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Volume 41, Issue 5 — May 2011


Control of Geological Carbon Sequestration in the Western United States

by Arnold W. Reitze Jr. and Marie Bradshaw Durrant

In the near future, the use of coal may be legally restricted due to concerns over the effects of its combustion on atmospheric carbon dioxide concentrations. Carbon capture and geologic sequestration offer one method to reduce carbon emissions from coal and other hydrocarbon fuel. While the federal government is providing increased funding for carbon capture and storage, congressional legislative efforts to limit carbon emissions have failed. However, regional and state bodies have taken significant actions both to regulate carbon and to facilitate its capture and storage. Part 1 of this Article, published last month, discussed how regional bodies and state governments are addressing the technical and legal problems that must be resolved in order to have a viable carbon storage program. Part 2 of the Article discusses the western state legal developments that encourage carbon storage.

Cleaning Up the Rest of Agins: Bringing Coherence to Temporary Takings Jurisprudence and Jettisoning "Extraordinary Delay"

by David W. Spohr


After decades of confusion, the fuzzy edges of regulatory takings doctrine have grown crisper. No longer a battleground for disputes over regulatory motivation, wisdom, and validity, the takings analysis now focuses squarely on the effect a regulation has on a property owner. However, one vestige of the discredited, substantive due process-like inquiry of past takings cases lingers. To prove a temporary taking, a property owner still has to show that the government committed "extraordinary delay," typically accompanied by "bad faith." Such an inquiry is antithetical to the modern understanding of the Takings Clause.




An Environmental Legal Practitioner’s Guide to EPA’s Website

by Taryn L. Rucinski

Because of the breadth of the Agency and its administrative responsibilities, locating useful information in a timely and effective manner can often be frustrating. In an effort to provide insight into this “green haze,” this Article is designed to provide the environmental legal practitioner with an annotated guide to EPA.gov, EPA’s public Internet portal.

Management of Environmental Liabilities in Business Transactions

by Patrick Del Duca

This Comment seeks to prepare lawyers to address environmental risk management in the context of transactions, including: (i) transfers of ownership of corporate assets and of real property; (ii) extensions of secured credit; and (iii) issuance of securities. It offers tools for lawyers to assist clients in the identification of environmental risks, their assessment, and their avoidance or allocation to others. It also assists clients in understanding the goals of lawyers seeking to assess and manage environmental liabilities.

Conflict of Interest That Led to the Gulf Oil Disaster

by Peter Jan Honigsberg

In 1982, U.S. Department of the Interior Secretary James G. Watt merged the responsibilities for revenue collection and regulatory oversight of offshore oil and gas industries under the Minerals Management Services (MMS). This created a dangerous conflict of interest within the MMS. In the days and weeks that followed the explosion of the Deepwater Horizon drilling rig, the media pointed to the MMS as being complicit with BP. The MMS issued permits for deepwater drilling in violation of its regulations, provided hundreds of exemptions to the regulations, and had allowed the companies to draft the regulations that suited their interests and objectives. The Deepwater Horizon disaster brought attention to the danger created by conflicts of interest within federal agencies.


Nuts and Bolts of Technology: Closer Look at Utility-Scale Solar Power

by Sara Kamins (moderator), Alice L. Harron, Arthur Haubenstock, Lisa Belenky, and Tom Starrs

Utility-scale solar power is coming into its own as various technologies compete for market share. On January 26, 2011, the Environmental Law Institute brought together a panel of experts to consider thermal and photovoltaic technologies. Among the issues discussed were permitting and siting on federal versus private lands, transmission, environmental impact considerations, and the potential for future growth in relation to other renewable energy sources.