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Environmental Justice in Oregon: It’s the Law
By Robert W. Collin
Issue 38:2

 


I. Introduction


Environmental justice refers to the distribution of environmental rights and benefits by race, class, and income. These include substantive rights like clean air and water, and process rights like notice and the opportunity to participate in environmental decision making. Other terms like environmental racism and environmental equity are also used to describe environmental justice dynamics.[1]Other articles in this issue of Environmental Law document the increasing breadth and depth of environmental disproportionality.[2]More and more studies provide evidence of both environmental racism and environmental disparity as they become more longitudinal. One of the most recent nongovernmental reports is Toxic Wastes and Race at Twenty: 1987-2007, which documents, once again, some of the environmental disparities. They found that:


• People of color make up the majority (56%) of those living in neighborhoods within roughly two miles of the nation's commercial hazardous waste facilities, nearly double the percentage in areas beyond two miles (30%).


• People of color make up more than two-thirds (69%) of the residents in neighborhoods with clustered facilities.


• Nine out of ten U.S. Environmental Protection Agency (EPA) regions have racial disparities in the location of hazardous waste sites.


• Forty of forty-four states (90%) with hazardous waste facilities have disproportionately high percentages of people of color in host neighborhoods-on average about two times greater than the percentages in non-host areas (44% vs. 23%).[3]


These findings provide an early baseline for both environmental disparity and challenges to sustainable policies. As polices and laws about Environmental Justice have developed at the U.S. EPA, states have followed its lead.[4]This Article examines the development of state environmental justice activities in Oregon. {Continue reading}

Healthy Schools: A Major Front in the Fight for Environmental Justice
By Daria E. Neal
Issue 38:2

I. Introduction


Public schools are under constant attack for "failing" America's children. Whether it is criticism of teachers, parents, or administrators, there seems to be a general malaise when it comes to the future of public schools. This can be attributed, in part, to the physical conditions of our schools. Many schools are in desperate need of repair, with lead paint, asbestos, pesticides, and poor ventilation systems prevalent in the nation's schools. Additionally, in an effort to build "better" schools in urban areas, new schools are often sited near polluting industrial facilities. Both scenarios negatively impact the health of children.


Environmental justice, at its very heart, is about the right of all people to live in environmentally healthy communities. Children spend the majority of their formative years in schools. If the schools are in poor condition or located near toxic facilities or on contaminated sites, the health and well being of their students are in jeopardy. A growing number of families are opting to send their children to private school for quality facilities as well as academics. Those that cannot afford the alternative are left to send their children to public schools that can and will make them sick. Because attending school is legally mandated, federal and state governments have a duty to ensure the environmental conditions in and surrounding schools do not negatively impact the health of students.


The environmental justice movement addresses a broad range of issues including transportation equity, fair housing, zoning regulations, and community planning. In the middle of each area of concern lies a school. Schools are located where people live, near roads, and near businesses, both industrial and commercial. The goal of environmental justice is to ensure equal protection of all people from environmental hazards and eliminate the...

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El Dia De Los Muertos: The Death and Rebirth of the Environmental Movement
By Eileen Gauna
Issue 38:2

 


 


I. Introduction


In Latino traditions, there is a day called "el dia de los muertos" or the day of the dead.[1]The artwork commemorating this day best illustrates its mood, featuring whimsical skeletons in brightly colored clothes, typically dancing, singing, playing music, and otherwise celebrating. The message is clear: don't take death-or yourself-too seriously. After all, death is part of life. The environmental community might want to similarly leave aside the more somber approach to its supposed death,[2]and look at its potential from a broader perspective.


In the fall of 2004, environmental consultants Michael Shellenberger and Ted Norhaus, in an article proclaiming the "death of environmentalism," started a debate about whether the environmental movement, as known and understood in more conventional U.S. circles, is a failed strategy and should be pronounced dead.[3]They suggested that as it currently exists, environmentalism is structurally incapable of adequately addressing the most serious environmental issue to confront humankind-global climate change.[4]The article sparked a vigorous debate within the environmental community. While the controversy has long since subsided, the arc of this article and various responses to it is telling and merits further reflection. There were several interesting aspects of this debate. For example, it raised questions about who exactly is the environmental community, what are "its" strategies, are they successful, and where do we go from here? Issues of race, class, and equity came to the surface. This Article examines some of the strands of this debate and how environmental justice actors fit within the project of a successful response to climate disruption.[5]It is important to keep this issue in mind as the adverse effects of climate change-while uncertain in severity, timing,...

