Recent Committee Articles

Environment

Could the Superfund Task Force Recommendations Be the Sole Survivor in Biden’s EPA?

Shoshana Schiller

There’s one key program that the Biden Administration has been remarkably silent on and it’s the same program that was the primary focus of the Trump Administration’s reform efforts: Superfund.

Environment

A Blueprint for National Forest Management in the Biden Administration

Susan Jane M. Brown

Shortly after his inauguration on January 20, 2021, President Joseph Biden signed his Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (Executive Order 13990).

Business & Corporate

A Renewed Focus on the SEC’s Guidance Regarding Disclosure Related to Climate Change

Colin P. Myers

The 2010 Climate Guidance is an interpretive release issued in response to several petitions for interpretive guidance submitted by large institutional investors and other investor groups.

Public Utility

The U.S. Department of Defense, Distributed Generation, and Energy Resilience

Wilson Rickerson, Taite McDonald, Michael Wu, Chris Murray, and Jack Graul

Extreme weather resulting from a changing climate may represent the most vivid threat to DoD, but it is not the only one. Cyberattacks, physical attacks, aging infrastructure, and equipment failure all have the ability to cripple operations.

Environment

Viewing the Environmental Justice Critiques of Greenhouse Gas Auction-Cap-Trade-and-Invest Programs through an Ethical Lens

Robert B. McKinstry Jr.

The existing North American regional programs for capping and reducing greenhouse gas emissions have come under criticism based on concerns regarding their perceived impact on environmental justice communities.

Environment

Adjusting Remediation Goals Based on Bioavailability Measurements at Sediment Sites

Meg Jalalizadeh

Sediments are sources of organic and metal contaminants that are potentially available to the aquatic food chain.

Environment

Reflections from COVID-19: Citizen Suits in Environmental Enforcement

Morgan Johnson, Melanie McNett, Mara Yarbrough, and Zacary E. Wilson-Fetrow

It has been almost a year since the U.S. EPA announced a temporary enforcement discretion policy in response to the COVID-19 pandemic on March 26, 2020, which some characterized as suspending EPA’s enforcement of environmental protection laws.

Environment

Climate Adaptation without Environmental Gentrification

Marjan Kris Ramos Abubo

The environmental justice movement rose out of the ambitious but narrow goals heralded by mainstream environmentalists of the 1960s and ’70s.

Environment

Law in the Time of Corona: Wildlife Law Reform in China

Andrew Schatz

The convergence of two crises—COVID-19 and global wildlife extinction—has illuminated the need to reform our laws and change our relationship with nature to preserve global biodiversity and prevent the next pandemic.

Courts & Judiciary

No Monuments for Old Seamounts: Submerged Lands and the EEZ in Lobstermen’s Association

Zacary E. Wilson-Fetrow

This article examines the arguments and ruling in Lobstermen’s Association at the D.C. Circuit and reviews the petitioners’ question presented to the Supreme Court and considers the implications if the D.C. Circuit’s opinion stands.

Environment

U.S. EPA Tools: How Suspension and Debarment Influence Environmental Compliance

Caleb N. Raspler

To encourage performance of laws and regulations to protect human health and the environment, the U.S. Environmental Protection Agency (EPA) has effective tools to address environmental noncompliance or misconduct: suspension and debarment.

Natural Resources

States Lead the Way in Ending the Shark Fin Trade

David E. Jennings

In September 2020, the state of Florida enacted the Kristin Jacobs Ocean Conservation Act, a law expressly prohibiting the trade of shark fins.

Public Utility

Swallowing the Rule: Why FERC’s “Immediate Need Exemption” Frustrates Competitive and Climate-Smart Electricity Sector Transmission Planning under Order No. 1000

Philip Killeen

This paper argues that the Immediate Need Exemption is inconsistent with the Commission’s duties under the Federal Power Act to ensure just and reasonable, and not unduly discriminatory, rates and practices in interstate transmission markets.

Environment

The National Defense Authorization Act: Incremental PFAS Reform on DOD Installations

John Travers

This article contends that PFAS legislation is inexorably an ingredient of NDAA bill-crafting and that, as a near-sole source of federal PFAS reform, ensures for better or worse, that substantial reform will yield to incrementalism.

Environment

If Not Now, When?: Fish and Wildlife Service Issues “Warranted but Precluded” Finding in Response to Northern Spotted Owl Uplisting Petition, then Eliminates 3.5 Million Acres of Critical Habitat

Marlee Goska

While conservationists adamantly tried to stop the harvest of old-growth forests using a wide range of creative tactics, they initially had limited success. That changed when the northern spotted owl was listed under the Endangered Species Act.

Environment

U.S. Forest Service Finalizes Procedures: Implementing the National Environmental Policy Act

Susan Jane M. Brown

In response to the two executive orders, the U.S. Forest Service embarked on an “Environmental Analysis and Decision Making” (EADM) initiative.

