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Volume 48 (2021) - Issue 1

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
Avi Zevin, Sam Walsh, Justin Gundlach, and Isabel Carey

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
Robin M. Rotman, Ashley A. Hollis, and Kathleen M. Trauth

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
Lingxi Chenyang, Andrew Currie, Hannah Darrin, and Nathan Rosenberg

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
James Pollack and Frank Sturges