Environmental Law Commons^™

2010 Developments Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

The courts decided 37 cases under the State Environmental Quality Review Act (SEQRA) in 2010. That is the lowest number since this column began its annual survey of SEQRA cases in 1990. The second lowest number was 45 in 2009. This trough is most likely caused by the economic recession, as SEQRA activity primarily relates to real estate development.

As is usually the case, defendants were much more likely to win in cases where an environmental impact statement (EIS) had been prepared than when there was no EIS. Of the 16 cases with an EIS, defendants won 13 (81 percent); …

New York's Revived Power Plant Siting Law Preempts Local Control, Michael B. Gerrard

Faculty Scholarship

Taking most observers by surprise, the New York State Legislature on June 22, 2011, overwhelmingly passed The Power NY Act of 2011. Governor Andrew Cuomo signed it on Aug. 4. The new law revives Article X of the Public Service Law after a nearly nine-year hibernation. As before, the law creates a one-stop, state-led program for permitting electric generating facilities while preempting local requirements. But the new Article X differs from its predecessor in several important ways: It covers facilities as small as 25 megawatts (down from the prior 80 megawatts threshold), it has even more generous provisions for funding …

Climate Change Litigation After Supreme Court Ruling In American Electric Power V. Connecticut, Mark Fulton, Michael B. Gerrard

Faculty Scholarship

On June 20, 2011 the U.S. Supreme Court issued its much-anticipated decision in American Electric Power v. Connecticut. This is the second climate change case to be decided by that court and the first to concern common law claims, where the plaintiffs claimed that the greenhouse gases (GHGs) from power plants constitute a common law nuisance, and asked the court to issue an injunction requiring the plants to reduce their emissions.

Climate Change And The Wto: Expected Battlegrounds, Surprising Battles, Daniel M. Firger, Michael B. Gerrard

Faculty Scholarship

This article examines the issue of climate change policy and international trade law. While conventional wisdom may have predicted that conflicts in trade law would emerge through climate-related protectionist measures, such as carbon tariffs on imports from countries with less stringent controls on greenhouse gas emissions, the authors point out that government support for climate-friendly technologies has in fact emerged as the primary battleground. The authors examine two recent disputes—between the United States and China and between Japan and Canada – over green subsidies and their implications for the future of clean energy.

Model Municipal Ordinance Project Designed To Facilitate Wind And Solar Projects And Green Buildings, Michael B. Gerrard, Danielle Sugarman

Faculty Scholarship

Soaring oil prices and the reality of climate change have underscored the heed to reduce U.S. fossil fuel dependence by improving energy efficiency and by developing and expanding renewable sources of energy. The International Energy Agency declared in 2010 that "[i]ncreasing energy efficiency, much of which can be achieved through low-cost options, offers the greatest potential for reducing CO2 emissions over the period to 2050." Furthermore, increasing our reliance on renewable resources such as wind and solar energy is not only a prudent measure in helping America to improve its energy security, but is a necessary component of a basket …

Prevailing Academic View On Compliance Flexibility Under § 111 Of The Clean Air Act, Gregory Wannier, Jason A. Schwartz, Nathan D. Richardson, Michael A. Livermore, Michael B. Gerrard, Dallas Burtraw

Faculty Scholarship

EPA will soon propose performance standards under Section 111 of the Clean Air Act for greenhouse gas pollution from the two largest emitting stationary source sectors – fossil-fueled power plants and petroleum refineries. The form these standards will take remains unclear. A key issue that will shape the effectiveness of the regulations is the degree to which they enable regulated entities to use flexible approaches to achieve the standards. This discussion paper provides the content of a letter to EPA Administrator Jackson that describes areas of general academic agreement on the EPA’s authority to use compliance flexibility options under Section …

Harmonizing Climate Change Policy And International Investment Law: Threats, Challenges And Opportunities, Daniel M. Firger, Michael Gerrard

