Washington and Lee Journal of Energy, Climate, and the Environment

The New Nuclear Power Generation Licensing Scheme in Its Defining Moment: A Regulatory Vessel Equipped to Support a Thriving Industry or Drifting Towards Stormy Waters Capable of Running the Nuclear Revival Aground?

Anna Knecht — Wed, 17 Oct 2012 13:10:49 PDT

This Student Note assesses Congress and the Nuclear Regulatory Commission’s “new” nuclear licensing scheme by way of comparison with the old, two-step process under which the industry endured an era of dormancy lasting nearly forty years. With a focus on the novel ITAAC review process, this Note argues that while the Part 52 process is superior to its predecessor, certain significant issues (articulated herein) must be resolved before the new regulatory framework can support the economic, environmental, safety, and other advantages it aims to achieve.

The Regulation of Mining and Mining Waste in the European Union

Yvonne Scannell — Wed, 17 Oct 2012 13:10:48 PDT

This article reviews EU law relating to the regulation of mining and mining waste, liability for environmental damage caused by mining, remedies for environmental damage caused by mining, mine closure obligations and the nature of financial guarantees required to ensure the proper performance of environmental obligations, as well as developments in EU law which have resulted in the elucidation of human rights available at a supranational level to those subjected to severe pollution from mining activities. It notes that much of the world’s mineral resources are located in developing countries which have less sophisticated environmental regulations and greater potential to experience environmental and social disasters from mining activities than the EU, proposes the regulation of mines of international significance on a more global scale, and speculates whether the relatively sophisticated EU mining regulatory system can provide an embryonic model for this.

Lessons Unlearned: The Legal and Policy Legacy of the BP Deepwater Horizon Spill

Mark Davis — Wed, 17 Oct 2012 13:10:47 PDT

The explosion and blowout of the BP Deepwater Horizon well in the Gulf of Mexico dominated much of the news and public discussion during the late spring and summer of 2010. The size and scale of the blowout and its effects on people, communities, and the environment produced loud calls for deep changes in the nation’s energy and environmental laws and policies. While some things have changed, the wide ranging changes that many expected have not yet come to pass; indeed if anything the momentum has shifted to letting aggressive oil and gas development resume and to leave the fundamental regulatory framework in place. This article argues that this result is anything but surprising and that the prevailing legal and policy architecture is designed to withstand changing circumstances, even catastrophic ones like the Deepwater Horizon blowout. Changing, much less improving, safety and environmental stewardship practices, will take concerted and focused action that may only take root after future disasters.

Wed, 17 Oct 2012 13:10:46 PDT

Chevron, Greenwashing, and the Myth of “Green Oil Companies”

Miriam A. Cherry et al. — Fri, 18 May 2012 06:38:31 PDT

As green business practices grow in popularity, so does the temptation to “greenwash” one’s business to appear more environmentally and socially responsible than it actually is. We examined this phenomenon in an earlier paper, using BP and the Deepwater Horizon catastrophe as a case study and developing a framework for policing dubious claims of corporate social responsibility. This Article revisits these issues focusing on Chevron, an oil company that claims in its advertisements to care deeply about the environment and the communities in which it operates, even as it faces an $18 billion judgment for polluting the Ecuadorean Amazon and injuring its people. After describing Chevron’s “we agree” advertising campaign, the Article sets out our framework for approaching “faux” corporate social responsibility, gauges whether misled consumers and investors might have a legal remedy as a result of Chevron’s advertising claims, and proposes refinements to better regulate corporate greenwashing.

Assessing Moral Claims in International Climate Change Negotiations

Yoram Margalioth — Fri, 18 May 2012 06:38:30 PDT

The paper explains the importance of narrowing the gap between developed and developing countries’ perceptions of justice in the climate change context and analyzes the two main ethical claims raised by the developing countries, exposing their major weaknesses and strengths. It then offers the adoption of harmonized carbon taxes and the rejection of Kyoto’s cap-and-trade mitigation scheme, as a way to avoid inevitably unresolved ethical issues.

Integrating Community Knowledge into Environmental and Natural Resource Decision-Making: Notes from Alaska and Around the World

Elizabeth Barrett Ristroph — Fri, 18 May 2012 06:38:30 PDT

Community knowledge (including traditional, local, and indigenous knowledge) has a role to play in government agency decisions regarding the environment and natural resources. This article considers the benefits of using community knowledge, as well as obstacles to collecting this knowledge and integrating it with Western science. The article further discusses how federal agencies in Alaska use community knowledge and laws that potentially affect this use (including the Data Quality Act). Finally, the article provides recommendations for agencies to consider in collecting and using community knowledge.

