Natural Resources Law Commons^™

Paradoxes Of “Decarbonization”, David B. Spence

Brooklyn Law Review

Scholars and policymakers continue to debate the shape of a post-carbon world, and how fast the United States can “decarbonize” its energy sector. Recent trends—including the reduced costs of renewables, regulatory and market pressure on coal-fired power, and successful integration of large amounts of wind power into the grid—have fed optimism about the possibility of rapid and “deep” decarbonization. Unfortunately, however, encouraging ever-more substitution of renewables for fossil fuels creates unintended consequences—paradoxes—that stem in part from two sometimes unavoidable and under-appreciated truths. First, the three attributes we value in the electricity system—cost, reliability and environmental performance—are in tension with one …

Environmental Injustice And The Pursuit Of A Post-Carbon World: The Unintended Consequences Of The Clean Air Act As A Cautionary Tale For Solar Energy Development, Shannon Elizabeth Bell

Brooklyn Law Review

Most policy decisions aimed at improving the environment have been conceived and implemented without attention to issues of environmental justice, creating what sociologist Julian Agyeman calls an “equity deficit” in the discourse and practice of environmental sustainability. This article presents the unintended consequences of the Clean Air Act (CAA) and its amendments as a cautionary tale for what can happen when environmental regulations are enacted without adequately considering environmental justice concerns. Although the CAA has been responsible for much good in the United States as a whole—including significant reductions in acid rain and health-harming pollutants—it has also brought significant harm …

Life Cycle Analysis And Transportation Energy, Alexandra B. Klass, Andrew Heiring

Brooklyn Law Review

As government actors and the private sector attempt to decarbonize the economy, the role of life cycle analysis (also know as life cycle assessment or LCA) has become increasingly important. In this essay, we explore the use of life cycle analysis in the transportation sector to assess its influence in federal and state policy efforts to move to a low-carbon energy future. We first define life cycle analysis and explain its use in evaluating the environmental impacts of all stages of a product from production, to use, to disposal. We then review the use of life cycle analysis in considering …

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 …

Legal Pathways To Deep Decarbonization: Lessons From California And Germany, John C. Dernbach

Brooklyn Law Review

In the December 2015 Paris Agreement, nations of the world agreed to reduce their net greenhouse gas emissions to zero by the second half of the century. For developed countries, accomplishing that goal requires a reduction of carbon dioxide emissions by more than 80% from 1990 levels by 2050. As ambitious and even unachievable as that goal may seem, some developed countries have already made considerable progress in conceptualizing and even adopting legal approaches for achieving decarbonization. This paper describes the approaches being taken in two major developed country jurisdictions—California and Germany—and suggest lessons from that experience that could be …

Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes

Publications

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve …

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 …

The Use And Preservation Of Grasslands: The Logic Of Hard Lessons, Irma S. Russell

Faculty Works

Planning for preservation of grasslands and all environmental resources is essential for the long-term well-being of the environment and humans. The interrelated nature of all resources of the physical world requires sustainable practices to maintain productivity and life. Recognition that the often-overlooked resource of grasslands is foundational to economic, environmental, and political stability of the region leads to the conclusion that planning for the long-range health of grasslands is essential to the economy as well as to the environment. Part II of this article explores the history of grasslands of the Midwest. It identifies the historical mismanagement of grasslands and …

Legal Challenges For "Leaving It In The Ground": Touchstone Development And Holdings, Steven Ferrey

Suffolk University Law School Faculty Works

Renewable technologies are proven as an alternative mechanism for power production and their costs are rapidly decreasing. This allows the U.S. deliberately to leave climate-changing fossil fuels in the ground. Utilities in several states are now attempting to extend the life of certain fossil-fuel generating assets and pull more fossil resources from the ground, often using federal ISO wholesale markets to try to cross-subsidize these older plants. However, law is not yet structured to accommodate a system where fossil fuel power generation remains in the ground as the nation switches to solar and wind power.

While able to store fossil …

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

Roger Williams University Law Review

No abstract provided.

The Big "Blue" Nation: Expanding Aquaculture In Kentucky, K. Cassandra Keck

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

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 …

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

Faculty Publications

No abstract provided.

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 …

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.

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.

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

Faculty Publications

No abstract provided.

Picking Up The Pieces: Congress's Role In Combatting The Global Issue Of Marine Debris, Sheldon Whitehouse, Lisa Murkowski

Roger Williams University Law Review

No abstract provided.