Environment

Japan’s Rare Island Wildcat and World Heritage Site Nomination

Craig T. Donovan

Since Charles Darwin’s voyage to the Galápagos Islands in 1835, ecologists have known that island ecosystems are irreplaceable treasures of nature.

Environment

Seeing the Forest for the Trees?: The Role of Afforestation and Reforestation in Combating Climate Change

Wil Burns

In recent years, there has been increasing discussion of the potential role of afforestation and reforestation in addressing climate change by effectuating the removal of large amounts of carbon dioxide from the atmosphere.

Environment

Significant Changes Proposed for Nationwide Permitting

Claire Johnson

2020 was a year of unprecedented circumstances and change, and more change is coming in 2021—this time, in the form of significant modifications to the nationwide permitting program.

Environment

Global Land Risks and Opportunities in Corporate Supply Chains

Scott Schang

This article seeks to raise the profile of land issues so that attorneys can better advise clients who might unwittingly trip into significant legal, financial, and operational peril by not fully appreciating how land risks lurk in supply chains and operations.

Environment

Law Student Corner: Conservation Groups Settle Endangered Species Act Pangolin Case with Fish and Wildlife Service

Lucas S. Stegman

On August 18, 2020, wildlife conservation groups entered into an agreement with the U.S. Fish and Wildlife Service and the U.S. Department of the Interior to settle litigation over the listing of seven pangolin species under the Endangered Species Act.

Public Utility

The Impact of Municipal Green Bonds on Mitigating the Impact of Climate Change

Carlos J. Micames

The application of green bonds in Europe demonstrates the efficiency of this financial instrument in raising capital for environmental purposes, and local governments should move quickly to implement this strategy.

Environment

COVID-19 Impacts on Food and Farm Sector Workers

Martha L. Noble and Thomas Parker Redick

This article will discuss the impacts of COVID-19 on labor practice and waste management in animal agriculture, which has been confronted with monumental agricultural management challenges from this viral outbreak.

Environment

COVID 19 and Food: Spotlight on Food Waste

Martha L. Noble and Thomas Parker Redick

The impacts of the coronavirus known as COVID-19 (COVID-19) have reverberated throughout the U.S. food system. One major COVID-19 impact is the amount of food waste generated by our food system.

Business & Corporate

SEC Amends Regulation S-K Disclosure Rules With Minimal ESG Requirements

Colin P. Myers and Thomas A. Utzinger

On November 9, 2020, amendments to key provisions of long-standing corporate disclosure requirements became effective.

Transportation & Energy Issues

FERC Rescinds Pipeline Contracts and Reaffirms Capacity Posting Policy

Michael R. Pincus, Michael Diamond, and Jacob I. Cunningham

On October 15, 2020, the Federal Energy Regulatory Commission issued an order finding that Northern Border Pipeline Company awarded pipeline capacity through pre-arranged deals that were unduly preferential toward an affiliated natural gas producer, and unduly discriminatory against similarly situated customers.

Transportation & Energy Issues

FERC Opens the Door to Carbon Pricing in Wholesale Electricity Markets

Sean A. Atkins, Michael Kunselman, and Bradley R. Miliauskas

The Federal Energy Regulatory Commission recently took steps to encourage regions to incorporate state carbon pricing policies into wholesale electricity markets.

Environment

The USMCA Contains Enhanced Environmental Protection Provisions but Will They Lead to Substantive Environmental Protection Outcomes?

Anne-Catherine Boucher

This article first reviews the original approach to environmental protection taken by the NAFTA framework and then considers the changes brought by the USMCA and the key issues to watch for as the parties progressively implement this new agreement and adjust to its provisions.

Environment

To Supplement, Not Supplant State Law: The Dissenters’ Tribute to Federalism in Atlantic Richfield Co. v. Christian

Matthew E. Cohn

The Atlantic Richfield majority’s deep dive into the nuances of the Comprehensive Response, Compensation, and Liability Act will certainly be useful to Superfund and environmental law practitioners for years to come.

Bias & Discrimination

Allocating the Navajo Generating Station’s Water: A Rare Opportunity on the Colorado River

Gregor MacGregor

Against the backdrop of a looming regional water shortage, tribal governments throughout the Southwest are particularly impacted, especially as they attempt to contain COVID-19 in some of the least water-secure areas in the country.

Environment

How “Foreseeable” Is Your Future?

Grant Ruhl

On August 27, 2019, the Trump administration published final rules that, among many things, defined the foreseeable future as “extend[ing] only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.”

Environment

Federal Authority for Offshore Aquaculture Reappears on the Horizon

Brooklyn Hildebrandt, Jamie Auslander, and Kirstin Gruver

In the wake of the Fifth Circuit’s August 2, 2020, decision, Gulf Fishermens Ass'n v. Nat'l Marine Fisheries Serv., holding that the National Marine Fisheries Service lacked authority to regulate aquaculture in the Gulf of Mexico, the Advancing the Quality and Understanding of American Aquaculture Act, or the AQUAA Act, is making waves once again in Congress.