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“Ecoterrorism”?: A Critical Analysis of the Vilification of Radical Environmental Activists as Terrorists
By Rebecca K. Smith
Issue 38:2

 


I. Introduction


We want to destroy environmentalists by taking their money and their members. . . . No one was aware that environmentalism was a problem until we came along.[1]Facts don't matter, in politics, perception is reality.


Ron Arnold, Father of the Wise Use Movement and Creator of the Term


"Ecoterrorism"[2]


Terrorism is anything that stands in the face of what we want to do . . . people's movements of resistance against deprivation, against unemployment, against the loss of natural resources, all of that is termed 'terrorism.'


Edward Said, Columbia Professor of English & Comparative Literature[3]


In August of 2002, as I sat high in an old ponderosa pine to protest destructive logging on public lands in the Bitterroot Valley, federal agents began to cut the tree down from the top while I sat below their saw. After sawing off most of the branches, they tied one end of a rope to the trunk of the tree, and tied the other end of the rope to the bumper of a truck eighty feet below us. They would saw off a five foot section of the tree trunk, the truck would pull the rope, and the section of the tree trunk would crash to the ground. When they had cut the trunk of the tree down to where I was sitting, they lifted me into a cherry picker bucket and brought me to the ground.


Before they could take me to jail, they had to take me to the hospital. For the previous two weeks the federal agents had set up a twenty-four hour, four-person surveillance team-with four high powered spotlights-to enforce severe...

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Taking Congress's Words Seriously: Towards a Sound Construction of NEPA's Long Overlooked Interpretation Mandate
By Joel A. Mintz
Issue 38:4

 


I. Introduction


The National Environmental Policy Act of 1969 (NEPA)[1] was one of the first federal environmental enactments of the modern environmental era. Best known for its environmental impact statement (EIS) requirement,[2] and its establishment of the Council on Environmental Quality (CEQ) in the Executive Branch,[3] NEPA has been the basis of numerous lawsuits regarding federal governmental projects that will or may have an adverse impact on the human environment.[4] Despite that fact, however, and notwithstanding the significance of the statute as a catalyst to the study and analysis of environmental trends and the environmental consequences of major federal actions, some of NEPA's provisions have been persistently overlooked by the federal courts and the attorneys who appear before them.


This Article focuses on one such provision: subsection 102(1).[5] Surprisingly (at least to this author), in the thirty-nine years since NEPA's enactment, that brief subsection has been directly applied only six times in judicial opinions.[6]


In Part II of this Article, I will discuss the plain language of NEPA subsection 102(1) and its pithy (and unenlightening) legislative history, and I will identify several important questions that the provision appears to raise. In the following three Parts I will consider each of those questions in more detail, taking account of the (minimal) judicial construction thus far given to subsection 102(1). Those three portions of this Article examine in turn what policies are "set forth" in the statute as a guidepost for regulatory and statutory interpretations, to whom the NEPA interpretation provision applies, and what is meant by the statutory phrase "to the fullest extent possible." Finally, drawing for illustration on the United States Supreme Court's...

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Property Pieces in Compensation Statutes: Law's Eulogy for Oregon's Measure 37
By Keith H. Hirokawa
Issue 38:4

 


It is not enough for the knight of romance that you agree that his lady is a very nice girl-if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much that the poor devil who has no other way of reaching it attains it by getting drunk.[1]


I. Introduction


Outside of law, what we mean when we use the term "property" is by no means self-evident (and may not become altogether clear on closer examination, either).[2] For instance, even in our most unsophisticated explanations, we must admit that the pre-social world may be comprised of things, ideas, and processes, yet it is not comprised of "property."[3] For purposes of this Article, it might suffice to say that property begins as an economic, instrumental, social, or personal construct, and becomes (if at all) a legal label to delineate a hegemony of rights among competing values and expectations. As the particular social values at issue undergo change, and as compromise in the competition shifts, "property" ultimately acquires meaning by attaching legal protection to such values. Although we need not go so far as Bentham's epitaph for property without law,[4] his point is a good one: the meaning of property is contextual,[5] and law plays a special role in determining the confines of property's context.


In an important sense, this is just an acknowledgment that each perspective on property is fundamentally a socially contingent construction competing for legitimacy in law. There are many such constructions, of course, spanning across great divides in process and foundation, each vying...

