Energy and Utilities Law Commons^™

Land Ethic Under Attack: Keystone Xl And The War Over Domestic S(Oil), Heather Culp

Environmental and Earth Law Journal (EELJ)

The Keystone XL pipeline has caused recent controversy and renewed the debate over the future of fossil fuels in the United States. The project pits largely conservative groups, who argue that the pipeline will create jobs and decrease America’s dependence on foreign oil, against environmental advocates, indigenous tribes, and private landowners, who are attempting to fend off the project because they believe it will displace them of their own lands as well as disrupt the natural ecosystems that lay in the pipeline’s path. In the wake of a presidential veto of the project and renewed sentiment by the pipeline’s …

Permitting Problems: Environmental Justice And The Miccosukee Indian Tribe, Charles Prior

Environmental and Earth Law Journal (EELJ)

The Miccosukee Tribe of Indians is a federally recognized tribe that works and resides in the Everglades region of the State of Florida. The Miccosukee have been battling lax water quality standards through lawsuits since the 1990’s. Recent rulings in federal court held that the State of Florida has failed to comply with the Clean Water Act and ordered the Environmental Protection Agency to set nutrient criteria for the water bodies in the state of Florida until the Florida Department of Environmental Protection complies with the Clean Water Act.

This article uses the principles of environmental justice to analyze ways …

The Food Safety Modernization Act’S True Implications For Sustainable Agriculture, Emily Walters

Washington and Lee Journal of Energy, Climate, and the Environment

No abstract provided.

Wasting Our Options? Revisiting The Nuclear Waste Storage Problem, Randall W. Miller

Washington and Lee Journal of Energy, Climate, and the Environment

No abstract provided.

Deep Water Offshore Oil Exploration Regulation: The Need For A Global Environmental Regulation Regime, Naama Hasson

Washington and Lee Journal of Energy, Climate, and the Environment

Government regulation of deepwater offshore explorations has found it either difficult to evaluate the environmental impact, or too costly to perform the required review.1 Corporate self-regulation without effective government oversight will not adequately reduce the risk of accidents within the offshore oil exploration industry, nor will it ensure that corporations prepare effectively to respond to a major spill. The potential, near-term, financial benefit for the oil company prevails over the lowprobability risk that a major spill will occur. Recognizing that current domestic regulation lacks effective, continuous monitoring of complex offshore operations, another form of regulation appears necessary. If already-emerging principles …

Fractured Focus: Tribal Energy Development And The Regulatory Contest Over Hydraulic Fracturing In Indian Country, Mitchell Davis

Washington and Lee Journal of Energy, Climate, and the Environment

No abstract provided.

Environmental Protection Or Mineral Theft: Potential Application Of The Fifth Amendment Takings Clause To U.S. Termination Of Unpatented Mining Claims, Beckett G. Cantley

Washington and Lee Journal of Energy, Climate, and the Environment

The mining claim patent process was much less rigorous in the early days of mining when nearly anyone willing to expend the $500 on “patent improvements,” pay for a mineral survey, and pay the statutory purchase price could patent a mining claim very easily. Over time, the United States government has grown increasingly reluctant to patent mining claims and to allow mining activities to occur on unpatented federal public domain lands. The U.S. government argues that its reluctance to allow mining is simply an environmental concern. However, the U.S. tightening of private mining upon federal lands also coincides with a …

The Role Of Community Values In Wind Energy Development: Exploring The Benefits And Applications Of Community Wind For Reducing Local Opposition To Wind Energy Systems, Amanda Vaccaro

Georgetown Law Student Series

Worldwide, wind energy generation is growing rapidly as a cleaner and less invasive alternative to traditional fossil-fuel energy sources. Yet, in the United States, the advancement of wind energy has been stunted by three factors: (1) the uncertainty of the federal Production Tax Credit; (2) the lack of transmission lines connecting wind projects to electricity grids; and (3) enduring local cultural and aesthetic objections to wind turbines. Frustrated with the imbalanced allocation of costs and benefits imposed by most wind energy projects, some individuals and municipalities have deployed zoning laws, nuisance claims, or environmentalist arguments to discourage wind energy development …

The Externalities Of Nuclear Power: First, Assume We Have A Can Opener . . ., Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

The nuclear power industry has latched on to global warming as an argument for its renaissance. Although even industry proponents acknowledge that the problem of disposing of spent nuclear fuel remains unsolved, the industry routinely assumes this problem will be solved in the future. Unfortunately, this is the same assumption made by nuclear energy proponents at the beginning of the nuclear industry fifty years ago. We haven’t solved the nuclear waste problem in the past half century, and there is no reason to think we will be more likely to do so in the next one. Like the shipwrecked economist …

Resolving The Spent Fuel Issue For New Nuclear Power Plants, Fred P. Bosselman

All Faculty Scholarship

No abstract provided.