Environment

From RPS to Carbon: An Evolutionary Proposal

C. Baird Brown and Robert B. McKinstry Jr.

A renewable portfolio standard (RPS) has been adopted in some form by 38 states and the District of Columbia. These laudable policy initiatives have now outlived their usefulness.

Environment

New Frontiers in Coal vs. Climate: The Commerce Clause and the Clean Water Act

Sam Boden

The fight over how to address climate change has long inflamed tensions between states that view themselves as energy producers versus those that are largely seen as energy consumers.

Environment

Summer 2020 Sees Big Changes to Protections for Endangered Species

Katharine Bleau

This summer, the Trump administration advanced two significant administrative changes curtailing endangered species protections.

Environment

Law Student Corner: Cottonwood’s Elimination of the Presumption of Irreparable Harm: Implications for Public Interest Litigation

Daniel Bornstein

The Ninth Circuit’s 2015 decision in Cottonwood Environmental Law Center v. U.S. Forest Ser-vice has reshaped environmental groups’ prospects for securing injunctive relief when it comes to claims brought pursuant to the Endangered Species Act .

Public Utility

Can State Sovereign Immunity Bar Eminent Domain for Interstate Natural Gas Pipelines?

Erin McLaughlin

The Third Circuit’s In re PennEast decision may have given states a powerful tool for opposing pipeline construction.

Public Utility

Reenergizing the Private Nondelegation Doctrine

Nicholas Wallace

This essay argues that FERC’s reliance on grid operators to develop electricity market rules runs afoul of constitutional limitations on delegations of government authority.

Public Utility

Net-Metering in Georgia: Solar Panels or Smoke and Mirrors?

Jacob Weber

Georgia is a top-10 state for installed solar capacity. This article argues that it’s no thanks to the state’s net-metering scheme.

Bias & Discrimination

The Obstacles of Being a Native Law Student: How Attorneys Can Help Overcome These Obstacles

Julia A. Giffin

While law schools continue making efforts to improve their capacity for recruiting and supporting their Native students, major gaps remain in the diversity, inclusivity, and support of Native law students.

Environment

Can the Costs of Pumping and Treating Groundwater Be Included in Natural Resource Damages?

Richard W. Dunford

States are usually the trustee for injured groundwater in natural resource damage (NRD) claims brought under federal or state law.

Natural Resources

To Bolt or Not to Bolt: A Framework for Common Sense Climbing Regulation

by Michael Sammartino

Programmatic rock-climbing regulations are needed to ensure continued access for recreational climbing on National Forest System lands and better management of climbing’s environmental impacts.

Environment

Second Circuit Narrows CERCLA Cost Recovery Single-Remediation Principle

by Pete Keays

In MPM Silicones v. Union Carbide Corporation, No. 17-3468(L), 2020 WL 4210916 (2d Cir. July 23, 2020), the Second Circuit narrowed the applicability of the single-remediation principle it previously adopted in New York State Electric and Gas Corporation v. First Energy Corporation, 766 F. 3d 212 (2d Cir. 2014) (NYSEG).

Transportation & Energy Issues

Surveying the Wreckage: Can RECs 2.0 Save State Renewables?

by Lena Golze Desmond

In the 1990s, as part of a general movement toward reduction of greenhouse gas emissions, states began to develop renewable portfolio standards, which require load-serving entities to purchase state-mandated amounts of certain generation.

Natural Resources

From a Gush to a Trickle: EPA Stems the Flow of State and Tribal Clean Water Act Authority

Michael Connor, Rachel Jacobson, H. David Gold, and Samantha N. Becker

On June 1, 2020, the US Environmental Protection Agency announced a final rule narrowing the ability of states and Indian tribes to formally object to federally permitted projects based on state water quality standards.

Business & Corporate

SEC “Names Rule” Review Includes ESG Funds

Thomas A. Utzinger

On March 2, 2020, the U.S. Securities and Exchange Commission issued a Request for Comment on the framework for addressing names of registered investment companies and business development companies.

Environment

The Clean Water Act and the Coral Reef: A Decision in County of Maui v. Hawai’i Wildlife Fund

Sara A. Colangelo

In the Supreme Court’s first Clean Water Act case in more than a decade, the Court ruled that a federal permit is required if the addition of pollutants through groundwater is the “functional equivalent” of a direct release into navigable waters from a point source, settling a long-standing dispute about the applicability of the Act to indirect discharges.

Environment

Agricultural Management Case Update (Second Quarter, 2020)

Jesse Haskins

Agricultural Management Committee's case law updates on the Waters of the United States, antitrust law, and COVID-19 relief.

