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Volume 39, Issue 5 — May 2009


Surveying the Risks of Carbon Dioxide: Geological Sequestration and Storage Projects in the United States

by Donna M. Attanasio

Editors' Summary

Electric generation projects that are coupled with carbon capture and geological sequestration and storage (GS) are likely to offer energy companies new opportunities, once the technological hurdles are surmounted and commercial viability is shown. At the same time, these projects pose challenging risk assessments issues for potential equity investors and debtholders. National standards for GS are developing slowly and without a comprehensive framework. Some states have laws more conducive to GS development than others, and therefore certain projects may have significant location-based legal advantages over others. In all cases, because the law is evolving, potential GS projects in the United States have a level of legal risk requiring careful assessment and understanding before investment.

Litigating Global Warming: Likely Legal Challenges to Emerging Greenhouse Gas Cap-and-Trade Programs in the United States

by Sharon Tomkins, Lisa Wing Stone, and Melissa Onken

Editors' Summary

Regulating greenhouse gas emissions through cap-andtrade programs appears inevitable in the United States and conflicts among stakeholders are likely to result in new litigation. The European Union Emission Trading Scheme and U.S. Acid Rain Program can be examined as exemplars to identify the stakeholders of a cap-andtrade program and the types of conflicts that are likely to emerge. Several categories of litigation are likely to develop following the enactment of federal cap-and-trade legislation, including challenges to the program, challenges to competing state and regional programs, actions enforcing the federal program, and related civil litigation among stakeholders.

Advising Noah: A Legal Analysis of Assisted Migration

by Julie Lurman Joly and Nell Fuller

Editors' Summary

Climate change will likely lead to dramatic transformations of habitats critical to many species. One proposed solution to this problem is assisted migration. No federal agency has yet developed any rules specifically regarding assisted migration in response to climate change. However, the existing laws, regulations, and policies do provide guidance that would affect any federally sponsored or permitted assisted migration program. This Article examines those laws, regulations, and policies currently in place that may challenge or facilitate assisted migration programs. Given this legal structure, we find that assisted migration is a legal option on most federal lands under certain circumstances.

Progress on Environmental Flows in Southeastern Australia in Light of Climate Change

by Anita Foerster

Editors' Summary

Over a decade of reform initiatives in Australia have aimed at a more ecologically sustainable allocation and management framework for water resources, including provision for environmental flows. The key policy and legal developments to allocate and protect water for the environment include limits on consumptive use, operational river management rules, and volumetric environmental entitlements. Despite important reform commitments and subsequent legislative developments, an ecologically sustainable allocation of water resources is far from being realized. New federal legislation promises an increased and ongoing focus on this issue, and, in this light, key considerations for ecologically sustainable water allocation and management are discussed.

The New Public Lands: Competing Models for Protecting Public Conservation Values on Privately Owned Lands

by John H. Davidson

Editors' Summary

The emergence of new hybrid categories of public interest lands represents an opportunity to advance the public interest. In recent decades, the U.S. government has acquired partial property interests over large acreages, meaning these properties must now be managed in accordance with governing statutes and regulations. Critics of this new model argue that the hybrid of public/ private ownership is inefficient and too many resources are required to monitor and enforce applicable regulations. To address these concerns, land trusts and other private conservation organizations that hold the new public lands are implementing a private system capable of protecting these hybrid interests across time. Land trusts are now voluntarily accepting a regime of strict accreditation standards to guarantee that each easement held is backed by endowed funds sufficient to support enforcement, and that there is in place a fully informed and regulated monitoring process.


Through a Planner's Lens: Voter Responses to Infrastructure, Environment, Clean Energy, and Finance Measures in the November 2008 Elections

by Phyllis Myers

On November 4, 2008, voters around the country considered 153 statewide ballot measures in 36 states, including 84 measures referred by state legislatures and 59 citizen-driven initiatives. In the post-election media analysis, many ballot pundits focused on the outcomes of elections involving social issues, such as gay marriage and abortion, and gave little attention to the 47 measures--almost one-third of the total--that will arguably more directly influence the pace, direction, and shape of growth in America's communities and regions. To provide a fuller picture of voter responses to planning issues at this time of great uncertainty for the American economy and its impact on development, this Article provides an analysis of these 47 measures and finds surprising grassroots support for publicly supported programs and funding for infrastructure, environment, and renewable energy.

As a planner who has tracked state and local developmentrelated measures for almost 15 years, I have often found fresh, important insights bubbling up from these recurring referendums. A 1998 survey for the Brookings Institution Metropolitan Policy Center caught the nascent wave of discontent about prevailing development that fueled the Smart Growth movement, while scattered grassroots transit measures identified in 2000 helped spark a new era of ballot box fundraising and longer range conversations aimed at revamping transportation finance. In 2006, an unpopular U.S. Supreme Court decision on eminent domain quickly resonated in a series of statewide referendums that influenced public opinion far more than actions in state legislatures.

