Ecology Law Currents

Conduit to Tribal and Environmental Justice? Unpacking Washington v. United States

Mike Pease* and Christina White**

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Introduction

Popularly referred to by the general public in Washington State as “the culvert case,” Washington v. United States[1] (“Washington V”) has ramifications beyond the removal of barrier culverts[2] precluding safe fish passage. This case brought together several lingering and hotly contested legal issues in the Pacific Northwest: the conflicts between federally mandated construction designs and Washington State’s infrastructure and the scope of tribal rights under the Stevens Treaties. Affirming the Ninth Circuit decision, the Supreme Court correctly protected tribal Treaty rights by requiring Washington to replace state-owned, high-priority barrier culverts. Though this decision can also be seen as a victory for salmon populations and tribal rights, arguably this decision could have broader impacts for the legality of dams precluding safe fish passage.

I. Background

A. Stevens Treaties

In 1854, Washington Territorial Governor Isaac I. Stevens entered into a series of treaties, now known as the Stevens Treaties.[3] Though a full analysis of the Stevens Treaties is beyond the scope of this article,[4] a contentious clause across the Treaties’ is the one reserving the Tribes’ right to off-reservation fishing.[5] This clause, which is essentially the same language used in each treaty,[6] reads:

The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands: Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.[7]

B. Origins of Washington V

Following the signing of the Stevens Treaties, the Dawes Act[8] was passed in 1887, coercing more settlers to accept land grants of appropriated Indian land in the Columbia River Gorge.[9] Concurrently, the invention of canneries as a method of preservation quickly developed the salmon exportation business into a profitable endeavor.[10] This increased the demand for salmon fisheries, and competition for prime fishing sites ensued.[11] One Indian agent for the Yakamas stated: “‘[I]nch by inch, [the Indians] have been forced back until all the best grounds have been taken up by white men, who now refuse to allow them to fish in common, as the Treaty provides.’”[12] Inevitably, tribal members were blocked from their “usual and accustomed” fishing sites.[13]

A Blooming Problem: How Florida Could Address the Causes and Effects of Red Tide

By John Niedzwiecki, Senior Editor, Georgetown Environmental Law Review

Originally published on August 29, 2018 in the Georgetown Environmental Law Review Online: https://www.law.georgetown.edu/environmental-law-review/blog/a-blooming-problem-how-florida-could-address-the-causes-and-effects-of-red-tide/

An algae bloom in the Gulf of Mexico is wreaking havoc on Florida’s economy and environment. An effective state and local response can help provide a solution.

Florida’s southwest coast, once a haven to wildlife and tourists alike, is experiencing one of the worst red tides in recent memory. Red tides, harmful algae blooms (“HABs”) which often have a red hue which affect both inland and coastal waterways, are common occurrences in Florida, but they have increased in both intensity and frequency in recent years. This blog post will discuss the problems that red tides pose to communities in Florida and the legal structures that could help provide a solution to this growing problem.

First, this blog post will discuss the background of red tides in Florida, including their historical occurrence, effect on local economies, and effect on wildlife and the environment. Second, the blog will review the natural and man-made factors that contribute to the development of red tides in Florida. Finally, I will discuss the potential legal responses to red tide. Although this blog post limits the discussion of red tides to Florida, it is important to note that red tides are not limited to Florida, and HABs occur around the world.

Red tides in Florida present a large-scale, fast-changing environmental problem. The red tide currently impacting the state is having a dramatic effect on both the state’s economy, plant life and wildlife. It is likely that, in the future, state and local governments across the country will have a larger role in finding solutions to environmental problems that are not contained to one community or state. By finding a solution to the problem of red tides in the legal system, it is possible that Floridians, and people watching in other states, can see how activism on the local level can bring about positive change that impacts individuals, businesses, and communities.

 

State and Local Control of Federal Lands: New Developments in the Transfer of Federal Lands Movement

By Martin Nie* and Patrick Kelly**

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Beginning in 2012, western state legislatures reinitiated old efforts to transfer federal lands into state ownership. What started in Utah with the Transfer of Public Lands Act quickly spread to every western state but California.[1] The Transfer of Public Lands Act called for legislation to establish actions to secure, preserve, and protect the state’s rights and benefits in the event that the federal government failed to transfer public lands to Utah.[2] But when other western states and their attorneys general conveyed skepticism about the legal arguments being made by Utah,[3] the movement pivoted to the federal arena, with a focus on a Republican-controlled White House and Congress.