Environment

Current Trends in Environmental Civil Litigation

Isela Anchondo, Clair Gardner, and Sarah Hyde

Current trends in environmental civil litigation demonstrate that in suits in which the U.S. Environmental Protection Agency is involved, the agency is often the defendant.

Environment

Judge Dismisses State Law Cleanup Suit, Finds CERCLA Preempts State Limitations Period

Joel L. Herz

On remand to the district court in Refined Metals Corp. v. NL Industries Inc., No. 19-cv-4578-JMS-DLP, 2020 U.S. Dist. LEXIS 51512 (S.D. Ind. March 25, 2020) (Refined III), the court held that the longer statute of limitations period under Illinois law conflicted with and was preempted by CERCLA’s three-year limitations period.

Environment

Hatcheries in Lieu of Habitat: A Dubious Restoration Strategy for the Delta Smelt

Paul Stanton Kibel

Research and experience suggest we would be wise to carefully study the results of previous hatchery-reliant strategies before embarking on the USFWS's proposed hatchery-reliant conservation strategy for delta smelt.

Environment

EPA’s Updated CERCLA “Common Elements” Guide: Enforcement Discretion Guidance Provides Important Direction on Landowner Liability Protections

Amy L. Edwards and Meaghan A. Colligan

In July 2019, the U.S. EPA released its long-awaited Enforcement Discretion Guidance Regarding Statutory Criteria for Those Who May Qualify as CERCLA Bona Fide Prospective Purchasers, Contiguous Property Owners, or Innocent Landowners. The 2019 Guide supersedes EPA’s 2003 interim guidance on this topic and provides significant clarifications on several key elements of the landowner limitations on CERCLA liability.

Environment

Current Trends in CERCLA Enforcement

Sarah McLain, Naomie Droll, and Aaron Villalpando

Under the CERCLA, the U.S. EPA has several tools available to enforce environmental remediation including issuing compliance orders, recovering costs from potentially responsible parties, and negotiating settlement agreements.

Environment

Agricultural Subsidies and Business Loan Programs in the Wake of COVID-19 under the CARES Act and USDA Programs

Nancy B. Bostic and William B. Chaney

Legislation in the wake of the COVID-19 crisis making billions of dollars in critical relief available to farmers, ranchers, other agricultural enterprises, and small businesses has been signed into law over the last week by the U.S. Department of Agriculture and Congress.

Environment

How to Eliminate Microplastics Pollution?: Decision-Making Considerations on Feeding Plastic Waste into Circular Carbon Economy

Serpil Guran

Plastics play a significant role in our lives. They are in most of the items we use and dispose daily. Both increased generation of plastic waste and inefficient disposal approaches are causing plastic waste leakage into the environment.

Environment

Medical Monitoring Progresses in Vermont: An Update on Toxic Tort Cases and Legislation

Gillian Cowley

In the legal field of toxic torts, substantial uncertainty lingers around the availability of medical monitoring as an injunctive remedy for certain tortious conduct.

Natural Resources

Supreme Court Establishes Permitting Standard for Discharges to Groundwater

Seth P. Waxman, Daniel S. Volchok, Michael Connor, Rachel Jacobson, H. David Gold, Michael J.P. Hazel, and Benjamin Hanna

On April 23, 2020, the Supreme Court ruled in County of Maui v. Hawai’i Wildlife Fund that a federal permit is required under the Clean Water Act when a discharge to groundwater is the “functional equivalent” of a discharge directly from a point source into navigable water.

Energy

Environmental Enforcement during the COVID-19 Pandemic

Peggy Otum, Rachel Jacobson, David Gold, Michael Hazel, Bonnie Heiple, Heidi Ruckriegle, and Shannon Morrissey

The COVID-19 pandemic has led to rapid-fire legislative, executive, and regulatory responses in the United States.

Environment

Modern Livestock Farms Are within the Right to Farm Despite Size and Scope

Brianna Schroeder

On February 21, 2020, the Indiana Supreme Court denied transfer in Himsel v. Himsel, a Right to Farm Act case. This is a win for Indiana agriculture because it leaves the Court of Appeals’ favorable decision in place.

Environment

Administrative Enforcement for PFAS, ASAP: States Need More EPA Administrative Action

Katie Holcomb, David Rhee, and Christian Smith

Cannon Air Force Base (AFB) sits on 3,789 acres in eastern New Mexico. Located near the town of Clovis, the base is the largest employer in Curry County.

Environment

Crafting Successful Freedom of Information (FOI) Requests for Environmental and Natural Resource Damages Litigation

Mike Reis and Kim Silvi

Among the tools of the environmental practitioner, the federal Freedom of Information Act request, and state- and local-level Freedom of Information Law requests, are among the most effective means to gain access to federal, state, and local government records.