Faculty Scholarship

This chapter responds to a chorus of commentary about the potential for conflict between the international investment law regime and an array of national and international actions being undertaken to mitigate and adapt to global climate change. Contrary to conventional wisdom, while some climate-friendly regulations may indeed be facially incompatible with the obligations imposed on states by typical international investment agreements (IIAs), many climate policies – especially those related to clean energy finance and technology transfer – involve principles common to foreign investment law and are largely compatible with that regime. Moreover, pending the unlikely negotiation of a single global …

Environmental And Energy Legislation In The 112th Congress, Michael B. Gerrard

Faculty Scholarship

When Barack Obama succeeded George W. Bush in January 2009, backed by solid majorities in both the House and the Senate, the country seemed poised for the first major environmental legislation since 1990, the year of the Oil Pollution Act and the 1990 Clean Air Act amendments. Under the leadership of Rep. Henry A. Waxman (D-CA) and Rep. Edward Markey (D-MA), the House passed a comprehensive climate change bill based on an economywide cap-and-trade system. The House also passed a bill to lift oil spill liability caps and adopt additional reforms in the wake of the Gulf of Mexico spill. …

The Curious Case Of Greening In Carbon Markets, James Salzman, William Boyd

Faculty Scholarship

Over the last several years, so-called carbon markets have
emerged around the world to facilitate trading in greenhouse gas
credits. This Article takes a close look at an unexpected and
unprecedented development in some of these markets—premium
“green” currencies have emerged and, in some cases, displaced
standard compliance currencies. Past experiences with other
environmental compliance markets, such as the sulfur dioxide and
wetlands mitigation markets, suggest the exact opposite should be
occurring. Indeed, buyers in such markets should only be interested in
buying compliance, not in the underlying environmental integrity of the
compliance unit. In some of the compliance carbon …

A Once And Future Gulf Of Mexico Ecosystem: Restoration Recommendations Of An Expert Working Group, Charles H. Peterson, Felicia C. Coleman, Jeremy B.C. Jackson, R. Eugene Turner, Gilbert T. Rowe, Richard T. Barber, Karen A. Bjorndal, Robert S. Carney, Robert K. Cowen, Jonathan M. Hoekstra, James T. Hollibaugh, Shirley B. Laska, Richard A. Luettich Jr., Craig W. Osenberg, Stephen E. Roady, Stanley Senner, John M. Teal, Ping Wang

Faculty Scholarship

The Deepwater Horizon (DWH) well blowout released more petroleum hydrocarbons into the marine environment than any previous U.S. oil spill (4.9 million barrels), fouling marine life, damaging deep sea and shoreline habitats and causing closures of economically valuable fisheries in the Gulf of Mexico. A suite of pollutants — liquid and gaseous petroleum compounds plus chemical dispersants — poured into ecosystems that had already been stressed by overfishing, development and global climate change. Beyond the direct effects that were captured in dramatic photographs of oiled birds in the media, it is likely that there are subtle, delayed, indirect and potentially …

A Study On The Imo Regulatory Instruments Concerning The Evaluation Of Safety And Pollution Hazards Of Chemicals In Bulk Transported By Sea (Based On Marpol Annex Ii And Ibc Code), Gimoon Jea

World Maritime University Dissertations

No abstract provided.

Invasive Species And Climate Change, Invasive Species Advisory Committee

National Invasive Species Council

ISSUE

Climate change interacts with and can often amplify the negative impacts of invasive species. These interactions are not fully appreciated or understood. They can result in threats to critical ecosystem functions on which our food system and other essential provisions and services depend as well as increase threats to human health. The Invasive Species Advisory Committee to the National Invasive Species Council recognizes the Administration’s commitment to dealing proactively with global climate change. However, unless we recognize and act on the impact of climate change and its interaction with ecosystems and invasive species, we will fall further behind in …

Dec. 10, 2010, Ifc Performance Standards_V2, Ifc

IFC E&S Performance Standards

No abstract provided.

