Field Reports

Field Reports are original and timely articles of legal scholarship that provide commentary or analysis on developments in the field of environmental law in a concise and accessible format.

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 […]

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.

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 […]

Report from the West Virginia v. EPA Oral Argument

By: Trevor Gopnik 16th November, 2016 On September 27, 2016, the U.S. Court of Appeals for the District of Columbia Circuit sat en banc to hear oral argument in West Virginia v. EPA.  The outcome of the case, which will almost certainly be appealed to the Supreme Court, could determine the Obama administration’s legacy on climate change action: federal regulation of greenhouse gas emissions from power plants.  Members of the public, including the author, began lining up before 7:00 AM seeking a seat in the courtroom or one of the two overflow rooms with live video feeds.  Oral argument started promptly at 9:30 AM and continued with only a short break until 6:00 PM.

People v. Rinehart, Conflicting Jurisprudence, and Certiorari

By: Sahand Farahati 16th November, 2016 On August 22, 2016, the California Supreme Court rendered a decision in People v. Rinehart that upheld an effective ban on suction dredge mining in the state.  Suction dredge mining is a method that uses a high powered suction device to vacuum loose material from streambeds and then separate the silt and gravel from valuable minerals, often gold.  This method of mining is known to disturb endangered coho salmon habitats and contribute to mercury poisoning in humans and fish.  At the same time, miners argue that it is the only practicable method of excavating gold.  These conflicting interests were described by the Rinehart court as “arising from the competing desires to exploit and to preserve [the state’s] various resources.” Despite the court’s ruling, this may not be the end of the line for the case.  James Buchal, the attorney arguing against the ban, has said he […]

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.  

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 […]

New York to Paris: From REV to MOU

By: Irene Blumberg 11th December, 2015 On October 8th, 2015, New York Governor Andrew Cuomo and former Vice President Al Gore met at Columbia University to deliver a much anticipated announcement: the state of New York was to become a signatory of the Under 2 Memorandum of Understanding (“Under 2 MOU” or “MOU”), which aims to prevent the average global temperature from rising more than two degrees Celsius above pre-industrial levels, and to limit greenhouse gas (“GHG”) emissions to below two metric tons per capita by 2050.2. The goal of the Under 2 MOU is to unite governments across the globe that are willing to make substantial changes in the face of global warming. As of October 17th, 2015, forty-three jurisdictions representing nineteen countries and spanning five continents have signed the MOU. Additional goals of the MOU are: (i) to demonstrate how states, regions, and cities may embrace renewable energy […]