Yearly Archives: 2017

Can Trump Build a Wall? The Administrative Obstacles to the Border Wall

By Patrick Maguire — While campaigning for the presidency, then-candidate Donald Trump promised his supporters he would build a wall on the southern border of the United States to thwart the flow of immigration from Mexico.  President Trump appears determined to follow through on his promise.  On January 25, 2017, five days after being inaugurated, the President issued an executive order with the goal to “secure the southern border of the United States through the immediate construction of a physical wall on the southern border.”  According to the order, the authority to build a wall is derived from the Secure Fence Act of 2006, a statute that has already been utilized to construct physical barriers along the border with Mexico.  This order, along with the President’s executive order banning the immigration of refugees, has incited a firestorm of protests across the country.  While the debate has justifiably focused on the […]

Reviewing Reservoir Operations: Can Federal Water Projects Adapt to Change?

Reed D. Benson – The Army Corps of Engineers and the Bureau of Reclamation spent much of the twentieth century building large dams that dramatically altered the nation’s rivers.  The “big dam era” of federal water policy may have ended decades ago, but the dams that went up in that era are still in place today.  These dams form reservoirs that provide a range of benefits including water supply, flood control, and hydropower, and whatever the arguments in favor of taking out some specific ones, few if any major federal dams will be removed anytime soon.  Yet each existing dam faces an important question about its future: should it be operated differently than it is now? Every reservoir stores and releases water to serve specific purposes, and an operating plan directs the timing and rate of storage and releases from a particular reservoir.  Many federal water projects—dams, reservoirs and associated […]

Trust Me, I’m a Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism

Joshua Ulan Galperin – Pragmatism is a robust philosophy, vernacular hand-waving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism.  While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism—that which, in the spirit of the twenty-first century’s 140-character limit, I will call “pragtivism.”  This Article is an introduction to pragtivism—environmental pragtivism in particular—a critique of the practice, and a constructive framework for addressing some of my critiques. As a central principle of their philosophy, pragmatists reject absolutes.  Pragtivists, likewise, reject perfect environmental outcomes in deference to those that are, at least arguably, directionally correct.  The idea of engaging private business is a more applied, but equally important principle.  Pragmatists advocate that decisions are good if they work, if they are based on lessons from experience.  Pragtivists believe that […]

Tackling the Tenure Problem: Promoting Land Access for New Farmers as Part of a Climate Change Solution

Carrie A. Scrufari, Esq. – While agriculture is a main contributor to climate change, it can also be part of the solution if we can capitalize on agriculture’s mitigation potential.  For example, agriculture can assist with removing carbon dioxide from the atmosphere via carbon sinks—a process called soil carbon sequestration.  Through photosynthesis, plants assimilate carbon and return some of it to the atmosphere through respiration, but the remaining carbon resides in plant tissue and returns to the soil when the plants die.  Experts have recognized that building the capacity of soils to continue storing carbon (through the use of cover cropping, crop rotation, and other organic practices) can be an important ally in battling climate change.  Soil sequestration could substantially relieve our atmospheric impact, with some estimates predicting that soils have the capacity to mitigate climate change by matching anthropogenic emissions at an equal rate for the next forty years.  […]

Is Generating Renewable Energy a Religious Use of Property? A Question as Congregations Implement Community Solar Programs

William Bolgiano – “Community solar,” a method for financing local solar energy projects, has recently gained a foothold in many states.  It is a promising method of promoting both renewable energy and distributed generation.  Religious congregations are often uniquely able and motivated to implement these projects to realize the direct benefits of the infrastructure investment and a reduced carbon footprint, as well as the indirect benefits that derive from the concerted action of an ethically motivated community.  In fact, local community solar implementation by established and well regarded institutions, as religious congregations often are, may inspire congregants and other community members to do the same, or to support public policy measures aimed at expanding renewable energy. A potential problem arises when congregations use their tax-exempt property (such as church rooves) to host community solar projects: how does a community solar project fit within the limited uses allowed under the tax-exempt […]

Eyeing 2048: Antarctic Treaty System’s Mining Ban

By Sean Coburn — Antarctica is one of the last true wildernesses, an area yet unblemished by significant human intervention.  It is considered “the epitome of remoteness and inaccessibility.”  However, Russia, China, India, Iran, and Turkey are all currently building or expanding bases in Antarctica.  This is in addition to a host of operational bases already established by many countries including Finland, Argentina, the United States, Chile, Germany, Australia, and New Zealand.  While various reasons, mainly scientific, are put forth for this flurry of activity, Antarctica presents a unique bounty for states—a potential vast reserve of untapped resources.  “The newer players are stepping into what they view as a treasure house of resources,” Anne-Marie Brady, a scholar at New Zealand’s University of Canterbury who specializes in Antarctic politics, told the New York Times.  In the past, Antarctica’s mineral wealth was seen as too distant and expensive to extract, but the […]

Jurisdictional Challenges to New York’s Clean Energy Standard

Zhou Chen – On August 1, 2016, the New York Public Service Commission issued an Order Adopting a Clean Energy Standard, the most comprehensive and ambitious clean energy mandate in the state’s history.  The CES Order adopts the goal that fifty percent of New York’s electricity is to be generated by renewable sources by 2030 as part of a strategy to reduce statewide greenhouse gas emissions by forty percent by 2030.  As expected, fossil fuel generation interests mounted challenges to the CES Order, touting concerns over, among other issues, eligibility standards, procedural deficiencies, and jurisdictional competency.  On December 15, 2016, the PSC issued an Order on Petitions for Rehearing that summarily dismissed these concerns.  This Field Report focuses on the challenge to the PSC’s jurisdictional competency in enacting the CES Order in Coalition for Competitive Electricity v. Zibelman.

