| Article | Title | Author |
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| 219 |
Stranger Than Fiction: An “Inside” Look at Environmental Liability and Defense Strategy in the Deepwater Horizon Aftermath
The Deepwater Horizon oil spill of April 20, 2010 initiated an environmental disaster that presented attorneys on both sides of the legal action with monumental challenges. Using the satirical format of a memo written by the corporate defense counsel to BP America four days after the spill began, this article investigates BP’s potential liability and strategic defense positions available in criminal and civil proceedings. Major federal environmental laws, including the Oil Pollution Act, the Clean Water Act and major wildlife protection statutes, are implicated by the Spill. The memo provides a clear picture of the existing opportunities for a responsible party to minimize liability in the face of incriminating evidence. This article argues that the successful use of legal precedents, tactical defenses and the enhanced role of the responsible party in response and restoration, will minimize BP America’s liability and civil and criminal penalties resulting from the Spill, to the detriment of the prevention of future environmental crimes.
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William H. Rodgers, Jr., Jason DeRosa & Sarah Reyneveld |
| 297 |
Rebuttal in Defense of the Klamath Hydroelectric Settlement Agreement
This article rebuts certain assertions made by Mr. Thomas Schlosser in a recent article entitled Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration Agreements. The Klamath hydroelectric dams are not causing degrading fish disease conditions in the Klamath Basin. Dewatering Trust Responsibility overlooks the effects of water diversions for agriculture, pollution from pesticides and industrial operations
and habitat degradation from timbering, ranching and other human activities on current Basin conditions. Under the Klamath Hydroelectric Settlement Agreement and the Federal Energy Regulatory Commission license, PacifiCorp is taking extensive measures to protect aquatic resources in the Basin prior to dam removal. The abeyance in the Clean Water Act certification process is necessary to allow the study of anticipated impacts of dam removal and water quality measures that could be implemented during the interim period prior to
potential dam removal.
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Michael A. Swiger & Sharon L. White |
| 310 |
Beyond the Blaze: Strategies for Improving Forest Service Fire Suppression Policies
Current Forest Service fire management policies restrict NEPA’s application to fire suppression actions and contribute to a lack of detailed information about the effectiveness and environmental impact of suppression efforts. Decisions by the U.S. District Court for the District of Montana in the Forest Service for Environmental Ethics v. U.S. Forest Service litigation suggest that NEPA review applies to commonly used fire suppression tactics and that the Forest Service should conduct this review before fires occur. Other recent federal district court decisions and congressional concern with current fire suppression efforts support the need for NEPA review in the fire suppression context. This comment explores this case law and analyzes Forest Service compliance with NEPA procedures in its fire suppression practices.
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Aurora R. Janke |
| 352 |
Creating an Environmental No-Man’s Land: The Tenth Circuit’s Departure From Environmental and Indian Law Protecting a Tribal Community’s Health and Environment
When Congress set aside reservations as permanent homelands for American Indian people, it intended that the reservations remain “livable environments.” When resource conflicts arise in “checkerboard” areas outside Indian reservations—where land ownership alternates between a tribe, state, the federal government and private, non-Indian landowners—disputes over regulatory jurisdiction and environmental protection intensify. Two recent Tenth Circuit opinions determining the next generation of uranium mining in the checkerboard area of the Navajo Nation, depart from the intent of environmental laws and fail to uphold federal agencies’ trust responsibilities to the Tribe. These cases illustrate the legal vulnerabilities tribal communities in checkerboard areas face through the loss of their environmental and public health and the potentially massive cost of remediation. This comment urges the federal government to strike a more equitable balance of authority, risk and cost by retaining environmental regulatory jurisdiction in checkerboard areas and by writing Indian Trust Impact Statements that will help ensure that the federal government fulfills its trust responsibility to tribes.
