Daily Archives: April 22, 2016


Picking Winners and Losers: A Structural Examination of Tax Subsidies to the Energy Industry

By: Tracey M. Roberts In debates over whether government should continue to subsidize renewable energy, politicians have repeatedly warned that government should not be “picking winners and losers.”   This way of framing the debate undermines sensible policy analysis in two ways.  First, it obscures the long history of federal support for fossil fuels; the United States has been picking winners and losers for over 100 years.  Second, it fails to articulate what it means to “pick winners and losers,” to explain why doing so is less efficient than pursuing other economic policies, and to inquire why this suboptimal choice has been made.  This article addresses these failings by examining two sets of tax subsidies to the energy industry, one for fossil fuels and the other for renewables. Part II  of this article describes economic situations that would justify government intervention in the energy markets and explains why Congress has […]


Sink or Swim: In Search of a Model for Coastal City Climate Resilience

By: Sarah J. Adams-Schoen Although the threats of global climate change are by no means limited to coastal areas, coastal cities face extreme and unique challenges. Global temperatures are increasing and the rate of increase is accelerating-with corresponding increases in sea levels, acidification of oceans, and losses of flood-mitigating wetlands. Storms and other extreme weather events are increasing in frequency and severity. As a result, coastal communities are already experiencing rising sea levels, eroding shores, more massive storm surges, more severe storms, salt water intrusion, loss of land and changes in marine resources -and all cities can expect increased incidences of, and more extreme, storms, heat waves, droughts, and other extreme weather conditions.  … New York City is on a short list of U.S. cities that began proactively planning for future climate-change related risks in the early 2000s. Since then, the city has assessed its vulnerabilities, planned for, and, significantly, […]


Regulating Pot to Save the Polar Bear: Energy and Climate Impacts of the Marijuana Industry

By: Gina S. Warren It goes by many names:  cannabis, marijuana, pot, chronic, grass, reefer, shwag, Mary Jane.[1]  Whatever the name, the trend is clear:  the weed is legal but the herb ain’t green.  Nearly half of all U.S. states have enacted-or have pending-legislation to legalize, decriminalize, or in some way permit the use and cultivation of marijuana.  As a result, marijuana has become a significant topic of conversation in the U.S.-especially in the areas of social policy and criminal law.  One conversation yet to reach fruition, however, is the industry’s projected impacts on energy demand and the climate.  As the industry grows, so will its negative externalities.  Indoor cannabis cultivation is one of the most energy-intensive industries in the U.S., requiring electricity to power lamps, to maintain consistent temperature and humidity levels, and to power fans for ventilation, among other things.  This energy consumption, unless otherwise mitigated, results in […]


Perpetuating the Cycle: The Failure of APHIS and EPA to Consider the Cumulative Impact of Pairing Herbicides with Herbicide-Resistant Crops

By: Michael Mahoney Under the existing statutory framework, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”) has the authority to regulate certain genetically engineered crops, while the Environmental Protection Agency (“EPA”) regulates all herbicide products sold in the United States.  Although the development of a crop engineered to be resistant to a certain herbicide contemplates the future widespread use of that herbicide, EPA and APHIS fail to account for this cumulative impact.  Specifically, when performing a National Environmental Policy Act (“NEPA”) analysis for the deregulation of crops designed to be herbicide-resistant, APHIS violates NEPA and its implementing regulations by failing to analyze the environmental effects of the increased herbicide use that the deregulation presupposes.  Meanwhile, the courts have determined that EPA need not comply with NEPA when registering herbicides, finding the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) analysis sufficient even though it does not evaluate […]


Beyond Gridlock

By: Michael P. Vandenbergh & Jonathan A. Gilligan Private climate governance can achieve major greenhouse gas (“GHG”) emissions reductions while governments are in gridlock.  Despite the optimism that emerged from the Earth Summit in Rio de Janeiro, Brazil in 1992, almost a quarter century later the federal legislative process and international climate negotiations are years from a comprehensive response.  Yet Microsoft, Google and many other companies have committed to become carbon neutral.  Wal-Mart has partnered with the Environmental Defense Fund to secure 20 million tons of GHG emissions reductions from its suppliers around the world, an amount equal to almost half the emissions from the US iron and steel industry.  Investors holding roughly $90 trillion in assets have pressured large corporations to disclose and reduce their carbon footprints, and participating companies report having reduced emissions by an amount equal to a major emitting nation.  Private forest certification programs have taken […]