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Courts and the EPA Interpret NPDES General Permit Requirements for CAFOs
By Terence J. Centner
Issue 38:4

I. Introduction


The continued impairment of U.S. navigable waters despite more than thirty-five years of federal efforts under the Clean Water Act[1] presents inexorable challenges. By enacting the Federal Water Pollution Control Act in 1972-better known as the Clean Water Act-Congress hoped "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."[2] The Act adopts the basic rule that unpermitted discharges of pollutants from point sources into navigable waters are not allowed,[3] and a permitting system authorizes discharges of limited amounts of pollutants.[4] Although the Act has been successful in addressing many egregious pollution situations, the application of the National Pollutant Discharge Elimination System (NPDES) program to all point sources remains an elusive goal.[5] It is estimated that forty-five percent of our rivers and streams and forty-seven percent of our lakes remain impaired.[6]


To carry out the purposes of the Act, the Administrator of the United States Environmental Protection Agency (EPA) was authorized to prescribe additional regulations for effluent limitations and supplemental best management practices to control pollutant runoff.[7] Pursuant to this statutory authority, EPA sought to reduce pollution from concentrated animal feeding operations (CAFOs), which are large animal producing entities with great quantities of manure that have the potential to adversely affect the quality of nearby waters.[8] Congress expressly included CAFOs in the Clean Water Act's definition of "point source" of pollution.[9] Therefore, a CAFO must obtain a permit before discharging into navigable waters.[10] EPA defines CAFO as an animal feeding operation that meets additional characteristics concerning numbers of animals at a single facility and discharges pollutants, {Continue reading}

Overly Restrictive Administrative Records and the Frustration of Judicial Review
By James N. Saul
Issue 38:4

I. Introduction


The record rule, as established by the United States Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe (Overton Park),[1] serves a valuable function. It ensures that courts do not engage in free-roaming de novo review of agency decisions, instead leaving to the expert agencies the difficult task of scientific and policy assessment for which they were created in the first place. But in an era of closed government,[2] the record rule is increasingly abused by agencies seeking to protect their decisions from the probing eyes of the court. Federal agencies, and specifically environmental agencies, abuse the record rule in two alarming ways.


First, they blur the distinction between a complete administrative record, which the Supreme Court requires for effective judicial review, and a supplemented administrative record, which is appropriate only in certain circumstances when the complete record is insufficient.[3] Courts also have difficulty discerning the difference between the two, and judicial review is hampered as a result.[4] Because a reviewing court must ensure it has the full and complete record prior to engaging in review of an agency action,[5] the burden that a plaintiff must meet before the court allows completion of the record should be significantly lower than the burden a plaintiff must meet before the court allows supplementation of the record with additional evidence.


Second, several federal agencies have begun to unilaterally withhold allegedly deliberative documents from the record without following the minimal procedures required to assert the deliberative process privilege.[6] This makes it exceedingly difficult for plaintiffs to challenge an agency's claim of privilege, and leaves a court to guess whether it truly has before it the...

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Swamp Swaps: The “Second Nature” of Wetlands
By FRED BOSSELMAN
Issue 39:3

I. Introduction and Summary

"Bison and pine trees had once been members of ecosystems defined mainly by flows of energy and nutrients and by relations among neighboring organisms. Rearrayed within the second nature of the market, they became commodities: things priced, bought, and sold within a system of human exchange."[1]


Until recently, the wetland preservation movement has relied primarily on public and nonprofit entities that recognized the important nonmarket functions that wetlands may perform.[2] These entities used public or donated funds to manage wetlands in ways that would further the desired functions.[3] Wetlands were generally believed to have no market value except as opportunities to be destroyed for development.[4]


Today, we are at the early stages of wetland management for market values. These opportunities arise in a growing number of trading systems in which components of managed wetlands can be traded for rights having cash value. The first half of the Article will describe five markets, in varying stages of maturation, that offer the prospect of managing wetlands for profit.


Mitigation banking has been employed sporadically for some years, but it has been given a big boost by 2008 federal regulations adopted by the Army Corps of Engineers (COE) and the Environmental Protection Agency (EPA).[5] These new rules make the purchase of shares in a wetland mitigation bank the preferred option for land developers who plan to eliminate existing wetlands. The new guidelines for the creation of mitigation banks have created an outpouring of interest.[6]


Water quality trading is also a favorite of EPA, though it has developed more slowly than its proponents have wished.[7] Municipal and industrial wastewater dischargers, who require...

