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.


Avoiding Albuquerque: How Incentive-Based Green Building Codes May Regulate Appliance Efficiency Standards and Avoid Federal Preemption

By: Elliot Harvey Schatmeier 19th December 2012   Introduction The rise in building energy consumption is a growing problem.  Today, buildings make up roughly 40% of total U.S. energy consumption.[1]  Some state and local legislatures have responded by enacting residential and commercial green building codes, which they hope will make buildings more sustainable and more energy efficient.[2]  Recently, however, a federal court voided the City of Albuquerque’s green building code because federal law preempted its appliance efficiency standards.[3]  This is problematic because energy efficient appliances are a key component to energy use reduction strategies in green building codes.[4]  Further, current federal standards are inadequate because they are out-of-date[5] and do not address regional climate diversity.[6]  Federal reform is also unlikely.[7]  Accordingly, this field report will explore the limits the Albuquerque decision places on non-federal regulation and will argue that market-based incentive codes (MBI Codes) can nonetheless effectively improve appliance efficiency […]


Friends-and Enemies-of the Everglades: Unitary Waters in the Federal Courts

By: Michael Kettler 16th February 2011   This past November, the Supreme Court declined to hear the case Friends of the Everglades v. South Florida Water Management District.[1]  That case was the first in which a federal appeals court accepted the “unitary waters” theory,” an interpretation of the Clean Water Act that treats all bodies of water in the United States as a single body.  Environmentalists oppose this interpretation because it exempts from federal permitting requirements transfers of polluted water to less polluted bodies, as long as the transferor does not add any pollutants to the transferred water.  Although the Eleventh Circuit as well as other circuit courts of appeal had previously rejected the unitary waters theory, Friends of the Everglades deferred to a 2008 EPA regulation that endorsed the theory.  This Field Report discusses the background and aftermath of the Bush administration’s adoption of the unitary waters theory.  Although […]


Nuclear Terrorism Under NEPA: A Meta-Legal Analysis of the Split Between the Third and Ninth Circuits

By: Sheldon L. Trubach 16th February 2011   The U.S. Nuclear Regulatory Commission (“NRC”) has imposed on its licensees several stringent anti-terrorism requirements,[2] yet it continues to resist considering the environmental impacts of such terrorism in the parts of its licensing process conducted pursuant to the National Environmental Policy Act (“NEPA”).[3] NRC’s approach has been challenged and subjected to judicial scrutiny.  The Court of Appeals for the Ninth Circuit has disagreed with the Commission, and directed the NRC to consider such terrorism among environmental impacts in the licensing of a new Independent Spent Fuel Storage Installation (“ISFSI”) at the Diablo Canyon Nuclear Power Plant.[4]  The NRC, however, has persisted in asserting its position outside the Ninth Circuit.[5]  And it has found support in the Court of Appeals for the Third Circuit, which held that the NRC was not required to consider environmental impacts from terrorism in proceedings to extend the […]


From Therapeutic Drugs to Toxic Contaminants: Pharmaceutical Pollution in the Water and Strategies to Regulate Its Impact

By: Guillermo Cuevas 8th February 2011   I.         Introduction Pollution from pharmaceutical end products is a widespread and under-regulated source of environmental contamination.  United States Geological Survey researchers detected pharmaceutical contaminants in eighty percent of 139 streams sampled.[1]  The contaminants found in the sampled aquatic environment included:  antibiotics, hypertensive medication, antidepressants, analgesics, reproductive hormones, and other prescription drugs.[2]  These chemical agents have also impacted municipal drinking water supplies.[3]  There currently exists little, if any, health risk assessment data regarding the potential adverse effects from chronic exposure.[4] There are several gaps in the current regulatory framework and little action from federal agencies to combat this pollution source.  As pharmaceutical contaminants become increasingly endemic and more concentrated in both the environment and human drinking water, it will become necessary to abate their impacts.  Fortunately, there are legal regimes currently in place that can respond to this contamination.  This Field Report will examine […]


Nuclear Power and New York City: Columbia’s Forum on the Environmental Consequences and Catastrophic Risks of Indian Point

