Environmental Law Commons^™

Clean Energy And The Price Preemption Ceiling, Jim Rossi

San Diego Journal of Climate & Energy Law

Part I of this Article provides an illustration of the feed-in tariff one clean energy innovation many state and municipal governments have enacted to encourage investment in renewable energy. In a nutshell, the feed-in tariff is a secure contract for renewable power at a set price over a term of years that provides a return to investors in these projects, such as a homeowner installing a solar panel or wind turbine. Part II of this Article describes preemption issues that have risen with feed-in tariffs under two federal statutes the Public Utility Regulatory Policies Act of 1978, which requires utilities …

Regulation, Climate Change, And The Electric Grid, Davod B. Spence

San Diego Journal of Climate & Energy Law

In Part I of this essay, I outline some of the background characteristics of the electric grid, the way it is operated, and the way regulators and grid operators manage the sale and transmission of electricity across it. In Part II, I explore the opportunities and potential problems associated with integrating intermittent, renewable sources of electric generation into the grid. This discussion includes a review of a number of recent studies examining the GHG emissions effects of using fossil fueled generation to back up wind power, as well as the U.S. Federal Energy Regulatory Commission?s (FERC) recent rulemakings addressing this …

The Politics Of Clean Energy: Moving Beyond The Beltway, Joseph P. Tomain

San Diego Journal of Climate & Energy Law

This Article argues that the United States can achieve a new and smart energy policy and that we are taking active steps in this direction. Off of the Hill, at 1600 Pennsylvania Avenue, there is clear thinking about clean energy. Consider President Obamas choice for Secretary of Commerce, John Bryson. Bryson has been the CEO of a public electric utility, a founder of the Natural Resources Defense Council, and sits on the boards of such organizations as Boeing and Disney and clean energy firms like Coda Automotive and BrightSource Energy exactly the right job description for a clean energy advocate. …

Effective Renewable Energy Policy: Leave It To The States?, Steven Weissman

San Diego Journal of Climate & Energy Law

The federal system employed in the United States offers many models for cooperation between the federal government and the states in pursuit of important policy objectives. Under the Clean Air Act, the U.S. Environmental Protection Agency can establish air quality standards and delegate enforcement to the states. The Coastal Zone Management Act empowers states to establish plans for management of ocean waters close to shore and to have a say related to offshore projects that are in federal jurisdictional waters. The Surface Mining Control and Reclamation Act of 1977 allows coal states to set and enforce their own rules related …

Space Commercialization: The Need To Immediately Renegotiate Treaties Implicating International Environmental Law, Alexander G. Davis

San Diego Journal of Climate & Energy Law

Outer space is truly the final frontier for both scientific exploration and frontier-style commercialization. Given its extra-national nature, international treaties have formed the basis of space law, but these treaties predate any notion of the true potential for space commercialization. The private sector has relied on this regulation-free industry when developing its spacecraft, mission structure, and operating procedures, often to the detriment of Earth's and its surrounding environment, with space debris, i.e. space junk or space trash, and greenhouse gas emissions being the primary externalities. This Comment provides a background on the commercial space industry and applicable law and treaties, …

Administrative Absurdity: Why The Judiciary Should Uphold Epa's Use Of The Administrative Necessity And Absurd Results Doctrines Within The Tailoring Rule., David P. Vincent

San Diego Journal of Climate & Energy Law

This Comment analyzes the strengths and weaknesses of the arguments advanced by EPA as well as its opponents regarding the Agencys reliance on these administrative law doctrines to tailor PSD and Title V applicability criteria. The Comment concludes with an explanation of why the judiciary will likely rule in EPAs favor in this instance.