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Halting the Hitchhikers: Challenges and Opportunities for controlling Ballast Water discharges and Aquatic Invasive Species
By Suzanne Bostrom
Issue 39:3

 


In January 1991, the Ministry of Health in Lima, Peru, started receiving reports of an illness later identified as cholera.[1] Over the course of the next several years, the epidemic spread to all but one Latin American country, infecting at least 100,000 and killing approximately 10,000 individuals.[2] Evidence indicates ballast water from ships moving between Asia and South America was the most likely source of the outbreak-the first in the Western hemisphere in over a century.[3] Ultimately, the cholera outbreak cost Peru $770 million, primarily as a result of trade embargoes on food and decreased tourism.[4]


Unfortunately, the cholera epidemic in Peru is just one example of a non-native species causing harm internationally to the environment, human health, and the economy. Non-native species are species of plants, animals, and microbes that do not occur naturally in a particular habitat.[5] Approximately 50,000 non-native species are located in the United States.[6] Some non-native species, including corn, wheat, rice, poultry, and cattle, are utilized for agriculture and other purposes in the United States.[7] However, when the species are introduced into new environments, their natural predators are often absent and the species "can compete with native biota; displace them; predate upon them; parasitise and transmit or cause diseases; reduce growth and survival rates; cause decline, extirpation (local extinction) of populations, or extinction."[8] These invasive species are a destructive subset of non-native species that cause environmental damage and lead to adverse economic consequences in agriculture, forestry, and other industries.[9] Internationally, governments and other entities have already spent billions of dollars to remove and control invasive species.[10] Invasive...

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The Friends of Yosemite Valley Saga: The Challenges of Addressing the Merced River’s User Capacities
By John Cathcart-Rake
Issue 39:3

I. Introduction

The Merced River forms from snowmelt and glacier runoff on the western slopes of Mount Lyell in the Sierra Nevadas, cascading down Nevada and Vernal Falls before winding west through the seven-mile-long Yosemite Valley.[1] In the first days of January of 1997, the normally placid Merced, swollen with rain and Sierra Nevada snow melted by warm temperatures, roared out of its banks, submerging employee cabins and Yosemite Lodge, and washing out bridges, roads, utility lines, and campsites.[2] The floodwaters rushed over a century of overdevelopment in Yosemite Valley,[3] flushing facilities built within the floodplain and parking lots sited at the best scenic viewpoints.[4] The flood also funneled political attention and money[5] toward the Park Service's plans for the future of the "incomparable valley"[6] in America's first protected park.[7]


In Yosemite Valley, where each natural feature and view has its own constituency,[8] both the Park Service's plans for a quick reconstruction[9] and the Service's vision for Yosemite Valley in the twenty-first century came under attack. In 2000, two local groups, Friends of Yosemite Valley and Mariposans for Environmentally Responsible Growth (collectively, "Friends"), challenged the Merced River Plan[10] and the Yosemite Valley Plan.[11] The Park Service promoted both plans' potential to reinvent Yosemite Valley by reducing traffic, reclaiming developed land, restoring ecosystems,[12] and improving park campgrounds and utilities.[13] Friends, however, alleged that the plans would authorize projects damaging to the unique geology and ecology of the Merced River[14] in violation of the Wild and Scenic Rivers Act (WSRA).[15]


The WSRA...

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At Home with Nature: Early Reflections on Green Building Laws and the Transformation of the Built Environment
By Keith H. Hirokawa
Issue 39:3

 


I. Introduction

"Buildings are one of the distinguishing elements of human civilization, but if they are not constructed thoughtfully they can waste precious natural and financial resources, as well as harm the environment and the health of people who use them."[1]


Although it is generally accepted that the built environment (homes, office buildings, schools, roads, dams, etc.) imposes adverse but avoidable impacts on the natural environment, we have had some trouble identifying what changes to make in our building practices.[2] One application of sustainability principles to building design, construction, and operation-known as green building-has provided some guidance on how to change the way we build. Green building represents the notion that by consciously employing less wasteful construction methods, designing more efficient building systems, and using more friendly (earth-friendly and human-healthy) materials, the built environment can remove the excesses that characterize our carbon and (more generally) ecological footprint.[3]


What appears most notable about the green building movement is the rate of its success: what arguably started only fifteen years ago as "no more than a back of the napkin idea"[4] has exceeded virtually all predictions and expectations of its potential.[5] In November of 2006, Building Design and Construction published a white paper entitled Green Buildings and the Bottom Line, the fourth in a series of reports on sustainability, green building, and the real estate financing industry.[6] After describing past uncertainty over whether green building could survive, the white paper delivered a definitive statement laying to rest any doubts: "We can now safely report that green building is alive and well and active in virtually every major city in America."[7] The United States...