The political strategy coalesced in 2017, when Representative Jason Chaffetz of Utah introduced legislation that authorized the disposal of 3.3 million acres of federal land.[4] The backlash to the “land seizure movement” was swift (e.g., #keepitpublic) and Chaffetz’s bill was widely condemned by a coalition of conservation, hunting, angling, and recreational interests.[5] The legislation was withdrawn a week after its introduction and it looked as though the transfer movement might be losing momentum given the unsuccessful attempts, at the federal and state levels, to transfer or privatize federal public lands.[6] 

But the story is far from finished and the threats to public lands are just as acute today as they were in 2012, when western states began demanding the imminent transfer of title of federal public lands to a state or introduced legislation calling for studies of a possible transfer.[7] These state-based efforts received considerable national attention.[8] But receiving less coverage, and discussed below, are a new spate of bills that do not transfer ownership of federal lands to the states or private interests, but rather give state and local governments control over federal lands and resources. In doing so, these bills radically alter the traditional paradigm of federal lands management, and the constitutional principle of federal preemption, by making federal law subservient to state authority. 

To understand how far Congress is pushing the boundaries of state power, some background in federal public lands and “cooperative federalism” is needed. This context shows that in the past, Congress fashioned a pragmatic balance between the national interest in public lands and providing state and local governments an important role to play in their administration.

Carbon Tax and Low-Income Grant Proposal to Encourage Low-Income Investment in Solar Technologies

 

By Elizabeth Doherty, 3L, Vermont Law School and Symposium Editor, Vermont Journal of Environmental Law

This post is part of the Environmental Law Review Syndicate (ELRS).

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I.  Introduction

Climate change is internationally recognized as the biggest threat facing the world today.^[1] This threat transcends politics, economics, and social views. In 2017 we saw historic flooding, hurricanes, wildfires, and now record snowfall in the southeastern United States.^[2] These and other natural disasters are exacerbated by anthropogenic climate change. While it may be too late to prevent global temperatures from rising two degrees Celsius, we must make whatever changes possible to prevent temperatures from rising even higher.

In the United States, almost one-third of total greenhouse gas (GHG) emissions come from the electricity sector alone.^[3] If we transition our electricity sector to renewable technologies, we will be able to eliminate a significant portion of our GHG contributions. Further, the transportation sector accounts for another 28% (in 2016) of U.S. GHG emissions.^[4] If we electrify the transportation sector and transition to renewable energy technologies, we will be able to eliminate more than half of our national GHG emissions. If we are to successfully combat climate change, the United States must become a global leader and make significant steps toward the transition to a clean energy economy.

The United States federal government has used the tax system to change behavior for decades and as our electricity industry introduces cleaner technologies, that system should be leveraged again to include all economic classes in the energy transition. The Energy Policy Act of 1992 created the renewable electricity production tax credit (PTC), which provides a per-kilowatt-hour credit for business investments in qualified renewable energies.^[5] Solar photovoltaic technologies were not added to this list until the American Jobs Creation Act of 2004 (AJCA).^[6]  In addition to the PTC, Congress also created the residential investment tax credit, also known as the residential energy efficient property credit, or “Section 25D credit,” which provides a 30 percent tax credit on investment for renewable energy equipment placed in service during the taxable year.^[7] These efforts, along with other federal and state initiatives, have led to dramatic increases in renewable technology deployment and integration over the past decade.^[8]

Despite the dramatic progress seen in recent years, legislatures have failed to include low-income residential consumers in the transition to clean energy production.^[9] The PTC is applicable only to businesses that produce electricity from renewable sources and the Section 25D credit is only accessible to those residential customers with enough tax appetite.^[10] This has contributed to a growing cost-shifting issue for residential solar photovoltaic investment.^[11] Cost-shifting occurs because most current state net metering policies allow residential rooftop solar customers to eliminate their electric bill altogether and avoid paying for the fixed costs associated with using the electric grid.^[12] With current ratemaking, this leaves the utility with a smaller pool of customers from whom they can recover those costs, thus raising the electric bills of non-solar customers and creating a cross-subsidy effect.^[13]

This paper explores the current status of federal incentives for residential photovoltaic investment, explains the negative externality associated with these incentives, and proposes a solution. The solution involves an environmental tax on electricity generators based on the carbon-emitting quality of the utilized resources. The revenue from the carbon tax will then be used to fund a low-income grant program for residential renewable solar photovoltaic investment.

