Columbia Journal of Environmental Law 2024-01-19T19:57:05+00:00 Columbia Journal of Environmental Law Open Journal Systems <div class="content"> <p>The&nbsp;<em>Columbia Journal of Environmental Law</em>&nbsp;was founded in 1972 with a grant from the Ford Foundation. The&nbsp;<em>Journal</em>&nbsp;is one of the oldest environmental law journals in the nation and is regarded as one of the preeminent environmental journals in the country. &nbsp;Our subscribers include law libraries, law firms, individuals, and federal, local, and state courts, as well as a significant international readership.</p> <p>&nbsp;</p> </div> Regional Planning for Just and Reasonable Rates 2024-01-19T19:32:38+00:00 Libby Dimenstein Burçin Ünel <p>Natural gas—a fuel used for electricity generation, heating, and transportation—plays an outsized role in the U.S. economy. Under the Natural Gas Act, the Federal Energy Regulatory Commission (FERC or the Commission) is responsible for overseeing the orderly development of interstate natural gas pipelines, which facilitate the transmission of natural gas throughout the country. Before a developer can construct or expand an interstate pipeline, it must apply to FERC for authoriza-tion; FERC can approve the pipeline only if it finds that it is required by the “public convenience and necessity.” Although FERC should consid-er a range of factors to determine whether a pipeline will serve the public interest, in practice, it looks primarily to the existence of prece-dent agreements, i.e., contracts between a developer and its customers for the purchase of pipeline capacity. If a developer can demonstrate that there is a party willing to pay to use its pipeline, FERC rarely asks questions and almost always finds “public” need. In this way, the natu-ral gas transmission network has developed through a system of ad hoc decisionmaking organized around the needs of private companies that earn a hefty return on their capital investments.</p> <p>This pipeline-by-pipeline approach to natural gas transmission build-out leads to the construction of unnecessary, underused pipe-lines, which in turn increases ratepayer costs and decreases consumer welfare. Climate change further increases the risk that pipelines will become obsolete as cities and states move toward electrification. Fur-thermore, the gas transmission planning process—or lack thereof—stands in stark contrast to electric transmission planning, an activity that FERC also regulates but that is conducted by centralized entities on a regional scale. This contrast is especially confounding consider-ing that electric transmission is regulated under the Federal Power Act, a sister law to the Natural Gas Act with similar statutory require-ments.</p> <p>Relying on economic theory, legal history, and policy analysis, we make the case for FERC’s adoption of regional gas transmission plan-ning. We begin by describing the status quo and articulating why FERC’s current process is economically inefficient. In doing so, we draw parallels between gas and electric transmission planning and de-scribe how FERC treats the two activities inconsistently. We then ex-plain why, under two provisions of the Natural Gas Act, FERC possesses both the legal authority and obligation to require regional planning. Finally, we envision how FERC might conduct gas transmission plan-ning going forward, encouraging FERC to account for increasing elec-trification efforts and to plan for gas and electric transmission in tan-dem.</p> 2024-01-19T00:00:00+00:00 Copyright (c) 2024 Libby Dimenstein, Burçin Ünel Localizing the Public Trust 2024-01-19T19:28:03+00:00 Sean Lyness <p>The public trust doctrine is the manifestation of a simple principle: certain natural resources are too important to entrust to private par-ties. Instead, those natural resources are held by the government in trust for the public. When we think of the contemporary public trust doctrine, we usually think of the doctrine as a state-level phenomenon. After all, the State is the sovereign entrusted with ownership of the public trust.</p> <p>But the doctrine also includes local governments, which play im-portant and substantive, if under-appreciated, roles. Missing from the conversation, however, is how local governments should be incorpo-rated into the doctrine. Should local governments be permitted auton-omy as co-trustees of the public trust? Do we trust local governments to safeguard public trust assets?</p> <p>This Article develops a framework for the normative relationship be-tween state and local governments in the public trust context. Doing so formally recognizes the role of local governments, thus localizing a doctrine that exists almost exclusively at the state level. This Article begins by reframing the doctrine as part of the lived experience of the public rather than merely a tool of the judiciary. Next, this Article cat-alogs the benefits of localizing the public trust doctrine, including the impacts local actors already have on the doctrine, localism’s tradition-al benefits, environmental justice, and environmental federalism.</p> <p>This Article then proposes localizing the public trust doctrine through three principles: (1) minimum state requirements; (2) increased local autonomy; and (3) shared responsibilities between local and state governments. This framework mirrors cooperative federal-ism and shares its advantages. Finally, the Article looks at local cli-mate adaptation as a case study of how states and local governments can begin localizing the public trust doctrine.</p> 2024-01-19T00:00:00+00:00 Copyright (c) 2024 Sean Lyness Protecting Protectionism in the WTO 2024-01-19T19:25:32+00:00 Abigail Pelton <p>The Inflation Reduction Act of 2022 (IRA), as part of the largest in-vestment the United States has made to mitigate climate change to date, amended the United States Internal Revenue Code to reduce the cost of shifting toward renewable energy. Specifically, the IRA expands tax credits available to taxpayers who invest in or produce clean energy and provides a new consumer tax credit for electric vehicles. However, the IRA has come under fire from U.S. trading partners because some of these tax credits contain local content requirements (LCRs)— that is, the Act requires beneficiaries to source products or materials domesti-cally in order to receive the full benefit. Several foreign governments have claimed that the IRA’s use of LCRs violates World Trade Organiza-tion (WTO) agreements to which the U.S. is a party. If another member of the WTO lodges a formal complaint with the WTO and the U.S. re-ceives an adverse ruling, the U.S. could be ordered to repeal the IRA or face sanctions, which would severely hamper U.S. and global efforts to meet emissions goals. Moreover, LCRs could be a very useful tool for countries other than the U.S. to use to facilitate the growth of prosper-ous new renewable energy industries, something essential to sustaina-bly avoiding climate catastrophe. This Note reviews the WTO rules which the IRA may violate and finds that the IRA would not pass muster under prevailing interpretations of WTO agreements. However, evi-dence in the relevant WTO agreements support an alternative that would allow the IRA to survive. This Note proposes such an interpreta-tion and argues that it would be prudent for the WTO to adopt it in light of the current climate crisis.&nbsp;</p> 2024-01-19T00:00:00+00:00 Copyright (c) 2024 Abigail Pelton