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Environmental Liabilities and the Federal Securities Laws: A Proposal for Improved Disclosure of Climate Change Related Risks
By Mark Latham
Issue 39:3


"As society strives to maintain and to improve our environment, costs are imposed that may need to be disclosed to investors under our federal securities laws. These environmental costs have reached staggering proportions in recent years and are one of the critical issues facing businesses today. . . .


While the aggregate numbers concerning potential environmental costs are staggering, what is even more frightening is the massive amount of acknowledged environmental cost that has yet to be reflected in corporate financial statements."[1]


It is beyond doubt that businesses in the United States collectively incur billions of dollars in costs annually to comply with a myriad of local, state, federal, and international environmental ordinances, regulations, statutes, and treaties.[2] As the quotation above from a former commissioner of the Securities and Exchange Commission (SEC or Commission) recognizes, however, the extent to which publicly traded companies are providing investors with sufficient information about the costs and liabilities associated with the environmental regulatory regime remains the subject of debate. This debate is occurring at a time when the pressures upon businesses to disclose additional information, particularly information about the costs associated with the risks presented by climate change, are mounting.[3] This Article traces the evolution of the obligation of publicly traded companies to disclose environmental liabilities under the federal securities laws, discusses the climate change risks confronting businesses, and concludes with a proposal to better inform the public, investors, businesses, and regulators of the potential liabilities this evolving environmental threat presents.


The risks and costs associated with climate change are real today for numerous businesses, ranging from those in carbon intensive industries such as refining to those that directly emit little, if any, greenhouse gases such...

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Protecting Water Quality and Salmon in the Columbia Basin: The Case for State Certification of Federal Dams
By Jane G. Steadman
Issue 38:4

I. Introduction


Many of the once-mighty Columbia Basin wild salmon and steelhead runs face extinction, and some have already met that fate.[1] Among the causes of their imperiled status are habitat degradation and loss, competition with hatchery fish, overharvesting, predation, adverse ocean conditions, and impacts from the hydropower system.[2] Hydroelectric dams have been particularly lethal to salmon because they kill fish passing through turbines; cut off forty-five percent of historic habitat; and increase migration time by creating slack-water and reducing river velocity, which, in turn, leads to greater energy expenditures and increased predation during migration to and from the ocean.[3] One of dams' greatest harms to salmon is water quality impairment, especially the alteration of water temperature regimes throughout the basin.[4]


Dams and their reservoirs affect thermal regimes in the Columbia and Snake Rivers, in part, by slowing water flow and delaying seasonal cooling.[5] Resulting higher temperatures cause myriad problems for salmon-which are uniquely adapted to historic temperature patterns-including "elevated risks of disease, fatality, increased predation, and barriers to migration."[6] Because of temperature's effects on salmon, Pacific Northwest states have set water quality standards, or "water quality goals for specific waterbodies,"[7] for temperature.[8] Many stream and river segments routinely fail to attain water quality standards, finding themselves on the Clean Water Act[9] section 303(d) list for impaired water bodies.[10] In large part due to the hydropower system,[11] both the lower Columbia and Snake Rivers are water quality-limited for temperature,[12] with summer temperatures frequently exceeding the maximum twenty degrees Celsius allowed.[13] As the...

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“Steel in the Ground”: Greening the Grid with the iUtility
By Joseph P. Tomain
Issue 39:4

I. Introduction

"However, even as we talk about ever increasing congestion on the current system and the need for rapid deployment of renewables, there is little, if any, steel in the ground."[1]


The Greening the Grid conference was both timely and important. The electricity grid is the infrastructure of the industry in both real and in symbolic ways. As we move into our energy future anticipating a greater reliance on alternative and renewable forms of energy, a greater independence from imported oil, and a reduction of carbon emissions, we need to transform the electricity grid, as well as the electric industry,[2] in several significant ways. A modernized, or smart, grid will be more efficient and reliable, will help reduce carbon emissions, and will promote security. Grid investment will be aimed at achieving technological advances and serving new sources of energy. The new electric industry will broaden its focus from simply selling electricity to providing an array of energy services and products. Moreover, the government response to the challenges posed by the need for grid transformation symbolizes a new generation of regulation-Regulation 3G.


