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Volume 41, Issue 11 — November 2011

Education for Reenergization: Overcoming Behavioral Barriers to Energy Efficiency in the Residential Sector

by Elizabeth B. Forsyth

To face the challenges of energy consumption, the United States requires a policy that aims to bring the country to the highest level of residential energy efficiency possible, while educating the next generation of leaders on energy use and the potential for change through efficiency. Standing in the way of improved energy efficiency are behavioral barriers, including information barriers, transaction cost barriers, and landlord-tenant barriers. Current domestic energy efficiency programs operate with varying degrees of effectiveness, but more widespread and lasting change could be accomplished by implementing a program that would educate high school students on energy and create incentives for students to improve their homes’ efficiency.


Getting to “Yes”: A Proposal for a Statutory Approach to Compulsory Pooling in Pennsylvania

by Brigid R. Landy and Michael B. Reese

The natural gas reserves in the Marcellus Shale gas play offer profound economic potential as new technologies make its extraction economically viable. However, Pennsylvania’s current oil and gas conservation laws lack a comprehensive statutory scheme for compulsory pooling in the state. Existing statutes in major oil and gas-producing states like Oklahoma and Texas, as well as their courts’ interpretation of those statutes, offer lessons for how Pennsylvania might construct an appropriate statutory scheme. Proposed language for such a scheme distinguishes leased and unleased landowners, recognizing the specific needs and desires of each, and highlights how all interested parties may benefit.

Avoiding Water-Intensive Energy Production: How to Keep the Water Running and the Lights On

by Katherine A. Abend

The confluence of growing water demand and global warming impacts are stressing U.S. water supplies. Water shortages pose a major threat to the reliability and affordability of U.S. electricity because 96% of the nation’s power comes from thermoelectric and hydropower facilities that require sufficient water to function. State legislatures, energy-planning agencies, and water boards should work in concert to encourage deployment of technologies that will reduce the amount of water needed to produce electricity. Deployment of water-efficient energy facilities is suitable under both riparian and prior appropriation water systems.

Tracking Implementation of the Special Need Request Process Under the Plant Protection Act

by Read D. Porter and Nina C. Robertson

States and the federal government have shared the authority to impose quarantines to prevent the introduction and spread of harmful plant pests. Under the Plant Protection Act of 2000, states must obtain a USDA-approved “special need request” before going beyond the restrictions in a federal quarantine. Requests have been filed over the past decade in response to sudden oak death and light brown apple moth. Despite the continued spread of these pests, the USDA has never approved a state request due to the language of the Act and a restrictive agency interpretation. Clarification of the requirements for requests to be judged complete and imposition of time limits on USDA responses could improve the special need request process and improve the federal-state cooperation needed for effective protection against the spread of harmful plant pests within the United States.


AEP v. Connecticut—Global Warming Litigation and Beyond

by Monty Cooper

On June 21, 2011, the U.S. Supreme Court in American Electric Power (AEP) v. Connecticut held that the Clean Air Act (CAA), and the U.S. Environmental Protection Agency (EPA) actions it authorized, displaced any federal common-law right to seek abatement of carbon dioxide (CO2) emissions from fossil fuel-fired power plants. The widely anticipated decision was important, because it clarified the court’s approach to legislative displacement and dismissed federal common-law public nuisance claims.

One Hundred Years of the Environment and Natural Resources Division

by Richard J. Lazarus

On November 16, 2009, hundreds of current and former attorneys, staff members, and friends gathered in Washington, D.C., to celebrate the 100th Anniversary of the Environment and Natural Resources Division (ENRD or the Division) at the U.S. Department of Justice (DOJ). As an alumnus of ENRD, I was tremendously honored to address the group. I began working for the Division on October 9, 1979. It was my first job out of law school, and I could not have been more excited. Nor could I have been more amazed that I had, what I considered, my dream job. And so it was equally marvelous to return to ENRD and share with them the 100-year history of the Division.


Regulatory Update on Wind Energy Permitting and Development

by James McElfish, Maureen Bornholdt, Suedeen Kelly, and Dennis Roberts

Wind energy development has addressed significant and increasingly complex regulatory requirements. A number of agencies have been involved in the permitting process, and developers must be careful to consider key issues early in the process. On September 14, 2011, ELI cosponsored a seminar with Patton Boggs LLP that covered the landscape of permitting issues that matter most, and what changes may occur as the industry continues to mature. The speakers also discussed issues in state and local siting rules, significant differences between offshore and onshore development, FAA and military radar issues, the FERC approval process, and related economic regulatory issues critical to wind power development.