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Volume 43, Issue 9 — September 2013


Do Trade Liberalization and International Trade Law Constrain Domestic Environmental Regulation?

by Hajin Kim

Environmentalists and free trade proponents sharply disagree on the role that trade plays in impacting environmental welfare. Contrary to environmentalist contentions, trade liberalization can improve environmental regulations, and WTO jurisprudence is more welcoming of domestic environmental regulations than popularly perceived. But, counter to free trader claims, trade’s positive impact often works through stronger regulation—not through simple increases in wealth. In addition, though evolving WTO principles welcome fairly applied environmental regulations, specific decisions have applied these principles inconsistently and have been too quick to find unfair trade protectionism. Both sides can gain from a more nuanced understanding.

Sink or Swim: Abrogating the Nile Treaties While Upholding the Rule of Law

by Alice Shih and Trevor Stutz

A shocking 80% of the Nile’s water is consumed by one country: Egypt. The upstream riparian countries threaten to encroach on Egypt’s share of water as recordbreaking populations, droughts, and famines generate ever-greater need. Indeed, the increasingly dire fight over the Nile stands to be one of the most significant global crises and potential armed conflicts of this century. Egypt maintains the rights to a vast majority of the Nile’s waters based on colonialera treaties. Following state succession, new riparian States have disavowed these treaties, but the inequitable colonial treaties survived the process of decolonization. Nevertheless, current events demonstrate that this inequitable water allocation cannot persist without violating human rights.

As the World Burns: A Critique of the World Bank Group’s Energy Strategy

by Nina Robertson, Bruce Rich, and Lynsey Gaudioso

The World Bank Group (WBG) is uniquely positioned to support the growth of developing countries in a way that decreases GHG emissions and provides energy to the poor. Historically, the institution has failed to fulfill this potential, supporting carbon-intensive energy projects and neglecting renewable energy, energy efficiency and pro-poor energy development. A recent comprehensive draft energy strategy and an energy sector “Directions” document propose some positive changes, but fall far short of reorienting the institution’s energy lending in critical ways. Major revisions are therefore required. First, the WBG should end its support for fossil fuels and focus its limited resources on energy efficiency, renewable energy, and universal energy access.


A California Agency Implements Important Public Policy Goals Through Secret Litigation Settlement: A Case Study

by Ward Benshoof and Diane Wizig

Some administrative agencies exist in California solely as creatures of the state legislature. Other agencies, such as the California Public Utilities Commission (PUC), exist by virtue of both the state Constitution and subsequent delegation of power and responsibilities by the legislature. In either case, administrative agencies have only such powers as have been delegated to them. And when they exercise those powers, certain rules generally apply.

Horne and the Normalization of Takings Litigation: A Response to Professor Echeverria

by Michael W. McConnell

The last three Takings Clause decisions in the U.S. Supreme Court have shared a common theme. In each of them, the Court has cut through the morass of arbitrary, clause-specific rules, complications, and obstacles to relief that have accrued over the past few decades. I call this process “normalization”—treating Takings Clause claims as normal constitutional claims, subject to the same procedural, jurisdictional, and remedial principles that apply to other constitutional rights.

Horne v. Department of Agriculture: An Invitation to Reexamine “Ripeness” Doctrine in Takings Litigation

by John Echeverria

The U.S. Supreme Court’s relatively brief, unanimous decision issued on June 10, 2013, in Horne v. Department of Agriculture, has received little notice in comparison with the two other takings cases of the Court’s 2012-2013 term, Arkansas Game & Fish Commission v. United States, and (especially) Koontz v. St. Johns Water Management District. This instant obscurity is not wholly undeserved given the narrowness of the Court’s ruling: the federal courts, in the context of reviewing a U.S. Department of Agriculture (USDA) administrative order, have “jurisdiction” to consider a defense based on the Takings Clause to monetary sanctions imposed on a raisin “handler” pursuant to the Agriculture Marketing Agreement Act (AMAA).

Should EPA Use Emissions Averaging or Cap and Trade to Implement §111(d) of the Clean Air Act?

by William F. Pedersen

Fossil fuel-fired electric generating units (EGUs) account for 40% of the U.S. annual greenhouse gas (GHG) emissions. No federal regulations currently limit those releases. Two months ago, President Barack Obama ordered the U.S. Environmental Protection Agency (EPA) to fill this gap by setting GHG emission limits for new EGUs under §111(b) of the Clean Air Act (CAA) and for existing EGUs under §111(d).


Climate Change: It’s Time for a Conservative Alternative

by Eli Lehrer

President Barack Obama’s climate agenda announced in June represents the latest of many Democratic Party efforts to address climate change. Although it includes no new legislation, the president’s plan makes unprecedented use of executive branch powers and offers a great many things that appeal to core Democratic constituencies. Implemented in full, power plant carbon rules, further delays in economically beneficial pipeline projects, and added green energy projects would result in a bigger, more intrusive government that exerts greater control over the economy, rewards perceived “good guys,” and punishes supposed “bad guys.” Not surprisingly, the plan, like all previous Democratic efforts, has earned a suspicious and hostile reaction from conservatives.

President Obama’s Climate Agenda

by Barack Obama

This Dialogue combines two releases from the White House dated June 25, 2013: A fact sheet on President Obama’s Climate Action Plan and a presidential memorandum to the U.S. Environmental Protection Agency regarding power-sector carbon pollution standards.