II. Introduction to Grid Modernization

There are three reasons for improving the existing electric grid. First, although the growth of the electricity industry has slowed, the demand for electricity will continue to rise into the future and the existing grid needs expansion and upgrades. Over the last sixty years, the growth in demand for electricity has slowed appreciably. The post-World War II annual increase in electricity production of approximately 9% has declined as the infrastructure has been constructed and as the country has realized gains in efficiency.[3] Since 2000, annual growth has fallen to 1.1% with the projection falling lower to approximately...

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Wave New World: Promoting Ocean Wave Energy Development Through Federal-State Coordination and Streamlined Licensing
By Mark Sherman
Issue 39:4

I. Introduction

With colorful names like AquaBuOY,[1] CETO,[2] Pelamis,[3] Wavebob,[4] and Wave Dragon,[5] wave energy conversion (WEC) devices are ready for prime time, and wave energy is generating excitement as one of the most promising of the emerging renewable energy sources.[6] In development around the world, a plethora of WEC devices battle to prove their technological supremacy. Members of the European Union have caught the wave, and Portugal recently laid claim to the first operational wave energy park that now produces a modest amount of electricity powering a thousand homes.[7] In the United States, wave power could add considerably to the U.S. energy supply,[8] and it "could be among the most environmentally benign electricity-generation technologies yet developed."[9] Wave energy, formed by wind currents passing over open water, has advantages over its better known and more developed cousin wind energy, such as the higher energy density of water compared to wind.[10] Most importantly, wave energy is not intermittent like wind, and this greater reliability makes it easier to integrate into the electric transmission grid.[11]


Yet, however exciting the possibilities for wave energy development may be, the current regulatory framework in the United States creates an unfavorable climate for the commercial development of WEC. Critics describe this framework as "a patchwork of policies"[12] that is "unclear or unfavorable"[13] and "destined for conflict,"[14] largely because of the unanswered question of which federal agency has primary authority over wave energy projects located beyond state territorial waters (from three to nine nautical miles[15] from shore) on the...

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Rough Seas Ahead: Confronting Challenges to Jump-start Wave Energy
By Rachael E. Salcido
Issue 39:4

I. Introduction

The wave energy business is expanding at a rapid pace. For those favoring sustainable alternatives to fossil fuels it is not quick enough, and much attention has been directed to "expediting" the process.[1] But getting wave energy to the grid will require increased technical knowledge as well as a legal framework that encourages investment in this form of alternative energy. Further, the claims that such energy is "green" and sustainable must address concerns about environmental impacts to ocean and coastal areas and socioeconomic impacts to coastal communities. Various obstacles must be confronted to bring wave energy to the grid in significant amounts at an accelerated rate.


This Article will examine various challenges to the goal of accelerating wave energy development within the sustainable development framework. Three specific recommendations for paving the road ahead are to establish the role of ocean renewables within the larger energy policy, prioritize research that will prove the "green credentials" of wave energy, and establish marine reserves and conservation areas in an ecosystem-based ocean management system that plans for the sustainable long-term health of our oceans.


The first paradigm to confront is the intellectual property regime. Providing property rights in new inventions provides a strong incentive to develop new technology. Technology is developed by trial, error, reevaluation, and success, all requiring a significant investment of time and resources with some degree of risk. The sharing of knowledge about wave energy generation would theoretically increase the likelihood that successful technology will be developed in a shorter time frame. With a very large data gap regarding offshore baseline conditions and potential mitigation measures, sharing information generated during pilot projects will be essential. On the other hand, the incentive for developing the technology is reduced if the right to profit...

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Streamlining NEPA to Combat Global Climate Change: Heresy or Necessity?
By Irma S. Russell
Issue 39:4

 


I. Introduction

Global climate change is the most pressing environmental issue of our time. Indeed, if the predictions of scientists are accurate, global climate change may be the most pressing issue of our time-environmental or otherwise.[1] Energy is at the heart of the debate on global climate change, and transitioning to clean energy is a necessary step for solving the climate change crisis.[2] The need for reliable energy promises to escalate as the world population and production of goods rise.[3] As never seen before, all levels of government must cooperate in a comprehensive evaluation and revamping of regulation of energy production and marketing-regardless of whether the governmental controls on greenhouse gases (GHGs) are presented as a cap-and-trade program, auctioned rights for discharging GHGs, direct taxation of carbon emissions, or technological controls.


The National Environmental Policy Act (NEPA)[4] requires federal agencies to consider the environmental impacts of major projects they undertake. It added to each agency's mission the additional requirement of considering the effects on the environment of federal projects.[5] To achieve its goal, NEPA mandates that "all agencies of the Federal Government . . . utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment."[6] NEPA's policy seeks to foster conditions "under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."[7] NEPA has made significant changes in the way federal agencies go about achieving their missions.[8] Fulfilling the procedural requirements...

