Daily Archives: April 22, 2016


Reforming “The Blob”: Why California’s Latest Approach to Amending CEQA Is a Bad Idea

By: Katherine V. Mackey The story of Moe’s Stop, a small gas station in San Jose, demonstrates a major problem with the California Environmental Quality Act (“CEQA”).   The owner of Moe’s wanted to add three new pumps to his existing station—an action without any obvious environmental effects—but the owner of a rival gas station across the street used CEQA to convince a judge to order an environmental review of the project, which halted construction for two years.   After the completion of the environmental review, Moe added the new pumps, but the rival owner still went back to court to argue that the environmental review had been flawed.   The mayor of San Jose, an environmental lawyer, stated that the lawsuit was “ridiculous” and described it as “obviously anticompetitive” in its intent.   The cost to the owner of Moe’s of the litigation and associated delays was over $1 […]


Why the Commercial Speech Doctrine Will Prove Toxic to the USDA National Organic Program

This Article argues that the Supreme Court has expanded commercial speech rights too far. The current Court increasingly appears to view the government’s power to regulate commercial speech as limited to only proscribing false or misleading commercial speech. Any attempt by the government to restrict truthful commercial speech, even if potentially misleading, is generally treated as unjustified paternalism in violation of the First Amendment. The evolving jurisprudence threatens reasonable economic regulations that restrict speech for important and non-paternalistic reasons. To make this case, this Article explores how the evolving commercial speech doctrine could invalidate the food-labeling regime established by the Organic Foods Production Act of 1990 (“OFPA”) and its implementing regulations. That regulatory regime, often referred to as the National Organic Program (“NOP”), generally prohibits representing food as “organic” unless a United States Department of Agriculture (“USDA”) licensed inspector has certified that the food was produced consistent with OFPA’s implementing […]


Examining Tribal Environmental Law

Since the revolution of environmental law began roughly forty years ago, scholars have wrestled with the complex interactions of the states and federal government, but they have largely ignored tribal governments. Although some scholarship exists regarding the suggested development of tribal environmental law, little is known about the extent to which tribes nationwide have enacted such laws. This Article fills that vacuum by taking a first look at existing tribal environmental law and exploring the laws of one tribal nation that has enacted several environmental laws. The Article also proposes some initial norms to guide the development of tribal environmental law.


Missing the Forest and the Trees: Lost Opportunities for Federal Land Exchanges

For any land exchange carried out by the Forest Service or the Bureau of Land Management (“Agencies”), federal law generally requires the Agencies to ensure that “the public interest will be well served by making that exchange.”  To do so, the Agencies must consider the fate of the land they convey and how that is likely to affect the public interest.  To help control the fate of the land they convey and the adverse impacts it may have on the public interest, the Agencies’ regulations mandate that they “reserve such rights or retain such interests as are needed to protect the public interest.”  Nevertheless, the Agencies’ internal policies all but prohibit their employees from carrying out that mandate. As a result, the Agencies are missing opportunities to better serve both the public’s interests and their own.  By including covenants, easements, or other restrictions on the lands they convey, the Agencies can more […]


Greenwashing 2.0

This Article argues that this period of unprecedented clean tech innovation requires a new paradigm for thinking about greenwashing.  Specifically, it is essential that the paradigm shift from almost exclusive focus on B-to-C environmental advertising directed to individual green consumers to an expanded and more nuanced view that also includes B-to-B representations made to commercial consumers.  This new paradigm would define greenwashing expansively to include any false or misleading claim regarding the environmental benefit of a product, service, or business practice.  Its analysis should not be limited to cases brought by or on behalf of individual consumers, but should also contemplate legal actions by and on behalf of green commercial consumers. Changing the greenwashing paradigm in this way will reflect the commercial realities of the clean tech revolution, and will provide the broader vantage point necessary to identify instances of greenwashing and understand its prevalence and effects.


A Triple Bottom Line for Electric Utility Regulation: Aligning State-Level Energy, Environmental, and Consumer Protection Goals

Aligning state policy goals can help keep the lights on and electricity prices affordable while also promoting investments in clean energy technologies and efficiency measures that protect public health and the environment. This Article explores the opportunities and challenges to aligning state energy, environmental, and consumer protection goals within the current regulatory system, and proposes a “triple bottom line” (“TBL”) approach to state utility regulation to achieve this alignment.  The original TBL concept encourages businesses and governments to measure value by considering environmental and social dimensions in addition to fiscal considerations.  By comparison, the TBL approach for electric utility regulation proposed here aims to harmonize existing state policy goals of ensuring: (1) affordable electricity; (2) reliable electricity; and (3) protection of public health and the environment.  Specifically, it allows officials across state governments to consider how their roles affect all three TBL pillars, thereby enabling informed decision making and comprehensive […]


