Renewable energy projects located in the ocean are likely to play an increasingly important role in supplying electricity worldwide. Experience in ocean management indicates that, as new uses of the seas are made available, ocean space allocation becomes an increasingly controversial issue, demanding the attention of regulators and policymakers alike.
Tropical countries face a host of challenges to their natural environment and resources. Environmental law liability provisions offer one set of potential protections. This Article surveys such provisions in a variety of tropical country contexts. Of the seven countries studied, spanning a range of legal systems and economic development and environmental governance performance, all but one have the authority to bring liability claims for harms to the environment.
Federal agencies are beginning to incorporate descriptions of climate change impacts into environmental reviews for buildings and infrastructure, but there is no consistent methodology for evaluating these impacts and mitigating any foreseeable risks to the project or affected environment. This Article asserts that an assessment of climate-related risks and adaptation options falls within the scope of considerations that should be addressed under the National Environmental Policy Act and similar laws.
On August 3, 2015, President Barack Obama announced the U.S. Environmental Protection Agency’s Clean Power Plan (CPP), which establishes guidelines that states must apply to achieve reductions in carbon dioxide emissions from the existing fleet of fossil fuel-fired electric generating units. Organizations and companies outside of the utility sector have expressed concerns regarding the impacts of the CPP on electricity prices and reliability.
Four hundred stakeholder meetings and one million comments later, the U.S. Environmental Protection Agency released the final Waters of the United States (WOTUS) rule on May 27, 2015. Response to the rule has been immediate, vocal, and varied across the political spectrum. Some environmental advocates have criticized the rule for what it explicitly excludes, arguing that the rule leaves out too many streams and wetlands. At the same time, industry and agriculture interests have decried the rule as federal overreach.
Acting under its Clean Air Act (CAA) authority, the U.S. Environmental Protection Agency (EPA) has attempted to regulate air quality on behalf of Native American tribes. However, the D.C. Circuit—in reviewing EPA’s tribal CAA rules—significantly cut back on these efforts, resulting in state encroachment on the environmental authority congressionally delegated to tribes. This undermines tribes’ sovereignty, control over their natural resources, and opportunities for economic development.
Throughout the past decade, the United States Supreme Court has questioned the constitutionality of affording deference to a federal agency’s interpretation of its own regulations. This level of deference originated with the Court’s 1945 opinion in Bowles v. Seminole Rock & Sand Co., and in 1997, the Court reinvigorated Seminole Rock in Auer v. Robbins. The impact of “Auer deference” has continued to grow with the expansion of the administrative state.
The public trust doctrine is an ancient legal principle undergoing a modern resurgence. Under it, governments hold certain natural resources in trust for the benefit of present and future generations, and have a judicially enforceable legal obligation to protect trust resources and the public’s interest in them. This Article argues that courts could use the public trust doctrine to enforce regulation of water pollution caused by pesticides because the current regulatory framework is insufficient to protect human health, the environment, wildlife, or water quality.
In 2012, the Texas Supreme Court’s decision in Edwards Aquifer Authority v. Day reversed 100 years of state water law by changing the principle that establishes groundwater ownership rights from a “rule of capture” to a rule of ownership of “groundwater in place.” Ongoing litigation in Bragg v. Edwards Aquifer Authority is the first of what could be a number of Texas cases invoking Day to claim a regulatory taking due to the Edwards Aquifer Authority’s (EAA’s) management of the Edwards Aquifer groundwater.
In December 2014, the White House Council on Environmental Quality (CEQ) issued for public comment a draft guidance document on how federal agencies should evaluate climate change in their analyses under NEPA. Like the 2010 draft guidance, the 2014 draft guidance repeatedly states that it is not intended to create any new or binding requirements on agencies. But if the guidance, either in draft or final form, is purely advisory, why would a NEPA document’s legal sufficiency depend on whether the agency had followed the draft guidance?