Fri, 18 May 2012 06:38:29 PDT

Energy Efficiency as Fundamental to the Missions of U.S. Religious Congregations, Health Care Providers and Schools

Warren G. Lavey — Fri, 18 May 2012 06:38:29 PDT

Increased energy efficiency confers many economic, environmental, and public health benefits but is handicapped in the United States by energy prices which fail to reflect damaging emissions from most energy production. Under market prices, standard lifecycle financial analysis of potential investments leads businesses and households to improve their energy efficiency in many ways. However, pursuing environmental sustainability and enhanced public health requires heightened awareness, stronger incentives, and more actions. Many religious congregations, health care providers, and schools recognize that improving energy efficiency and reducing related emissions serve their missions. Many organizations in these mission-driven sectors have undertaken far-reaching commitments to energy efficiency, implemented strong programs, and achieved substantial progress. Some entities in these sectors appear to implement energy improvements even when not justified by typical cost/benefit analysis. Reviewing these missions and actions yields nine recommendations to strengthen and expand the impact of these sectors in driving greater energy efficiency.

The Home Star Energy Retrofit Act of 2010 (H.R. 5019)

Fri, 20 Apr 2012 09:13:36 PDT

Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rules Final Rule (75 FR 31514-01)

Fri, 20 Apr 2012 09:13:35 PDT

Stop the Beach Renourishment, Inc. v. Fla. Dept. of Envt'l Prot., 130 S. Ct. 2592 (2010).

Fri, 20 Apr 2012 09:13:34 PDT

The Improbability of Meaningful Climate Change Regulation: A Constructivist Understanding of the Global Commons and the Need for U.S. Leadership

Stacey Valentine — Fri, 20 Apr 2012 09:13:33 PDT

Climate change is a topic that permeates today’s scientific, political, and social discourse. It is a term that is both widely known and hotly debated across the country and across the globe. While an ever-increasing majority of the scientific and political realms has come to the conclusion that meaningful climate change regulation is necessary to prevent negative repercussions across the globe, there is little consensus on what that regulation should look like or how to bring it about. The nature of greenhouse gases, or GHGs, makes international cooperation a must if the world hopes to prevent and avoid the experts’ predictions of widespread negative environmental effects. Because each state only incurs a fraction of the total cost of its own emissions, as GHGs act on a global rather than regional scale, the emission of GHGs has created a tragedy of the commons: each state has an incentive to overuse, even though the optimal solution is for each and every state to limit its emissions. States acting in their own best interests will therefore continue to emit GHGs unless they can be sure that all other states will agree to and adhere to meaningful regulation. In the abstract, this solution seems simple enough: in order to prevent the negative effects associated with climate change, all states must agree to limit emissions and each state must be assured that all other states will not defect. However, on the international level where each state is sovereign, there is no enforcement mechanism to guarantee that states refrain from defecting. Therefore, in order for GHG regulation to succeed, there must be some mechanism by which the incentive to defect is replaced by an incentive to cooperate. In order to determine what type of mechanism is most appropriate for the regulation of climate change, one must examine the international system to understand how and why states act as they do. While it is generally assumed that states act in their own best interests, many theorists believe that these interests are shaped and informed by social and cultural norms. According to this understanding, it is possible to influence state behavior by changing the social and cultural norms of international society. As applied to the issue at hand, this means that the incentive to defect might be transformed into an incentive to cooperate if the social and cultural rules require states to cooperate when it comes to GHG emissions. Scientists predict that time is running out for meaningful regulation, and that absent some drastic change GHG emissions will create a negative feedback loop in which the negative effects of climate change will become unstoppable. If the world hopes to change this outcome, one or more states must adopt meaningful climate change regulation and hope that in so doing they will be able to affect the social and cultural norms of international society, thereby incentivizing states to cooperate rather than defect on GHG emission regulation. This Note suggests that the optimal state to take this leadership role is the United States. Still, even if the U.S. were to take this role beginning tomorrow, its chances of success remain dismal. Essentially, it must race against the clock to change the norms of international society, while incurring the costs of GHG regulation, and hope that such actions will lead to international cooperation. While the U.S. may determine that this slight chance of success is not worth the cost, absent the strong leadership of one or more countries actively advocating for all states to adopt GHG emissions regulation, meaningful climate change regulation is a hopeless endeavor.

Alabama v. North Carolina, 130 S. Ct. 2295 (2010).

Fri, 20 Apr 2012 09:13:33 PDT

Gas Flaring in Nigeria‘s Niger Delta: Failed Promises and Reviving Community Voices

Eferiekose Ukala — Fri, 20 Apr 2012 09:13:32 PDT

This Note examines the use of litigation to stop gas flaring in Nigeria’s Niger Delta, and proposes an alternative solution to the ongoing gas flaring in the Niger Delta region. In exploring an alternative solution, this Note (1) details the history of gas flaring in Nigeria; (2) discusses Nigeria’s gas-flaring legislation and its implementation; (3) analyzes the impact that landmark gas flaring cases have had on the stoppage of gas flaring; and (4) details how litigation has been used as a tool to combat gas flaring, juxtaposing the concept of the rule of law. This Note concludes by suggesting that other solutions should be explored in combating the gas flaring problem in Nigeria’s Niger Delta.