Aviation, Carbon, and the Clean Air Act

Can CAA regulation achieve aviation emissions regulations significant enough to establish equivalency with E.U. policy while remaining cost-effective and politically acceptable?  Fully answering this question requires judgments about the range of options realistically available to the EPA in the current U.S. political environment and about the range of policies the E.U. would consider “equivalent”—judgments that would be, at best, informed guesses.  But the core part of the question is legal.  Specifically, what tools are available to the Agency under the CAA to regulate aviation emissions, and how might they be used for GHGs? This Article is an attempt to answer that core legal question. The Agency’s powers to address aviation GHGs under the Act have not been thoroughly studied.  A few court decisions, EPA documents, and petitions to the Agency have looked at the issue or aspects of it, but none is a comprehensive assessment. One relatively brief scholarly treatment […]


Technology, Curtailment, and Transmission: Innovations and Challenges Facing Today’s U.S. Wind Energy

By: Kimberly E. Diamond 6th April, 2016 Scientific breakthroughs in design technology present today’s wind industry with unprecedented opportunities. Innovative turbines, taller and with blades larger than those of any utility-scale turbines currently installed domestically, are opening up regions low in wind resources, such as the Southeastern United States, to large wind farm development. The issues raised as a result of the wind industry’s focus on building wind projects in the Southeast highlight the transformation that needs to occur regarding how the United States thinks about and approaches renewable energy.  Steps need to be taken promptly to smooth the renewable energy generation and delivery process, as well as surmount challenges arising from technical innovation, curtailment, and energy conveyance.  These changes can occur if we, as a country, devise creative solutions that will serve as a bridge between our current energy landscape and our envisioned renewable energy future.  Failure to do […]


Adapting Without a Voice in American Samoa

By: Eli Keene 29th February, 2016 Months before representatives of 196 countries gathered in Paris to adopt the most substantial global agreement on climate change to date, a small group of seven Pacific leaders gathered in Tahiti to put forth their own statement. The Taputapuatea Declaration on Climate Change was a nearly unified declaration by the Polynesian Leaders Group (“PLG”)—a consortium of eight Pacific island states and territories—decrying, “Climate is Changing. The situation is serious. It is now time for action.”1 But one signature was missing. American Samoa, the sole American territory member of the PLG, did not attend the summit in Tahiti. And while American Samoa’s absence may have gone largely unnoticed by much of the world and even many in the territory itself, it is representative of a broader missed opportunity by the United States. Though the federal government has increasingly provided financial and technical support for climate […]


New York to Paris: From REV to MOU

By: Irene Blumberg 11th December, 2015 On October 8th, 2015, New York Governor Andrew Cuomo and former Vice President Al Gore met at Columbia University to deliver a much anticipated announcement: the state of New York was to become a signatory of the Under 2 Memorandum of Understanding (“Under 2 MOU” or “MOU”), which aims to prevent the average global temperature from rising more than two degrees Celsius above pre-industrial levels, and to limit greenhouse gas (“GHG”) emissions to below two metric tons per capita by 2050.2. The goal of the Under 2 MOU is to unite governments across the globe that are willing to make substantial changes in the face of global warming. As of October 17th, 2015, forty-three jurisdictions representing nineteen countries and spanning five continents have signed the MOU. Additional goals of the MOU are: (i) to demonstrate how states, regions, and cities may embrace renewable energy […]


A Divided Court Decides the Future of Demand Response: Oral Argument of FERC v. Electric Power Supply Association

By: Anthony Fares 5th December, 2015 In May 2014, the D.C. Circuit held, by a vote of 2-1, that the Federal Energy Regulatory Commission’s (“FERC”) Order 745 governing demand response resources in the wholesale energy market exceeded FERC’s authority under the Federal Power Act and was arbitrary and capricious under the Administrative Procedure Act. FERC, alongside three aggregators of electricity consumers and two parties representing customers of wholesale market operators, petitioned for certiorari. I attended oral argument on October 14, 2015; having seen the attorneys argue and the Justices react to their arguments, I gained a unique perspective on this case. This Field Report will present a brief background of the relevant facts and law, analyze the arguments presented in court, and predict how the U.S. Supreme Court will decide the case.


On Thin Ice: Will the International Court of Justice’s Ruling in Australia v. Japan: New Zealand Intervening End Japan’s Lethal Whaling in the Antarctic?

By: Julia Bedell 7th October, 2015 In March 2014, the International Court of Justice (the “ICJ”) declared that Japan’s whaling activity in the Antarctic did not satisfy the scientific exemption to a global whaling moratorium and ordered Japan to cease its current operations. Japan complied with the ICJ’s ruling and ended its expedition for that year; however, it also revealed a new scientific research program in November 2014 to resume whaling in the Antarctic. The International Whaling Commission (“IWC”) in June 2015 rejected Japan’s new proposal, citing that the planned lethal research continues to violate international regulations. It is not clear how Japan will respond to this recent rejection. The best-case scenario would be for Japan not to conduct any lethal whaling in the Antarctic until such whaling is approved by the IWC. However, because international whaling agreements are self-regulating, neither the ICJ nor other countries will directly be able […]