Smart-Grid: Technology And The Psychology Of Environmental Behavior Change, Stephanie M. Stern

Chicago-Kent Law Review

There is a schism in the legal scholarship between scholars who argue that value, norm, and information campaigns can induce pro-environmental behavior and those who contend that structural, psychological, and social forces sharply constrain behavior change. Both sides of this debate have neglected the critical and ever-increasing role of technology in addressing residential pollution. The example of electricity "smart grids" illustrates how technology engineered to override cognitive and behavioral limitations can comprehensively reduce household consumption and emissions. Electricity conservation suffers from multiple barriers to collective action, including large numbers of geographically dispersed polluters, low financial payoffs, and, the contribution of …

The Legal-Political Barriers To Ramping Up To Hydro, Dan Tarlock

Chicago-Kent Law Review

Hydroelectric energy is the oldest major source of non-carbon, renewable energy and is the only conventional renewable resource in the current energy mix. Increased hydro capacity would seem to be a key element of any United States energy policy designed to promote the greater use of renewable resources. However, for several decades hydro has been perceived as a mature, fully developed technology. This article argues that any effort to stimulate substantial new hydro capacity will face a series of environmental legal and policy constraints. Efforts to adapt to global climate change will further complicate efforts to increase hydro electric generation. …

Mercurial But Not Swift—U.S. Epa's Initiative To Regulate Coal Plant Mercury Emissions Changes Course Again As It Enters A Third Decade, Keith Harley

Chicago-Kent Law Review

The effort to establish national standards to control mercury air pollution from coal-fired power plants now spans twenty years, four presidential administrations, and remains undone. This note will briefly describe the failed twenty-year effort to regulate mercury emissions from coal-fired power plants. It will show how United States Environmental Protection Agency (U.S. EPA) efforts during the (first) Bush and Clinton Administrations to construct mercury regulations were dismantled during the Administration of George W. Bush. During the second Bush Administration, U.S. EPA substituted a new regulatory approach that was ultimately repudiated by the federal judiciary as plainly inconsistent with the Clean …

Green Diesel: Finding A Place For Algae Oil, Fred Bosselman

Chicago-Kent Law Review

The prospect of obtaining domestically-produced biodiesel from algae has attracted wide investor interest. Although many analysts predict that economic production is five to ten years away, the production process involves such a wide range of environmental and land use issues that it is not premature to begin thinking about the kinds of places in which "green biodiesel" could be efficiently made in the United States. Our land use and environmental laws were all drafted by people who never imagined the possibility that huge volumes of algae would be an important energy resource; nor could they have known that the location …

Of Nesting Dolls And Trojan Horses: A Survey Of Legal And Policy Issues Attendant To Vehicle-To-Grid Battery Electric Vehicles, Bryan Lamble

Chicago-Kent Law Review

2010 will not be remembered as the year when the domestic energy landscape changed, dominated as it was by environmental catastrophe and human calamity and tragedy caused by the search for and extraction of traditional fossil fuels. In fact, clean(er) energy and greater efficiency seem, in some ways, to be less of a reality at the beginning of the second decade of the twenty-first century than many would have predicted (and hoped). Furthermore, a contentious mid-term election season (stoked by fears of massive deficits, rising national debt and ballooning government) dominated the headlines at the expense of what could prove …

Biotech Biofuels: How Patents May Save Biofuels And Create Empires, Adam Wolek

Chicago-Kent Law Review

The United States' primary transportation energy sources are fossil fuels, namely, gasoline and diesel. These products have high environmental, security, and financial costs. A strong emphasis has been placed on biofuels, especially ethanol and biodiesel, to lessen reliance on fossil fuels. Historically, high production costs, lack of infrastructure, return on investment anxieties, and concerns about scaling-up production have slowed the development of these alternative technologies. Today, biotechnological solutions are lowering productions costs and making large scale production more economically feasible. Patents can lessen anxieties about investment as they can provide longer-term protection and market exclusivity for patented technologies. As biofuels …

Historic Preservation And The Wilderness, Seth Kagan

Elisabeth Haub School of Law Student Publications

The language of Article XIV of the New York State Constitution has been the focus of a contentious debate over the years: What can be done with the lands within the Forest Preserve without violating the provision to keep the lands “forever wild”? In particular, how does Article XIV treat preservation of historic sites and archaeological resources within the Forest Preserves? The paper discusses competing interests between the “forever wild” provision and that of historic preservation through examination of the legislative history, administrative and judicial action. The paper also contemplates a constitutional convention for the purposes of amending Article XIV …