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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — May 2021


Local Land Use Power: Managing Human Settlements to Mitigate Climate Change

by John R. Nolon

Local land use law has evolved into a flexible and powerful technique for achieving sustainable development. This Article, adapted from Chapter 3 of Choosing to Succeed: Land Use Law & Climate Control (ELI Press 2021), looks at the authority and strategies that enable municipalities to lower their carbon footprint. It describes and analyzes many methods, both traditional and innovative, to use the power of local governments to reshape human settlements to mitigate climate change. The Article demonstrates that land use regulation can be retooled to greatly reduce or capture urban carbon emissions, and posits that mitigation efforts can lead to significant adaptation benefits, linking the two components of climate change management.

The Department of Defense's Responsibilities For Post-Conflict Restoration

by Kristin Ann Carl

The United States’ federal environmental laws and many international treaties protecting the environment apply to the U.S. Department of Defense (DOD), both within the United States and at permanent overseas military installations. However, there are very few constraints on DOD actions in war zones and contingency areas, which leads to environmental harm. This Article surveys the legal landscape governing these situations, and concludes that the United States should enact and implement a federal law requiring post-conflict restoration and remediation when it terminates contingency missions.

Direct Air Capture Facilities and Production of Carbon-Neutral Hydrocarbons

by Neil Segel

The United States has introduced increasingly stronger measures to incentivize production of low-carbon synthetic fuels and to provide tax credits for carbon-dioxide utilization from direct air capture (DAC) projects. While this federal action has made substantial progress, it has not adequately kept pace with developments in carbon capture and sequestration and DAC technologies that produce low-carbon synthetic fuels. This Article aims to provide guidance on how the federal regulatory framework can draw level to the technological advancements, and proposes changes in two areas. First, it recommends that federal agencies amend existing regulations and guidelines to provide stronger monetary incentives for DAC projects. Second, it recommends modifying key legislation to allow the government to approve broader fuel pathways. These adaptations will allow for a smoother and more expedient transition to a lower-carbon future.


Revitalizing Greenhouse Gas Permitting Inside a Biden EPA

by Matt Haber and Seema Kakade

The Clean Air Act’s (CAA’s) prevention of significant deterioration (PSD) permitting program provides an opportunity for President Joseph Biden’s U.S. Environmental Protection Agency (EPA) to make a rapid improvement on the implementation of existing greenhouse gas (GHG) regulation. EPA’s Tailoring Rule, in 2010, made the PSD permitting program applicable to GHGs for stationary sources of air pollution. But as shown in this Comment, since 2010, PSD permits, mostly issued by state environmental agencies, have required little actual control of GHGs, specifically carbon dioxide (CO2). The Comment argues the Biden EPA should conduct an annual review of CO2 technology options for stationary sources, establish a renewed commitment to review of specific draft permits, and strengthen the existing PSD permitting database. Such actions are straightforward steps to improving the existing PSD permitting program for GHGs.

Can Climate Change Labels Be “Purely Factual and Uncontroversial”?

by Barak Kamelgard

With every passing day, the dangers of climate change are becoming more and more obvious. One of the myriad solutions proposed to combat this crisis is the addition of warning and informational labels to gas pumps, airline tickets, energy bills, and even food and drinks, detailing the effects our purchases have on the climate and quantifying the amount each purchase has in terms of emissions. Yet, any required labels would need to meet the First Amendment standard for government-compelled disclosures in commercial speech, set forth by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio. To be constitutionally permitted, such labels need to be “purely factual and uncontroversial.”If these labels get mandated at the state and federal levels, their legality will certainly be litigated. Yet, there has not been a single court decision, at any level, about any form of government-compelled disclosures regarding climate change under the Zauderer standard. Consequently, it is uncertain how any given court, including the Supreme Court, would rule on this issue. This Comment analyzes what it means to be “purely factual and uncontroversial” under the Zauderer standard, and what the answer means for prospective climate change-related disclosures thereunder.


Diversifying the Outdoors and Public Lands

by Ryland Li, Lise Aangeenbrug, and Laura Edmondson

Outdoor recreation is regarded as emphasizing sustainability through environmentally conscious branding, promoting healthy activities, and reinforcing appreciation for the natural world. Yet, the outdoor recreation sector has often failed to be representative of a variety of communities, especially non-white participants. On February 11, 2021, the Environmental Law Institute hosted a panel of experts that explored opportunities for improving diversity and inclusion in the outdoors and access to national parks, public lands, and outdoor recreation. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.