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Issue

Volume 49, Issue 5 — May 2019

Articles

Mitigating Climate Change Through Transportation and Land Use Policy

by Alejandro E. Camacho, Melissa L. Kelly, Nicholas J. Marantz, and Gabriel Weil

A number of U.S. state and local governments have adopted strategies for reducing greenhouse gas (GHG) emissions from transportation and land development. Although some have made significant progress in reducing GHG emissions from the power sector, transportation emissions in most states continue to rise. This Article details the range of existing and proposed state interventions to reduce transportation-sector GHG emissions, analyzes the trade offs of these strategies, and offers recommendations to improve and supplement such initiatives, including strategic use of planning mandates and funding and technical assistance. Additionally, regulating land use, shifting transportation spending, removing barriers to implementing road pricing policies, and altering standards for environmental impact analysis can more effectively reduce transportation-sector GHG emissions and mitigate climate change.

Modernizing Management of Offshore Oil and Gas in Federal Waters

by Michael LeVine and Andrew Hartsig

Offshore drilling has been thrust back into the spotlight by the Trump Administration’s focus on “energy dominance.” While it is unlikely that leasing will take place in all areas included in the Administration’s proposed plan, its enormous scope has raised serious questions about the government’s capacity to properly plan for potential activities and evaluate impacts, and it has again prompted calls to amend the laws governing Outer Continental Shelf (OCS) oil and gas. This Article recognizes the need for comprehensive ocean legislation, but recognizing that systemic change will take time, focuses on reforms that are generally consistent with the existing statutory framework. It provides background on the statutory scheme governing OCS activities, summarizes some of the reasons Congress should update and amend the law, touches on attempts at legislative reform, and includes specific recommended changes in four main categories: (1) overall policy and overarching legal structure; (2) planning and leasing; (3) operations and response; and (4) financial responsibility and funding.

Comment(s)

Designing the New Green Deal: Where’s the Sweet Spot?

by Robert Sussman

The Donald Trump years have been painful for advocates of a forceful U.S. response to climate change. The White House has pulled out of the 2015 Paris Agreement, tried to revive coal, and moved to scuttle landmark U.S. Environmental Protection Agency (EPA) regulations for vehicles and power plants. Despite these setbacks, a heightened sense of urgency and passion has emerged following the Democratic takeover of the U.S. House of Representatives. Progressive climate policy is once again at the top of the national agenda. This Comment examines the factors that have created a unique moment of opportunity for climate policy while underscoring the absence of a broadly accepted paradigm to guide policymakers. To provide historical context, it then steps back from the current policy scene and reviews the long and largely unsuccessful U.S. struggle to find a path forward on climate change and the lessons it offers for finding solutions that are both politically durable and effective in addressing the climate threat. Against the backdrop of recent changes in emissions and technologies, the Comment finally seeks to chart a course for post-2020 policymaking that maximizes emission reductions while acknowledging and working within political and economic realities.

Environmental Gatekeepers: Natural Resource Trustee Assessments and Frivolous Daubert Challenges

by Allan Kanner

Environmental disasters wreak havoc on ecosystems and public trust resources. The environmental statutory regime in place today aims to remedy these disasters and restore the public trust as efficiently as possible. In order to do so, natural resource trustees, agencies made up of experts in their respective scientific fields, have been given broad authority to assess injuries to natural resources, choose an appropriate remedy, and develop restoration plans. Environmental statutes such as the Oil Pollution Act and Comprehensive Environmental Response, Compensation, and Liability Act have extensive provisions and congressional commentary that indicate that many features encourage expedited restoration, including joint and several liability, separate contribution proceedings, and, importantly, the rebuttable presumption. This Comment asserts that Daubert-type evidentiary challenges to trustee findings are inappropriate as they second-guess the extensive time and effort put into complying with such provisions. Rather, it argues the proper standard is review of trustee action in the fiduciary context. If a trustee’s actions have been arbitrary and capricious, it is reasonable for a court to find that it has abused its discretion. However, a court is not equipped to comprehensively evaluate trustee findings, a unique mix of law, policy, and science, under traditional evidence rules. It exceeds the authority of the judiciary and undermines the purpose of the environmental statutes themselves.

Dialogue

Energy and the Environment: Challenges in a Changing World

by Richard DeCesar, Bernie Holcomb, Annie Jones, Jim McElfish, and Chris Miller

U.S. energy requirements, policy, and regulations are changing rapidly. Numerous large-scale energy projects are underway, and generation, supply, and distribution infrastructure is evolving at an unprecedented rate. With these shifts, the focus has turned to energy transmission and pipelines, including regulatory updates, stormwater and erosion and sedimentation control requirements, environmental impact analysis and permitting, and construction monitoring. On January 29, 2019, ELI and AECOM co-sponsored a seminar where leading experts explored these changes and challenges in energy transmission. This Article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.