Access, Conservation, and Sustainable Use of Marine Genetic Resources in Areas Beyond National Jurisdiction: Emerging Issues of Consensus and Contention

By: Jacqueline Joyce Espenilla The growing global interest in the ABNJ (Areas Beyond National Jurisdiction) comes hand in hand with risk. Due to the lack of a comprehensive regulatory regime, the ABNJ is already beginning to face numerous anthropogenic pressures including overfishing, marine pollution, loss of biodiversity, irresponsible conduct of marine scientific research (introduction of light and sound, removal of substrates, sedimentation, etc.), and climate change (ocean acidification and ocean warming). If this situation continues unchecked, the ABNJ (and the MGRs found within it) may be negatively affected even before the ABNJ is fully understood by mankind. This risk has created a strong impetus for stakeholders to begin negotiations for an international legally binding instrument (“ILBI”) for the conservation and sustainable use of marine biodiversity of the ABNJ.

Public Land Fight in Utah: Will the President Designate Bears Ears a National Monument?

By: Michael Lehr 5th May, 2016 The fight over federal control of western land is on display in a large, remote area of southeastern Utah.  On one side is a coalition of Native American tribes, supported by conservation groups, urging the designation of a new national monument to protect 1.9 million acres of land including the culturally important area of Bears Ears.  On the other side are conservative federal, state, and county lawmakers seeking to advance a recently unveiled public lands bill titled the Public Lands Intuitive (“PLI”).   The proposed bill would protect 1.2 million acres of the Bears Ears area while also opening land for energy development and a wilderness area.  At one time, both sides where hopeful that the PLI could serve as a grand compromise, but the proposed bill, which involved years of meetings and planning, was not what environmental and tribal groups envisioned.  Instead, these […]

Decreasing Building-Related Emissions in New York City: Attempts to Circumvent the Split Incentive Problem to Encourage Energy Efficiency Retrofits

By: Christian Benante 30th April, 2016 In an effort to mitigate the effects of climate change, New York City Mayor Bill de Blasio initiated the “80×50” program, committing the City to the goal of reducing its greenhouse gas (“GHG”) emissions by eighty percent, from a 2005 baseline, by the year 2050.  The municipal program, catalyzed in substantial part by the devastation Hurricane Sandy caused in 2012, tracks the United Nations’ emission reduction goals for developed countries, intended to avoid the most severe and catastrophic effects of climate change. A cornerstone of the program is reducing emissions from residential, commercial, and municipally-owned buildings in the City. As of 2013, New York City produced 48.02 million metric tons of carbon dioxide, and its one million buildings generated over three-quarters of that amount. Retrofitting these buildings to increase their energy efficiency is, therefore, required in order to achieve 80×50’s reduction goals.  

The Threat Divider: Expanding the Role of the Military in Climate Change Adaptation

By: Gregg Badichek It is all but undeniable that climate change creates drastic national security concerns for the United States, despite the assertions of certain contrary political forces.   While the United States legislature  and judiciary  can and should play a direct role in addressing these risks by abrogating climate risk, the executive branch and its agencies, in comparison, possess tremendous opportunities and abilities to do so.  Specifically, the armed forces under the DoD  face unique challenges, but also possess unique advantages, in the realm of climate change adaptation.  Certainly the military divisions under the executive play a paramount role in hemming national security risks; due to its developing expertise, the possibility of the military’s enormous influence in the realm of climate change adaptation should be recognized and embraced. This Note argues that the military’s role in climate change adaptation—specifically in regards to national security threats domestically and abroad—should be […]

Looking in the Side-View Mirror: Assessing the Current and Future State of the Solar Energy Industry as it Reaches the Mainstream