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The Trojan Horse of Electric Power Transmission Line Siting Authority
By Jim Rossi
Issue 39:4

I. Introduction

Heightened attention to climate change has highlighted the need for substantial growth in new, non-fossil fuel sources of electric power generation. It is well recognized that a growth in renewable resources of electricity, such as wind turbines, biomass, and large-scale solar, will be a major component of any solution to the greenhouse gas problem.[1] One barrier, however, is the relative isolation of many of the nation's renewable energy resource riches; many opportunities for large-scale development of renewable energy resources are located in areas that are geographically remote and distant from large metropolitan areas in which the demand for electricity is greatest.[2] Existing transmission infrastructure is not adequate to accommodate new renewable resources in many parts of the United States, and existing efforts to expand transmission are also not sufficient.[3]


For these reasons, the Obama Administration and leaders in Congress have given new attention to expanding transmission infrastructure for purposes of serving a new phase of development of renewable power sources.[4] A common metaphor used to describe such proposals is to invoke the comparison to a superhighway road transportation system, such as the interstate highway system that was financed and built by the federal government in the twentieth century.[5] With the interstate highway system, at the outset federal regulators had a clear sense of where highways would be located and had the power to exercise the power of eminent domain where necessary to acquire the property rights to build them.[6] In a similar manner, most attention in the debates over building transmission lines has focused on the issue of the legal authority for siting transmissions.[7] The determination of siting-or the location of a line and...

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In the Public Interest—A Review
By Robert Klonoff
Issue 39:4

Many lawyers have written books recounting their most significant cases.[1] These books provide entertainment and enrichment for lawyers and nonlawyers alike. The most recent addition to this genre-and, in my opinion, the most important-is the captivating book In the Public Interest, written by the world-renowned public interest lawyer M.C. Mehta.[2] Mehta has spent the last twenty-five years litigating landmark environmental and human rights cases before the Supreme Court of India.[3] His three-volume book chronicles eighteen of his most important cases. Volume one contains Mehta's firsthand account of his most important lawsuits, while volumes two and three contain reprints of the actual court decisions in the cases. This set provides the reader with great insights into the mind of a legendary lawyer, and offers an introduction both to India's legal system and to its unimaginably difficult environmental and human rights problems.


U.S. readers will immediately discover that Mehta's device for litigating lawsuits has no analog in U.S. law. In almost every instance, Mehta's suits were brought as "public interest litigation." Under this device, a lawyer needs no client to proceed. Unconstrained by American doctrines of standing or case or controversy, Mehta has been able to target injustices by bringing suits on his own behalf, as a member of the public, without signing up clients. Perhaps the closest analogy in our system is the class action, but a class action requires one or more adequate representative parties who have standing to pursue individual claims.[4] Moreover, a class action attorney who mounts a successful case can look forward to attorneys' fees at the conclusion of the case.[5] There is no fee recovery for the successful public interest litigant in India, which makes Mehta's lifelong... {Continue reading}

Greening the Grid and Climate Justice
By Alice Kaswan
Issue 39:4

I. Introduction

Policymakers in Washington and in statehouses around the nation are debating climate change policy. The central concern is, of course, reducing greenhouse gases (GHGs). But when? By whom? How? The answers to these questions have critical implications for renewable energyÕs role in climate policy. In this Essay, I argue that climate justice considerations, like environmental and economic justice for the most vulnerable, provide strong support for a transformative approach that weans the nation from fossil fuels and greens the grid.


Scientists exhort that dramatic reductions in GHG emissions are necessary to avoid catastrophic impacts from climate change.[1] The most recent federal legislative proposal sets an ambitious goal: an eighty-three percent reduction from 2005 emission levels by 2050.[2] While some may argue that we should delay significant reductions,[3] or pursue strategies that do not require an expensive investment in alternative energy,[4] reductions of this magnitude cannot be achieved without relinquishing our reliance on fossil fuels.[5]


Moreover, as this Essay will elaborate, climate justice principles justify a rapid transition to renewable energy.[6] From a broader social welfare perspective that incorporates the full benefits and costs of policy strategies, carefully designed efforts to green the grid could provide net societal benefits even if they appear more expensive than less transformative options.


Climate justice is relevant not only to the issue of whether (and at what rate) to green the grid, it is highly relevant to the development of alternative energy policy itself. Climate policy presents a Òdemocratic momentÓÑa time to consider our basic infrastructure and its ideal design.[7] Green jobs advocate Van Jones states that Ò[t]oday the Ôclean-techÕ revolution and the transformation of our...