Energy

Clean Water Act Section 401: Hoopa Valley Tribe and Emerging Developments

Charles R. Sensiba, Misha Tseytlin, and Morgan M. Gerard

On December 9, 2019, the U.S. Supreme Court decided not to revisit the U.S. Court of Appeals for D.C. Circuit’s decision in Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (2019).

Natural Resources

The Forest Service EADM Rule: A Thoughtful Approach to Creating Efficiency and Implementing NEPA’s Intent for Special Use Administration

Dale Ratliff

Categorical exclusions are an essential component of every agency’s implementing regulations under the National Environmental Policy Act.

Environment

Adapting to and Mitigating Climate Change through Legal-Regulatory Frameworks

Amit Kapur and Akshat Jain

To secure inter-generational equity, today’s societies, nations and industries need to abate, mitigate, and adapt our carbon footprint in a crisis management mode with a shared enlightened global outlook as trustees of our future generation.

Environment

Conservation Groups File Lawsuit over Failure to List Trafficked Pangolins under the Endangered Species Act

Lucas S. Stegman

On January 22, 2020, five conservation groups sued the U.S. Fish and Wildlife Service and the U.S. Department of the Interior for failing to respond to a petition requesting that the Service list seven species of pangolin under the Endangered Species Act .

Environment

The Viability of State Law Claims in Climate Change Litigation: Comparing New York and Rhode Island

Francesca Eick

A growing number of state and local governments are suing under state law claims to seek compensation from fossil fuel companies for climate change impacts.

Environment

Critical Habitat Proposal for Endangered Southern Resident Killer Whales: A New Chance for West Coast Orcas?

Zehra Jafri

The National Marine Fisheries Service (NMFS) in conjunction with the National Oceanic and Atmospheric Administration (NOAA) solicited comments from the public through December 18, 2019, on the new aspects of a federal proposal expanding critical habitat protection along the West Coast for endangered southern resident killer whales.

Environment

PFAS Hazard Characterization: Inhalation Exposure

Travis R. Kline

Perhaps the single biggest challenge confronting us in our understanding and management of per- and polyfluoroalkyl substances (PFAS) is the overall scarcity of defensible toxicological information.

Environment

The Importance of Sustainability Assurance: A Proposal for a Lawyer-Consultant Partnership

Michael R. (Mike) Korzelius and Anne Marie Kempf

Most law firms and attorneys are familiar with sustainability reporting as a business practice sharing information on environmental, social, and economic impacts of a company with shareholders and the wider public.

Public Utility

What to Expect with Energy Storage System Procurement Structures

Elizabeth Hanigan and Jonathan Wilcon

The scale of energy storage procurements by domestic utilities has increased tremendously in the preceding decade.

Leadership Development

Resilient and Sustainable Communities through Property Assessed Clean Energy Financing

Anne Peters and Deborah Brancato

Over the last two decades, Property Assessed Clean Energy (PACE) financing programs have been adopted in 36 states and the District of Columbia.

Europe

The Warsaw International Mechanism’s Taskforce on Displacement: Exemplifying the Necessity for Cross-Sectoral Practice

Keziah D. Groth-Tuft

For international lawyers involved in international negotiations around sustainable development or similar complex issues, it is becoming increasingly important to understand multiple areas of law and their interconnections.

Leadership Development

Leadership Needed For Sustainability Law and Private Environmental Governance

Matt Bogoshian

Research and practice of what we call environmental law reveals that it is too narrow in several important respects to add the kind of value to society it can and should offer.

Environment

Florida’s Shooting Ranges: A Lapse in Regulation Raises Environmental Concerns

Kimberli Quintero

The consequences of an unregulated shooting range industry stretch well beyond the current apprehensions relating to gun safety. The U.S. Environmental Protection Agency (EPA) estimates that much of the 80,000 tons of lead made into bullets each year “finds its way into the environment at [shooting] ranges.”

Energy

Sparks Are Flying: The Growing Tension between Energy Storage and Fire Safety Stakeholders

Abi Christoph

First Place, Energy Law Writing Competition. In the winter of 2012, Hurricane Sandy struck the East Coast, bringing substantial flooding, power outages affecting over 8 million people, and over 70 billion dollars in damages.

Energy

Xcel Energy and Traditional Cost-of-Service Ratemaking: De-risking Investment for a Carbon-Free Electricity Future

Laurel Quinto

Second Place, Energy Law Writing Competition. “There is no question that climate change is happening; the only arguable point is what part humans are playing in it.” Carbon dioxide has become the primary driver of climate change.

Energy

Residential Demand Response in Wholesale Markets

Rujeko Muza

Third Place, Energy Law Writing Competition. In 2016, the Supreme Court of the United States issued a landmark decision in FERC v. Electric Power Supply Ass’n.