The Development of Environmental Governance Regimes: a Chinese-inspired Reconstruction

Roda Mushkat — Fri, 20 Apr 2012 09:13:31 PDT

The challenge of protecting the biosphere has both salient academic and policy dimensions. On the academic side, persistent efforts have been made in the field of socio-legal studies to enhance the understanding of the complex processes involved, in the domestic arena and on the international front, in the formation and transformation of the elaborate institutional arrangements designed to contribute to this goal. The scholars engaged in those efforts have pursued divergent paths, but one school of thought has moved decisively to the forefront. China’s experience does not cast doubt on its relevance, or even prominence, yet it suggests that multi-pronged research strategies may prove more effective.

Using The Federal Communication Commission’s Tower Construction Notification System As A Model For Siting Nuclear Waste On Native American Land

Casey Zivin — Fri, 20 Apr 2012 09:13:31 PDT

Since the advent of nuclear power in the United States in the mid-20th century, the federal government has struggled to find a suitable location to store the hazardous waste associated with nuclear power generation. In 1991, in an attempt to solve the problem of storing nuclear waste, the federal government created grant programs which offered funding to states and Native American tribes who volunteered to store nuclear waste on their lands. One tribe in particular, the Skull Valley Goshute of Utah, viewed storing nuclear waste as an opportunity to infuse their reservation with monies. Further, because tribes enjoy sovereign status in the United States, the Goshute believed their application could overcome state and federal opposition. However, the Goshute’s application to store nuclear waste on their reservation was denied by the federal government which used its powers under the Federal Trust Doctrine to rule that storing nuclear waste on the Goshute reservation would adversely affect the health and well-bring of the Goshute tribe. This Note explores the conflict between the Federal Trust Doctrine and tribal sovereignty and how the Federal Communication Commission (FCC) handled this conflict in the siting of cellular towers on Native American land. Further, a proposal for a nuclear waste facility siting system based on the FCC’s Cellular Tower Construction Notification System is presented as a solution to the United States’ nuclear waste storage problem. This new siting system would allow tribes to enter in to lucrative contracts to store nuclear waste on their land while allowing the tribes to maintain their full sovereign rights. In order for this new siting system to work, the conflict between the Federal Trust Doctrine and tribalsovereignty must be reconciled by acknowledging that tribes have full self-determination limited only by externality moderations approved by the tribes.

Fri, 20 Apr 2012 09:13:30 PDT

The Clean Energy Jobs and Oil Company Accountability Act of 2010 (S. 3663)

Thu, 19 Apr 2012 04:39:44 PDT

Levin v. Commerce Energy, Inc., 130 S. Ct. 2323 (2010)

Thu, 19 Apr 2012 04:39:43 PDT

Washington and Lee Journal of Energy, Climate, and the Environment

The New Nuclear Power Generation Licensing Scheme in Its Defining Moment: A Regulatory Vessel Equipped to Support a Thriving Industry or Drifting Towards Stormy Waters Capable of Running the Nuclear Revival Aground?

The Regulation of Mining and Mining Waste in the European Union

Lessons Unlearned: The Legal and Policy Legacy of the BP Deepwater Horizon Spill

Table of Contents

Chevron, Greenwashing, and the Myth of “Green Oil Companies”

Assessing Moral Claims in International Climate Change Negotiations

Integrating Community Knowledge into Environmental and Natural Resource Decision-Making: Notes from Alaska and Around the World

Table of Contents

Energy Efficiency as Fundamental to the Missions of U.S. Religious Congregations, Health Care Providers and Schools

The Home Star Energy Retrofit Act of 2010 (H.R. 5019)

Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rules Final Rule (75 FR 31514-01)

Stop the Beach Renourishment, Inc. v. Fla. Dept. of Envt'l Prot., 130 S. Ct. 2592 (2010).

The Improbability of Meaningful Climate Change Regulation: A Constructivist Understanding of the Global Commons and the Need for U.S. Leadership

Alabama v. North Carolina, 130 S. Ct. 2295 (2010).

Gas Flaring in Nigeria‘s Niger Delta: Failed Promises and Reviving Community Voices

The Development of Environmental Governance Regimes: a Chinese-inspired Reconstruction

Using The Federal Communication Commission’s Tower Construction Notification System As A Model For Siting Nuclear Waste On Native American Land

Table of Contents

The Clean Energy Jobs and Oil Company Accountability Act of 2010 (S. 3663)

Levin v. Commerce Energy, Inc., 130 S. Ct. 2323 (2010)