State Clean Energy Polices at Risk: Courts Should Not Preempt Zero Emission Credits for Nuclear Plants

Ari Peskoe*

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In 2016, the Illinois Legislature and New York Public Service Commission (PSC) enacted nearly identical policies to induce economically struggling nuclear power plants to continue operating. Competing power generation companies filed suits in federal district courts, arguing that the states’ policies are preempted by the Federal Power Act (FPA) and violate the dormant Commerce Clause. Both courts dismissed all claims,[1] and the generators have appealed those decisions to the Seventh and Second Circuit Courts of Appeal, respectively.[2] Decisions are expected in the first half of 2018.

The disputes over the states’ Zero Emission Credits (ZECs) for nuclear plants are just the latest controversies about the roles of states and the federal government in overseeing the electricity industry.[3] Recent federalism cases highlight the incongruity of applying the New-Deal-era FPA to today’s dynamic and evolving industry.[4] Fossil-fuels proponents have also seized on the increasing overlap between state regulation of the generation resource mix and interstate power markets to argue that state clean energy policies overstep the limits of state authority that the dormant Commerce Clause establishes.[5]

The ZEC cases are particularly significant for delineating the boundaries of authority between state and federal regulators. States designed the policies to adhere to the limits of state authority outlined in a trio of Supreme Court energy federalism cases decided in 2015–2016. This bounty of new case law has delighted energy law scholars and inspired voluminous interpretations,[6] but only three federal courts have applied their holdings to electricity regulation cases.[7] Decisions by the Second and Seventh Circuits on ZECs could set precedent that defines the industry’s governance for decades.

These decisions may also be consequential for the future of state climate action. A broad ruling against the states could invite litigation about state renewable portfolio standards and emission allowance programs, such as the Regional Greenhouse Gas Initiative cap-and-trade program that covers power generators in nine Northeastern states. If these well-established, market-based programs are found to be incompatible with federal regulation, states might retreat to “command-and-control”-type policies that entirely ignore the interstate nature of the electric grid and today’s power markets. This result would likely leave consumers, and the environment, worse off. On the flip side, decisions upholding the ZEC policies would implicitly affirm the legality of an array of long-standing state clean energy policies that have never been challenged on preemption grounds. It would also bolster the legal defensibility of more recent policies, such as Maryland’s offshore wind credit program,[8] and could encourage states to enact new clean energy policies.

The New(Clear?) Electricity Federalism: Federal Preemption of States’ “Zero Emissions Credit” Programs

Joel B. Eisen*

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Two pending federal appellate cases involving Illinois and New York laws, Old Mill Creek v. Star and Coalition For Competitive Electricity v. Zibelman respectively,[1] involve the conflict between federal authority over the electric grid and state laws supporting nuclear power plants. The issues are nearly identical in both cases.[2] In Illinois, New York, and other states,[3] aging nuclear plants are struggling to stay in business. These plants generate electricity and sell it in regional wholesale electricity markets that grid operators known as “independent system operators” (ISOs) and “regional transmission organizations” (RTOs) administer.[4] Competition in these markets, primarily with low-priced natural gas but also with renewables, has lowered prices and left the nuclear plants short of recovering their high operating and capital costs.[5]

Concerned about this, the states are subsidizing these plants. The plaintiff-appellants in Star and Zibelman argue that the authority of the Federal Energy Regulatory Commission (FERC) over the wholesale electricity markets under the Federal Power Act (FPA) preempts these state subsidies.[6] This Article proposes and explains a test for resolving the upcoming appeals that turns on the state’s conscious disregard of FERC’s authority. If a state law explicitly and consciously aims to directly affect wholesale market prices, terms, or conditions, its subsidy program is impermissible as an intrusion on FERC’s regulatory turf. It further contends that only this test can harmonize three recent Supreme Court decisions on the intersection of state and federal jurisdiction over the electric grid, preserve valuable state policy experimentation, and set a narrowly defined preemption standard that avoids unintended consequences in future litigation. Applying the test to the state nuclear subsidies, this Article concludes that federal law preempts them and that the District Courts’ decisions to the contrary were in error.

