Recent Committee Articles

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.

Environment

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