Using Ethanol As A Fuel To Reenergize Free Trade Area Of The Americas Negotiations, Marcel De Armas

ExpressO

Currently the United States imposes a 2.5 percent ad valorem tax along with a 14.27 cents per liter tax on imported ethanol from countries with normal trade relations under the harmonized tariff schedule. However, the United States exempts many countries from this tariff or reduces the tariff under various free trade agreements or initiatives. The issues that resulted in Doha’s failure also caused FTAA negotiations to temporarily stall since both Brazil and the United States wanted certain FTAA issues negotiated at the WTO level. The United States could initiate this process with a discussion of reducing or eliminating its ethanol …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Transnational Shipments Of Nuclear Materials By Sea: Do Current Safeguards Provide Coastal States A Right To Deny Innocent Passage?, David B. Dixon

ExpressO

The maritime transport of nuclear materials has created a conflict between two international law regimes: the United Nations International Law of the Sea, and the developing customary law of the 'precautionary principle' in international environmental law. This conflict became apparent in recent years when several coastal states denied passage to ships transporting nuclear materials arguing the shipments posed an environmental threat. This conflict has raised an issue which is currently unresolved: Do coastal states have a right to prohibit innocent passage to ships carrying nuclear materials if these ships fail to fulfill the requirements of the precautionary principle? This review …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

The Intercivilizational Inequities Of Nuclear Power Weighed Against The Intergenerational Inequities Of Carbon Based Energy, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

This essay explains that such encouragement of nuclear energy production as a “solution” to fossil fuel-induced climate change will create environmental problems equally as grave as those posed by a carbon-based energy economy. Both nuclear energy and fossil energy impose enormous environmental externalities that are not captured by the economics of energy production and distribution. While emissions trading schemes seek to harness market-based efficiencies to accomplish pre-determined reductions, they neither seek to nor succeed in capturing the environmental externalities of energy generation. By creating a set of incentives without capturing all of the externalities, these trading schemes will simply distort …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Sharing Potential And The Potential For Sharing: Open Source Licensing As A Legal And Economic Modality For The Dissemination Of Renewable Energy Technology, Jason Wiener

ExpressO

No abstract provided.

An Economic Theory Of Infrastructure And Commons Management, Brett M. Frischmann

ExpressO

In this article, Professor Frischmann combines a number of current debates across many disciplinary lines, all of which examine from different perspectives whether certain resources should be managed through a regime of private property or through a regime of open access. Frischmann develops and applies a theory that demonstrates there are strong economic arguments for managing and sustaining openly accessible infrastructure. The approach he takes differs from conventional analyses in that he focuses extensively on demand-side considerations and fully explores how infrastructure resources generate value for consumers and society. As a result, the theory brings into focus the social value …

Energy-Efficiency: The Best Option For A Secure, Clean, Healthy Future, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

The risks of dependence on traditional fuels have never been greater or more obvious. Modern civilization and the world economy are facing imminent and clear threats of worldwide terrorism. The oil producing countries of the Middle East are increasingly unstable, confronting the world with potentially calamitous energy and economic disruptions. Domestically, our limited refining capacity creates shortages when demand is high and increases prices even when petroleum supplies are plentiful. Yet most of the world is in a state of denial, happy to bask in the illusory security of temporary Saudi oil production increases. Moreover, these new dangers sit on …

Inter-American System, Diego Rodriguez-Pinzon

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Fuel Efficiency: The Disconnect Between Environmental Policy And Tax Policy, John J. Marciano

ExpressO

The recent high gas prices in America have intensified the debate over oil and gas efficiency, use, and reserves. As the national average for a gallon tops $2.10, Congress and the President strive to find a common position to foster energy independence, protect the environment, and bolster the struggling economy.

President Bush’s energy policy and recent Senate and House bills have not contemplated their effects on the environmental state of our nation or its impact on the internal revenue code. In this time of uncertainty, energy independence and measured use of resources may be at odds, but must we stray …

Federal Permitting Issues Related To Offshore Wind Energy, Using The Cape Wind Project In Massachusetts As An Illustration, Thomas A. Utzinger

ExpressO

Cape Wind Associates, LLC in Massachusetts intends to build a 130-turbine wind park off of Cape Cod, Massachusetts, in federal waters. The wind park would generate an average output great enough to power about three-quarters of the Cape’s energy needs.

