The Indian Point Energy Center, a nuclear power plant located just thirty-four miles from New York City in Buchanan, New York, has recently been the subject of intense debate.  On March 1, 2012, the Center for Climate Change Law at Columbia Law School hosted a forum on the future of Indian Point.  Paul Gallay of Hudson Riverkeeper and Ashok Gupta of Natural Resources Defense Council spoke in opposition to Indian Point.  Arthur "Jerry" Kremer of the Affordable Reliable Electricity Alliance (New York) and John Kelly, the former Director of Licensing at Indian Point, spoke in support of relicensing the plant.  Michael Gerrard, the Andrew Sabin Professor of Professional Practice and Director of the Center for Climate Change Law at Columbia Law School, moderated the panel discussion at the forum.  This Report reviews and analyzes the claims made during the forum, highlighting the conclusion that Indian Point presents serious risks that must be addressed before the plant is relicensed.

On October 25, 2011, the Ninth Circuit handed down the latest decision in the Sarei litigation.  The British and Australian governments jointly submitted an Amicus Brief, which focuses on whether local remedies in the state in which the alleged wrongs occurred must be exhausted before a U.S. court can exercise jurisdiction under the Alien Tort Statute.  This report argues that the position of the British and Australian governments has significant merit as a matter of international law and as a question of policy.

Natural gas leaseholders and industry have sued at least two municipalities, challenging recently enacted zoning ordinances that remove natural gas extraction as a permissible land use-in effect banning fracking within municipal borders.  State courts are now poised to decide whether localities in New York have the power to ban fracking locally, or if ordinances banning fracking are preempted by state law.  The question presented is whether the Oil, Gas, and Solution Mining Law (OGSM) preempts a generally applicable zoning ordinance that bans natural gas extraction.  This Field Report discusses the factual and legal context in which this question arises, and argues that the OGSM does not preempt a general zoning ban on natural gas extraction.

Federal tax law has long provided a tax benefit for charitable contributions of easements for conservation purposes.  This Article argues that a fundamental problem with this conservation easement tax expenditure is that the measure for the tax benefit—lost economic development value—is erroneous.  The Article explains that the easement program is reflexively justified and understood based on this false measure, as if it represented the conservation value of the program, and that use of such an erroneous measure obscures the conservation benefits of the program by focusing attention and resources on divining a largely extraneous and unhelpful number.  The Article argues that, in theory, the measure for the tax benefit should be changed to one that better approximates conservation value.  This would help ensure that the program is efficient, in the sense that conservation benefits would exceed program costs.  However, conservation value is not, at least not yet, readily susceptible to quantification for tax purposes.  Accordingly, this Article suggests a second-best approach:  changing the measure of the tax benefit to a more objective number—the fair market value of the underlying fee interest—to provide greater certainty and to shift administrative and legal resources and attention to the conservation benefits of the program.  The Article provides several additional suggestions for reforming the easement program, and concludes that, regardless of the details, the conservation easement tax expenditure should be designed to promote a concept of conservation value—an affirmative value—that should represent the highest and best use of the land. 

Although slightly more than thirty years apart, the direct and indirect causes of the nuclear core meltdown at Three Mile Island Unit 2 and the Macondo well blowout are remarkably similar.  But there the similarities stop, as the nuclear industry and the Nuclear Regulatory Commission after Three Mile Island rapidly implemented new safety protocols and risk methodologies that reflected a new-found awareness of the likelihood of a catastrophic nuclear accident happening again and the need to change the industry’s safety culture.  Notwithstanding a record of calamitous accidents, the offshore oil and gas drilling industry has made few efforts to change its safety culture or operating practices in the aftermath of the Macondo well blowout and has successfully resisted numerous regulatory efforts to force change.  This Article explores why the two industries reacted so differently after their major accidents and concludes the principal reason is the public’s fear of radiation.  The Article argues that while the nuclear industry is far from perfect, the offshore oil and gas industry could learn from the post-accident steps that the nuclear industry has taken, particularly those that involve rigorous internal and external auditing of its activities, greater public transparency, and internal corporate restructuring.  The Article suggests that these changes implicate how companies that engage in other risky operations might improve their conduct from an accident avoidance perspective.  The Article concludes that, in the context of the offshore oil and gas industry, it seems unlikely that these changes will be implemented given the absence of a sustained public fear of oil driving industry reform.

The Supreme Court's 2007 decision in Massachusetts v. EPA attracted significant attention for its discussion of Article III standing for state sovereign litigants.  However, Massachusetts also engaged with, and modified, an approach to adjudicating Article III standing for claims involving procedural rights that originated in Lujan v. Defenders of Wildlife.  This aspect of the Massachusetts opinion presents something of a puzzle, because Massachusetts does not explain how its modification can be squared with the logic of the Lujan framework.  This Note explores the interplay of Massachusetts and Lujan with respect to Article III standing for procedural rights claims.  The Note analyzes the Lujan approach to standing analysis for claims involving procedural rights, explaining how Lujan altered causation and redressability requirements for certain procedural rights claims.  The Note also demonstrates that Massachusetts modified the Lujan approach by expanding the definition of procedural rights accorded relaxed standing, and develops an account of how this modification can be reconciled with the underlying structure of the Lujan framework.  Finally, the Note assesses how the Massachusetts modification has been applied and observes that, despite its relatively modest doctrinal implications, it has been neglected by federal courts.