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Volume 45, Issue 5 — May 2015


Settlement Confidentiality: A “Fracking” Disaster for Public Health and Safety.

by R. Kyle Alagood

Confidentiality clauses in settlement agreements have become so commonplace that they seem like benign contractual terms. In reality, however, confidentiality clauses have formidable power to silence even the most outspoken plaintiffs, and to shield repeat environmental defendants from public scrutiny. This Article examines the effects of settlement confidentiality in the context of claims related to hydraulic fracturing, and recommends that courts align settlement bargaining with U.S. law and policy trends toward openness. It proposes a rule to uniformly regulate confidentiality clauses in the public interest, by creating a rebuttable presumption against secrecy where a court anticipates “strongly correlated culpability” between a given case and other existing or future cases.

Defenders of Wildlife v. Jewell: Wyoming Wolves Receive a Warranted Reprieve—But for How Long?

by Edward A. Fitzgerald

In September 2014, a federal district court invalidated a U.S. Department of the Interior (DOI) regulation delisting wolves in Wyoming. This Article details the background and history of that litigation, arguing that the court correctly rejected DOI’s conclusion that Wyoming had adequately explained how the promised wolf population buffer would be managed, and correctly supported DOI’s conclusion that there is sufficient genetic connectivity among wolf populations in the Northern Rocky Mountains. The court was mistaken, however, in upholding DOI’s finding that Wyoming areas outside federal lands and the state “trophy game” area do not constitute a significant portion of the wolf’s range. Defenders of Wildlife v. Jewell and related federal court decisions have generated congressional and executive reactions.

Minimizing Constitutional Risk in State Energy Policy: A Survey of the State of the Law

by Kate Konschnik and Ari Peskoe

Constitutional challenges to new state energy policies have been mounting in state and federal courts. This Article surveys the state of the relevant law, focusing on the dormant Commerce Clause and the Supremacy Clause, and draws five conclusions to guide states in achieving their energy policy goals: (1) locational requirements may be valid if based on reasons other than economic protectionism; (2) locational requirements may be valid if they do not impede interstate commerce or if the benefiting in-state economic interests do not compete with out-of-state businesses; (3) policies should place legal obligations only on instate entities and may also set standards for entities that voluntarily do business with in-state entities; (4) because wholesale power prices are regulated by FERC, state policies that set a wholesale price may be preempted; and (5) limited incentives for fuel-efficient commercial vehicle fleets are permissible.


Who Owns the Texas Sky? An Analysis of Wind Rights in Texas

by Thomas Boyd

Texas has again become the national leader in an emerging area of energy production. As it did with oil in the 1940s, Texas in 2006 surpassed California and became the nation’s leading producer of wind power, with an installed generating capacity of 2,736 megawatts (MW). State wind power production increased nearly fivefold in the eight years since. In the first quarter of 2014, Texas had an installed wind power capacity of 12,354 MW, more than twice as much as any other state and over one-fifth of the total U.S. installed capacity.

Annual Review of Chinese Environmental Law Developments: 2014

by Mingqing You and Yan Wang

The year 2014 witnessed major achievements in Chinese environmental law, particularly the revision of the basic environmental protection legislation. These achievements were based in part on recent policy developments by the Communist Party of China (CPC). In its 18th National Congress, held in 2012, the CPC proposed the notion of “a beautiful China” and emphasized environmental protection. The 18th CPC Central Committee convened its third plenary session, known as the Third Plenum, in November 2013 in Beijing. The meeting resulted in adoption of the “Decision of the Central Committee of the Communist Party of China on Some Major Issues Concerning Comprehensively Deepening the Reform,” as well as a communiqué. In 2014, the 18th CPC Central Committee convened its fourth plenary session and adopted a sesresolution on rule of law. As discussed below, these recent policy developments made their way into the environmental lawmaking process and became embodied in new rules.


The Price of Reform: Models for Financing a Toxic Substances Control Act 2.0

by Charles Franklin, Scott Schang, Alexandra Dapolito Dunn, John Broderick, Keith Matthews, Nathan Brown, and Herb Estreicher

At the start of the 114th Congress, lawmakers from both parties in the House and the Senate have voiced support for reviewing and reforming the 39-year old Toxic Substances Control Act (TSCA). Assuming that the diverse TSCA stakeholder community can find agreement on the many scientific, policy, and legal issues implicated by TSCA reform, lawmakers will still have to address two other critical issues necessary for long-term success: (1) what levels of initial and long-term program staffing and funding will be needed to implement a program responsible for overseeing tens of thousands of existing chemical substances and uses, and thousands of new chemical substances and uses each year; and (2) what regulatory financing mechanism can ensure that any reformed chemical control framework (TSCA 2.0) provides adequate and consistent funding needed to assure the safety of chemicals, maintain public confidence, and meet statutory deadlines? On February 5, 2015, the American Bar Association’s Section on Environment, Energy, and Resources, Committee on Pesticides, Chemical Regulation and Right to Know, Special Committee on Congressional Relations, and the Environmental Law Institute co-sponsored a two-hour program that brought together experts and stakeholders from across the political spectrum to discuss these and related issues. Below, we present a transcript of the event, which has been edited for style, clarity, and space considerations.

Becoming Us

by Carter Dillard

Is there a human right to a particular environment, one that overrides conflicting human interests? Given that all humans require a particular environment in order to survive and thereby have interests, the question seems to answer itself. Assuming, then, that there is a right to a particular environment, what does that environment look like?

The Gardener and the Sick Garden: How Not to Address the Planet’s Environmental Issues

by Jan G. Laitos and Juliana E. Okulski

Over a number of decades, various rules have been imposed on humans intending to limit our obsession with exploiting the garden of Earth. During this time, differing management techniques have been tried to ensure that the garden could continue to provide the resources and natural systems for humans to survive. But despite all these rules and laws and institutional commands, the garden has seemed to be getting sicker. Why have environmental policies not worked very well? Why have governmental responses neither deterred the exploitative gardener nor much helped the garden?