Carbon Outlasts the Law: States Walk the Constitutional Line

State carbon policies to control climate warming and our energy future are under legal attack. A successful barrage of litigation now invokes the dormant Commerce Clause and the Federal Power Act as interpreted through the Filed Rate Doctrine, as well as the Supremacy Clause of the U.S. Constitution, to challenge the legal validity and sustainability […]

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Will Arkansas Game & Fish Commission v. United States Provide a Permanent Fix For Temporary Takings?

The U.S. Supreme Court’s decision in Arkansas Game & Fish Commission v. United States recognized that any government action that interferes with the enjoyment and use of private property—whether permanent or temporary in duration—can give rise to a claim under the Takings Clause of the Fifth Amendment. Yet dicta in the decision left many pondering […]

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An American Icon in Limbo: How Clarifying the Standing Doctrine Could Free Wild Horses and Empower Advocates

The American wild horse has long been considered a cultural icon and an integral part of the ecosystem.  In recognition of the need for wild horse protection, Congress enacted the Wild Free-Roaming Horses and Burros Act in 1971. Although the Act instructs Congress to manage the wild horse population by removing “excess” wild horses from […]

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Can We (Anti)Trust Leed?: An Analysis of the Antitrust Implications For the Green Building Movement

Sustainable construction and energy efficient structures are en vogue, and a “green building movement” has produced buildings all over the country and the world that are constructed from sustainable, energy efficient materials meant to minimize the building’s impact on the environment. A leader in this movement is the U.S. Green Building Council (USGBC), a private, […]

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Sub-Seabed Burial of Nuclear Waste: If the Disposal Method Could Succeed Technically, Could It Also Succeed Legally?

Nuclear power is a relatively familiar method of generating electricity in the United States, but the process remains controversial because of high-level radioactive waste. Conventional nuclear reactors use uranium fuel to sustain nuclear fission, but eventually such fuel becomes spent and requires storage and disposal because of its dangerous radioactive properties. The United States produces […]

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Nuclear Facility Licensing, Terrorist Threats, and NEPA Section 102(2)(C) Compliance

The conflicting decisions for the Courts of Appeals for the Third and Ninth Circuits in New Jersey Department of Environmental Protection v. Nuclear Regulatory Commission and San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, respectively, leave it an open question outside those jurisdictions whether the Nuclear Regulatory Commission (NRC) must account for the […]

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The Public Right-To-Know On a Need-To-Know Basis: Striking the Balance Between National Security and Environmental Protection

Abstract: Enforcing environmental laws does not immediately appear to be fundamentally inconsistent with maintaining national security. Many people have criticized the Emergency Planning and Community Right to Know Act, however, as potentially placing American citizens at risk of a terrorist attack. This Note discusses the difficulties associated with striking the balance between giving citizens access […]

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One-Step Forward: The D.C. Circuit Provides Clarity to the Incremental Approach to Rulemaking

In 2011, EPA issued the Deferral Rule, excusing generators of biogenic b-CO2—emitted from the combustion of biological materials—from Clean Air Act (CAA) regulations for three years. Citing the need to study b-CO2, EPA invoked three legal doctrines to justify the rule: the de minimus, one-step-at-a-time, and administrative necessity doctrines. This Comment addresses Center for Biological […]

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Confusing Regulatory Takings with Regulatory Exactions: The Supreme Court Gets Lost in the Swamp Of Koontz

In 2013, the Supreme Court concluded that monetary exactions must be considered with the same judicial scrutiny as land exactions. Land exactions are required contributions from an individual to a government entity in exchange for approval to develop real property. Land exactions proposed by regulatory bodies must be roughly proportional and bear a nexus to […]

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