By: Andrew Kirchner 7th April 2012   I.  Introduction 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.  In the wake of the Fukushima Daiichi disaster in Japan, many fear that Indian Point could cause similar devastation if an accident or terrorist attack occurred at the plant.  The environmental issues associated with Indian Point, such as the large quantity of water it draws from the Hudson River to operate its cooling system, have caused further public concern.  To that end, New York State’s Department of Environment Conservation (DEC) denied Indian Point’s joint application for Clean Water Act section 401 and 6 NYCRR Parts 608 and 621 water quality certifications in 2010.[1]  Entergy Corporation, the operator of Indian Point, requested and was granted an adjudicatory hearing to challenge the denial.[2]  Entergy […]


Advocating for Local Exhaustion: The Amicus Brief Submitted on Behalf of the U.K. and Australian Governments in Sarei v. Rio Tinto

By: Elizabeth Sheargold 28th March 2012   U.S federal courts have taken a narrow approach when considering whether the Alien Tort Statute (“ATS”)[1] can be used as a basis to assert jurisdiction over claims relating to environmental damage that occurred entirely outside of the United States.[2]  In spite of this, the plaintiffs in Sarei v. Rio Tinto, PLC brought a range of claims relating to environmental destruction and a subsequent civil war on the island of Bougainville, Papua New Guinea (“PNG”) before the U.S. District Court for the Central District of California.[3]  The plaintiffs allege that the mining operations of Rio Tinto, PLC and Rio Tinto Ltd. (collectively “Rio Tinto”) “destroyed Bougainville’s environment and the health of its residents.”[4]  They also assert that the defendants “are responsible for human rights violations and war crimes committed” by the government of PNG, which used military force to quell an uprising against the […]


“Get the Frack Out of Town:” Preemption Challenges to Local Fracking Bans in New York

By: Andrew Meyer 20th February 2012   Local elections in New York last fall seemed to feature only two types of candidates:  ardent supporters of a local ban on fracking and equally ardent opponents.[1]  State courts are now poised to decide whether localities in New York even have the power to ban fracking in the first place, or if local ordinances banning fracking are preempted by state law.  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.  The plaintiffs argue that the state Oil, Gas, and Solution Mining Law (“OGSM”) preempts such local zoning ordinances, as the OGSM expressly supersedes “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries.”[2]  Thus, the question presented is whether a generally applicable zoning […]


Onwards and Upwards: Space Tourism’s Climate Costs and Solutions

By: Jon Krois 18th November 2011   Space tourism is an industry of today, not just tomorrow.  This industry is set to take off in the coming years and decades as dozens of companies and thousands of people race to experience space for themselves.  The world continues to step into space even as the rise of a commercial space industry threatens our own planet’s climate.  In a study released in October 2010, climate scientists concluded that as few as 1,000 rocket launches per year would cause worldwide climate change.[1]  This revelation presents both a problem and an opportunity.  The threat is significant, and Part I of this Field Report will explain the new research and its implications.  Part II will survey the current legal terrain applicable to the environmental impacts of space tourism, including space law, the National Environmental Policy Act (NEPA) and the Clean Air Act (CAA).  It concludes […]


Friends-and Enemies-of the Everglades: Unitary Waters in the Federal Courts

By: Michael Kettler 16th February 2011   This past November, the Supreme Court declined to hear the case Friends of the Everglades v. South Florida Water Management District.[1]  That case was the first in which a federal appeals court accepted the “unitary waters” theory,” an interpretation of the Clean Water Act that treats all bodies of water in the United States as a single body.  Environmentalists oppose this interpretation because it exempts from federal permitting requirements transfers of polluted water to less polluted bodies, as long as the transferor does not add any pollutants to the transferred water.  Although the Eleventh Circuit as well as other circuit courts of appeal had previously rejected the unitary waters theory, Friends of the Everglades deferred to a 2008 EPA regulation that endorsed the theory.  This Field Report discusses the background and aftermath of the Bush administration’s adoption of the unitary waters theory.  Although […]


The Toxic Substances Control Act: A Proposal for Reform

By: Ben Schifman 24th October 2010   Introduction America’s regulation of toxic substances through the Toxic Substances Control Act (“TSCA”) is deeply flawed.  The societal costs of toxic substances are not reflected in the price firms and consumers pay.  Therefore these substances are overproduced and cause severe negative heath effects often borne by most vulnerable members of society.[1]  Though TSCA has remained largely intact for over 30 years, there is currently interest in Congress,[2] the environmental and public health community,[3] and the business community[4] for reform. This Field Report will provide an overview of the current regulatory regime and its problems, and advocate that (1) chemical producers be required to test and submit toxicity information about their products to EPA before placing them on the market; (2) information regarding chemicals be made available to the public; and (3) the burden EPA must meet before taking regulatory action be lowered. Problems […]