Part I of this Comment introduces the Tailoring Rule, including its background and the emissions thresholds it seeks to implement regarding PSD and Title V programs. Part II presents EPAs legal basis for the creation and subsequent implementation of the Tailoring Rule, including the concept of …

Occupational Noise Exposure Of Nightclub Bar Employees In Ireland, Gary Henehan, Aoife Kelly, Sara Boyd, Gordon Chambers

Articles

Due to the transposition of the EU Directive 2003/10/EC into Irish Law, the entertainment sector was obligated to comply with the requirements of the Safety, Health and Welfare at Work (General Application) Regulations 2007, Chapter 1 Part 5: Control of Noise at Work since February 2008. Compliance with the Noise Regulations was examined in 9 nightclubs in Ireland. The typical daily noise exposure of 19 bar employees was measured using 2 logging dosimeters and a Type 1 fixed position sound level meter. Physical site inspections identified nightclub noise control measures. Interviews and questionnaires were used to assess the managers and …

The Case For Abolishing Centralized White House Regulatory Review, Rena I. Steinzor

Faculty Scholarship

A series of catastrophic regulatory failures have focused attention on theweakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and ameliorate …

Evaluating Rules And How We Measure Their Effects, Rena I. Steinzor, Michael Patoka

Faculty Scholarship

The Center for Progres­sive Reform undertook an empirical study of the Office of Information of Regulatory Affairs, the White House office that reviews every significant regulation issue by Executive Branch agencies. The study assembled an unprecedented portrait of its behav­ior during the decade from October 16, 2001, when notices of meetings with outside parties were first available on the Internet, until June 1, 2011. OIRA conducted 6,194 separate reviews of regulatory submissions, holding 1,080 meetings that involved 5,759 ap­pearances by outside par­ticipants. Both the final report and the database we assembled are available on the CPR website, at pro­gressivereform.org.

OIRA …

The End Game Of Deregulation: Myopic Risk Management And The Next Catastrophe, Thomas O. Mcgarity, Rena I. Steinzor

Faculty Scholarship

On December 22, 2008, the contents of an enormous impoundment containing coal-ash slurry from the Tennessee Valley Authority’s (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The proximate cause of the spill was the bursting of a poorly reinforced dike holding back a pit of sludge that towered 80 feet above the river and 40 feet above an adjacent road. The volume and force of the spill were so large that 1.1 billion gallons of the inky mess flowed across the river, inundating 300 acres of land in a layer four to five feet deep, uprooting trees, destroying …

The Grass Is Always Greener: Keystone Xl, Transboundary Harms, And Guidelines For Cooperative Environmental-Impact Assessment, Wyatt Sassman

Vanderbilt Journal of Transnational Law

While general understanding of environmental harms has become more geographically sophisticated, environmental-impact assessment (EIA) law has lagged behind. Although nations now understand complex environmental processes and relationships that extend well beyond their borders, EIA law remains trapped in a domestic structure that is ill-prepared to assess harms outside its jurisdiction. By looking at the U.S. environmental assessment of the Keystone XL pipeline, this Note recasts the problem of transboundary environmental harms in EIA using recent, remarkable events. Key assumptions made in the Keystone XL assessment illustrate that the typical domestic structure of EIA law does not allow adequate assessment of …

The Public Trust Doctrine And The Montana Constitution As Legal Bases For Climate Change Litigation In Montana, Gregory S. Munro

Faculty Law Review Articles

This article examines the need to resort to law and the legal process to address the risk posed by climate change to Montana and its people.

Part II provides a brief overview of global warming. Part III demonstrates how civil litigation can and should provide a meaningful role in addressing climate change. Part IV traces the origin of the public trust doctrine and how the U.S. Supreme Court and Montana Supreme Court have applied the doctrine in the past. Part V argues that principles underlying the public trust doctrine make it appropriate for the Montana courts to expand the doctrine …

Wilderness, Water, And Climate Change, Sandra B. Zellmer

Faculty Law Review Articles

As the nation searches for climate mitigation and adaptation strategies, the pressure to develop water resources within wilderness areas and to exploit the timber, forage, wildlife, fish, and other virtually untapped components of wilderness will become more acute. This Article makes the case that managers and legislatures should not yield to this pressure and argues that, if anything, the need to preserve untrammeled wilderness characteristics is just as imperative today as it was in 1964 when the Wilderness Act was passed The Article examines the potency of the Wilderness Act and a trio of federal water law doctrines-federally reserved water …

What Litigation Of A Climate Nuisance Suit Might Look Like, Michael B. Gerrard

Faculty Scholarship

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly left ajar the door to litigation under state (as opposed to federal) common law for greenhouse gas (GHG) emissions. Some plaintiffs' lawyers are also arguing that the decision leaves room for seeking money damages (rather than injunctive relief) even in a federal common law case.

