By Joel B. Eisen
This Article examines the “Smart Grid,” a set of concepts, technologies, and operating practices that may transform America’s electric grid as much as the Internet has done, redefining every aspect of electricity generation, distribution, and use. While the Smart Grid’s promise is great, this Article examines numerous key barriers to its development, including early stage resistance, a lack of incentives for consumers, and the adverse impacts of the federal-state tension in energy regulation. Overcoming these barriers requires both new technologies and transformative regulatory change, beginning with the development of a foundation of interoperability standards (rules of the road governing interactions on the Smart Grid) that will influence development for many years. This Article describes the federally coordinated standard-setting process started in the 2007 Energy Independence and Security Act, leading to a collaborative dialogue among hundreds of participants, with leadership from the National Institute of Standards and Technology (“NIST”). After setting forth the need for interoperability standards and elaborating on the standard-setting process, the Article focuses on a 2011 order by the Federal Energy Regulatory Commission (“FERC”) that declined to adopt an initial group of standards. While this may appear a step backward, the Article argues to the contrary, finding that FERC’s order supports the flexibility of the Smart Grid Interoperability Panel, the NIST-led process that will produce interoperability standards critical to a wide range of energy saving technologies. FERC’s order allows this process, not a regulator’s imprimatur, to give standards credibility. By holding off on forcing adoption of the standards, but preserving the potential for more significant federal intervention later, it may lead to state adoption of the resulting standards. In this adaptive approach to energy law federalism, neither top-down federal regulation nor private sector standard setting is the exclusive means of overseeing Smart Grid development. FERC’s approach may promote a more positive federal-state relationship in the development of the Smart Grid, and may even portend a more collaborative relationship in energy law federalism generally, avoiding the disruptive jurisdictional clashes that have marked recent attempts to innovate in the electric grid.
Cite as: Joel B. Eisen, Smart Regulation and Federalism for the Smart Grid, 37 Harv. Envtl. L. Rev. 1 (2013).
By Ryan P. Kelly and Margaret R. Caldwell
The ocean is becoming more acidic worldwide as a result of increasing atmospheric concentrations of carbon dioxide (“CO2”) and other pollutants. This fundamental change is likely to have substantial ecological and economic consequences globally. In this Article, we provide a toolbox for understanding and addressing the drivers of ocean acidification. We begin with an overview of the relevant science, highlighting known causes of chemical change in the coastal ocean. Because of the difficulties associated with controlling diffuse atmospheric pollutants such as CO2, we then focus on controlling smaller-scale agents of acidification, discussing ten legal and policy tools that state government agencies can use to mitigate the problem. This bottom-up approach does not solve the global CO2 problem, but instead offers a more immediate means of addressing the challenges of a rapidly changing ocean. States have ample legal authority to address many of the causes of ocean acidification; what remains is to implement that authority to safeguard our iconic coastal resources.
Cite as: Ryan P. Kelly and Margaret R. Caldwell, Ten Ways States Can Combat Ocean Acidification (and Why They Should), 37 Harv. Envtl. L. Rev. 57 (2013).
By Stephen R. Miller
Political and legal tools have emerged since the 1970s, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion, and there has been scant analysis of how these tools might work together effectively. This Article asserts that those locations in cities that evoke a “sense of place” are created not just with architectural or landscape design, but by the operation of neighborhood legal tools as well. This Article argues that cities consciously overlay the panoply of emergent neighborhood legal tools as a means of place-building. This approach is referred to in the Article as creation of a de facto “legal neighborhood.” This approach does not call for secession of neighborhoods from cities or for the wholesale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the Article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicians feel comfortable serving, in which residents feel comfortable participating, and which is proven to assist the kind of place-making that makes densely settled areas attractive. These features of the neighborhood make understanding legal neighborhoods a necessary component to any effort to address the built environment’s social, political, and especially its environmental effects, such as climate change. The Article provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.
Cite as: Stephen R. Miller, Legal Neighborhoods, 37 Harv. Envtl. L. Rev. 105 (2013).
By Katrina M. Wyman
In recent years there have been suggestions that climate change might generate 200 million or more migrants by 2050. In response to these suggestions, and concerns that existing law and policy will be inadequate to deal with the expected displacement, there recently have been several proposals for new legally binding multilateral instruments specifically addressing climate migration.
This Article makes three contributions to the nascent literature on the legal and policy responses to migration induced by climate change.