By: Brian Palumbo The popularity of solar energy has risen as its cost has rapidly decreased since 2005.   A Deutsche Bank projection claims that the cost of solar energy will reach grid parity  by 2016, and an International Energy Agency report asserts that by 2050, solar energy could be a viable source of electricity worldwide.   On its face, these projections depict a bright future for solar energy and society.  Yet solar energy’s presence as an alternative form of energy might be more vulnerable than forecasts depict.  With the upcoming expiration of valued government incentives and pushback from energy competitors, solar energy will not run untouched to the end-zone.   In other words, solar energy approaches a critical juncture where its deficiencies might come to the forefront.  To view these vulnerabilities, a qualitative investigation of solar energy is required.  Solar energy is growing at a remarkable rate,  yet there […]

Standing Still: The Implications of Clapper for Environmental Plaintiffs’ Constitutional Standing

By: Courtney Chin In 2013, the Supreme Court decided Clapper v. Amnesty International, denying standing to a group of human rights, labor, legal, and media organizations to challenge the constitutionality of a provision of the Foreign Intelligence Surveillance Act (“FISA”).  Justice Alito, writing for a 5-4 majority, held that the respondents lacked standing because the alleged injury was not “certainly impending,” the injury was not fairly traceable to the FISA provision, nor were the costs incurred by the respondents fairly traceable to the FISA provision.  Naturally, the four dissenters proposed an alternate view of the facts:  Justice Breyer compared the likelihood of the respondents’ injury not occurring as similar to the chance that “despite pouring rain, the streets will remain dry (due to the presence of a special chemical).”  He then criticized the majority, arguing that “certainty is not, and never has been, the touchstone of standing.” Although Clapper did not deal with […]

The Navigational Servitude: The Role of a Categorical Exception Within a System of Ad-Hoc Review

By: Eileen Monahan The Fifth Amendment to the United States Constitution provides, in part, that private property shall not “be taken for public use, without just compensation.”  Known as the Takings Clause, this provision limiting the government’s sovereign power of eminent domain may appear to be straightforward, but in practice is not.  Several categorical exceptions to this requirement have developed over time.  One such categorical exception is the navigational servitude, which allows the federal government to exercise its power to regulate and control the nation’s navigable waterways without paying compensation for the resulting economic loss. This Note will argue that the availability of such a blanket exception is unjustifiable.  First, it creates perverse incentives for the government to disproportionately take littoral land and produces inequitable results for landowners.  Second, historically based in the federal government’s power over interstate commerce, the policy justifications for the navigational servitude are no longer compelling in […]

Green Guide Gaps: Expanding FTC Authority Over Low-Carbon Marketing Claims

By: Perrin Cooke Too often, environmentalists view American consumerism and corporate advertising as damaging forces necessarily at odds with conservation and sustainability. With this in mind, many environmental activists have emphasized the basic rejection of consumerism as an essential step towards sustainable consumption. Importantly, however, this over-broad dichotomy often ignores the potentially powerful role that consumer culture can play in achieving environmental objectives. In fact, the early environmental movement also heralded an important shift in American consumerism. Just as leaders in Washington began to recognize growing public interest in the environment, companies across the nation sought to capitalize on consumers’ newfound environmentalism. Since that time, environmental marketing has continued to draw on consumers’ interest in sustainability and is today a familiar element of the American marketplace. Unfortunately, vindicating concerns expressed by many environmental commentators, many companies have found it cheaper to exaggerate the environmental benefits of their products or obfuscate […]

Full-Impact Regulations and the Dormant Commerce Clause

By: Will Sears Effective environmental regulation of products requires knowledge of their entire lifespan. For example, a gallon of corn ethanol produces greenhouse gas emissions when burned, but this does not reflect its full environmental impact. The energy and water used to produce the fuel, side effects of production such as land use changes, and emissions associated with its transportation from producers to distributors all add to the environmental impact of the fuel. This holistic method of assessing environmental impacts is known as “lifecycle analysis” or “lifecycle assessment.” The scientific community recognizes lifecycle analysis as providing the touchstone for effective environmental regulations. Congress has endorsed this methodology, for example, requiring that federal agencies incorporate lifecycle analysis into contracts to purchase alternative or synthetic fuels. Businesses often employ lifecycle analysis when comparing the environmental impacts of different potential production processes. This Note argues that courts should evaluate full-impact regulations under tier-two […]

