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LATEST PRINT

Building a New Grid without New Legislation: A Path to Revitalizing Federal Transmission Authorities

New long-distance, high-voltage transmission will be vital if the United States is to integrate the renewable energy generation needed to decarbonize the electric system at sufficient scale and at reasonable cost. Congress would ideally take action to address the regulatory and economic barriers that currently prevent long-distance, high-voltage transmission from being developed at the necessary speed and scale. But until Congress acts, the U.S. Department of Energy and the Federal Energy Regulatory Commission should use their existing authority to advance transmission development. However, it has become conventional wisdom that development of new long-distance, high-voltage transmission projects is hopeless without new legislation because opponents can exploit veto points created by state laws and state-level institutions involved in transmission siting decisions. As this Article explains, that conventional wisdom is wrong. Congress has already enacted authorities that the federal government can use to counteract siting-related obstacles. To date, those authorities have either not been used or have been used unsuccessfully. In part, this is the result of unfavorable judicial interpretations of those authorities, but those interpretations are not fatal. Given the urgent need for energy system transformation, now is the time for the Department of Energy and the Federal Energy Regulatory Commission to revisit the authorities that they have been given. This Article recommends steps for those agencies to take now that would allow them to side-step the obstacles and revitalize the provisions Congress has already adopted in order to facilitate transmission system development.

Sep 09, 2021

Realigning the Clean Water Act: Comprehensive Treatment of Nonpoint Source Pollution

Nonpoint source pollution is the biggest threat to water quality in the United States today. This Article argues for stronger federal controls over nonpoint source pollution. It begins by examining the history of water quality regulation in the United States, including the passage and amendment of the Clean Water Act and the evolving definition of “navigable waters” over time. The Article then discusses recent rulemaking and litigation developments, including the Clean Water Rule, the Navigable Waters Protection Rule, and the County of Maui, Hawaii v. Hawaii Wildlife Fund case. It offers three recommendations. First, the Article calls for a congressional amendment to the Clean Water Act to require binding controls on nonpoint source pollution. Second, recognizing that an amendment to the Clean Water Act may not be politically viable, it offers an approach for controlling nonpoint source pollution through an amendment to the Safe Drinking Water Act. Finally, it identifies tools that interested states, local governments, and citizens’ groups can utilize to take action on nonpoint source pollution under existing law. This Article concludes that reductions in nonpoint source pollution will lead to significant improvements in the water quality of our nation’s lakes, rivers, wetlands, and coastal areas, to the benefit of human and environmental health.

Sep 09, 2021

Farming with Trees: Reforming U.S. Farm Policy to Expand Agroforestry and Mitigate Climate Change

Agroforestry systems have enormous potential to mitigate climate change. These systems incorporate trees and shrubs into agricultural production, increasing both soil carbon sequestration and the amount of carbon stored in biomass. Even the most conservative estimates find that agroforestry sequesters two to five times more carbon per acre than the most effective—and better- known—climate-friendly practices for annual crops, such as no-till agriculture and cover crops. Agroforestry also offers substantial environmental and economic benefits: clean water, reduced fertilizer and pesticide use, greater resiliency, and higher profitability per acre. Yet there are significant legal and policy barriers to its expansion in the United States. For the first time in the policy literature, this Article reviews the emerging scientific research on agroforestry. The Article then analyzes how federal programs for agricultural loans, subsidies, research, and education favor annual monocultures over agroforestry practices. It concludes with a comprehensive set of reforms designed to expand agroforestry.

Sep 09, 2021

Struggling to Find a Rapanos Nexus: Maui and the Expansion of Clean Water Act Regulation

The Supreme Court has long struggled to define the scope of federal jurisdiction over pollution control under the Clean Water Act (CWA). During the Court’s last term, that issue returned to the forefront in County of Maui, Hawaii v. Hawaii Wildlife Fund. The case involved pollution from a wastewater treatment facility that reached the Pacific Ocean and caused coral die-offs at a nearby beach park. However, the facility did not discharge pollutants directly into the Pacific, but rather through groundwater. The Court heard the case to answer the question of whether pollution that reached federally covered waters indirectly, such as through groundwater, required CWA permits. On the way to the Supreme Court clash, an unusual relationship between a local government and an industry-aligned law firm led the county to reframe the case from a factual disagreement to a clash over the jurisdictional scope of the CWA.

Sep 09, 2021
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LATEST CURRENTS

Environmental Impact Assessment in North Korean Environmental Law: Origins, Evolution, and a Comparative Analysis

This Article will explore the little-known legal tools that North Korea has adopted in order to address environmental issues, with a specific focus on the Environmental Protection Law (1986) and the Environmental Impact Assessment Law (2005), because environmental impact assessment can serve as a barometer of the socialist country’s environmental policy.

Nov 13, 2021

California’s Ban on Climate-Informed Models for Wildfire Insurance Premiums

Popular news outlets have effectively covered how homeowners living in high fire risk areas find it increasingly difficult to obtain property insurance. However, there is very little public discussion of, and little scholarship on, how California’s rules against using current and future risk data – including cutting edge climate science – in insurance premiums contributes to this difficulty.

Oct 19, 2021

Food for Thought: The International Seed Treaty as a Tool to Promote Equity and Biodiversity in a Changing Global Climate

While much attention is shed upon the climate crisis, intimately intertwined—and arguably a bigger threat to human stability—is the biodiversity crisis. In particular, current industrial agricultural systems accelerate biodiversity loss and amplify climate change, which in turn intensifies widespread food insecurity and has left over 800 million people without adequate nutrition. To combat these intertwining crises, global scale policy is imperative to encourage agricultural practices that sustain the earth’s fragile ecosystem and equitably support communities that depend on it.

Networked Federalism: Subnational Governments in the Biden Era

Subnational governments, working with non-governmental advocates, drove climate action during the Trump administration while rebuffing federal rollbacks. Under the Biden administration, focus may initially shift towards the federal government, but the subnational network is critical to continued progress on climate change. I use the term “networked federalism” to describe how a horizontal, interconnected, and polycentric collection of states, local governments, Tribes, and advocates provides the resilient frame needed to buttress national action. Indeed, this structure mirrors the successful structure of the Paris Agreement —in which international action depends on subsidiary national contributions. A networked, federalist system of subnational climate action will be critical to continuing success, and should be nurtured and expanded. In this article, I discuss barriers to federal climate action under the Biden administration, trace the important role of subnationals in the climate movement, and lay out a policy agenda for strengthening subnational networks over the next four years.

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Ecology Law Quarterly, one of the nation’s most respected and widely read environmental law journals.