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Volume 43, Issue 3 — March 2013

Offsets Under §111 of the Clean Air Act: The Inconvenient Need for Additionality and the Role of Super-Categories

by Richard B. Herzog and. Nicholas W. Fels

On the assumption that a trading system can constitute a performance standard for GHGs under the CAA, the question arises whether “offsets” should be creditable for compliance. Crediting reduces compliance costs. For environmental integrity, however, creditable offsets should satisfy accepted offsets criteria, including additionality.  Incorporating those criteria into a performance standard may be impractical, achievable only incrementally, and entail legal risk. A probably viable alternative would define a super-category based solely on emission of GHGs, within which trading would be allowed.


Building Carbon Rights Infrastructure With REDD+ Incentives: A Multi-Scale Analysis in the Peruvian Amazon

by Patrick Wieland

Payments to avoid deforestation and forest degradation in developing countries have emerged as a key international strategy. Countries that have the greatest potential to host these market-based mechanisms are often characterized by unclear and contested land and forest rights. For example, Peru faces challenges in creating carbon rights in a context of unclear land rights and legal pluralism. Project developers are currently negotiating carbon rights, though these rights remain weak and contested because of a lack of clarity regarding title to carbon. There is a need for legislation that clarifies title to carbon in order to make carbon offsets feasible.

Dirty Water: Lessons for Comparative Public Law and International Governance From Wastewater Regulation in the United States and Germany

by Richard L. Williamson Jr. and Monika Böhm

A good deal can be learned from studying how Germany and the United States regulate the discharge of treated wastewater, but these lessons are not restricted to an enhanced understanding of one aspect of environmental protection. Instead, there are important distinctions in the public law approaches of the two countries, and thus the study of treated wastewater discharge has importance for the understanding of comparative law more generally.


Carbon Capture and Sequestration Projects Benefit From Enhanced Oil Recovery

by Marc Campopiano and Tim Henderson

Carbon capture and sequestration (CCS) has long been touted as a potentially critical means for reducing greenhouse gas emissions from carbon-intense industrial sources. High costs, complex regulatory schemes, and decreasing governmental incentives, however, have hindered the widespread development of CCS projects. But a growing trend of deriving multiple revenue streams from the carbon dioxide (CO2) associated with CCS projects—particularly using captured CO2 for enhanced oil recovery—is helping to spur CCS development.

The Next Industrial Revolution: How We Will Make Things in the 21st Century and Why It Matters

by David Rejeski

Over the past three years, the additive manufacturing market is estimated to have grown by almost 20% to about $1.2 billion. It is already being used to make prosthetic
devices, architectural components, parts for automobiles or airplanes, jewelry, textiles, sports equipment, and even specialty foods. Over time, additive manufacturing will
become cheaper and more precise and will enable construction down to a nano-scale, atom by atom. But these changes are only the beginning.


Litigation Environment for Drilling and Hydraulic Fracturing

by Robert M. Schick, Daniel J. Dunn, Tate J. Kunkle, and Kenneth J. Warren

Although most legal attention on shale drilling and hydraulic fracturing has focused on regulatory developments, a growing body of litigation promises to shape this area in the coming years. On January 23, 2013, ELI and ALI CLE cosponsored a panel comprised of counsel currently engaged in litigation on behalf of plaintiffs, defendants, and a regulatory body to examine recent and pending cases, including: who’s bringing what cases and how they are being decided; claims and defenses asserted and chances of success; dealing with attempts to try cases in the media; likely future trends in litigation; and impacts of agency findings on litigation.