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Claire R. Newman |
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| 1 |
Maintaining a Balance: Innovation in Power System Balancing Authorities
The introduction of new power generation, including intermittent resources, into the North American electric grid is exposing the fact that the traditional approach to resource integration is not necessarily cost-effective. At the forefront of analysis is the electric balancing authority; the functional structure that is responsible for maintaining the continuous balance of the demand for and supply of electric power. Electric balancing authorities perform this function according to standards developed by the North American Electric Reliability Corporation and the Federal Energy Regulatory Commission. These services can significantly affect the cost of power. Rather than blindly purchasing balancing services from the local balancing authority, power generators and loads are proactively affecting their cost structure by purchasing balancing services from an adjacent balancing authority or forming a separate balancing authority and self-supplying services. These options do not undermine reliability and the cost controls enabled by competition ensure efficient resource integration.
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Malcolm McLellan and Carol Opatrny |
| 42 |
Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration Agreements
In order to protect Indian property rights to water and fish that Indians rely on for subsistence and moderate income, the Interior Department Solicitor has construed federal statutes and case law to conclude that the Department must restrict irrigation in the Klamath River Basin of Oregon and Northern California. Draft legislation, prescribed by the February 18, 2010 Klamath River Hydroelectric Agreement and the Klamath Basin Restoration Agreement, would release the United States from its trust duty to protect the rights of Indian tribes in the Klamath River Basin. The agreements will also prolong the Clean Water Act Section 401 application process to prevent the Federal Energy Regulatory Commission from issuing a properly-conditioned license for dams in the Klamath River that will protect the passage of vital fish populations. This article argues that the agreements prioritize the water rights of non-Indian irrigation districts and utility customers over first-in-time Indian water and fishing rights.
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Thomas Schlosser |
| 79 |
Rough Seas for Renewable Energy: Addressing Regulatory Overlap for Hydrokinetic Projects on the Outer Continental Shelf
Hydrokinetic energy harnesses the power of the oceans and generates renewable energy with a low carbon footprint. Because wave and tidal energy projects have not yet been initiated for the Outer Continental Shelf (OCS) and scientific knowledge of the effects on the ocean environment is uncertain, analysis under the National Environmental Policy Act is particularly important. However, overlapping jurisdiction on the OCS creates an inhospitable regulatory environment for hydrokinetic energy developers and marine ecosystem protection. This comment will analyze these overlapping and duplicative regulations and will make recommendations to streamline the environmental review process. Programmatic environmental impact statements, adaptive management and marine spatial planning will simplify the environmental review process and balance the interests of federal agencies, hydrokinetic energy developers and the ocean environment.
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Amanda Righi |
| 130 |
A Breath of Fresh Air: Methods and Obstacles for Achieving Air Pollution Reduction in Washington Factory Farm Communities
“Animal feeding operations (AFOs),” or, if large enough, “concentrated animal feeding operations (CAFOs),” have become increasingly concentrated in ownership, location, and quantity of animals since the 1950s. The Yakima Valley of central Washington is one area that has been subject to an influx of these industrial farms, raising health and environmental concerns for residents. Despite scientific evidence of potential harm, citizens have had difficulty enforcing air emissions regulation. The problem is twofold: the EPA is still working with the industry to develop a methodology for emission monitoring –– the effectiveness of which remains unclear ––and, assuming monitoring methods existed, the statutory framework provides numerous agricultural exemptions. State “Right-to-Farm” statutes further exempt some farms from liability under the common law. Nonetheless, this comment will demonstrate that nuisance, trespass, and/or negligence actions, if teed up correctly in light of the state Right-to-Farm statute, can operate to combat pollution from AFOs.
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Linda Thompson |
| 181 |
Renewable Energy Integration Costs: Who Pays and How Much?
Over the past decade major public policy concerns over the environment, national security, the economy, and climate change have converged, creating significant pressure to reform America’s energy system. The result has been a tremendous increase in the use of renewable energy sources with growth only expected to accelerate. This new development represents a radical shift for a nation whose electricity system was built to run on fossil fuels and hydroelectric dams. The electricity grid is a complex interconnected system requiring constant balancing of supply and demand. Using new intermittent technologies like solar and wind requires changes in grid management to maintain a constant energy balance in real-time. This comment analyzes proposed solutions for the integration of renewable resources into the electricity grid, and the legal and regulatory steps required to achieve this integration.
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Paul Vercruyssen |