Natural Resources

Practice Tips: Licensing Tribal Trust Land Avoids Conveyance Issues and Bureaucracy

Andrew W. Baldwin and Kelly A. Rudd

Unique rules and considerations apply to properties within Indian Country. Tribes may own real property (1) in fee simple, (2) in trust, or (3) in “restricted” status (lands with specific restrictions against alienation).

Natural Resources

Lewis v. Clarke, 137 S. Ct. 1285 (2017): Developments in the Doctrine of Tribal Sovereign Immunity

Kelly A. Rudd

Because Indian Reservations are considered federal enclaves, where the application of state law has significant limitations, “Federal Indian Law” has often been understood as a specialty practice area.

Energy

Three Big Questions about the Energy Impacts of Growing Legal Cannabis

Molly Graham

As more states pass adult consumption legislation, what does the emergence of this new industry mean for state and local clean energy goals?

Environment

Agriculture and the Clean Water Act: WOTUS, Groundwater and More WOTUS, and Agriculture

Jesse J. Richardson Jr. and Tiffany Dowell Lashmet

The legal scope of “waters of the United States” has been debated in the legislature, federal agencies, and courtrooms across the country since the 1972 Clean Water Act.

Environment

Brownfields Remediation in Massachusetts: Chapter 21E and the Massachusetts Contingency Plan

Andrew Fowler

This article gives a limited overview of Massachusetts’ hazardous waste cleanup law, known as Chapter 21E, with a particular focus on the Commonwealth’s many tools for facilitating brownfield redevelopment.

Environment

The Climate Risk Disclosure Acts of 2018 and 2019: Should Publicly Traded Companies Be Required to Disclose Climate-Related Risks?

Jehmal Terrence Hudson

Climate change is one of the most vital issues facing the world today. The public is becoming familiar, at least nominally, with some of the more commonly reported hallmarks of climate change such as shifting weather patterns and their effects on vulnerable populations.

Environment

Guarding Environmental Audit Information: The In-House Counsel’s Guide to Privilege and Protection

Ethan R. Ware and Pierce Werner

Environmental laws and regulations govern every facet of today’s business. Compliance with the many rules and regulations is necessary but compliance one year does not ensure compliance the next year.

Environment

Blooming Algae and Legal Disputes

Kendra Brown, Karen Murray, and Susan Paulsen

Harmful algal blooms are intensifying, as are disputes over law and policy surrounding them.

Environment

State Assumption of Section 404 Permitting: The Ongoing Evolution of Cooperative Federalism under the Clean Water Act

Christopher Brooks

Section 404 of the Clean Water Act (CWA) regulates the discharge of dredged or fill material into waters of the United States.

Energy

A New Paradigm for Utilities: Electrification of the Transportation and Heating Sectors

Ryan Hledik, Ahmad Faruqui, Jürgen Weiss, J. Michael Hagerty, and Long Lam

The tide has shifted in the electric power industry. Over the past several years, there has been a steady stream of coal plant closures, record-setting low prices for renewables and storage, and increasingly ambitious state and city carbon-reduction goals.

Environment

Washington’s Voluntary Cleanup Program

Connie Sue Martin

In 1997, Washington’s Department of Ecology (Ecology) rolled out its Voluntary Cleanup Program, which allows individuals who conduct independent cleanups to request informal advice and assistance from Ecology and receive a written opinion on the sufficiency of completed cleanups under the Model Toxics Control Act and its implementing regulations.

Environment

ABA SEER Agricultural Management Committee Update

Erin Potter Sullenger

Regulatory updates from the Agricultural Management Committee.

Environment

With the Resurgence of New Jersey’s Natural Resource Damages Initiative, Are Other States Soon to Follow?

Nicole R. Moshang and Maria C. Salvemini

A recent resurgence of an interest in NRD recovery, particularly in New Jersey, has made it evident that the threat of an NRD recovery action is not only real, but potentially very costly to defend.

Environment

Cost Consideration in Rulemaking

John Travers

EPA’s decision could have a significant effect on the future regulation of air pollution.

Environment

Maui or Not? Here Comes the Latest on the Hydrological Connectivity Theory

Laura Heusel

One of the most significant Clean Water Act (CWA) questions of the time––whether the CWA requires a permit for pollutants that originate from a point source but are conveyed to navigable waters via groundwater––may not be answered by the justices of the Supreme Court after all.

Environment

Seventh Circuit Affirms that Resolution of CERCLA Liability Is Not Required to Trigger Contribution Rights under CERCLA Section 113(F)(3)(B)

Joel L. Herz

In affirming this decision, the Seventh Circuit rejected the Second Circuit’s minority interpretation and sided with the Third and Ninth Circuit’s majority position on the issue of whether specific resolution of CERCLA liability is required to trigger contribution rights under CERCLA section 113(f)(3)(B).

Energy

The National Climate Bank: The Cavalry Arrives behind the Green New Deal

Alex Kragie

Green Banks are in the business of expanding the pie of the financing market for clean energy projects across the country.

