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Volume 41, Issue 9 — September 2011


Delisting Wolves in the Northern Rocky Mountains: Congress Cries Wolf

by Edward A. Fitzgerald

A battle is waging in the Northern Rocky Mountains, with environmental groups supporting the return of the wolf to the region to restore ecological balance, and the livestock industry fighting the species’ return based on the threat it is perceived to pose to the industry’s economic success. Recent federal court decisions in Montana regarding the delisting of wolves and in Wyoming regarding the FWS rejection of the Wyoming wolf management plan are the latest results of the ongoing fight. This year, Congress passed a resolution delisting the wolf and instructing the FWS to reconsider Wyoming’s wolf management plan. This rider may threaten wolf recovery in the region, and precluding judicial review of the delisting undermines the partnership between courts and executive agencies that supports the modern administrative state.

Local Standards for Wind Power Siting: A Look at Model Ordinances

by James M. McElfish Jr. and Sara Gersen

In almost every state, local regulation plays a significant role in wind power siting. To create an effective and predictable regulatory environment, lawyers and environmental professionals will need to help local governments draft and administer ordinances that address the specific issues involved with electric power generation from wind facilities. These topics include visual impacts, safety requirements, setbacks, wildlife and habitat protection, noise, shadow flicker, electromagnetic interference, decommissioning, and other issues. Lessons derived from model ordinances and state siting requirements can help professionals guide local governments as they exercise authority over these areas.

Federal Control of Carbon Capture and Storage

by Arnold W. Reitze Jr.

The United States has economically recoverable coal reserves of about 261 billion tons, which is in excess of a 250-year supply based on 2009 consumption rates. However, in the near future, the use of coal may be legally restricted because of concerns over the effects of its combustion on atmospheric carbon dioxide concentrations. In response, the U.S. Department of Energy is making significant efforts to help develop and implement a commercial-scale carbon capture and storage program to limit emissions of carbon dioxide emitted from coal-burning electric power plants based on geologic carbon sequestration in deep underground formations. Many technical and legal problems must be resolved in order to have a viable carbon capture and storage program. The many legal issues that exist can be resolved, but whether carbon sequestration becomes a commercial reality will depend on reducing its costs or imposing legal requirements on coal-fired power plants that increase the cost of electricity so that carbon sequestration is an attractive option.


The Supreme Court’s AEP Decision: Snatching Climate Change Solutions Victory From the Jaws of Defeat

by Howard A. Learner

In today’s politically polarized environment, legislative and judicial actions tend to be characterized as either stunning victories or crushing defeats. The next-day media reporting and hyperbolic press releases on the U.S. Supreme Court’s American Electric Power et al. v. Connecticut et al. (AEP) decision involving actions to reduce greenhouse gas pollution reflect this trend. Certainly, the U.S. Chamber of Commerce was correct in declaring victory on the Court’s holding that the Clean Air Act displaces federal common-law claims asserted by states and other plaintiffs seeking to limit carbon dioxide pollution from coal plants. The Court’s decision and its future impacts, however, are much more nuanced and hopeful for environmental progress. For environmental and public health advocates, there is much victory to be snatched from the jaws of the generally expected defeat on the federal common- law displacement issue.

Courts Shed Light on the Application of CERCLA's Bona Fide Prospective Purchaser Defense

by Charles S. Warren and Toni L. Finger

Purchasers who knowingly take title to real property found to be contaminated with hazardous substances during pre-purchase due diligence may be subject to liability for remediation costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), unless those purchasers are able to establish CERCLA’s bona fide prospective purchaser defense (the BFPP Defense). Prior to the enactment of CERCLA’s Small Business Liability Relief and Brownfields Revitalization Act Amendments on January 11, 2002, purchasers of contaminated property generally could avoid CERCLA liability only if they qualified for the more limited “innocent- landowner” defense, which is unavailable to purchasers who have knowledge or reason to know of the contamination at the time of purchase. The BFPP Defense, however, allows purchasers of contaminated property to avoid CERCLA liability, even if a purchaser has such knowledge, as long as the contamination occurred prior to their period of ownership. Until recently, there was little case law discussing the BFPP Defense in detail. Finally, however, two recent federal court decisions have shed some light on how a purchaser can qualify for this CERCLA defense. This Comment looks at these two decisions and how they may impact parties who knowingly purchase contaminated property with the intent of qualifying for the BFPP Defense.


Assessing Jurisdiction Under the New Clean Water Act Guidance

by Bruce Myers (moderator), Donna Downing, Jan Goldman-Carter, Lawrence R. "Larry" Liebesman, and David B. Olson

Two decisions of the U.S. Supreme Court have created enormous confusion around the question of what U.S. waters are subject to federal regulation. On May 2, EPA and the U.S. Army Corps of Engineers published proposed joint guidance that intends to clarify this issue by describing how the agencies will identify waters protected by the CWA. The document is intended to assist agency staff in implementing the Supreme Court’s rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States. The new guidance, which would supersede existing guidance documents (including 2008 Bush Administration guidance), seeks to reaffirm jurisdiction over important waters that currently lack clear protection under the law, and to provide clearer, more predictable guidelines to reduce uncertainty and delay for businesses and regulators. Although the guidance lacks the force of regulation, it is expected to be the first step in a formal rulemaking process. On June 28, 2011, ELI convened a panel to discuss the significant elements of the guidance, assess its likely impact, and highlight the challenges that lay ahead.