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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — December 2016


Climate Drones: A New Tool for Oil and Gas Air Emission Monitoring

by Lucas Satterlee

In recent years, the proliferation of commercial drone or unmanned aircraft system (UAS) applications in the United States has generated significant discussion and controversy among legal scholars and practitioners attempting to navigate this budding industry. The drone phenomenon is just starting to catch on in the area of environmental monitoring and enforcement. There is immense potential for using drones to maximize an operation’s efficiencies while also reducing its environmental impact; one area that is particularly ripe for UAS integration is methane emission monitoring in oil and gas operations. However, the legal framework has been slow to catch up with the rapid growth of UAS capabilities. This Article examines the FAA’s regulatory process and identifies the best pathways for companies to integrate drones into their operations. It also addresses concerns related to the First and Fourth Amendments, in addition to the property rights conundrum surrounding the use of drones by agencies and other entities that conduct environmental monitoring.

Inefficient Efficiency: Crying Over Spilled Water

by Vanessa Casado Pérez

As the drought in western states worsens, the agricultural sector is being criticized for failing to adopt technical responses, such as shifting to less waterdemanding crops and state-of-the-art irrigation systems. However, these responses alone are insufficient to reduce water consumption if unaccompanied by changes in how the law defines and allocates water rights. This Article proposes a redefinition of water rights to ensure that changes in crops or irrigation techniques are socially efficient. It proposes “prior consumption” as an additional measure of water rights in prior appropriation regimes, one that more accurately reflects the true social cost of agricultural water use. This would prevent farmers from taking advantage of technical responses to increase their water use and would protect downstream users and the environment. In addition, water markets would benefit, since water rights would be better defined and the review process of water market transactions would be streamlined. The proposal is consistent with the underlying principles of prior appropriation, and would survive a potential takings challenge.


Pulling the Second Lever: Regulating Black Carbon to Combat Global Warming

by Emily Baer

Black carbon, a component of soot and the result of incomplete combustion, is one of the most climate-forcing substances in existence. While black carbon is currently unregulated internationally, the technology to substantially reduce emissions exists and is readily available to curb some of the worst sources and those most dangerous to human health. Black carbon’s short life in the atmosphere makes it a low-hanging fruit in the world of climate change reduction, and regulations to curtail it should be introduced immediately. To effectively control black carbon emissions, comprehensive international regulation is needed. This regulation should be contained in a multilateral environmental agreement (MEA) and must include a process for monitoring and ongoing research, strict standards on emissions, funding mechanisms including emissions trading, and a dispute resolution procedure in order to achieve successful implementation. This Comment proposed an MEA for the regulation of black carbon.

Unlocking Willpower and Ambition to Meet the Goals of the Paris Climate Change Agreement (Part One): Shifting Needs of Law, Policy, and Economics

by Thomas D. Peterson, Steven Chester, and Robert B. McKinstry Jr.

This Comment, the first of a two-part series, examines the nexus between willpower and ambition in the context of the Paris Agreement and its domestic implications worldwide, and identifies key elements of a more integrated, systematic, and strategic treatment of the two through law and policy. The authors first examine the evolution of the issue since the Kyoto Protocol through activities inside and outside of the UNFCCC, then specific conditions required by nations to build the necessary political willpower to achieve the Paris commitment, and finally the ties between willpower and policy development and implementation procedures, with an eye toward legal conditions.


The Circular Economy: Regulatory and Commercial Law Implications

by Ira Feldman, Reid Lifset , Timothy Ellis, Wayne Rifer, and Roger D. Feldman

Many have put forward a vision for a “circular economy” that would not only conserve and recycle materials, but also contribute to new technological, financial, and environmental innovations. As this circular economy approach gains traction, adjustments to our system of regulatory and commercial law will be needed. For lawyers and their clients, the circular economy represents a new and important thought construct that will lead to legal frameworks better adapted to the 21st century. On February 23, 2016, the Environmental Law Institute and the ABA Section of Environment, Energy, and Resources co-sponsored a day-long seminar that looked at the circular economy and how it is being applied at the intersection of energy, environment, and materials management. The panelists also discussed some of the specific regulatory, procurement, financial structuring, and other legal initiatives that are emerging to help actualize its objectives globally. In this Dialogue, we present a partial transcript of the event, which has been edited for style, clarity, and space considerations.