by environmental groups and blue states, frustrated by the lack of federal action, seeking to push regulations or impede fossil fuel projects. Under Barack Obama, climate litigation was mostly industry and red states seeking to block regulations. And now under Donald Trump, it is largely about environmental groups and blue states trying to preserve the rules adopted under President Obama, and to seek novel remedies to get around federal hostility to …
New York Environmental Legislation In 2017, Michael B. Gerrard, Edward Mctiernan
New York Environmental Legislation In 2017, Michael B. Gerrard, Edward Mctiernan
Faculty Scholarship
In 2017, New York State enacted multiple laws that tackle aspects of two major environmental issues facing the state: protecting water quality and advancing the state’s clean energy goals. In addition, Governor Andrew Cuomo signed laws concerning oil tankers on the Hudson, elephant welfare, food waste, and lead paint. He also approved a moratorium barring New York City’s plastic bag fee from taking effect. This annual survey reports on these developments and other environmental laws enacted in 2017.
Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team
Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team
Faculty Scholarship
The CarbonSAFE Cascadia project team is conducting a pre-feasibility study to evaluate technical and nontechnical aspects of collecting and storing 50 MMT of CO2 in a safe, ocean basalt reservoir offshore from Washington State and British Columbia. Sub-seafloor basalts are very common on Earth and enable CO2 mineralization as a long-term storage mechanism, permanently sequestering the carbon in solid rock form. Our project goals include the evaluation of this reservoir as an industrial-scale CO2 storage complex, developing potential source/transport scenarios, conducting laboratory and modeling studies to determine the potential capacity of the reservoir, and completing an assessment of economic, regulatory …
The Long Environmental Justice Movement, Jedediah S. Purdy
The Long Environmental Justice Movement, Jedediah S. Purdy
Faculty Scholarship
The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put …
L’Évolution Des Actions En Justice Climatique Aux États-Unis, De George W. Bush À Donald Trump, Michael B. Gerrard
L’Évolution Des Actions En Justice Climatique Aux États-Unis, De George W. Bush À Donald Trump, Michael B. Gerrard
Faculty Scholarship
Les États-Unis ont plus de procès sur le climat que tous les autres pays dumonde réunis. La nature du litige a tendance à varier selon le parti qui détient la Maison Blanche. Pendant les administrations démocrates (Barack Obama), les poursuites ont tendance à être intentées par des sociétés industrielles et des États à tendance républicaine, alléguant que le Gouvernement fédéral en fait trop pour lutter contre le changement climatique. Pendant les administrations républicaines (George W. Bush, Donald J. Trump), la plupart des poursuites sont intentées par des groupes environnementaux et des États démocrates, alléguant que le Gouvernement fédéral en fait …