First, it identifies the two principal gaps in existing law and policy that underpin to a significant extent the recent proposals for a new binding multilateral instrument, describing these gaps as the “rights” gap and the “funding” gap.
Second, this Article analyzes three of the leading proposals for a new binding multilateral instrument. It identifies the ways that these proposals would respond to the rights and funding gaps and emphasizes the proposals’ limitations.
Third, this Article emphasizes that addressing climate migration ultimately requires increasing the resilience of communities especially vulnerable to climate change. It then identifies ways to mitigate the effects of the rights and funding gaps by reducing existing vulnerabilities to climate change, without a new binding multilateral instrument. While a series of measures relying largely on existing legal and policy tools may seem less satisfying than proposals for a new binding multilateral instrument, these measures are more likely to address the concerns about human vulnerability to climate change that the proposals for new binding multilateral instruments have admirably highlighted.
Cite as: Katrina M. Wyman, Responses to Climate Migration, 37 Harv. Envtl. L. Rev. 167 (2013).
By Ann T. Schwing
When a landowner makes a charitable gift of a conservation easement to a nonprofit organization or government entity and elects to seek a federal tax deduction, both landowner and easement holder are subject to federal tax laws and regulations governing the creation, monitoring, amendment, and extinguishment of the easement. A nonprofit easement holder is subject to federal laws governing nonprofit operations. The nonprofit and government holders are also subject to state laws governing the operations of nonprofit organizations and the administration of charitable and other public assets on behalf of the public. All of these laws affect and restrict the ability of nonprofit and government holders to amend and terminate perpetual conservation easements. Contrary to representations made in When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Conservation Easements, 36 Harv. Envtl. L. Rev. 1 (2012), none of these laws can be ignored.
Cite as: Ann T. Schwing, Perpetuity Is Forever, Almost Always: Why It Is Wrong To Promote Amendment and Termination of Perpetual Conservation Easements, 37 Harv. Envtl. L. Rev. 217 (2013).
By Jessica E. Jay
Rarely in the legal discourse is an author afforded the opportunity to revisit and update a recently published law review article and to correct misunderstandings of a response thereto. When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements explores the area of law surrounding the amendment and termination of perpetual conservation easements, with specific focus on the existing legal framework, legal regimes, emerging statutory and common law, and states’ approaches to self-guidance. The Challenge identifies next steps and options for perpetual easement modification and termination guidance, including revisions of the Treasury Regulations § 1.170A-14. The Challenge posits that providing clear, consistent guidance through existing or new legal frameworks ensures that perpetual conservation easements and the purposes they protect will endure over time. This Article informs about developments since the publication of The Challenge and corrects misunderstandings asserted in Ann Taylor Schwing’s Perpetuity Is Forever, Almost Always: Why It Is Wrong To Promote Amendment and Termination of Perpetual Conservation Easements in this issue of the Harvard Environmental Law Review.
Cite as: Jessica E. Jay, Understanding When Perpetual Is Not Forever : An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing, 37 Harv. Envtl. L. Rev. 247 (2013).
By Joshua Purtle
Cite as: Joshua Purtle, Comment, Mingo Logan Coal Co. v. EPA, 37 Harv. Envtl. L. Rev. 283 (2013).
By Laura King
Coalition for Responsible Regulation v. EPA follows from and amplifies the Supreme Court’s decision in Massachusetts v. EPA. Both cases announce the Environmental Protection Agency’s power to regulate greenhouse gases under the Clean Air Act — with Massachusetts v. EPA prodding a reticent EPA into regulation of greenhouse gases under the motor vehicle provision of the Act, and Coalition for Responsible Regulation v. EPA affirming both EPA’s obedience to Massachusetts v. EPA and the agency’s new willingness to extend greenhouse gas regulation to stationary sources. The cases are significant because they together stimulated and sustained the first controls on greenhouse gases in the United States, altering a status quo in which greenhouse gas emissions were free — not taxed or regulated or otherwise constrained.
Overall, Coalition for Responsible Regulation v. EPA is a win for the environment. Its effect is to preserve permitting requirements for stationary sources that emit greenhouse gases. It also supports and extends the Supreme Court’s recognition in Massachusetts v. EPA that EPA may regulate greenhouse gases under the Clean Air Act. However, what the case reveals about the American legal system’s ability to respond to changes in the natural world is sobering. It exposes a system in need of revision: one in which lawmaking, designed to be measured, manages instead to be dawdling, and agencies and courts must summon all of their resources — prognostication, strategy, rhetorical finesse, and luck — to turn outdated statutes toward pressing threats. In this case, in an effort to provide some response to climate change and thus fulfill broader public mandates, both EPA and the D.C. Circuit held statutory language at arm’s length: EPA, by promulgating rules that “tailored” the clearest kind of statutory language — numbers; the court, by calling on standing doctrine to avoid facing — and thus having to overturn — EPA’s fast-and-loose interpretation.
