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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — October 2019


The Constitutionality of Taxing Agricultural and Land Use Emissions

by Michelle Melton

Economywide legislation to address climate change will be ineffective unless it addresses greenhouse gas emissions from agriculture and land use. Yet incorporating these sectors into the most popular policy proposal—a carbon tax—carries legal risk that policymakers and legal commentators have ignored. This Article explores whether a carbon tax, as applied to agriculture and land use, is a direct tax within the meaning of the Constitution; it concludes that text, history, and Supreme Court precedent up through National Federation of Independent Business v. Sebelius (2012) leaves such a tax open to challenge. Consequently, policymakers should avoid eliminating EPA’s regulatory authority over greenhouse gas emissions in exchange for a carbon tax.

A Mount Laurel for Climate Change? The Judicial Role in Reducing Greenhouse Gas Emissions From Land Use and Transportation

by Grant Glovin

Greenhouse gas emissions from transportation in the United States have remained persistently high. One cause is common low-density land use patterns that make most Americans dependent on automobiles. Reducing these emissions requires increasing density, which U.S. local government law makes difficult to achieve through the political process. Mount Laurel, a 1975 New Jersey Supreme Court case that addressed an affordable housing crisis by restraining local parochialism, provides a potential solution. Environmental advocates may be able to mount similar state-law challenges against low-density zoning based on the high carbon emissions it produces. Such a challenge is legally and normatively defensible in New Jersey and other states.


Flowing Water, Flowing Costs: Assessing FERC’s Authority to Decommission Dams

by Mark Widerschein

This year, 2019, marks the 20th anniversary of the removal of the Edwards Dam, one of the first functioning hydroelectric dam to be decommissioned and removed in the United States. It was also the first to be removed under the Federal Energy Regulatory Commission’s (FERC’s) asserted power to compel such a removal without compensation, an assertion raising legal questions that have yet to be fully resolved. As our hydroelectric infrastructure continues to age, these questions may again come to the forefront. Part I of this Comment considers the history of dam building in American culture and the development of the current federal statutory scheme that governs utilityoperated, nonfederal hydroelectric infrastructure. Part II considers FERC’s and its predecessors’ role in that statutory scheme, their asserted power to decommission dams unilaterally, and two case studies. Part III analyzes the legal defensibility of FERC’s 1994 Policy Statement asserting its authority to decommission dams, and the main arguments as to whether FERC can require utility operators to pay for a decommissioning that was ordered unilaterally or whether the government has to subsidize that removal.

EPA’s Existing Authority to Impose a Carbon “Tax”

by E. Donald Elliott

A number of bills have been introduced in recent years to put a price on carbon via a federal carbon tax. These proposals generally proceed from the implicit assumption that the federal government in general, and the U.S. Environmental Protection Agency (EPA) in particular, does not already have such authority. That is incorrect. Under a federal statute that has been on the books since 1952, EPA could impose a carbon “tax” any time an administration in power is willing to do so. That is because a charge for using the public’s air to dispose of carbon dioxide and other wastes is technically not a tax, but rather a “user fee.” The confusion stems from a 1990 legal opinion written by the present author when he was EPA General Counsel, which ironically was intended to increase EPA’s use of tradable permits and other economic incentives to regulate pollution. It is time to set the record straight that EPA does have existing authority to impose a reasonable user fee on releases of carbon dioxide and other greenhouse gases, as well as other pollutants, any time that it has the political will to do so.


Strategizing Against the Flame: What’s Next for California’s Wildfires?

by Willis Hon, Lloyd Dixon, Kathleen Harrison, and David Pedersen

The 2018 wildfire season was the deadliest and most destructive on record in California, destroying thousands of structures. Gov. Gavin Newsom created a strike force to develop a comprehensive strategy to address the destabilizing effect of wildfires on the state’s electric utilities. In April 2019, the strike force issued a report outlining a vision for clean energy policies to reduce the impacts of climate change on wildfire risk, and in July, the newly created Commission on Catastrophic Wildfire Cost and Recovery released its recommendations. On June 12, 2019, the Environmental Law Institute and Nossaman LLP hosted an expert panel that explored wildfire liability, the proposed regulatory components set forth by the strike force report, the viability of various wildfire mitigation strategies, cost recovery options, inverse condemnation, and potential for incorporating climate impact research into wildfire policymaking. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.