Standing to View Other People’s Land: The D.C. Circuit’s Divided Decision in Sierra Club v. Jewell

By: Bradford C. Mank In its divided 2014 decision in Sierra Club v. Jewell, the U.S. Court of Appeals for the District of Columbia Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view.  Two earlier decisions had reached similar conclusions, but have had little impact.  The D.C. Circuit’s decision could significantly enlarge the ability for plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter.  Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it would decide this issue.  If it addresses whether plaintiffs must have a legal interest in any property they seek standing to protect, the Supreme Court might be […]


Restating Environmental Law

By: Tracy Hester, Robert Percival, Irma Russell, Victor Flatt & Joel Mintz Although environmental law springs from deep roots in centuries of common law, during the last forty years in particular it has grown into a well-established and important legal field in the United States with enormous practical consequences. Maturity, however, has also made it notoriously complex, and environmental law’s overlapping statutory schemes and inconsistent federal and state programs have sparked recurring conflict, controversy, and criticism. This fractured and complicated network of environmental laws and programs has become increasingly difficult to modify or update to account for emerging environmental concerns. As a result, numerous experts, scholars, and advocacy groups have offered proposals to reform U.S. environmental laws, but these initiatives have failed to produce significant statutory advances or implementation. In fact, Congress has not enacted major new environmental legislation since its passage of the Clean Air Amendments of 1990, and […]


Legal and Scientific Integrity in Advancing a Land Degradation Neutral World

By: Shelley Welton, Michela Biasutti & Michael B. Gerrard It is no secret that the fight against desertification isn’t going well. In the two decades since the United Nations Convention to Combat Desertification (“UNCCD”) came into force, desertification-defined as degradation in the quality of “arid, semi-arid, and dry subhumid” land areas -has worsened considerably. Recent United Nations estimates suggest that fifty-two percent of drylands currently under agricultural cultivation are moderately or severely degraded, and 12 million hectares of productive land become barren each year due to desertification and drought. And while drylands are the focus of the UNCCD, the challenge isn’t limited to them: somewhere around twenty percent of land worldwide is moderately or severely degraded and most experts predict this percentage will increase in coming decades. … This article looks at ways to avoid these risks and to advance global land degradation neutrality into a concept-and, eventually, a program-that […]


Moving at a Glacial Pace: What Can State Attorneys General Do About SEC Inattention to Nondisclosure of Financially Material Risks Arising from Climate Change?

By: Nina Hart In recent years, two certainties have created a mass of uncertainty for public companies. First, companies must disclose material financial information in their annual statements, known as 10-K reports, to the Securities & Exchange Commission (“SEC”). Second, climate change poses financial risks to the way many companies operate. Together, these principles have generated significant uncertainty within the regulatory and law enforcement arenas. Specifically, companies and law enforcement officials are uncertain about what risks stemming from climate change must be disclosed in 10-K reports, and how that information should be presented. The actor primarily responsible for clarifying disclosure requirements is the SEC. This Note will argue that the SEC’s most recent attempt to address this uncertainty-a 2010 interpretive release-is inadequate, and that the SEC should issue additional guidance. As the SEC has not been active on this issue in the past four years despite promising further action on […]


Smart Sprawl? Green Aspirations and the Lowdown on High-Density Suburbia

By: Paige Pavone Reading Woods, an expensive condominium development north of Boston, is a quintessential example of suburban sprawl. Built in 2011, Reading Woods comprises 408 units, with unlimited parking for each. From Reading Woods, residents cannot walk to a public library, a bank, or a grocery store; they often opt to drive to the nearby strip mall instead. If they really wanted to, residents could walk to a chain restaurant, but they would have to risk crossing I-95 first. I-95 is familiar to them-a backyard of sorts-rushing past 100 feet away. Given these facts, it is perplexing that a Smart Growth Overlay District enabled the development of Reading Woods. Many hail high-density development as the smart growth solution to sprawl. While mixed-use high-density and urban residential high-density may be valid solutions, exclusively residential high-density suburban development is anything but smart. Ironically, developers build these High-Density Islands, as I will […]


