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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 2020


Sources to Sinks: Expanding a National CO2 Pipeline Network

by Jada F. Garofalo and Madeleine Lewis

Enhanced oil recovery has generated an immense and growing market for carbon dioxide (CO2), which has uses in manufacturing, medical, and industrial settings. In the next 30 years, these combined end-uses will necessitate a three- to fivefold expansion of existing CO2 transportation infrastructure in the United States. A more flexible, extensive, and integrated CO2 pipeline network is necessary to accommodate this growing demand. Like oil pipelines and electric transmission lines, CO2 pipelines are sited according to state law, which determines where and how they are routed and the conditions under which they will be operated. This Article provides an overview of CO2 pipeline regulation, a state-by-state comparison of siting, routing, and operation laws, and a case study of the federal and state permitting required for a recent CO2 pipeline. It closes with suggestions for state legislatures looking to encourage the development of CO2 transportation infrastructure.

The Case for a Legislated Market in Minimum Recycled Content for Plastics

by Chantal Carriere and Rachael Beavers Horne

The plastic packaging industry faces mounting shareholder and public pressure to reduce the environmental impact of post-consumer plastic packaging. The recycled plastics market in the United States is positioned for growth; however, developing a reliable supply of post-consumer plastics will be expensive because of problems in the recycling market. Reliance on export markets has limited investment in domestic recycling capacity, local collection programs vary considerably, and many consumers are ignorant about what can be recycled. These challenges are compounded by the current low-cost environment for manufacturing virgin plastics. This Article evaluates the opportunities and challenges of legislating a minimum recycled content requirement for the packaging industry. First, it provides an overview of the current supply chain, analyzes the factors that are driving change in these processes, and describes the current challenges with the recycling market and solutions that have been previously utilized. Next, it proposes a model law solution, and analyzes the benefits and challenges of creating a statutory requirement for a minimum quantity of recycled plastics. Finally, it assesses the possibilities of passing federal and state legislation.


Expertise and Discretion: New Jersey's Approach to Natural Resource Damages

by Allan Kanner

With a Department of Environmental Protection that predates the U.S. Environmental Protection Agency, New Jersey has always been at the forefront of combating pollution, becoming only the third state to consolidate all environmental protection and conservation into one cohesive agency on April 22, 1970, and paving the way for environmental protection nationwide with the passage of the New Jersey Spill Compensation and Control Act (Spill Act) in 1976. Given its pioneering history, New Jersey’s natural resource damage law, including the Spill Act and the public trust doctrine, remains more robust than its federal counterparts and offers an incomparable example of the success of state-based environmental protection and conservation. This Comment addresses some of the more significant differences between federal and New Jersey law that allow the Spill Act to function in a more efficient manner, including its extensive use of the public trust doctrine, its strong restoration policy, its retroactive application, and its broad strict joint and several liability provisions, while also highlighting provisions that make environmental statutes at both the state and federal levels unique.

Bad Policy, Disastrous Consequences: Coal-Fired Power in Puerto Rico

by Barry E. Hill

In September 2019, in an article entitled “The Market Has Spoken: Coal Is Dying,” Matt Egan of CNN Business wrote, "President Donald Trump has gutted regulations on the coal industry, falsely claimed that windmills cause cancer and installed a former coal lobbyist to lead the [U.S. Environmental Protection Agency] EPA. In the face of those efforts to rescue coal country, America’s aging fleet of coal-fired plants continues to shrink. New plants are not getting built. Trump’s vow to rip up environmental rules has been overwhelmed by an even more powerful force: the free market. Coal just can’t keep up with dirt-cheap gas and increasingly affordable renewables." This Comment examines the regulations regarding coal ash that the Trump Administration has issued to protect the special interests of the nation’s coal industry at the same time as major power companies are facing low-cost natural gas, declining costs of renewables, low interest rates, decisions whether to keep nuclear energy plants operating, and so on. It specifically examines the adverse impacts of these regulations on fence-line communities, focusing on one such community in Guayama, Puerto Rico.


Should We Ban Single-Use Plastics?

by Caitlin McCarthy, Lillian Power, Catherine Plume, Matt Seaholm, and Jean-Cyril Walker

Millions of tons of plastic enter the environment every year, killing wildlife, releasing toxins, clogging drains, and marring landscapes. Bans or restrictions on single-use plastics have exploded in popularity in recent years as a means of addressing these problems. Yet these bans remain controversial, with some businesses pushing back against what they consider excessive regulation and others maintaining that banning single-use plastics uses political capital that could be spent advancing more urgent and systemic agendas. On October 16, 2019, the Environmental Law Institute hosted an expert panel that explored the benefits and challenges of an increasingly popular, but contentious, approach to the problem of plastic pollution. This Article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.