Columbia Journal of Environmental Law

ARTICLES

The Risk in Discretion: Substantive NEPA’s Significance

7th March 2016 By: Jamison E. Colburn

Every student of the National Environmental Policy Act (“NEPA”) knows that it is a “procedural” statute.  Its practical difference as law is to force agencies to take a “hard look” at their proposed actions before taking them.   NEPA’s broadest goal—that the government “foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations”—is not, by contrast, law to be enforced.   In short, NEPA’s ultimate goal of making American society more sustainable has been marginalized even as its chief procedural tool—the Environmental Impact Statement (“EIS”)—has become ubiquitous.  NEPA section 102(2)(C) clearly mandates in a modally unmistakable way that “all agencies of the Federal government,” when taking any “major Federal action[] significantly affecting the quality of the human environment,” prepare an EIS, specifying some of the contents thereof.   Nothing in the statute even comes close to doing so for its more substantive objectives.

Not long after EISs had taken over NEPA, though, scholars recognized that the Act is much more substantive.   While NEPA sections 101 and 102(1) quickly fell into desuetude, the question has long been asked: can that be changed?  As courts made clearer and clearer that it was outside the scope of review to substitute judicial for administrative judgments in the decisions EISs informed,  the answer seemed to be a resounding “no.”   By the 1990s, impassioned and inventive arguments that courts should reverse course and retake “substantive” NEPA into judicial review were common.   Proposals directly to the courts that they execute NEPA’s substantive aspects have remained heart-felt but mostly pointless;  for most have ignored underlying legal structure and repeated Supreme Court rejections of any such role for the judiciary.

For all the judicial pronouncements that NEPA is an “essentially procedural” statute, the question remains whether any such pronouncements bind the executive branch, preventing it from putting NEPA’s more substantive aspects into effect.  The Supreme Court has held that “[b]efore a judicial construction of a statute . . . may trump an agency’s, the court must hold that the statute unambiguously requires the court’s construction.”   Such holdings need not be expressed in these exact terms,  but the Court’s formula clearly empowers the executive.   Indeed, a judicial construction only binds as to the “precise question at issue.”   Are there any such precedents in NEPA’s past?  If so, how should they inform the President, whose duty and power it is to “take care” that the “Laws be faithfully executed”?


Picking Winners and Losers: A Structural Examination of Tax Subsidies to the Energy Industry

7th March 2016 By: Tracey M. Roberts

The shibboleth that “government should not be picking winners and losers” has dominated the public discourse over renewable energy subsidies.  This way of framing the debate ignores the nation’s long history of support for fossil fuels and obscures the economic theory behind the subsidies.  This article contributes to the discussion in four ways.  First, the article examines economic justifications for government intervention in markets and evaluates the tax subsidies to both fossil fuels and renewable energy resources in that light.  Second, the article contrasts the different market trajectories for those investments and explores possible reasons for their divergence, including their budgetary history.  Third, the article examines the investment incentives that arise from the subsidy structures in terms of marketability, liquidity, information costs, transaction costs, risk, and uncertainty.  Fourth, it examines the political economy associated with the development and continuation of the subsidies.  A subsidy’s age, diversity, type, and beneficiaries affect its stability and longevity.  These factors also determine whether taxpayers report having claimed the benefits and whether administrative agencies evaluate them.  Finally, the article argues that the way Congress structures its subsidies can determine whether new energy technology is a winner or loser.  The article develops a generalized framework for structuring tax incentives and examines recent proposals for reform.

NOTES AND CASE COMMENTS

The Threat Divider: Expanding the Role of the Military in Climate Change Adaptation

7th March 2016 By: Gregg Badichek

On October 13, 2014, Secretary of Defense Chuck Hagel delivered a press release in which he spoke unequivocally about the national security implications of climate change.   “Among the future trends that will impact our national security,” he declared, “is climate change.  Rising global temperatures, changing precipitation patterns, climbing sea levels, and more extreme weather events will intensify the challenges of global instability, hunger, poverty, and conflict.”   The Secretary went on to describe the forthcoming integration of climate change considerations into national defense policy through the Department of Defense’s (“DoD” or “Department”) administrative apparatus.  This policy directive includes the Department’s “Climate Change Adaptation Roadmap,” a military foray into the realm of climate change adaptation released on the same day that is unprecedented in its scope. 

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 embraced and expanded as adaptation efforts become increasingly necessary.  


Looking in the Side-View Mirror: Assessing the Current and Future State of the Solar Energy Industry as it Reaches the Mainstream

7th March 2016 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 are factors intrinsic to the industry that have not yet influenced its growth into adolescence.  One must analyze current solar energy issues along with the industry’s unique characteristics to properly assess the situation from a complete perspective and to observe its possible exposure to an array of complications.  Lawmakers, from all levels of government, must then acknowledge and act on these findings to prudently regulate the solar industry.

Current ISSUE

Vol. 41  No. 1
The Columbia Journal of Environmental Law was founded in 1972 with a grant from the Ford Foundation. The Journal is one of the oldest environmental law journals in the nation and is widely regarded as one of the preeminent environmental journals in the country. Our subscribers include law libraries, law firms, and federal, local, and state courts, as well as a significant international readership.

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