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Issue

Volume 38, Issue 11 — November 2008

Articles

Evaluating the Energy Independence and Security Act of 2007: Inclusions, Exclusions, and Problems with Implementation

by Karl Schulz

Editors' Summary: The Energy Independence and Security Act of 2007 is a grab bag of loosely related provisions that touches many well-known areas of energy consumption and conservation, including energy-saving light bulbs, increased gas mileage requirements for automobiles, and increases in ethanol production. This Article focuses on three provisions of the Act that were not scrutinized by mainstream media or legal scholarship, though they have very serious implications: renewable fuel infrastructure grants, geopower from oil and gas fields, and amortization of geopower expenditures for oil companies. In addition, this Article analyzes three provisions that were either deleted from the Act or never proposed, also raising serious implications. The future of energy legislation is also considered. Fundamentally, the Act represents a missed opportunity to create a landmark in achieving wise, substantive progress in energy security and independence, as opposed to mere dabbling and rent-seeking.

Where Federalism and Globalization Intersect: The Western Climate Initiative as a Model for Cross-Border Collaboration Among States and Provinces

by Jeremy Lawrence

Editors' Summary: This Article explores the legal and practical issues that arise where globalization and federalism intersect. A number of states and provinces in the western part of North America have joined together to reduce greenhouse gas emissions through a cap-and-trade program. The agreement passes scrutiny under the U.S. Constitution because it is essentially a voluntary measure intended to strengthen traditional forms of domestic environmental regulation. Though such strong cross-border measures have never been implemented before, they are a novel tool for dealing with regulatory issues that will increasingly arise as federalism and globalization intersect more often in the future.

D.C. Circuit Court of Appeals Rejects EPA Clean Air Interstate Rule

by John Wittenborn and Eric Waeckerlin

Editor's Summary: On July 11, 2008, the U.S. Court of Appeals for the District of Columbia Circuit rejected one of EPA's major CAA rulemaking initiatives--the Clean Air Interstate Rule (CAIR). The ruling came as a surprise to both environmental groups and industry alike, and has, at least temporarily, thrown the status of air quality regulation for several key air pollutants in the eastern United States into disarray. The following Article discusses the decision, the current status of EPA's NAAQS, and the potential impacts the CAIR ruling may have on the future of air quality regulation.

The Illegality of Contingency Fee Arrangements When Prosecuting Public Natural Resource Damage Claims and the Need for Legislative Reform

by Julie E. Steiner

Editors' Summary: State governments are contracting with private contingency fee attorneys to pursue natural resource damage (NRD) claims as the government's "special counsel." This arrangement is hailed for funding the government's ability to bring NRD claims where such claims had previously stagnated. Others, however, charge that the lucrative special counsel contract is awarded to the Attorney General's political cronies, and that the arrangement illegally diverts millions of dollars away from its earmarked purpose of natural resource restoration to instead pay an attorney fee. This Article demonstrates that while the contingency fee arrangement facilitates the government's ability to pursue NRD damage claims, such alliances are improper under CERCLA. The Article suggests legislative reform to permit the recovery of the government's reasonable enforcement costs when prosecuting NRD claims.