Climate Adaptation and Land Use Governance: The Vertical Axis

By: Alice Kaswan The existing and expected impacts of climate change are increasingly well-documented.   Recent hurricanes,  wildfires,  and heat waves  provide dramatic examples of what climate change portends, even if no single event can be directly attributed to climate change.  The scale of anticipated climate change poses profound challenges to existing governance norms.  This Article addresses one of those norms: the norm of local control over land use.  Through an in-depth assessment of the federalism values that guide jurisdictional choices, it argues that a multilevel governance approach that supplements local control with federal parameters and resources is necessary to adequately prepare for climate change and to meet the wide range of local, state, and federal interests at stake.  


Federal Regulatory Barriers to Grid-Deployed Energy Storage

By: Andrew H. Meyer Until recently, the most advanced form of grid-deployed energy storage  involved pumping water up a hill.   But “newer storage technologies like flywheels and chemical batteries have recently achieved technological maturity and are well into successful pilot stages and, in some cases, commercial operation.”   If widely adopted, these new energy storage technologies will fundamentally alter the operation of our electricity system. … Laudably, FERC has proactively addressed some particular barriers to storage, but many significant barriers remain.   This Article aims to identify these barriers and offer pathways around them.  Part I introduces energy storage, particularly its history, operational uses, and benefits.  Part II introduces federal electricity regulation and analyzes various FERC-jurisdictional opportunities and barriers to energy storage.  It also highlights recent FERC actions that proactively address or incidentally affect energy storage resources.  Finally, Part III proposes actions FERC should take to remedy identified barriers. […]


This is Adaptation: The Elimination of Subsidies Under the National Flood Insurance Program

By: Sarah Fox The oceans are rising.  Amid any remaining debates about climate change and its relation to human activity, this fact appears unassailable.  “Records and research show that sea level has been steadily rising at a rate of 1 to 2.5 millimeters (0.04 to 0.1 inches) per year since 1900,” and since 1992, new methods of measurement show a “rate of rise of 3 millimeters (0.12 inches) per year.”   Changing climatic conditions have led to an increase in the temperature of ocean water and consequent expansion in its volume.  That rise in temperature has also led to the melting of polar ice caps, adding water to the ocean.   At the same time, the changing climate has resulted in more frequent extreme hurricanes.  And higher sea levels increase the risk these storms pose to coastal communities at a time when such communities are growing rapidly in the United […]


Flowback: Federal Regulation of Wastewater from Hydraulic Fracturing

By: Jeffrey M. Gaba A variety of production techniques, including hydraulic fracturing (“fracking”), have opened new reserves of natural gas from unconventional sources in the United States.   The resulting growth of natural gas production in the last decade has dramatically altered the U.S. energy picture.   Increasing supplies of natural gas have lessened reliance on coal for electricity generation, and the United States may be poised to be an exporter of natural gas.  This Article addresses issues associated with federal regulation of fracking wastewater under RCRA and the CWA.   Part I discusses the fracking process and current federal regulation of the fracking process itself under the Safe Drinking Water Act.  Part II addresses the potential adverse environmental impacts of fracking wastewater, as well as the management and disposal options currently employed within the industry. Part III discusses issues associated with EPA’s exclusion of this wastewater from classification as […]


Can You Sue the Government? An Examination of the Legal Doctrines for Government Liability Regarding Their Involvement with Wind Power Development

By: Esther Y. Kim   With increasing government involvement in the development of wind power, neighboring landowners experiencing harms related to wind turbines might wish to—indeed, in some cases may need to—recover from the government as well as private parties.  They may wish to bring nuisance claims against the government, which will largely mirror claims against private wind developers, and may bring claims alleging a Taking in violation of the Fifth Amendment of the United States Constitution.  Government liability for harms caused by wind farms may increase the costs of wind power development. This Note determines that the Takings claim is the stronger claim and proposes which Takings jurisprudence courts should apply, depending on the nature and scope of government action in particular cases.  Specifically, this Note focuses on the three possible ways that the government may become involved with the development of wind farms: (1) explicit grants of nuisance […]