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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — April 2011


Everyday Environmentalism: Concerning Consumption

by Jason J. Czarnezki

Modern consumption patterns are a product of the historical development and industrialization of the United States, including increased consumer spending and demand for energy-intensive goods. These historical and social trends provide the foundation for understanding contemporary patterns of consumption of natural resources, undoubtedly a cause of global climate change and other serious adverse environmental effects. Significant environmental problems have occurred due to the continued depletion and degradation of public resources, with little consideration for the ultimate costs, whether known and ignored or simply unforeseen.

State and Regional Control of Geological Carbon Sequestration (Part 1)

by Arnold W. Reitze Jr. and Marie Bradshaw Durrant

In the near future the use of coal may be legally restricted due to concerns over the effects of its combustion on atmospheric carbon dioxide concentrations. Carbon capture and geologic sequestration offer one method to reduce carbon emissions from coal and other hydrocarbon fuel. While the federal government is providing increased funding for carbon capture and storage, congressional legislative efforts to limit carbon emissions have failed. However, regional and state bodies have taken significant actions both to regulate carbon and to facilitate its capture and storage, addressing the technical and legal problems that must be resolved in order to have a viable carbon storage program. Several regional bodies have formed regulations and model laws that affect carbon capture and storage, and three bodies comprising 23 states have cap-and-trade programs in various stages of development. New state laws are being enacted that encourage carbon storage, and existing state laws affect the liability and viability of carbon storage projects. A subsequent Article will examine specific legislation concerning carbon capture and storage, or the lack of it, in 18 western states.

Earmarking for Environmental Damage: From Oil Spills to Climate Change

by Janet E. Milne

For a number of years, the U.S. federal tax code has imposed a tax on petroleum that finances the Oil Spill Liability Trust Fund, an earmarked fund to help cover the costs of oil spills. BP’s massive 2010 oil spill in the Gulf of Mexico provided an unprecedented test for the Trust Fund and underscored the question of who pays for the costs of oil spills. The BP spill taught important lessons about the role of the tax and the Trust Fund, and the federal regulatory regime governing the responsible parties’ liability.


The Pakistan Supreme Court’s Use of Suo-Motu Actions in Environmental Cases

by Aamina Islam

Natural resources, such as clean air and water, are public resources shared by all, yet owned by no one in particular. Since public resources are not sold in a free marketplace, they have no free market value that takes into account factors such as scarcity and environmental degradation. However, if such public goods are carelessly used without any rules governing their use, such resources inevitably succumb to the “tragedy of the commons,”2 under which resources that are free or available to everyone may be ruined by abuse or overuse. To avoid or mitigate this, some level of control will be necessary through government planning, by implementation of rules and regulations, or by good governance.

Easier Said Than Done: Displacing Public Nuisance When States Sue for Climate Change Damages

by John Wood

Like a tripartite juggernaut, all three branches of the U.S. federal government are actively grappling with climate change in kind: legislation from the U.S. Congress; regulation from the U.S. Environmental Protection Agency (EPA); and litigation in the judiciary all may come to bear on carbon emissions as a causal genesis of climate change. When all three branches of the federal government concurrently engage in questions of the same subject matter, interesting separation-of-powers concerns are implicated. In particular, climate change litigation has implicated the doctrine of displacement. Displacement has been raised as a procedural defense to suit under the federal common law of nuisance. Intuitively, a federal common-law cause of action for, say, pollution should be displaced whenever either of the other two branches has adequately dealt with the pollution problem. That is, requiring a defendant to comply with a court order when it is already in compliance with legislation or regulation on the matter would both be onerous for the defendant and would trammel on congressional or executive authority. Not only separation-of-powers principles but institutional competency concerns militate in favor of displacing federal common-law causes of action regarding subject matter with which either of the other two branches has already dealt. If the federal common law of public nuisance for carbon emissions is displaced by legislation from Congress or regulation from EPA, then carbon emitters have repose from federal common-law liability as long as they are in compliance with the legislative or regulative requirements. Unfortunately, the law of displacement, when applied to a case brought by states under the federal common law of public nuisance, is not nearly as straightforward as the foregoing sketch would suggest. What we might initially consider to be a narrow procedural issue is, upon further analysis, extremely thorny.


New Source Performance Standards for Global Greenhouse Gas Emissions From the Power and Refining Sectors: Wrong Mechanism at the Wrong Time

by Scott H. Segal

For those interested in the intersection of global greenhouse gas (GHG) regulation and responsible energy policy, December 23, 2010, was a day worth remembering. Over at the U.S. Environmental Protection Agency (EPA), regulators were announcing a schedule for rulemaking for new source performance standards (NSPS)1 for GHG emissions from refineries and power plants. Meanwhile, the Wall Street Journal2 ran a lead editorial reflecting upon an apparent division in the ranks among power companies. Reasoned the Journal, those without appreciable amounts of coal-fired generation were favorably disposed to potential EPA regulation of GHGs because it simply allowed them to charge more by increasing the clearing price for energy. These two developments in many ways frame the debate over NSPS. EPA proposes regulation, and self-interested sources agree, thereby reinforcing economic claims made by the Agency in defense of its decision.

The Clean Air Act: A Suitable Tool for Addressing the Challenges of Climate Change

by Robert B. McKinstry Jr.

The political opponents of regulation addressing climate change claim that the Clean Air Act (CAA) is a “fossil” neither intended nor suitable for addressing the challenges of climate change. Legal and historical analysis suggests otherwise. Both the text of the Act, as interpreted by the U.S. Supreme Court in Massachusetts v. U.S. Environmental Protection Agency (EPA), and the legislative history indicate a congressional intent to regulate emissions of pollutants that pose a risk of causing changes in worldwide climate. Far from being a fossil, the statutory “bones” provide a broad array of regulatory and other tools that can be flexibly applied. These include not only technology-based emissions standards and enforcement tools, but programs for comprehensive planning by states to use the full range of incentives and disincentives available under their police and spending powers. These tools also include tradable permits, emissions fees and auctions, other incentive-based emissions reductions approaches, and air quality-based limits.