These choices, which were essentially workarounds to avoid the application of straightforward statutory language, together succeeded in preserving greenhouse gas regulation, but not without risk and compromise to environmental positions. Whenever an agency departs from statutory language, it risks reversal. That risk is especially acute when the reviewing court is the D.C. Circuit and the reviewing panel includes David Tatel, who, in his capacity as a judge on the D.C. Circuit, has urged agency officials — if they are to satisfy the court and fulfill their role as responsible public servants — to “(1) [r]ead the statute; (2) read the statute; (3) read the statute!” The D.C. Circuit, for its part, preserved EPA’s workaround by doing a workaround itself, one that shrinks somewhat that cornerstone of environmental litigation: standing doctrine.
Part I of this comment puts Coalition for Responsible Regulation v. EPA in context by reviewing the history of greenhouse gas regulation under the Clean Air Act. Part II profiles the case itself. Parts III and IV use Coalition for
Responsible Regulation v. EPA as a showcase for the nimble, risky choices required of agencies and courts as they use outdated statutory frameworks to respond to new environmental challenges. Thus, Part III shows EPA balancing the danger of taking a red pen to the Act, on the one hand, against the danger of overseeing a sprawling regulatory program, on the other. Part IV shows the D.C. Circuit preserving EPA’s approach to regulation of greenhouse gases at the cost of narrowing the doctrine of standing. The trade, as we will see in the details, is not terrible, but it is a compromise nevertheless.
Cite as: Laura King, Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA, 37 Harv. Envtl. L. Rev. 267 (2013).
By Turner Smith and Margaret Holden
The Supreme Court has historically maintained a complicated, tumultuous relationship with Clean Water Act cases. However, on March 21, 2012, the Court aligned in rare form to issue a unanimous, clear opinion in Sackett v. EPA. The decision establishes Administrative Procedure Act judicial review for Administrative Compliance Orders under the Clean Water Act. This Comment argues that while the decision changes the face of Clean Water Act enforcement law, it does so without affecting other administrative or environmental laws and with virtually no practical effect on Clean Water Act enforcement programs.
Cite as: Turner Smith and Margaret Holden, Comment, Sackett v. EPA, 37 Harv. Envtl. L. Rev. 301 (2013).
By David Baake
Since the New Deal era, the Supreme Court has interpreted the Spending Clause to permit Congress to use conditional grants to encourage state governments to take action that Congress could not require them to take. In National Federation of Independent Business v. Sebelius, the Supreme Court unexpectedly restricted this power, holding for the first time ever that a conditional grant was unconstitutionally coercive because the amount of money at stake was so large that the states had no real choice but to comply with the attached conditions. This remarkable development in Spending Clause jurisprudence will likely embolden states to challenge the constitutionality of a wide variety of statutes, including Section 179(b)(1) (“Section 179”) of the Clean Air Act, which empowers the Environmental Protection Agency to prohibit, with limited exceptions, the distribution of federal highway money to states that fail to submit adequate State Implementation Plans (SIPs).
In this article, I assess the likelihood that a Spending Clause challenge to Section 179 would succeed, post-Sebelius. In Part I of this Article, I briefly discuss the Sebelius Court’s Spending Clause holding. In Part II, I argue that Section 179 should survive a facial constitutional challenge after Sebelius because, at least where applied to SIP plans for pollutants emitted by mobile sources, the provision can be construed as an attempt to restrict the use of federal funds to projects that advance the general welfare, rather than as an attempt to coerce the states into adopting particular policies. Finally, in Part III, I argue that Section 179 should survive an as-applied constitutional challenge, even if it is applied to SIP plans for pollutants that are not emitted by mobile sources. I argue that the decision to enact a SIP “remains the prerogative of the States not merely in theory but in fact,” because (1) a state that does not wish to promulgate a SIP can petition EPA to promulgate a Federal Implementation Plan (FIP) and thereby halt the sanctions clock; and (2) the amount of money at stake will likely be significantly less than the amount at stake in Sebelius.
Cite as: David Baake, Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?, 37 Harv. Envtl. L. Rev. Online 1 (2012).