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 […]

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 […]

Emerging Legal and Institutional Responses to Sea-Level Rise in Florida and Beyond

David L. Markell – The legal environment for local government in Florida (the “State”) is beginning to change when it comes to sea-level rise (“SLR”).  Innovations in institutional structure and governance strategies are underway in the State as well.  This Article reviews three recent developments, which relate primarily to comprehensive planning in the State, and explores their implications for Florida’s local governments, among others.  It begins, in Part II, with the State’s decision, in 2011 legislation, to give local governments a new, optional tool—referred to as “Adaptation Action Areas” (“AAAs”)—to address sea-level rise and related issues in local comprehensive plans.  Part III turns to a second piece of Florida legislation, the State’s 2015 “Peril of Flood” legislation, which mandates that local governments begin to address sea-level rise and other causes of flood-related risks through their comprehensive planning processes.  Part IV discusses a third initiative, the Southeast Florida Regional Climate Change […]

Losing Ground: A Clarion Call for Farm Bill Reform to Ensure a Food Secure Future

Laurie Ristino & Gabriela Steier – Soil and water are inextricably related, a fragile and complex system upon which agriculture and, in turn, our species, depend.  Yet we tend to regard this relationship and its criticality in the singular dimension of drought, hindering progress in policy and law to improve agricultural sustainability.  Without necessary policy reforms designed to protect the delicate balance between soil health, water conservation, and agricultural yield, we are foreclosing a food secure future for our nation.  America’s agriculture and farm policy, as embodied in the Farm Bill, has devastated natural resources and, thereby, nature.  Single resource advocacy and land management, such as water or soil conservation, fails to address this systems-based challenge, which is inextricably tied to the farm bill safety net.  American agriculture, as defined by the U.S. Department of Agriculture (“USDA”), commands the majority of the land mass of the lower forty-eight states.  Agriculture […]

Michigan: An Intrusive Inquiry into EPA’s Rulemaking Process

Lauren Packard – In 2015, the Supreme Court decided Michigan v. EPA, finding that the U.S. Environmental Protection Agency (“EPA”) interpreted section 112 of the Clean Air Act unreasonably when it decided to regulate toxic mercury emissions from power plants without first considering compliance costs.  Justice Scalia, writing for a 5-4 majority, found that the term “appropriate and necessary” in section 112 “naturally and traditionally” includes a consideration of costs.  Consequently, the Court found that EPA’s decision to regulate mercury emissions did not warrant deference under Chevron v. Natural Resources Defense Council because EPA did not predicate its determination on an analysis of compliance costs.  Rather, EPA decided to regulate emissions from power plants because such emissions pose a public health hazard, pre-existing regulations did not adequately address this hazard, and control technologies exist to mitigate it.  In her dissent, Justice Kagan pointed out that the agency had considered costs […]

The Natural Gas Act, State Environmental Policy, and the Jurisdiction of the Federal Circuit Courts

Channing Jones – Market pressures will likely drive a continued push for the build-out of natural gas infrastructure in the form of pipelines, compressor stations, storage facilities, and liquefied natural gas (“LNG”) terminals (collectively, “natural gas facilities”).  Where these facilities would transport natural gas in interstate or foreign commerce, their siting, construction, and operation are generally governed by the Natural Gas Act (“NGA” or the “Act”) and fall within the regulatory jurisdiction of the Federal Energy Regulatory Commission (“FERC” or the “Commission”). Natural gas project proposals commonly encounter controversy and resistance, indicating a considerable amount of future litigation as proposals to construct or expand natural gas facilities grow with supply and demand pressures.  One area this litigation may center around is the limited but sometimes decisive range of authority states hold to regulate natural gas facilities with respect to certain environmental matters, chiefly in certifying state water quality standards compliance under […]