For purposes of this Article, let's imagine a world in which the courthouse doors are swung open to common law claims for damages for GHG emissions, and the courts have rejected all defenses based on displacement, preemption, political question, and standing. In …

Contextualizing Regimes: Institutionalization As A Response To The Limits Of Interpretation And Policy Engineering, Charles F. Sabel, William H. Simon

Faculty Scholarship

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes – institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimes is becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the wellstudied agency and trade association examples. The newer regimes mix …

Law, Politics, And Cost-Benefit Analysis, Daniel H. Cole

Articles by Maurer Faculty

This Article explores the significant role cost–benefit analysis (CBA) plays in facilitating or impeding legislative and regulatory policy decisions. The Article centers around three case studies of CBAs the EPA prepared under three different presidents: (1) Clinton Administration changes to Clean Air Act air quality standards for ozone and particulate matter; (2) President Obama’s recent decision to suspend the EPA’s reconsideration of the Bush Administration’s air quality standard for ozone; and (3) the George W. Bush Administration’s “Clear Skies” legislative initiative. The first two case studies demonstrate, between them, how well-constructed CBAs can facilitate social-welfare-enhancing and impede welfare-reducing rules, even …

Using The Public Natural Resource Management Laws To Improve Water Pollution Anti-Degradation Policies, Sandra Zellmer, Robert Glicksman

Nebraska College of Law: Faculty Publications

The Clean Water Act’s principal goal is to “restore and maintain” the integrity of the nation's surface water bodies. The Act’s adoption was spurred largely by the perception that unchecked pollution had caused the degradation of those waters, making them unsuitable for uses such as fishing and swimming. At the time Congress passed the statute, however, some lakes, rivers, and streams had water quality that was better than what was needed to support these uses. An important question was whether the statute would limit discharges with the potential to impair these high quality waters. EPA’s anti-degradation policy sought to ensure …

Reliable Science: Overcoming Public Doubts In The Climate Change Debate, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This article will consider the case for instituting a domestic agency that would evaluate the findings from Intergovernmental Panel on Climate Change (IPCC) assessments to improve the credibility and legitimacy of those claims and conclusions for multiple purposes. The proposed agency would consider the robustness of an assessment's conclusions by construing the evidence through the lens of Daubert rather than Frye. Part I will outline the public debate about climate science-what the debate is about and why it exists. Part II will examine the current role of the IPCC-what it is and why it has not been successful in legitimating …

Cooperative Federalism And Hydraulic Fracturing: A Human Right To A Clean Environment, Elizabeth Burleson

Elisabeth Haub School of Law Faculty Publications

United States natural gas production is likely to stunt the direction and intensity of renewable energy by up to two decades according to a MIT study. Gas will not provide a “’bridge’ to a low-carbon future if it erodes efforts to prepare a landing at the other end of the bridge.” Unconventional natural gas extraction need not become a “transition” to a new addiction. This article analyzes how cooperative federalism and inclusive decision-making can provide legitimacy and transparency when balancing property rights versus police powers to regulate natural gas production.

The Evolution Of The Brazilian Regulation Of Ethanol And Possible Lessons For The United States, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

The oil shocks of the 1970s propelled the search for alternative fuel sources by oil-dependent countries. The United States and Brazil–then the two largest producers and consumers of ethanol in the world – focused intensely on biofuels as a substitute for oil, while other countries – such as Japan and European Union members – focused more on nuclear energy and other methods of power generation. However, from the 1980s onward, climate change emerged as a significant concern. This new focus on climate change revived the discussion about the need for alternative energy sources. In addition, during the 2000s, oil prices …