Environment

Sea-Level Rise and Infrastructure: A Challenge for Local Government

Thomas Ruppert

Sea-level rise and climate change undermine stable infrastructure performance. This article summarizes the challenges of understanding what this might mean for government liability for infrastructure.

Natural Resources

Winds of Change: Wind Energy on Tribal Lands

Rujeko (Rue) Muza

Native American Tribes and Alaska Natives possess large quantities of land with great potential for wind energy projects.

Energy

Case Brief: U.S. Supreme Court Upholds Virginia Ban on Uranium Mining

Jerry Bonanno

In June, the U.S. Supreme Court upheld Virginia’s ban on uranium mining in an unusual 3-3-3 decision. Virginia Uranium, Inc. v. Warren, 139 S.Ct. 1894 (2019).

Natural Resources

Introduction - 2019 ABA Water Resources Law Student Writing Competition

The Water Resources Committee is pleased to announce the winners of the 2019 ABA Water Resources Law Student Writing Competition.

Natural Resources

The Stream of Commerce

Matthew LaRue

The goal of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.

Natural Resources

The Jurisdiction of the Clean Water Act Includes Some Discharges into Groundwater

Heather Foxx

Since the enactment of the Clean Water Act, litigation over the statute’s jurisdictional reach has created a complicated legal landscape.

Natural Resources

A Cap-and-Trade System to Cure Minnesota’s Agricultural Drainage Decision-Making

Zach Sibley

Farmers across the U.S. Midwest share a common enemy—standing water on their fields.

Energy

Entering the Era of Commercial Nuclear Power Plant Subsequent License Renewal

Taylor Mayhall

In six decades, over 125 nuclear power plant operating licenses have been issued, and 94 of those have been renewed once. The NRC now faces for the first time the task of reviewing applications to renew existing operating licenses more than once.

Environment

PFAS Expectations and Prioritization

Travis R. Kline

Understanding PFAS pathways most likely to influence effective site management.

Environment

PFAS Toxicity Criteria, Inconsistency, and Implications for Site Management

Travis R. Kline

Uncertainty and inconsistency at the state and federal levels undermine consistent administrative authority oversight and site management.

Energy

West Coast States and Cities Sprint Ahead with Decarbonization Legislation

Molly K.D. Barker and Alexa Shasteen

In the absence of federal action, states, municipalities, and utilities are taking charge of their electric grids’ carbon footprints by setting ambitious renewable energy targets.

Natural Resources

Rethinking Waste Streams as Valuable Resources for Reuse

Alicia A. Taylor, Arvind Murali Mohan, and Joy McGrath

Waste streams from various sources, such as wastewater treatment plants (WWTPs) and extraction processes that generate produced water are becoming increasingly viable sources of new materials.

Environment

Illinois Brownfields Program

Eugene P. Schmittgens, Jr.

Illinois, like a number of local, state, and national entities, has developed programs to address the issues arising out of abandoned or underutilized properties––routinely referred to as “Brownfields.” Illinois’ Brownfields programs offer financial incentives, liability relief, and relaxed remediation standards based upon the future use of the property.

Environment

Transboundary Shipment of Waste: Threats of War, Toxic Colonialism, and Memories of Philadelphia

John K. Powell

The intensity of consumption and overall quality of life varies greatly by country though, sometimes creating an unequal power dynamic that may allow more economically developed countries to take advantage of those struggling to provide basic needs.

Environment

Cannabis Regulation: Law, Society and Health

Thomas Parker Redick

Although marijuana and cannabis remain illegal on a federal level, that hasn’t stopped various states from continuing their efforts to increase tolerance for this product in many U.S. states.

Environment

Introduction to Non-Targeted Chemical Analysis and Implications in Environmental Law

Kirk O'Reilly

Regulatory oversight of chemicals in the environment has been historically based on targeted chemical analysis. A generally applicable or site-specific target list of chemicals is identified as requiring monitoring.

Environment

An Introduction to Litigation Finance

David Shack

We live in a world where access to justice often depends on access to capital. Many claimants face insurmountable challenges due to a lack of economic resources and, regardless of the merits of their claims, find themselves unable to receive the justice they deserve.

Environment

Climate Change Litigation: A Way Forward

Irma Russell and Katie Killen

Over the last decade, increased scientific consensus and public concern have led to an increase in climate change litigation.

Environment

Aquifer Storage and Recovery: Opportunities and Practical Considerations

Lucy K. Infeld, Sarah N. Munger, and Rachel K. Roberts

Increasing water demand combined with more extreme weather patterns associated with climate change are straining water resources. Times of plenty are increasingly being followed by times of scarcity.

Environment

How Local Stakeholders in the Tampa Bay Nitrogen Management Consortium Solved Tampa Bay’s Nitrogen Pollution Problem

Travis Moore Hearne

From adorable to formidable, the ramifications of Juliana could be far reaching, with the same approach potentially being applied to other areas of natural resource protection and pollution prevention, such as the global problem of waste management.

