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Volume 36, Issue 2 — February 2006

The Real Problem With New Source Review

by Shi-Ling Hsu

Editors' Summary: When the CAA was amended in 1977, the U.S. Congress imposed pollution control requirements on new stationary sources of air pollution, called new source review (NSR), but exempted existing facilities from such requirements. By creating a more favorable regulatory environment for existing facilities than for new ones, "grandfathering" creates an incentive to keep old facilities up and running. Moreover, as a command-and control program, requiring capital expenditures for pollution control equipment makes the capital sluggishness problem worse. Combined with often confusing EPA policies and a changing political environment, NSR has resulted in a running battle between the regulated community, environmentalists, and regulators over just how much work can be done on existing sources before they become "new" sources subject to expensive pollution control requirements. In this Article, Shi-Ling Hsu examines these issues and argues for an entirely new paradigm of pollution regulation--Pigouvian taxes and/or emissions trading. Although these two concepts are also controversial, Hsu argues that they are far better than the drag on capital turnover created by grandfathering and will be advantageous for environmentalists and industry alike by eliminating perverse incentives for keeping outdated stationary sources online to the disadvantage of newer, cleaner sources.


The Takings Clause and Human Nature: A Historical Perspective on the Present

by Francisco Benzoni

Editors' Summary: In the United States, property has been viewed as a safeguard on individual autonomy and a necessity for personal freedom. It is therefore no surprise that property rights issues have increasingly become the center of debate, with concerns over environmental protection conflicting with economically self-interested land uses. Yet, as Prof. Francisco Benzoni explains in this Article, understandings of property often grow out of more fundamental conceptions of human nature. While the takings debate seemingly revolves around the proper interpretation of the Takings Clause of the Fifth Amendment of the U.S. Constitution, the core of the conflict lies in divergent understandings of human nature. This Article traces the two dominant understandings of human nature, the liberal and the republican, from the Founding Era through the present U.S. Supreme Court, and argues that the republican social understanding of the human as part of a broader community both clarifies the takings debate and offers a better lens through which to understand the relationship of humans and their environment.

Recovering From Katrina and Rita: Environmental Governance Lessons Learned and Applied

by Chuck Barlow, Dave Evans, Vernice Miller-Travis, Steven Levine, and Oliver Houck

Editors' Summary: The devastation and toll in human life and suffering from Hurricanes Katrina and Rita are still revealing themselves. Some believe much of this was preventable, and that steps must be taken today to ensure that the recovery from these disasters leaves the Gulf Coast and its residents with greater economic, social, and environmental security. On October 17, 2005, ELI invited members and friends who had a front seat to the events leading up to this disaster, and who will play a key role in the recovery, to share their thoughts and experiences. Below is a transcript of that event. The discussion considered what lessons we can learn about environmental governance and how we can apply those lessons moving forward. They also considered land use and planning post-Katrina and post-Rita; how recovery should work across federal, state, local, private, and nonprofit organizations; and how meaningful public participation can be designed when affected citizens are spread across the country. The panelists suggested energetic, heartfelt, and intelligent approaches to rebuilding the Gulf Coast in a sensible, environmentally sound manner.

Geologic Carbon Dioxide Sequestration: An Analysis of Subsurface Property Law

by Elizabeth J. Wilson and Mark A. de Figueiredo

Editor's Summary: To address potential global climate change caused by rising concentrations of atmospheric carbon dioxide (CO2), many are advocating CO capture and sequestration, which involves the injection of CO into geologic formations. But because of the large volumes of CO that would need to be injected annually, the long storage time frames required for geological sequestration, and the monitoring and verification needs for injected CO2, this technology presents a novel set of demands on the current legal regime for subsurface property rights. This Article focuses on the legal precedents for underground injection and examines the existing case law framework that could influence legal interpretations of future geological sequestration projects. The authors argue that clarification of property rights as they relate to geological sequestration is important from both regulatory and liability perspectives, as each can have significant impacts on the future cost, public acceptability, and feasibility of geological sequestration projects.

Why U.S. States Should Take the Power Back: Avoiding Paralysis in the Siting of Wind Energy Systems

by James R. Drabick

Editor's Summary: Despite the multitude of benefits offered by wind energy systems as compared to more traditional energy production methods, proposed wind developments in the United States often face an upwelling of community opposition. Because the siting of wind energy systems in most states is governed primarily at the local level, with little to no state intervention or guidance, the result is a repetition of the same debate, likely involving the same potentially exaggerated concerns, played out in different communities across the nation. In this Article, James Drabick argues that state governments can tackle this problem either by urging communities to engage in a planning process for wind energy development prior to the receipt of a development application, much as many European countries have done, or by taking back the permitting authority for themselves. These prospective frameworks are better equipped to serve the needs of wind developers, communities, and the nation because they bring stability and predictability to the permitting process.