Vol. 39 No. 2


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 […]

This is Adaptation: The Elimination of Subsidies Under the National Flood Insurance Program


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 […]

Flowback: Federal Regulation of Wastewater from Hydraulic Fracturing


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 […]

Can You Sue the Government? An Examination of the Legal Doctrines for Government Liability Regarding ...



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 […]

Reforming “The Blob”: Why California’s Latest Approach to Amending CEQA Is a Bad Idea