Shedding Light: The Role of Public Utility Commissions in Encouraging Adoption of Energy Efficient Lighting by Low-income Households

This Note proposes harnessing the abilities of state public utility commissions (“PUCs”) to tailor preexisting efficient lighting programs for low-income households, which are particularly susceptible to the common barriers to efficient lighting adoption. Although the exact mandate differs by state, most PUCs regulate and monitor utility services and ensure reliable delivery of electricity at just and reasonable rates.Within this relatively undefined area, PUCs may extend the scope of their rules to encompass energy efficiency schemes by characterizing such programs as a method of promoting the reliability and decreasing the costs of the entire electricity grid.  This Note identifies three approaches that, if applied together, accommodate for special needs of low-income households and satisfy general policy goals: free and subsidized light bulbs, free audits, and educational projects.  The combination of these approaches is low-cost and self-sustaining: PUCs already regulate utilities, meaning no additional procedure or oversight is necessary, and reduced electricity bills, once initial barriers […]

Blowing Smoke: Why the Current Government Incentive Regime Makes EVs and PHEVs a Distant Prospect—and How to Fix It

An entire generation has greeted the arrival of plug-in hybrid-electric vehicles (“PHEVs”) with eager anticipation.  However, the rise of a trend does not necessarily imply that spending habits will change—much less in a permanent way.  The ambiguous prospects for popular PHEV and electric vehicle (“EV”) adoption demands discussion of what may keep them out of driveways, and how to overcome those barriers. This Note seeks to analyze how, through proper government incentive programs, EVs and PHEVs might become one mechanism for reducing the United States’ carbon emissions from transportation.  Part I will set the backdrop for this analysis by discussing the history of EVs and PHEVs, and the government incentive programs already in place.  Part II will cover the issues impeding popular adoption of EVs and PHEVs by consumers.  Finally, Part III will propose a “model” government incentive program to overcome these issues.  This program can be broken into five parts:  educating consumers […]

Harnessing the Power of the Ground Beneath Our Feet: Encouraging Greater Installation of Geothermal Heat Pumps in the Northeast United States

Although ground-source heat pumps are an appealing source of renewable energy, they have yet to truly catch on in the United States—especially in the Northeast.  The Introduction of this Note will introduce readers to the different types of geothermal heat pumps and their mechanics.  Part I will explain how high initial costs, information deficits, and governmental failures to make available equal financial incentives for geothermal heat pumps in the Northeast have inhibited the growth of their usage in the region.  Part II will analyze the financial incentives and regulations that impact the use of geothermal heat pumps.  Part III will discuss the barriers to widespread geothermal heat pump adoption and why current laws and regulations are inadequate to address these barriers.  Part IV will propose several ways state governments can encourage greater installation of geothermal heat pumps.  Specifically, I will argue that a loan program modeled after New York’s On-Bill […]

Stifling the Wind: California Environmental Quality Act and Local Permitting

At the turn of the millennium, California led the nation in installed wind energy capacity.  California had over 1600 megawatts (“MW”) of capacity, representing a majority of the nation’s 2472 MW.  The second most developed state had only had seventeen percent of California’s capacity.  However, since 2000, wind capacity in the United States has increased twentyfold to almost 50,000 MW, while capacity in California has less than tripled. Although many factors contribute to differing rates wind energy development across the United States, California’s decentralized siting and arduous environmental evaluation requirements should bare blame.  Though California still maintains the third most installed wind energy capacity, despite ranking nineteenth in terms of total wind generating potential, it still has 34,000 MW of uptapped on-shore economic wind potential.  In-state wind resources have the potential to meet 39.4% of the State’s current energy needs but currently only provide 3.3%.  Focusing on California’s relative wind […]