Jump to Navigation
Jump to Content


Volume 44, Issue 6 — June 2014


Tug of War Over Colorado’s Energy Future: State Preemption of Local Fracking Bans

by Colin C. Deihl, Jamal L. Knight, Alexander F. Logemann, and Ann E. Prouty

Colorado is one of the epicenters of hydraulic fracturing in the United States. In addition to promising a lower carbon fuel source and increased domestic energy security, this development has attracted opposition from local citizens and governments worried about the local impact of the natural gas activities. The authors review the state of play in Colorado hydraulic fracturing and suggest that local efforts to restrict hydraulic fracturing should themselves be prohibited due to comprehensive state regulation in this arena.

State Preemption of Local Control Over Intensive Livestock Operations

by Nadia S. Adawi

Attempts to regulate intensive livestock operations at the local level have met stiff resistance from state legislatures. Local governments, frustrated by the hands-off approach of federal and state law, have tried to pass local ordinances that address potential detrimental impacts to the water, air, and quality of life from factory farms in their communities. Yet, increasingly, state legislatures have blocked these efforts. States preempt local control in three main ways: by setting statewide standards for agricultural operations that cannot be exceeded by local law; by prohibiting local zoning and often local health ordinances for agricultural operations; and by broadening Right to Farm laws to supersede local ordinances. In the absence of additional regulation or enforcement of existing regulation, those who are most affected by industrial agriculture are left with no way to address perceived harms.

Dynamic MPAs ver.0.0: Protecting Cowcods From Potential Climate-Forced Hypoxia in Southern California

by Anthony T. Shiao

Dynamic marine protected areas (MPAs) are areas with a range of dormant management responses that turn on only when conditions warrant them. This new tool has the potential to allow resource managers to respond to impending but highly uncertain future environmental harms, such as the effects of climate change, in a timely fashion without abridging existing public participation processes. The creation of a dynamic MPA would require careful integration of science, law, and policy. Dynamic MPAs would have three components: (1) management goals; (2) substantive responses; and (3) triggering indicators. This Article applies the challenge of managing developing climate-driven mid-water hypoxia to the protection of an overexploited fish species in southern California and creates a hypothetical dynamic MPA based on an existing MPA.

Five Things to Consider When Developing and Adapting Water Policies and Programs in the West

by Marion Boulicault and Adam Schempp

Water policies and programs in the western United States have not always achieved the results originally envisioned. The surrounding circumstances, from public opinion and involvement to hydrology and administrative capacity, significantly influence policy and program effectiveness. This Article identifies and provides examples of these key external characteristics, categorizing them under five overarching factors: social and political dynamics; physical landscape; economics; law; and administrative capacity. Considering these factors, and tailoring water policies and programs accordingly, offers the best chance of achieving the desired results.

Comparing the Clean Air Act and a Carbon Price

by Nathan Richardson and Arthur G. Fraas

Over the last half-decade, a variety of federal legislative proposals for limiting greenhouse gas (GHG) emissions have been put forward, most of which would set a price on carbon. As of early 2013, the one politically plausible policy appears to be a carbon tax, passed as part of a larger fiscal reform package. Meanwhile, the U.S. Environmental Protection Agency has begun regulating GHG emissions from a variety of sources using its authority under the Clean Air Act. It may be necessary to choose between these two policies, however. The Waxman-Markey cap-and-trade bill that failed in 2009 would have preempted much of this authority, and it appears likely that a carbon tax law would do the same. But how can one make this choice?


Annual Review of Chinese Environmental Law Developments: 2013

by Mingqing You and Gengzheng Wang

As the Communist Party of China (CPC) is the leading political party of China and in effect determines the policies of the Chinese government, this Comment reviews the policy developments of the CPC during 2013, and what these mean for the development and enforcement of environmental law. This Comment then examines developments in criminal law, control of air pollution, and administrative regulations. The new administrative regulations are mainly related to the pollution of large-scale livestock and poultry facilities and urban drainage and sewage. Finally, this Comment discusses some minor revisions of existing laws and regulations.