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The Rising Tide of Climate Change: What America’s Flood Cities Can Teach Us About Energy Policy, and Why We Should Be Worried
By Joshua P. Fershee
Issue 39:4

I. Introduction

Climate is what you expect; weather is what you get.[1]


 


What part of "record flooding" did they not understand?[2]


Climate change is often considered the most compelling reason to seek cleaner energy supplies for electricity and transportation needs, yet it is almost always the most contentious rationale for seeking alternative energy sources. Despite the complex nature of climate change, and how to address its effects, the debate over climate change policy is often framed in very simple terms: you either believe or you don't.


This Article argues that the climate change debate is often improperly viewed as having a singular impact and focus, thus (to use an environmentally based analogy) missing the forest for the trees. From "greening the grid" to "freedom from foreign oil" to economic development, climate change policies are multifaceted and have multiple purposes. If the grid is to be greener (or the other myriad benefits flowing from climate change policies are to be achieved), there must be an understanding, first, of the risks posed by climate change, and second, of the successes and failures in other areas heavily impacted by environmental policies.


Although rather slow to catch on, most people in the United States finally appear to have adopted the near-consensus opinion of the scientific community that climate change is real.[3] Of course, contrary to the scientific community,[4] there are still significant questions among the general population whether climate change is caused by human activity.[5] Many of these questions are fueled by very public and very vociferous critics, such as United States Senator James Inhofe, who has referred to climate change as "the...

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Restructuring a Green Grid: Legal Challenges to Accommodate New Renewable Energy Infrastructure
By STEVEN FERREY
Issue 39:4

 


I. Introduction


Let me roll back the clock for a decade. The energy situation is both quite distinct from and very similar to how it was five years ago. The economy, obviously, is in quite different shape. Energy is very different than it was five years ago. In 2004, global warming was not much in the nomenclature of energy policy-the European Union Emission Trading System (ETS) of carbon control, the first carbon control in the world, had not yet started;[1] the Kyoto Protocol had not been ratified by the necessary percentage of countries to make it effective;[2] and no one had won a Nobel Peace Prize for highlighting carbon imperatives.[3] In another sense, things are similar. The long-term solution to global warming has not changed[4]-and it is actually a good thing that there is some certainty in the solutions for global warming. There needs to be a sound solution for a political, legal, and technological response-and there is.[5] In fact, the technological response of renewable energy infrastructure to limit carbon emissions has been available for three decades; it is the legal and policy response that has proved more elusive and has not been realized.[6]


This Article focuses on how the new power grid must be modified and the legal and policy challenges this poses. This is a two-headed question. In a straightforward regard, the grid is a strand of copper and aluminum wires that connects the places where power is produced to society.[7] It is a transportation network. But in a more interactive sense, the power grid is the network of thousands of generators and hundreds...

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Capping Carbon
By David M. Driesen
Issue 40:1

I. Introduction



This Article addresses the problem of how to set caps-limits on the pollution from identified facilities-for cap-and-trade programs, a key problem in pending legislation addressing global climate disruption.[1] Cap‑and-trade programs establish caps on regulated polluters' emissions, but allow these polluters to forego meeting their caps if they pay other regulated polluters to go below their assigned cap.[2] This Article describes how we have set caps for trading programs in the past and explains how we can do better in setting caps for the cap-and-trade programs addressing global climate disruption.[3]


This topic has enormous importance.[4] The election of President Obama and a sympathetic Congress makes a national cap-and-trade program meaningfully addressing climate disruption very likely.[5] The federal government is not alone in embracing this form of emissions trading. The European Union (EU),[6] other developed countries, several U.S. states,[7] and the Kyoto Protocol to the Framework Convention on Climate Change (Kyoto Protocol)[8] have placed variants upon a cap-and-trade program at the heart of international, national, and regional efforts to address climate disruption.[9] This development comports with a vast "instrument choice" literature affirming cap-and-trade's value.[10]


This literature, however, has paid much more attention to the advantages of trading emission reduction obligations than it has to the problem of establishing a cap.[11] Indeed, several commentators have obscured the problem by suggesting, wrongly, that cap-and-trade programs "automatically" reduce emissions.[12] Setting the cap properly matters more to environmental protection than the decision to allow, or not...

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Tibute: Words from the First Editor in Chief
By Ann Morgenstern Reynolds
Issue 40:1