This Note sets out to evaluate the implementation problems surrounding Order No. 841 as they relate to the governance structures of RTOs. It argues that, in RTOs, poor implementation of the order roughly correlates with governance structures that prop up traditional energy interests to the detriment of alternative resources. FERC can and should tackle these problems by directly restructuring RTOs. It should protect boards of directors from undue stakeholder influence, distribute alternative resource interests across a wide variety of sectors, and defer to states so long as they promote fair competition. By doing so, FERC will help the United States realize the gains in efficiency and emissions reduction made possible by a financially competitive electricity market. Doing otherwise would be a missed opportunity with potentially catastrophic consequences. Regardless, the stage is set, and legislatures are taking note of the problem.353 In equal measures, it is a matter of time and action.
The Supreme Court in Guam clarified a minor but important detail of CERCLA to ensure that states and territories, especially those impacted by U.S. military activity, that enter into settlements under environmental laws have clearcut options to recover cleanup costs. Guam’s holding maintains CERCLA’s cooperative federalism and respect for states’ role in hazardous waste cleanup by making it less likely that states and territories will be left as the last-resort source of funding. By closing a legal loophole, the holding also protects communities impacted by military activity and prevents the federal government from evading its financial cleanup duties.
Knowing it will be judicially reviewed, an agency is pressured to produce well-reasoned and researched rules. This relationship creates a “lever” by which those who care about well-documented rules inside the judiciary and agencies can move those who act contrary to science or technical expertise. In Friends of Animals, the court used the lever to prevent the FWS from abdicating its responsibility to review petitions on the merits.
The modern-day impacts of climate change on water availability suggest that the Court in Florida v. Georgia should have reevaluated the forty-year-old water reapportionment standards. The Court should have clarified ambiguous terms in the equitable reapportionment standards or, alternatively, gotten rid of the standards altogether.