Environment

Improving Climate Risk Disclosures from within the SEC: Moving Forward Absent the Climate Risk Disclosure Act of 2018

Keziah D. Groth-Tuft

While the recently introduced Climate Risk Disclosure Act of 2018 (2018 Act) by Senator Warren momentarily brought the issue of climate change’s effects on public companies’ financial predictions to the top of the newsreel, this topic is not new, and neither is the regulation it builds off of—an almost decade-old interpretation by the Securities Exchange Commission (SEC) that current securities laws require material risks posed by climate change to be disclosed.

Environment

Buying Contaminated Property Without Liability—Making Sure Your Client is “Bona Fide”

Matthew E. Cohn

Since CERCLA was amended in 2002, various courts have analyzed “bona fide prospective purchaser” defenses asserted by landowners. The decisions provide some useful guidance for buyers of contaminated property and their professional advisers.

Energy

Curb Appeal versus Renewable Energy: Ensuring Access to Solar Energy within Homeowners Associations

Maddison Malone Riddick

In 2010 an Omaha dentist named Timothy Adams installed forty thousand dollars’ worth of solar panels on the roof of his home hoping to utilize the clean energy they generated to save on his electric bill.

Environment

Proposed Changes to Interim Methodology for Endangered Species Risk Assessments for Pesticides

Susan L. Stephens and Steven Kahn

The Environmental Protection Agency (EPA) is currently seeking comments on proposed revisions to the interim method used to evaluate risks pesticides pose to endangered species.

Energy

Making Fossil Fuels Dormant

Brandon Rattiner

A 2014 polar bear sighting in Hawaii set environmental politics ablaze. “Hey Polar Bear,” President Obama shouted to Frostpaw the Polar Bear, minutes before finishing a round of golf in Hawaii.

Energy

2018 Energy Law Student Writing Competition

Aaron Levine, Roger Feldman, and K.K. DuVivier.

The ABA Energy Law Student Writing Competition encourages law students to explore energy law topics.

Energy

Preemption, I Think Not: Evaluating California’s Stored Energy Procurement Law against FERC Order 841

Raymond Richards

On February 15, 2018, FERC declared existing Regional Transmission Organization/Independent Systems Operator (RTO/ISO)1 market rules governing the inclusion of ESRs2 in the wholesale markets to be “unjust and unreasonable in light of barriers that they present to the participation of electric storage in the RTO/ISO markets, [because they] reduc[e] competition and [fail] to ensure just and reasonable rates.”

Energy

Energy Regulatory Considerations Regarding Emerging Blockchain Technologies in the Electricity Industry

Mark Sundback, James Gatto, Kenneth Wiseman, Andrew Mina, William Rappolt, and Mark Patrick

Blockchain technology and smart contracts have the potential to become major disrupters in the energy industry.

Environment

Can Nutrient Assimilation Trading Reduce Conowingo Dam Chaos in the Chesapeake Bay?

Patricia A. Britton

Algae is a key component in natural aquatic systems and a normally gentle member of the underwater community.

Environment

Report Documents Unprecedented Decline in Global Biodiversity

Lynn A. Long

Providing an ominous assessment on the health and future of ecosystems worldwide, the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) announced the findings from its Global Assessment Report.

Energy

FERC Holds the Line on One-Year Limit for State Review of Clean Water Act Certifications for Interstate Natural Gas Pipelines

Andrew P. Mina

On April 2, 2019, the Federal Energy Regulatory Commission (FERC or Commission) determined that the one-year statutory limit on state review of interstate natural gas pipeline company applications for water quality certification was a bright-line deadline that could not be extended by private agreement.

Environment

CERCLA Heads Back to the U.S. Supreme Court

Darin Smith

In September 2018, the U.S. Court of Appeals for the Ninth Circuit issued a decision marking “the latest chapter in a multi-decade dispute.”

Environment

Indiana Court of Appeals Upholds the Right to Farm Act

Brianna J. Schroeder

The Indiana Court of Appeals ruled in April 2019 that the Right to Farm Act will protect farmers against nuisance suits in Himsel v. Himsel.

Environment

Subsurface (Vapor) Intrusion in the Hazard Ranking System

Chase W. Holton and David J. Folkes

Rulemaking adding SsI, including VI, to HRS, starting to impact NPL decision making.

Environment

EPA Region 2 Update

Philip E. Karmel

The EPA Region 2 Update discusses greenhouse gas limits that have been enacted by New York City for residential and commercial buildings.

Environment

Regional Report: Region 9

Eric L. Hiser and Brandon Curtis

Updates on air quality issues from U.S. EPA Region 9: Arizona, California, Hawaii, Nevada, Pacific Islands, 148 Tribes