Columbia Journal of Environmental Law

Toward a Future-Facing Climate Policy

2025-01-27T03:37:23+00:00

This Article provides a systems analysis of climate change policy that links together subsystems relating to innovation, energy economics, interest group politics, and government regulation. It is easy but misleading to equate climate policy with emissions regulation. That is too narrow a frame. We urgently need a new energy system because of climate change, but regulating carbon emissions is only one part of a bigger project. We cannot assume that as carbon emissions decline a new energy system will build itself—nor will society be willing to eliminate fossil fuels without confidence in their replacements.

An effective climate policy requires much more than simply restricting fossil fuels and hoping the market will fill the gap. The energy transition requires incentives for energy research, development, and scaling up new energy technologies. For the energy transition to happen, we also need sufficiently large-scale deployment to trigger economies of scale and learning by doing. There is much to be gained, then, from shifting the paradigm from emissions reduction to the energy transition. To make a homely analogy: The reason for a kitchen renovation may be dry rot, and the first step is ripping out rotten wood. But the point of the remodeling is putting in a new kitchen, not just getting rid of the rot.

Navigating Rough Waters After Sackett v. EPA

2025-01-27T03:44:08+00:00

The Clean Water Act is the primary federal law regulating impacts to water resources and water quality in the United States. Congress asserted the focus of the Act in the first section: to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Federal jurisdiction to implement this focus for many of the Act’s water protection programs turns on whether a waterbody is classified as a “Water of the United States” (WOTUS). The definition of WOTUS has been contested since the ink dried on the Act, with proponents of greater water protections arguing for more expansive boundaries of federal jurisdiction. Most recently, the Supreme Court re-interpreted WOTUS in Sackett v. Environmental Protection Agency (2023), in which the Court held that wetlands 300 feet from Priest Lake would no longer be considered adjacent wetlands protected as WOTUS. Upending forty-five years of agency and judicial interpretation, the Court narrowed the definition of WOTUS to only those wetlands that have a continuous surface connection to a traditionally navigable body of water, such as a river or lake. This places many wetlands and ephemeral and intermittent streams outside of federal jurisdiction, and thus, the protections of the CWA. Yet, wetlands and nonperennial streams are vital to the chemical, physical, and biological integrity of the Nation’s waters. Wetlands filter pollutants from water, retain and absorb flood waters, and provide habitats for wildlife. Ephemeral and intermittent streams are ubiquitous and important pathways that drain water and pollutants into traditional navigable waters. Removing federal protections means these areas are vulnerable to ruin by human alterations, and it increases flood risks to downstream communities.

Decreasing federal jurisdiction over the majority of wetlands and nonperennial streams across the U.S. places a greater emphasis on the role of states and tribes in water protection. Lacking a consistent federal approach results in a patchwork of protections for waters that are now considered nonfederal, even when those waters impact large regional shared waters, such as the Great Lakes, the Mississippi River, the Colorado River, and Rio Grande, to name a few. This Article starts with a grounding in the scientific literature to explore the importance and vital functions of the waters that have lost federal jurisdiction. Using that as a springboard, we explain the most important legal decisions defining WOTUS to place Sackett v. EPA in context. We then discuss the divergent responses to the loss of federal jurisdiction by surveying responses at federal, tribal, and state levels of government. We show that many tribes opposed reducing federal protections leading up to Sackett, and after the decision, at the federal and state level, the battle continues over removing versus restoring regulatory protections. We observe that even in states where reducing regulatory control is favored, agreements have been forged around non-regulatory programs that fund wetland protections. We conclude that tribes and states have the power to shape protections for these vital waters regardless of federal jurisdiction, but with no federal regulatory backstop, the integrity of the Nation’s waters is threatened by this piecemeal approach.

Resisting Static Inertia

2025-01-27T03:48:24+00:00

This Note analyzes the various approaches that United States courts have taken on the licensing authority of the Nuclear Regulatory Commission as it relates to the private temporary storage of spent nuclear fuel. It seeks to establish a sound statutory basis for the Nuclear Regulatory Commission’s (NRC’s) authority to issue such licenses under the Atomic Energy Act (AEA) by recharacterizing spent nuclear fuel as a “byproduct material” under the meaning of the Act. It then looks to the enumerated uses of byproduct material to establish that the NRC has the authority to issue licenses to the private sector to store spent nuclear fuel. Finally, it will argue that the Nuclear Waste Policy Act (NWPA) could not and should not be interpreted as restricting or superseding the NRC’s existing licensing authority under the AEA. This interpretation of the AEA and NWPA is more reflective of the statutory language and provides for a better nuclear waste policy.

State Administrative Constitutionalism and Environmental Rights

2025-01-27T03:52:42+00:00

Since New York’s Environmental Rights Amendment took effect in 2022, judges and litigants alike have understandably struggled to make sense of it. The “Green Amendment” presents unique interpretive challenges as a state constitutional positive right that is closely related to a preexisting regulatory scheme. Thus far, Green Amendment claims have been accompanied by statutory causes of action. Consequently, courts’ early interpretations of the right have, at best, entangled—and at worst, equated—the right with adherence to existing environmental laws, especially the State Environmental Quality Review Act (SEQRA). Reviewing environmental statutory and constitutional rights claims concurrently raises questions related to state constitutional interpretation, administrative agencies’ role in constitutional interpretation, and deference. This Note seeks to propose a framework for reviewing Green Amendment claims within the existing statutory context using lessons from scholarship on state constitutionalism and administrative constitutionalism. This Note ultimately concludes that democratic proportionality review is the most appropriate way to interpret the Green Amendment as a positive state constitutional right and argues that courts can conduct this proportionality analysis by merely reviewing agencies’ mitigation findings under SEQRA using a de novo standard of review. Such an approach acknowledges that administrators engage in constitutional interpretation when implementing their statutes, but it applies the appropriate standard of review to those interpretations, since courts are the final arbiters of constitutional meaning.