Notes and Case Comments

Where No Man Has Gone Before: The Future of Sustainable Development in the Comprehensive Economic and Trade Agreement and New Generation Free Trade Agreements

Emily Hush – It is no secret that the planet is warming and that humans have had something to do with it.  Over the last one hundred and fifty years, the global average concentration of carbon dioxide in the Earth’s atmosphere has increased to unprecedented levels and continues to rise.  As the climate becomes warmer, the world will face ocean acidification, sea level rise, decreasing biodiversity, and more extreme weather events. At the end of the twentieth century, many nations recognized that climate change is a global phenomenon requiring cooperative action, and began to seek international solutions to prevent disastrous warming and to mitigate unavoidable impacts.  Sustainable development is central to this international response to climate change.  International agreements like the United Nations Framework on Climate Change and the Paris Agreement are indispensable to furthering sustainable development worldwide.  However, the complexity of such large multilateral agreements presents a barrier to […]

Is There Space for Environmental Crimes Under International Criminal Law? The Impact of the Office of the Prosecutor Policy Paper on Case Selection and Prioritization on the Current Legal Framework

Alessandra Mistura – The publication of a Policy Paper on Case Selection and Prioritization (the “Policy Paper”) by the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) in September 2016 has reignited the longstanding discussion about the status of environmental crimes under international law.  The Policy Paper expressed the intention of the OTP to consider, in the selection of crimes to be submitted to the jurisdiction of the ICC, those committed through, or resulting in, “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”  Such wording soon gained widespread attention, prompting many news outlets to declare that, from now on, the ICC would focus on prosecuting “environmental crimes.”  The news sources’ enthusiasm, however, appears misplaced for several reasons. The first and foremost objection comes from a consideration of the ICC’s limited jurisdiction.  In fact, this is strictly confined by […]

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 […]