This year, economic turmoil and a scramble for funds to continue states' larger role in community development programs provide a changed context. Voters approved nearly all of the bonds proposing funds for transportation, conservation, and water quality improvements. (This tracks with national trends: according to Bond Buyer, "voters were faced with the second largest crop of bonds ever in 2008, and overall approval rates came to more than 80%.") Voters were also "sophisticated" in their responses to ballot issues, observes National Conference of State Legislatures (NCSL) ballot expert Jennie Drage Bowser, and did not simply vote to cut taxes and lower spending.

Respecting EPA

by Jonathan Cannon

When President Richard M. Nixon created the U.S. Environmental Protection Agency (EPA) in 1970, his vision was of "a strong, independent agency." The first EPA Administrator, William D. Ruckelshaus, established three principles for the Agency: (1) support for the scientific process and reliance on scientific results; (2) adherence to rule of law, including faithful implementation and enforcement of environmental laws; and (3) avoidance of excessive politicization. These principles have guided EPA leadership and decisionmaking for much of the Agency's history, in both Republican and Democratic Administrations. Obvious and significant departures from them at EPA under the Administration of President George W. Bush, however, raise questions about whether these principles are compatible with the current preference for presidential administration, whether we can hope for their resurrection in future EPAs, and whether we should. This Comment briefly documents this most recent chapter of EPA's history, tries to understand its significance, and suggests a future path for White House relations with EPA (and perhaps by extension other executive branch agencies with significant regulatory responsibilities involving technical or scientific expertise).


Environmental Justice and the Constitution

by Sheila R. Foster

In a recent essay, David Coursen asks an important and unexamined question: Are environmental justice policies, which seek to avoid disproportionate environmental burdens on minority and poor communities, on a "collision course" with the Equal Protection Clause? In concluding that a potential collision is more illusory than real, Coursen offers a number of reasons why governmental actions to promote environmental justice have not been challenged in court and, even if they were to be, would not be subjected to strict judicial scrutiny. The most compelling of these reasons is what I would call the "democratic process" rationale. This rationale explains that courts are likely to defer to environmental justice policies because they are instigated as part of the core governmental function of either the legislative or executive branches of government. Other reasons cited by Coursen include the fact that no "legally protected interest" is at stake in environmental justice policies, that such policies involve special attention to "groups" and not "individuals" and thus fall outside of the clause's scope of protection for individual rights, and that a potential claimant challenging an action based on environmental justice would lack standing to pursue such a claim. These other reasons are far less compelling and in some instances rest on a flawed understanding of equal protection jurisprudence.


Evolution of Criminal Environmental Enforcement

by Edward Bonanno

Since federal and state governments first began prosecuting environmental crimes more than 25 years ago, the nature of the cases they have investigated and prosecuted has changed dramatically. In the early years of criminal enforcement, prosecutors used then-recently enacted criminal statutes to deal with blatant criminal conduct, such as midnight dumping of toxic waste drums. Over the past 25 years, the states and the U.S. Congress have enacted tougher, more comprehensive environmental crimes statutes and devoted greater resources to fighting environmental crime. Those efforts, coupled with civil enforcement efforts and the general industry acceptance thereof, and compliance with the comprehensive environmental regulatory strictures put in place have, to a very large degree, eliminated most of the blatant dumping activity that was so pervasive in many areas in the late 1970s, 1980s, and 1990s.

Now, those who want to avoid complying with the law, either out of greed or sheer laziness, often employ more sophisticated or discreet methods. Some falsify documents to conceal their failure to comply with the requirements of our environmental laws, while others store hazardous/toxic materials in ways that endanger workers and the surrounding community. Moreover, as the demands on our land and water resources increase, more companies and individuals are taking actions that violate statutory and regulatory requirements for land use and for safe drinking water. With greater development and redevelopment pressures, there is also more incentive for contractors, consultants, and truckers to improperly handle the removal and disposal of debris, both nonhazardous and contaminated, from old commercial sites. This Article examines those types of conduct that are now, and will be, of greatest concern to state and federal environmental prosecutors. It will also examine some significant legislative developments in New Jersey that reflect the evolution of criminal environmental enforcement and ways that criminal enforcement can creatively use resources to combat environmental crimes.

Legislative Skullduggery: More Laws to Enforce, Fewer Resources to Do It

by John Spinello

There has, indeed, been a marked evolution in the investigation and prosecution of environmental crimes in New Jersey and around the United States since the inception 30 years ago of environmental law as we know it today. Just as criminal schemes that adversely impact public health and natural resources have become more sophisticated, so have the strategies and technologies employed by investigators to track down such criminal activity. Forensic tools have advanced remarkably across disciplines, and the cross-agency sharing of intelligence and analysis has improved in the post9/11 era, facilitated by rapid advances in information technology capabilities ever since former Vice President Al Gore invented the Internet. Prosecutorial tools have also improved as laws have evolved to, among other things, afford more time to charge a defendant, and establish lower mens rea requirements necessary to achieve a conviction.

In general, these are welcome changes. The Environmental Crimes Bureau in the Division of Criminal Justice is the principal law enforcement agency responsible for investigating and prosecuting violations of environmental laws in New Jersey, and enjoys a long-standing reputation for its fairness in charging decisions, independence from political influence, and effectiveness in ensuring justice.