The United States is drastically behind the rest of the world when it comes to offshore wind energy. With only one offshore wind farm in operation, developers have cited regulatory burdens and excessive litigation as two of the primary constraints on the industry. Currently, these developers must go through several governmental approval processes, including working with the Bureau of Ocean Energy Management, the Army Corps of Engineers, and state governments. While these lengthy processes rightly offer plenty of opportunities for people to work out legitimate concerns about the projects, some offshore wind opponents have used the process to try to stall and ultimately kill projects. To help remedy some of that uncertainty plaguing the industry, this Note proposes a new nationwide permit, issued by the Army Corps of Engineers, that would be used exclusively to authorize offshore wind transmission lines. These nationwide permits would drastically speed up approval times, as developers could forgo trying to get their projects individually approved and could instead get their project to fit under these pre-approved permits. Traditionally, the Army Corps of Engineers issues nationwide permits pursuant to its authority under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. However, as seen in Sierra Club v. Army Corps of Engineers, projects that use nationwide permits can still be tied up in legal challenges for years when their permits are issued pursuant to Section 404 of the Clean Water Act. Therefore, this new nationwide permit would only authorize construction activities that do not constitute a “discharge of dredged materials,” which would trigger the need for a Section 404 permit. This proposed permit would only allow construction projects with minimal adverse environmental effects and would help with the current needless delay facing offshore wind projects. By streamlining this part of the process, offshore wind developers would have greater certainty and greater ability to attract capital, and the United States would continue to build up an industry that is critical in our fight against climate change.
After Gundy v. United States, the Supreme Court is poised to dramatically roll back the power of administrative agencies through a reinvigoration of the nondelegation doctrine. This will substantially restrict the ability of agencies, particularly the Environmental Protection Agency, to promulgate environmental regulations and will render large swaths of the Clean Air Act and Clean Water Act unconstitutional. Cost-benefit analysis may be a useful tool for the Environmental Protection Agency to justify its environmental regulations under a revived nondelegation doctrine, yet increased use of cost-benefit analysis creates new concerns over policing its biases and the separation of power. Despite these concerns, cost-benefit analysis may be the best tool to meet the standards of a more discerning Court under a reinvigorated nondelegation doctrine.
To steer a ship, sailors cannot direct the wind, but they can adjust the sails. Likewise, the Environmental Protection Agency (EPA) cannot direct where air pollution drifts, but it can adjust the rules for combating interstate air pollution between states. The “good neighbor provision” of the Clean Air Act (CAA) does this by prohibiting upwind states from substantially interfering with the ability of a downwind state to meet National Ambient Air Quality Standards (NAAQS) requirements. In 2016, EPA promulgated the Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR Update) to regulate interstate air transport of nitrous oxides (NOx), a pollutant that forms ozone. Yet, the CSAPR Update provided no deadline for upwind state elimination of interstate air pollution, leaving open the potential of persistent downwind interference. Three years later, in Wisconsin v. Environmental Protection Agency, the D.C. Circuit reviewed the CSAPR Update and held that the deadline for upwind states to stop any substantial interference must align with the deadline for downwind states’ NAAQS compliance. Wisconsin has important implications for air quality regulation because aligning deadlines for upwind and downwind states improves EPA enforcement of the good neighbor provision. When upwind and downwind compliance deadlines are aligned, the good neighbor provision becomes more effective because EPA can better balance administrative certainty and flexibility.
Climate change is making water a scarcer resource. Warming temperatures, urban growth, and agricultural demand are pushing water resources to their limits. Increasingly, rival states compete over water allocation from limited sources throughout the country, such as the Rio Grande. These fights often extend to the courtroom. Since drafting the Rio Grande Compact in 1939, Texas, New Mexico, and Colorado have been engaged in a series of legal battles over the allocation of water in the Rio Grande. In 2013, Texas filed a suit in the U.S. Supreme Court, which has original jurisdiction in interstate disputes, to review the allocation of water in the Rio Grande. In 2018, the Court granted the United States permission to intervene to protect its distinct federal interest, namely its water treaty with Mexico. In Texas v. New Mexico, the Supreme Court held that the United States may intervene in interstate disputes because the following four specific conditions are met. First, the United States may intervene when the dispute “inextricably” involves the United States’ contract obligations to states. Second, the United States must have an integral role with the contract at issue. Third, when intervening, the United States must honor international treaty obligations. Fourth, the United States must not seek to initiate or expand issues in litigation. While the federal government lacks blanket authority to intervene in cases involving interstate compacts, the Court granted an intervention because of the distinct federal interests in this case. The holding in Texas v. New Mexico raises important questions regarding the future of federal government intervention. May the United States intervene to expand existing interstate litigation? May the United States initiate disputes between states? With climate change increasing the number of interstate water disputes, it is likely that the federal government’s obligations to states and Mexico will become more complicated, leading to additional requests to intervene and expand litigation between states in the future. The narrow holding in Texas v. New Mexico raises these important questions about the United States’ opportunities for litigation, which will likely become more common in the future. The answers to these questions may challenge the United States’ authority to enforce its obligations under the water treaty with Mexico and the Downstream Contracts. In a narrowly written opinion, Texas v. New Mexico correctly held that the United States may intervene in interstate water disputes for distinct federal interests. Nevertheless, Texas v. New Mexico failed to set guiding precedent for many contentious legal questions that will likely become more urgent due to climate change.