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Currently 83 percent of the energy consumed in the United States is from fossil fuels. This in turn creates 81 percent of the United States' emissions of greenhouse gases, is the principle source of air pollution, and leads to major environmental problems where the fuel is extracted from the ground. Increasing the share of non-fossil energy involves a switch from the fuels that took tens of millions of years to form under the ground, to sources that are constantly renewed. This column is devoted to the legal aspects involved in increasing the share of the energy that we use that comes from renewable sources. The author points to six legal techniques that have been developed to increase the use of renewable energy: 1) Portfolio Standards 2)Mandatory Utility Purchases 3)Renewable Fuel Standards 4)Carbon Price 5) Tax Incentives and 6)Research and Development. In addition to this, the author points to six impediments to the growth of renewables: 1)Intermittency 2)Fossil Subsidies 3)Capital Availability 4)Turnover Rate of Capital Plant 5)Scale and Timing and 6)Siting and Environmental Impacts.
The central purpose of the National Environmental Policy Act (NEPA) is to improve governmental decision making by making relevant information available to officials and by ensuring that everyone affected by the decisions is given a voice. In this article, Michael Gerrard focuses on the effect of NEPA on decisions. First, Gerrard discusses the effect that NEPA has had on internal decision making. Then, he delves into the accuracy of predictions in environmental impact statements. Lastly, Gerrard analyzes what happens to environmental impact statements after the record of decision is issued.
In 2010, Jonathan Cannon, Michael Vandenbergh, and Michael B. Gerrard planned the conference entitled "Implementing Climate Change Policy" which was aimed at discussing the implementation challenges posed by several pathways to climate regulation. In preparation for this conference, Michael B. Gerrard outlines various implementation strategies for comprehensive climate change policy. In doing so, Gerrard points to four different paths forward for climate change regulation in the United States: U.S. Environmental Protection Agency rule-making; legislation; state and regional regulation; and litigation. Lastly, Gerrard point to the potential success of climate change policy if these four different pathways are combined and completed together.
On June 20, 2011 the U.S. Supreme Court issued its much-anticipated decision in "American Electric Power v. Connecticut." This is the second climate change case to be decided by that court and the first to concern common law claims, where the plaintiffs claimed that the greenhouse gases from power plants constitute a common law nuisance, and asked the court to issue an injunction requiring the plants to reduce their emissions. The Supreme Court ruled that these kinds of disputes do not belong in the courts, and that the problems of climate change are so diffuse and nonspecific that no one has standing to go to court to challenge any governmental failure to act. This decision resolves a few issues but left many others open including: 1) whether the Supreme Court's decision bars all federal common law nuisance claims, or only those that sought injunctive relief and 2) whether the Clean Air Act preempts state public nuisance litigation over GHGs. The Supreme Court ruling along with the ensuing climate change litigations, such as challenges to federal regulations, state regulations, coal plants, and environmental impact reviews, are the subject of this report.
The high point of congressional support for comprehensive climate change legislation came on June 26, 2009, when the House of Representatives passed the American Clean Energy Security Act by a vote of 219 to 212. For several years the proponents of climate regulation have pinned their hopes on Congress. Now, the principal action is shifting to the U.S. Environmental Protection Agency and the courts and the states, though important questions will still be faced by Congress. This column surveys what is likely to happen with climate regulation without any congressional action. The author highlights the topics of renewable electricity, EPA action, state and regional action, litigation, and international agreements.
Litigation aiming to reduce emissions of greenhouse gases is coming to be dominated by battles over coal-fired power plants. Ten of the last 20 judicial or administrative decisions or case filings in matters aiming to reduce emissions of Greenhouse Gasses (GHGs) have concerned such plants. This column discusses the most recent legal developments concerning coal plants, including those on the regulatory and legislative fronts. Specifically, the author points to legal developments in the areas of air pollution litigation, regulatory activity, and congressional activity.
The State Environmental Quality Review Act (SEQRA), the statute that requires the preparation of environmental impact statements for discretionary actions by state and local governments, has long been the most generative source of environmental litigation in New York. The following column discusses the downward trend of litigations under SEQRA in addition to the continuous rise of exemptions from SEQRA. Specifically, the author delves into recent exemptions from SEQRA, standings of SEQRA plaintiffs, SEQRA suits by applicants, safety issues under SEQRA, irregularities under SEQRA, and lastly, SEQRA state and city handbooks.
The courts decided 46 cases under the State Environmental Quality Review Act (SEQRA) in 2018. However, the most important action under SEQRA was in the Legislature, followed by the state Department of Environmental Conservation. This column analyzes these developments, specifically looking at legislative action, administrative action, and judicial action under SEQRA, as well as SEQRA's statutes of limitations.
New laws were signed by Governor Andrew Cuomo in 2013 regarding notice requirements in the Brownfield Cleanup Program, Bottle Bill enforcement, mercury thermostats, oversized lobsters, shark fins, and Eurasian boars, among other things. On the regulatory front, the state promulgated final regulations concerning New York's participation in the Regional Greenhouse Gas Initiative and regulatory relief for certain dairy farms, and proposed regulations for liquefied natural gas facilities and invasive species. This annual survey describes new environmental laws that were enacted in New York in 2013, as well as several significant regulatory developments. Specifically, this survey looks at developments in the areas of air emissions, brownfields, energy, infrastructure, land preservation, solid and hazardous waste, water pollution, and wildlife.
The courts decided 37 cases under the State Environmental Quality Review Act (SEQRA) in 2010. As is usually the case, defendants were much more likely to win in cases where an environmental impact statement (EIS) had been prepared than when these was no EIS. Of the 16 cases with an EIS, defendants won 13; of the 19 cases without and EIS, defendants won 13. Thus preparing an EIS continues to be generally the safest course from a litigation perspective. In this article, the author looks at the administrative activity under SEQRA with an eye to the affect of environmental impact statements. Specifically, the author looks at suits by applicants, EIS alternatives, standing of plaintiffs, ripeness of cases, supplemental EIS, environmental assessments, smart growth, and lastly, the Sea Level Rise Task Force.