The U.S. Department of the Interior and National Oceanic and Atmospheric Administration recently finalized comprehensive changes in how the Endangered Species Act (ESA) is implemented. These changes address the species listing process, critical habitat designations, protections for threatened species, and the §7 consultation process.
As climate change worsens, so does the risk of wildfires. This is especially so in already hot, dry areas such as the western United States. Adding to this problem is the rapid growth of the wildland-urban interface (WUI).
The National Highway Transportation Safety Administration (NHTSA) and the U.S. Environmental Protection Agency (EPA) have proposed a new reading of the Energy Policy and Conservation Act of 1975 (EPCA) that governs federal fuel economy standards. The regulations would relax federal greenhouse gas tailpipe standards and fuel economy standards, and preempt emissions standards put in place by California and adopted by other states.
Federal dams have been the focus of major disputes involving application of the Endangered Species Act (ESA), especially its §7 prohibitions on federal actions causing jeopardy to protected species. Operating agencies and project beneficiaries have sought to keep the ESA from restricting dam operations, including by arguing that such operations are non-discretionary and thus exempt. In proposing new ESA implementing rules, the Trump Administration suggested, but did not formally propose, that ongoing federal actions should be considered part of the “environmental baseline” for §7 purposes.
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.
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.
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.
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.
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.
The concept of “zero-sum” derives from economics and game theory, but its political meaning is less technical and objective. In political parlance, zero-sum has come to stand for the idea that there will be winners and losers in every transaction. The Trump Administration has continually espoused zero-sum ideas about energy and the climate, although its zero-sum framing focuses more generally on pitting fossil fuels (winners) against clean energy (losers).