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Volume 50, Issue 9 — September 2020


From RPS to Carbon: An Evolutionary Proposal

by C. Baird Brown and Robert B. McKinstry Jr.

Renewable portfolio standards (RPS) and their accompanying renewable energy credits have been adopted by 38 states and the District of Columbia. This Article argues that they have outlived their usefulness, and proposes a transition to a “carbon reduction standard” (CRS) based on a statewide target for the average carbon emissions per megawatt hour of electricity generation. It describes in detail how a CRS would work, how it aligns with changing policy goals, and how it would take advantage of RPS lessons learned. Such a transition would avoid the unintended adverse consequences of RPS and better align the policy mechanism with the underlying environmental protection goals, particularly the goal of avoiding climate disruption.

A Rights-Based Approach to Governance of Climate Geoengineering

by Railla Veronica D. Puno

Faced with the growing threat of climate vulnerability, many have turned to the idea of geoengineering. However, many environmentalists and human rights advocates are wary of the risks related to geoengineering. At present, there is no international agreement that governs the deployment of geoengineering technologies. This Article explores a rights-based approach for the governance of geoengineering in international law, including the impetus, rationale, and options for implementation. The approach would take into account the need for participation, accountability, nondiscrimination, and equality in its development and deployment, while addressing the potential of such technologies in mitigating the impacts that climate change would have to the full enjoyment of human rights, including the right to a healthy environment.

A Road Map to Net-Zero Emissions for Fossil Fuel Development on Public Lands

by Jamie Gibbs Pleune, John C. Ruple, and Nada Wolff Culver

In producing over 274 million barrels of oil, 3.3 billion cubic feet of natural gas, and 302 million tons of coal each year, the Bureau of Land Management’s (BLM’s) decisions significantly impact U.S. and global greenhouse gas emissions; fossil fuels produced on federal land account for almost 24 percent of all U.S. CO2 emissions. This Article provides a legal road map for BLM to require all new oil and gas development to achieve net-zero emissions as a condition of operation. It argues that BLM has a legal duty to mitigate the risk of catastrophic climate change in its permitting decisions. The road map is based on the existing legal structure and explains how BLM can begin charting a course toward carbon-neutral energy development without waiting for congressional action.


Failure to Notify: Exploring Charging and Sentencing Patterns in Superfund Criminal Prosecutions

by Joshua Ozymy and Melissa L. Jarrell

This Comment explores charging and sentencing patterns in federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) prosecutions, and charts the evolution of how CERCLA has been used by U.S. Environmental Protection Agency investigators and federal prosecutors to pursue criminal sanctions, the overarching themes of those investigations and prosecutions over the past 37 years, and the totality of those sanctions.

Small Populations in Jeopardy: A Delta Smelt Case Study

by Karrigan Börk, Peter Moyle, John Durand, Tien-Chieh Hung, and Andrew L. Rypel

Under §7 of the Endangered Species Act (ESA), federal agencies must ensure that actions they authorize, fund, or carry out are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” For species with low and declining populations, applying this standard is legally and scientifically difficult. The U.S. Fish and Wildlife Service (FWS) faced this problem in its recent biological opinion (BiOp) analyzing impacts to threatened Delta smelt from water project operations in the California Delta. FWS concluded the “species’ recent abundance trends strongly suggest it is in the midst of demographic collapse,” and most recent surveys to locate smelt have failed to find them. Nevertheless, FWS approved agency actions that will likely increase extinction risk for Delta smelt. This Comment illustrates, through a case study of the Delta smelt BiOp, the difficulties in making ESA jeopardy determinations for species on the brink of extinction, and concludes that the myriad challenges inherent in conservation of some small and declining populations make reasoned §7 analysis difficult, bordering on impossible.

When Politics Trump Science: The Erosion of Science-Based Regulation

by Romany Webb, Lauren Kurtz, and Susan Rosenthal

"Science is science and facts are facts. My administration will ensure that there will be total [scientific] transparency and accountability without political bias.” That was the promise made in September 2016 by then-candidate Donald Trump when asked how he would protect federal scientists from political interference in their work. Since taking office, however, President Trump has led a concerted effort to undermine federal scientific research, particularly in areas where research findings contradict his own views or undermine the basis of his deregulatory agenda. That effort is documented in the Silencing Science Tracker, an online database that records anti-science actions taken by the federal government. Drawing on three-and-a-half years of tracker data, this Comment analyzes the Trump Administration’s evolving war on science and shows how it is changing the way federal agencies perform, use, and communicate scientific research.


Leaking Methane: Natural Gas, Climate Change, and Uncertainty

by Chandler Randol, Jean M. Mosites, John Jacus, Theresa Pugh, and Ben Ratner

Recent studies suggest natural gas is significantly more carbon-intensive than previously realized, with methane having at least 25 times the warming potential of carbon dioxide. If the United States is to meet greenhouse gas reduction goals, it must curtail methane leakage between 30% and 90%, and leakage is anticipated to cost producers $2 billion each year in lost product. Absent regulations from the federal government and many states, nongovernmental organizations and the private sector are developing innovative solutions. On April 8, 2020, the Environmental Law Institute hosted a panel that explored cutting-edge practices to monitor and mitigate leaking methane. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.