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Volume 44, Issue 1 — January 2014


"Touby" or Not "Touby": The Constitutional Question When Congress Authorizes State and Local Governments to Legislate the Contours of Federal Criminal Law

by Darrell A. Fruth

Congress allows state and local governments to legislate federal criminal law. Violating some local ordinances, for example, constitutes a federal felony under the CWA. The U.S. Supreme Court has not yet decided how to review this type of delegation. Following the Court’s decision in Touby v. United States, most circuit courts apply a “meaningful constraint” test. Statutes that place meaningful, specific restrictions on the power to legislate federal criminal law do not violate the Constitution. The CWA fails this test. It criminalizes “any” violation of certain local pretreatment requirements, which the Act excludes from meaningful federal review. These provisions of the Act appear unconstitutional because they violate the nondelegation doctrine currently applied by most federal courts.

Accommodating the 800-Pound Gorilla: How Trade With Non-Parties Provisions Can Broaden American Participation in the 2015 Climate Agreement

by Walton C. Shepherd

As negotiators approach a new climate change agreement in 2015, they should consider an often-overlooked category of legal provisions included in other multilateral environmental agreements: the Montreal Protocol on the Ozone Layer; the Convention on International Trade in Endangered Species; and the Basel Convention on Hazardous Wastes. Each include provisions committing their Parties to restrict trade with non-Parties in substances covered by the agreement. Experience with these provisions, which differs significantly in design and implementation, offers important lessons for how such a provision might be utilized to broaden American participation and deepen ambition in a new climate change agreement.

Fracturing Moratoria Under the Dormant Commerce Clause: The Need to Shape Rather Than Resist the Shale Gale

by Alfred R. Light

Opponents of oil and gas exploration using hydraulic fracturing have been advocating bans or moratoria on use of the technology, beginning in Vermont and New York. In the summer of 2013, several state legislatures, e.g., California and Illinois, rejected bans. In November, however, local bans were passed in Colorado and Ohio. This Article explores the breakthroughs that account for the rapid expansion of increased oil and gas production in the United States, returning North America to the energy powerhouse it had been in the 20th century. It briefly surveys various anti-fracker explanations for the phenomena, “big oil” advertising, lack of regulation, the Halliburton exemption from SDWA regulation, and model legislation developed by the American Legal Exchange Council. It then explains why “all-or-nothing” approaches to fracturing
such as bans or moratoria may present constitutional difficulties under the Dormant Commerce Clause.

The BP B1 Bundle Ruling: Federal Statutory Displacement of General Maritime Law (Part 1)

by John J. Costonis

Among the many unresolved legal questions posed by the Deepwater Horizon well blowout are whether and to what extent maritime tort negligence remedies escape displacement by relevant federal statutes, including, principally, the Oil Pollution Act of 1990. OPA jurisprudence over two decades holds that OPA displaces these remedies. Contrarily, however, the U.S. District Court for the Eastern District of Louisiana’s decision in In re Oil Spill by the Oil Rig “Deepwater Horizon” (B1 Bundle) insists that general maritime law affords a parallel track to OPA’s remedies for economic and property oil discharge losses suffered by private claimants.


Addressing the Environmental Impacts of Large Infrastructure Projects: Making "Mitigation" Matter

by David J. Hayes

We are in the midst of an unprecedented governmentwide focus on infrastructure permitting and development in the United States. Our nation’s energy industry is undergoing a significant expansion across our landscapes. Large, utility-scale solar and wind projects are springing up around the country, thousands of new oil and gas wells are being drilled each year on public and private lands throughout the United States, and new pipelines and electric transmission lines traversing the country are under construction, or are on the drawing boards. Meanwhile, bridges, roads, transit systems, and other key infrastructure are being built, restored, or replaced in every corner of our nation.


How Best to Use CAA 118(d) to Regulate Existing Power Plants' Carbon Emissions

by John Cruden, David Doniger, Jeffrey Holmstead, and William F. Pedersen

President Barack Obama has directed EPA “to use your authority under §§111(b) and 111(d) of the Clean Air Act to issue standards, regulations, or guidelines, as appropriate, that address carbon pollution from modified, reconstructed, and existing power plants and build on State efforts to move toward a cleaner power sector.” EPA is to propose standards no later than June 1, 2014, finalize them within a year, and have approved state or federal plans in place by the end of President Obama’s term. On September 17, 2013, ELI brought together top domestic experts to discuss various options for using the CAA to achieve the president’s orders.