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Volume 39, Issue 2 — February 2009


The Legality of EPA's Greenhouse Gas Waiver Denial

by Kristien G. Knapp

Editors' Summary

In December 2007, EPA denied a request submitted by California pursuant to §209 of the CAA. That request for a waiver from federal preemption, if granted, would have allowed California to set its own motor vehicle emission standards for greenhouse gases (GHGs). This waiver request is unique; it marks the first waiver request submitted by California to regulate GHGs in order to mitigate climate change. Its subsequent denial is significant for, primarily, two reasons. First, this was the first waiver request ever flatly denied by EPA. Second, this was the first post-Massachusetts v. U.S. Environmental Protection Agency decision by EPA to reject its clear authority to regulate GHGs under the CAA.

China's Environmental Super Ministry Reform: Background, Challenges, and the Future

by Xin QUI and Honglin LI

Editors' Summary

In March 2008, the Chinese National People's Congress elevated the former State Environmental Protection Administration to the Ministry of Environmental Protection. The reform strengthens the environmental protection sector's administrative stability, political will, decisionmaking power, and access to resources. However, the new Ministry confronts insufficient legislation, ambiguous authority allocation, and weak central-local management. Future reform needs to focus on administrative law legislation and language clarification for existing regulations, establishment of collaborative frameworks, and application of incentive-based approaches to central-local relationships.

The Case for the Carbon Tax: How to Overcome Politics and Find Our Green Destiny

by Roberta F. Mann

Editors' Summary

Economists generally consider pollution taxes to be the gold standard of market-based instruments, while capand-trade systems are less effective and more complex to implement than pollution taxes. Therefore, following an economics argument, implementing a carbon tax in the United States will afford the best protection against climate change. However, significant impediments to introduction of a carbon tax in the United States exist. The most problematic of these, perhaps, is the United States' cultural aversion to taxes. Opportunities such as expiring tax provisions and recycling carbon tax revenues offer incentive to overcome such impediments to carbon tax implementation.

Federal Forests, Biomass, and Ethanol: Energy Security Sabotaged

by Evan N. Turgeon

Editors' Summary

Increasingly destructive wildfires in recent years prompted legislators to enact the Healthy Forests Restoration Act of 2003, which authorizes mechanical thinning fuel-reduction projects on federal forestland. Almost simultaneously, political pressure compelled legislators to combat rising oil prices, resulting in the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007, which mandate significant increases in the domestic production of biofuels used for transportation. Since the trees, branches, and underbrush removed from federal forestland can be processed into ethanol, combining these policies seems natural.


The Questionable Origins and Longevity of the Tree Act

by Richard A. Westin

On May 22, 2008, a phenomenal event occurred in the taxation of timber: regular business corporations became entitled--for one year--to claim a tax rate of not over 15% on various kinds of dispositions of timber. The change arose under the Timber Revitalization and Economic Enhancement Act of 2007, known as the TREE Act, which was enacted as a component of the Food, Conservation, and Energy Act of 2008, popularly known as the Farm Bill.

The heart of the TREE Act provisions is a reduction of the tax rate regular (C2) corporations pay on their on "qualified timber gain" to 15% for a one-year period starting May 22, 2008. The trees disposed of must be held for over 15 years. The benefit of the new law extends to corporate timber-cutting companies with suitably aged cutting contracts. Ordinarily, no such income would be taxed as capital gains (subject to a 15% ceiling rate otherwise available only for noncorporate taxpayers), but instead as ordinary income, taxable at rates up to 35%. There were also significant revenue-reducing amendments to the taxation of timber transactions by real estate investment trusts, which are not discussed here. The tantalizing question is whether this legislative nose under the tent flap will become a permanent feature of the Internal Revenue Code (IRC), as is often the case with "temporary" provisions.

Breaking Out of Poverty Through Greenhouse Gas Controls

by William F. Pedersen

President Barack Obama has taken office pledged to control global warming both by reducing greenhouse gas (GHG) emissions in this country and by pursuing negotiated worldwide GHG limits. The two efforts cannot be separated. Success in future GHG reduction will depend on international controls that reach beyond the industrialized world.

China is already the world's largest GHG emitter, while India will become third largest within 10 years. Since discussion of GHG limits first began, China, India, and other poor countries have resisted binding limits on their own emissions, while supporting such limits for richer countries like the United States. Less developed countries argue that they did not create the current warming problem, which results from emissions over the past century, and that it would be unjust to impose a GHG control burden on their efforts to rise out of poverty. In 1997, the Kyoto Conference on global warming accepted these arguments, and adopted a Protocol that prescribed emissions limits only for 39 developed countries, excluding, among others, Brazil, China, India, and Indonesia.


Virginia's Stance on Third-Party Challenges to Local Land Use Decisions

by Philip Carter Strother

Not long ago, many members of Virginia's land use bar operated under the assumption that Virginia's Declaratory Judgment Act was the proper vehicle for challenging local land use decisions. The Virginia Declaratory Judgment Act provides that "[i]n cases of actual controversy, circuit courts within the scope of their respective jurisdictions shall have power to make binding adjudications of right.... Controversies involving the interpretation of... municipal ordinances and other governmental regulations, may be so determined...." Even though the declaratory judgment statutes do not create any independent right-of-action, this position appeared, until recently, to be consistent with other Virginia law affording citizens the right to sue localities for controversies related to governmental duties. The apparent consistency is because a large array of duties related to land use is imposed on counties and municipalities in Virginia by the state Code. As such, a comprehensive scheme for challenging municipalities in the execution of those duties made sense. It was also seemingly consistent with statutory and common-law precedent for aggrieved persons other than the subject landowner to challenge local government land use decisions. In a series of recent decisions, however, the Virginia Supreme Court has addressed this assumption and answered in the negative.

Nothing in My Back Yard? The Case Against Expanding Third-Party Rights to Challenge Local Land Use Decisions in Virgina

by Robert Jackson Allen

In April of 2008, the Virginia Supreme Court handed down its ruling in Logan v. City Council of the City of Roanoke. In its unanimous decision, the court resolved an issue that was frequently contested in cases involving citizen challenges to local land use actions such as subdivision approvals. The question addressed in Logan was whether third-party neighboring landowners possessed a right-of-action to bring a socalled NIMBY lawsuit seeking to overturn the approval of a subdivision decision they opposed. Before Logan, members of the land use bar representing local governments and developers sought to quash lawsuits by neighbors contesting subdivision approvals by arguing for a strict construction of the applicable statute that did not specify a right of appeal for third parties. Plaintiff attorneys representing the neighbors contended that the Virginia Declaratory Judgment Act authorized the neighbors' right-of-action.

This Article summarizes the law relating to third-party challenges to local land use decisions in Virginia and provides commentary responding to the suggestion that third-party rights of action should be expanded. Part I reviews the primary statutory provisions for appealing planning, subdivision, and zoning decisions in Virginia. Part II discusses the evolution of declaratory judgment actions as vehicles for third-party challenges to planning and subdivision decisions from 1990 to April 18, 2008, when the Logan decision was handed down. Discussion and legal analysis of whether the current state of the law should be changed by legislation is contained in Part III, and Part IV contains conclusions and final thoughts.