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Volume 45, Issue 8 — August 2015


No Such Thing as a Green War or a Bad Peace

by Sharone E. Burke

While U.S. military operations in the 21st century have largely been spared the nefarious results of “eclipses of the sun,” the central point of Thucydides’ account of a war that happened more than 2,000 years ago still holds: war is a calamity. War consumes money and natural resources and it destroys lives and land. There is nothing environmentally friendly about combat. That core truth is largely absent from Sarah Light’s otherwise thoughtful article, The Military-Environmental Complex.

Reflections on A Market Approach to Regulating the Energy Revolution

by Tom FitzGerald

As a practitioner who has represented low-income individuals and community groups pro bono on environmental and energy development issues for over three decades, I appreciate the contribution of Professors Dana and Wiseman to the literature concerning the regulation of those particular risks and effects of the use of hydraulic fracturing and horizontal drilling to develop shale gas and oil from formations once considered inaccessible. I agree with the authors that, if engaged, the surety and insurance industry could become valuable partners in assisting in the mitigation of risks associated with hydrofractured horizontal well production. But there are three main difficulties I see in the proposal to use insurance and surety mechanisms as a tool for mitigating risks.

Bond What You Know and Insure What You Don’t: A Comment on A Market Approach to Regulating the Energy Revolution

by W. Blaine Early III

It is a privilege to comment on the extensive and thoughtprovoking work of Professors Dana and Wiseman. I approach this from the perspective of my practice in the environmental regulation of natural resources industries, including coal and hard rock mining and oil and gas extraction, and the role that surety bonds and other forms of financial assurance play in those industries. Professors Dana and Wiseman describe categories of relatively certain risks in the short or medium term versus those risks that are uncertain and have a long tail. This comment focuses on how surety bonds can address the relatively certain risks of these natural resources industries within the framework of command-and-control regulation, while insurance is better suited for the more uncertain risks.

Options for Regulating the Environmental Impacts of Hydraulic Fracturing

by Leslie Carothers

The ELI-Vanderbilt Law School Environmental Law and Policy Annual Review identifies outstanding academic work in the field of environmental law. The reviewers selected two excellent articles on the challenges of hydraulic fracturing (fracking for short) to the regulatory system for presentation and discussion at the 2015 program on Capitol Hill: David A. Dana and Hannah J. Wiseman, A Market Approach to Regulating the Energy Revolution: Assurance Bonds, Insurance, and the Certain and Uncertain Risks of Hydraulic Fracturing, and Thomas W. Merrill and David M. Schizer, The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination. Both articles address many of the common issues raised about the strengths and weaknesses of the current and potential alternative regulatory approaches, while emphasizing different but not mutually exclusive solutions. This comment will focus primarily on the approaches to setting regulatory standards and securing compliance by the key actors in the cycle of production and site restoration. It concludes with a comment on the problem of cumulative impacts of fracking on landscapes, an issue receiving less attention in the articles, and the importance of maintaining local land use authorities to contend with those impacts.

Comment on The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination

by Peter D. Robertson

In their article The Shale Oil and Gas Revolution, Hydraulic Fracturing, and Water Contamination, Professor Merrill and Dean Schizer have made a very thoughtful proposal that has genuine merit and deserves equally thoughtful consideration by states across the country. I have a series of what are essentially random reactions, thoughts, and suggestions, but they all flow from a fundamental position that their suggestions are an excellent model for states to consider as they adopt new or update old regulatory and liability regimes.

The Critical Role of Voluntary Standards and Certification in the Hydraulic Fracturing Framework

by Susan Packard LeGros

The shifting economic, regulatory, political, and operational landscape of shale gas development requires regulatory approaches that are timely, flexible, and adaptive. Voluntary standards, particularly those that incorporate diverse perspectives, are a path toward responsible and constructive leadership that can inform and support development of a reasoned regulatory and legal structure.

Trends in Environmental Law Scholarship 2008-2014

by Linda K. Breggin, Jamieson Brock, Clarke Agre, Michael P. Vandenbergh

In this Comment, we draw on the results of the ELPAR article selection process to report on trends in environmental legal scholarship for academic years 2008-2014. We find that although the precise totals varied from year to year, more than 400 environmental law articles were published each year during this period. Additionally, this Comment provides data on the topics covered in the environmental law articles reviewed by the ELPAR staff. The goal is to provide an empirical snapshot of the environmental legal literature and to track trends over time.