A Carbon Fee As Mitigation For Fossil Fuel Extraction On Federal Lands

Michael Burger – Since the enactment of the Mineral Leasing Act in 1920 and the Outer Continental Shelf Lands Act in 1953 the United States federal government has leased onshore and submerged public lands to private companies to mine coal and drill for oil and gas, often at a steep discount, and often with little or no accounting for the broad scope of these fossil fuels’ environmental externalities.  The raft of environmental legislation that passed through Congress in the 1970s addressed these issues to some degree.  For example, the Federal Coal Leasing Amendment Act required the United States to, among other things, recover “fair market value” of each lease; the Surface Mine Control and Reclamation Act established a system for controlling local environmental impacts from coal mining; the National Environmental Policy Act required the federal government to assess, analyze and disclose potential adverse environmental impacts from federal actions, including cumulative […]

Think Global: International Reciprocity as Justification for a Global Social Cost of Carbon

Peter Howard & Jason Schwartz – U.S. climate regulations present a special case of federal agencies applying a global, rather than exclusively domestic, perspective to the costs and benefits in their regulatory impact analyses.  Since 2010, federal agencies have emphasized global valuations of climate damages for policies that affect carbon dioxide emissions, using a metric called the “Social Cost of Carbon.”  More recently, agencies have also begun to use a global valuation of the “Social Cost of Methane,” for methane emissions.  Yet lately, these global metrics have come under attack in courtrooms and academic journals, where opponents have challenged the statutory authority and economic justification for global values.  This paper defends a continued focus on the global effects of U.S. climate policy, drawing on legal, strategic, and economic arguments. International reciprocity presents the strongest justification for a global focus.  Because the world’s climate is a single interconnected system, the United […]

Lessons from the EU: Evaluating CEQ’s Recent Guidance on the Consideration of the Effects of Climate Change on Federal Actions Subject to NEPA

Marc Jia Renn Tan – The Council on Environmental Quality recently issued guidance to assist federal agencies in their consideration of the effects of greenhouse gas emissions and climate change when evaluating proposed federal actions under the National Environmental Policy Act and the CEQ regulations implementing the procedural provisions of NEPA.  The non-legally binding guidance aims to provide a common assessment framework for agencies to improve clarity, consistency, and efficiency when analyzing the effects of climate change through the environmental impact assessment process, while also providing for agency discretion to tailor individual NEPA reviews to their “unique circumstances and authorities.” The analysis recommended by CEQ is two-fold: (i) “[t]he potential effects of a proposed action on climate change”, and (ii) “[t]he effects of climate change on a proposed action.”  This field report will discuss and evaluate the former focus of CEQ’s guidance with comparisons to the EU’s analog, with particular focus […]

Obama Presidential Memorandum Sought to Embed Climate Change Impacts into National Security Planning

Lynne Howard – With the end of President Obama’s term, the outgoing president sought to ensure that climate change action would be incorporated into the next administration’s national security policies.  On September 21, 2016, Obama released a presidential memorandum to address the imminent and significant effects of climate change on national security by establishing a Climate and National Security Working Group (“Working Group”).  The Working Group’s purpose is to “ensure that climate change-related impacts are fully considered in the development of national security doctrine, policies, and plans” by coordinating “the development of a strategic approach to identify, assess, and share information on current and projected climate-related impacts on national security interests.”  Building on prior presidential directives and policies regarding the impacts of climate change, the presidential memorandum takes significant steps to ensure that the impacts of climate change are identified and incorporated into national security planning.

The Future of Fracking Regulation by the Bureau of Land Management

Grace Krasnerman – Hydraulic fracturing (“fracking”) accounts for approximately 51% of oil production and 67% of natural gas production in the United States.  The Energy Policy Act of 2005 (“EPAct”) generally excluded fracking from federal regulation under specified programs such as the Safe Drinking Water Act.  Recently, however, the Bureau of Land Management (“BLM”) issued new fracking regulations to maintain public health and environmental welfare for fracking on public and tribal lands.  Several Western states—the primary sites for fracking under BLM’s jurisdiction—filed suit against the Department of the Interior (“DOI”), asserting that BLM lacked the authority to regulate fracking.  In Wyoming v. U.S. Department of the Interior, Judge Scott Skavdahl of the District Court of Wyoming enjoined BLM from implementing the new regulations and affirmed the states’ contention that it was wholly in their authority to regulate fracking.  DOI is currently appealing this decision in the Tenth Circuit, and the […]