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 […]

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 […]