Bad Math in CERCLA Apportionment: The Untold Tale of Burlington Northern

By: Nicholas J. Houpt 17th October 2010   On May 4, 2009, the Supreme Court issued a decision that changed the landscape of liability allocation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[1]  Before this decision came down, courts typically held parties jointly and severally liable for cost-recovery actions.[2]  Now, a CERCLA defendant can make a showing that there is a “reasonable basis for apportionment,” thus allowing defendants to avoid taking on the potentially hefty liability of orphan shares.[3]  Although there is much to say about the future legal application of this apportionment standard, this piece takes a much more narrow perspective: the apportionment formula originally used by the district court and upheld by the Supreme Court cannot be justified mathematically and, in fact, drastically distorts a defendant’s true share of liability.  I will explain the district court’s apportionment formula, illustrate why it distorts apportionment, and propose a […]


Cap-and-Trade Under The Clean Air Act?: Rethinking Section 115

By: Hannah Chang 20th April 2010   As climate legislation stagnates in Congress, the possibility of greenhouse gas (“GHG”) regulation under the Environmental Protection Agency’s (“EPA”) existing Clean Air Act authority as the sole federal means of addressing climate change becomes increasingly likely.  Whether EPA has existing authority to implement a cap-and-trade program for GHGs, which many believe is the cornerstone of an effective and efficient approach to controlling emissions, has as yet no definitive answer.  The various sections of the Clean Air Act that could act as authority for such a program have their own legal ambiguities and practical limitations.[1]  One largely overlooked section-§ 115 on “International Air Pollution”[2]-however, is potentially quite powerful in its implications for the establishment of a cap-and-trade program. Upon a finding that pollution in the U.S. is causing or contributing to air pollution “which may reasonably be anticipated to endanger public health or welfare […]


Connecticut v. AEP Decision

By: Nancy G. Milburn 12th April 2010   In the fall of 2009, the Second Circuit issued its long-awaited decision in Connecticut v. American Electric Power Company,[1] a case alleging a federal common law nuisance claim based on the effects of greenhouse gases.  The Second Circuit Court of Appeals reversed a lower court dismissal of the case.  In a lengthy opinion, the Second Circuit held that plaintiffs-eight states, the City of New York, and three nonprofit entities-had standing to seek an injunction against six electrical utility companies to restrict their greenhouse gas emissions based on a public nuisance claim.  The Court also held that the claims were not barred by the political question doctrine, which forecloses courts from deciding questions that have been committed for decision to the executive and legislative branches.  Finally, the Court held that plaintiffs had stated a viable federal common law nuisance claim, which had not […]


Connecticut v. AEP: A Long History of Nuisance Law

By: Peter Lehner                                                                                                                                                                                           26th March 2010   The Second Circuit, in its September 21 decision in State of Connecticut v. American Electric Power Company[1] did exactly what common law courts in America are designed to do:  resolve the parties’ differences in a peaceful fashion.  The issue before the court—the harms caused by the global warming pollution of the five largest power companies in the country—was a new setting for common law, but the basic approach of the court was deeply rooted in the fundamental precepts of our judicial system.  While the ruling is only preliminary (the case is far from having reached the merits) and may be mooted by either Congressional or administrative action, the decision is pivotal in holding that states could bring a federal common law nuisance case seeking to require the country’s largest greenhouse gas (GHG) polluters to reduce their emissions.  As such, the decision represents an […]


Field Reports Launches

26th March 2010   The Columbia Journal of Environmental Law is pleased to announce the first article for its online-only publication, Field Reports.  In “Connecticut v. AEP Decision,” Nancy Milburn provides a detailed overview of a recent climate change litigation decision and how it relates to similar cases in the 5th and 9th Circuits.  In his essay “Connecticut v. AEP:  A Long History of Nuisance Law,” Peter Lehner provides an insightful analysis of the same decision from the perspective of one of the participating attorneys.  This decision represents one front in a rapidly evolving climate litigation field.  Together these articles provide a useful first look at this case.   At a time of extraordinary legal and policy changes in environmental law, Field Reports will continue to publish timely legal scholarship and analysis and will highlight writing, analysis, and events from the environmental law and Columbia Law School community.  In doing […]