Construction of this project required two permits from the U.S. Army Corps of Engineers: one for a single data tower, and one for the overall wind park. To date, the Corps has granted the data tower permit. This has been the subject of litigation in Massachusetts state and federal courts. The Corps is also conducting a lengthy environmental review of …

Assessing The Options For Designing A Mandatory U.S. Greenhouse Gas Reduction Program, Robert R. Nordhaus, Kyle W. Danish

ExpressO

The United States faces growing pressure – both from domestic and international sources – to adopt a mandatory greenhouse gas reduction program to address the risk of global climate change. If policy-makers decide to establish such a program, they could end up creating an environmental regulatory regime of potentially unprecedented scope and impacts. A domestic greenhouse gas program could break ground in other ways too. Many policy-makers are considering innovative market-based approaches to regulation, including a multi-billion dollar economy-wide “cap-and-trade” program. In this paper, we: (1) set forth criteria for evaluating program options; (2) analyze the leading design options and …

Difused Surface Water: Reasonable Use Has Become The Common Enemy, Wendy B. Davis

ExpressO

Diffused surface water, caused by precipitation, should be treated as a necessary asset to replenish aquifers used for drinking water, and not as waste to be disposed of by landowners. Groundwater aquifers were created, and can only be replenished, by precipitation that is allowed to seep underground. Ninety-nine percent of the drinking water for people in rural areas of America comes from groundwater aquifers. These aquifers are in danger of being contaminated or depleted, which could result in severe water shortages very soon. Legislators have failed to enact a comprehensive system to regulate the use of aquifers, relying instead on …

Renewable Energy Sources For Development, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

Renewable energy resources hold great promise for meeting the energy and development needs of countries throughout the world. This promise is particularly strong for developing countries where many regions have not yet committed to fossil fuel dominance. Solar photovoltaic and solar thermal technologies are particularly advantageous for serving the two billion people in rural areas without grid electricity. Modern biomass energy is attractive because it uses locally available agricultural wastes. Wind energy and small hydroelectric resources also are mature technologies well suited to developing countries. Such renewable resources are far more economical than traditional energy resources, especially where the costs …

Global Climate Change Kyoto Protocol Implementation: Legal Frameworks For Implementing Clean Energy Solutions, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

This paper describes the measures that have been and can be taken and the legal mechanisms by which successes have been achieved in reducing greenhouse gases. Examples are given of success stories from around the world, but these examples are just demonstrative. Many hundreds of programs have been pursued successfully around the world in both industrial and developing countries. What does emerge, however, is clear evidence that global warming can be effectively addressed and that many significant steps have been taken profitably in both the public and private sectors, offering significant business, export and job opportunities, and that much can …

Energy And Environmental Challenges For Developed And Developing Countries, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

Energy for development utilizing traditional supply investments, estimated to cost $1.4 - $4 trillion through 2010, will be unaffordable both for recipients and lenders. The capital required, even if obtainable, would squeeze out capital for all other development requirements and would pose unacceptable environmental and cleanup costs. Upgrading existing energy supply systems would cost a fraction of new supply. Energy efficiency and environmentally benign renewables can at least halve new supply capital requirements and avoid their environmental costs. Least cost planning by lenders and recipients, on the basis of total system life cycle costs, for both energy and non-energy related …

Least-Cost Utility Planning And Demand-Side Management: A Bibliography, Richard L. Ottinger

Elisabeth Haub School of Law Faculty Publications

The Pace Energy Project has undertaken to compile this annotated bibliography of books, articles and other research materials devoted to least-cost utility planning and demand-side management. This introduction describes the organization and methodology of the bibliography. To aid the user who may be unfamiliar with this field, these remarks also survey the factual background underlying the issues in each subsection of the bibliography, and the interrelationships between these utility reform issues.

Cogeneration: A Successful Response To The Energy Crisis?, Charles M. Pratt

Fordham Urban Law Journal

This article examines the concept of cogeneration, a term for the simultaneous production of both electricity and other useful energy in a single facility by a cascading use of heat energy. It analyzes the rise of cogeneration through the lens of the Public Utility Regulatory Policies Act of 1978 ("PURPA"), enacted by Congress to improve the distribution of electric energy and encourage the conservation of resources, as well as the efforts of the Federal Energy Regulatory Commission ("FERC") to encourage cogeneration. This article discusses a number of the issues raised and left unresolved by this federal policy of encouraging the …