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Volume 45, Issue 6 — June 2015


United States v. DTE Energy Co.: A Flawed Decision With Implications for the Future Enforceability of New Source Review

by Jordan R. Schoonover

In United States v. DTE Energy Co. (DTE), the U.S. Court of Appeals for the Sixth Circuit held that EPA may use Clean Air Act New Source Review (NSR) to challenge a source’s preconstruction emission projection on narrow procedural grounds, but not to “second- guess” the projection’s substance. The decision is based on an incorrect interpretation of the NSR regulations and undermines the NSR program’s preconstruction review component. EPA should either change its regulations or clarify its interpretation of them, and adopt a litigation strategy to minimize the DTE decision’s unfavorable aspects and to persuade the Sixth Circuit to correct its errors. This will be important so EPA can continue using NSR, in concert with the proposed Clean Power Plan, to address air pollution from existing power plants.

Plain Meaning, Precedent, and Metaphysics: Interpreting the “Navigable Waters” Element of the Clean Water Act Offense

by Jeffrey G. Miller

This Article, the third in a series of five, examines the meaning of “navigable waters” under the Clean Water Act. It traces the traditional judicial interpretation of navigable waters and how Congress and EPA attempted to extend its meaning, then examines how the term has been applied in the context of tributaries and wetlands, isolated waters, groundwater, and EPA’s unitary theory of navigable waters. The author then analyzes EPA and the Corps’ 2014 proposed amendments to the definition of “waters of the United States,” and concludes that those amendments may resolve much of the interpretive crisis.


Defining Power Property Expectations

by Michael Pappas

To date, most government efforts to promote distributed solar energy have involved incentivizing property owners to undertake voluntary installations. However, that approach is changing, as government actors move to increase distributed solar generation capacity not only through incentive programs, but also through requirements. Such a change from voluntary to mandatory measures represents a seismic shift in the approach to encouraging distributed solar generation, and it may raise objections about interference with property expectations. The Comment addresses those concerns by exploring the nature of property expectations in the energy context and analyzing how courts and legislatures have balanced property expectations against past government measures to encourage energy production and development of underexploited resources. The Comment concludes that throughout the history of energy development in the United States, property owners’ expectations have been understood to accommodate socially beneficial energy production, and that the concerns surrounding the promotion of distributed solar generation counsel a similar approach.

Prospects for Public Power and Distributed Renewable Energy

by Uma Outka

Recent growth in rooftop solar energy has caught the attention of utilities. Every customer who generates her own electricity is a customer who is not buying it (or at least as much of it) from the power company. Indeed, if she lives in one of the many states that permit or require such arrangements, the utility may have to buy back any excess electricity that her solar system produces.

Legal After-Shocks on the Energy Seismograph: Judicial Prohibition of Recent State Regulation and Promotion of Power

by Steven Ferrey

Notwithstanding the technical merits of distributed generation, state incentives for and regulation of the power sector have come under significant legal attack during the past five years. In 23 constitutional challenges to state sustainable and distributed energy regulation, the states lost at some level in 17 of the 23 cases, or the cases were settled in favor of the challengers; five were dismissed on procedural grounds or are still pending. States that lost legal challenges can be ordered to pay plaintiffs’ legal fees into the millions of dollars. States are discovering that they have only a highly circumscribed and restricted ability to regulate the new wholesale energy markets that characterize 21st century America.

Energy in the Ecopolis

by Sara Bronin

Climate change, resource scarcity, and environmental degradation demand a paradigm shift in urban development. Currently, too many of our cities exacerbate these problems: they pollute, consume, and process resources in ways that negatively impact our natural world. Cities of the future must make nature their model, instituting circular metabolic processes that mimic, embrace, and enhance nature. In other words, a city must be a regenerative city or, as some say, an “ecopolis.”

Charting an Uncertain Legal Climate: Article III Standing in Lawsuits to Combat Climate Change

by Bruce Myers, John Broderick, and Shannon Smyth

In the wake of Massachusetts v. EPA, lower federal courts have been called upon to apply Article III standing rules in lawsuits featuring a variety of plaintiffs seeking to combat climate change in many different ways. In this Comment, the authors have created a chart that provides a comprehensive snapshot of how these courts have ruled in cases where the standing analysis was documented in a written opinion. The chart is organized by the theory of standing advanced and the type of injury claimed for standing purposes, rather than by legal claim.


Green Infrastructure in Action: Examples, Lessons Learned, and Strategies for the Future

by Jessica DeMonte, Carrie Noteboom, George Hawkins, Louis McMahon, and Gary Belan.

Municipal wastewater and stormwater utilities are increasingly incorporating green infrastructure (GI) into their wet-weather management plans. GI can be a cost-effective alternative for communities in lieu of traditional gray infrastructure, and also can provide significant community benefits such as redevelopment and green space creation. Regulators support its use, but green concepts are relatively new and questions remain about how GI will be monitored, assessed, and credited and whether, ultimately, it will be effective. On December 16, 2014, the Environmental Law Institute (ELI) hosted a panel that focused on lessons learned with regard to GI implementation, the evaluation and maintenance of green projects following completion, and the growing use of GI following enforcement actions. The panel discussed the pros and cons of GI, whether GI is the best solution for communities, and GI alternatives. Here, we present a transcript of the event, which has been edited for style, clarity, and space considerations.