The Electric Grid Confronts the Dormant Commerce Clause

by

Sam Kalen & Steven Weissman 

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Many modern energy dialogues gravitate toward a conversation about the present status of the jurisdictional divide between state and federal authority over the regulation of wholesale sales of energy.  A March 3, 2017 Bureau of National Affairs (BNA) article began by observing how the utility industry believes the biggest challenges for the Federal Energy Regulatory Commission (FERC) will involve “[j]urisdictional battles between state and federal control in the energy markets.” And last fall, a joint report by centers at Duke University, University of North Carolina, and Harvard observed how “[t]he line between federal and state jurisdiction over the electricity sector is shifting.  FERC once played a limited role in sector oversight, but regionalization of the electric grid and development of interstate markets for electricity, electric capacity, and transmission development have expanded its responsibilities.”  A similar theme echoed in the Obama Administration Department of Energy (DOE) Quadrennial Energy Report.

This jurisdictional conundrum primarily has played out on two fronts: first, whether state-related energy programs are preempted by the Federal Power Act (FPA), and second, whether such state programs run afoul of the dormant Commerce Clause.  As the electric grid began expanding across state boundaries in the first quarter of the twentieth century, a similar question surfaced about which entities—whether states, the federal government, or regional agencies—ought to regulate sales and transmission of electric energy.  Indeed, Justice Frankfurter and James Landis published a landmark 1925 article on the potential use of interstate compacts for promoting regional electric “superpowers,” an idea supported by such notables as Herbert Hoover.[1]  The Federal Power Commission (FPC), which at the time only enjoyed jurisdiction over hydroelectric facilities, opposed the development of such interstate compacts and instead seemingly favored expanding its own jurisdiction over interstate transactions.[2]

CONDUIT FOR PEACE IN THE MIDDLE EAST: AN ANALYSIS OF THE RED SEA–DEAD SEA WATER CONVEYANCE PROJECT

By

Sarah L. Fine

This post is part of the Environmental Law Review Syndicate (ELRS).

 

As the old saying goes, whiskey is for drinking—water is for fighting over.

I. Introduction

The mythic Dead Sea—the highly salinated, low-altitude lake of international interest and importance—is drying up.[1] Although the Jordan Rift Valley, where the Dead Sea is located, is known for frequent droughts, the decline of the Dead Sea is primarily due to human intervention—namely, the diversion of the Jordan River, the main lake source which feeds the Dead Sea,[2] to provide potable water to increasing populations.[3] A water level drop of one meter per year has led the surface area to decrease from 960 km² to 620 km² in the last fifty years.[4] Today, the rate of decline is only increasing, giving rise to “extensive environmental degradation and damage to industry and infrastructure and . . . substantial intangible impacts and costs,” with an estimated direct cost to government and industry to be “some $2.9 billion over the next 60 years.”[5]

Despite the lack of stability between the Dead Sea’s three bordering entities—the State of Israel, the Hashemite Kingdom of Jordan, and the Palestinian Authority—a series of agreements between the groups have sought to address the problem of the disappearing Dead Sea alongside the problem of access to potable water.[6] Facilitated by the World Bank Group, the Red Sea­–Dead Sea Water Conveyance Study investigated the feasibility of reversing the environmental degradation of the Dead Sea by transferring seawater from the Red Sea. By introducing desalination into the transfer process, the hope of the three parties is that the Red Sea­–Dead Sea Water Conveyance will address the environmental degradation of the Dead Sea and the lack of affordable energy and drinking water in the Jordan Rift Valley, while increasing political goodwill and cooperation between the parties.[7]

Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation Sector: A Cap-and-Invest Approach

James D. Flynn*

This post is part of the Environmental Law Review Syndicate (ELRS).

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I.      Introduction

In recent years, states in New England and the mid-Atlantic region have made significant progress in reducing climate change-inducing greenhouse gas (GHG) emissions from the electricity generation sector.[1] This has largely been the result of shifts in energy markets from coal to natural gas and renewable energy sources, and carbon pollution reduction, clean energy, and energy efficiency programs enacted at the state level.[2] The most prominent of these programs is the Regional Greenhouse Gas Initiative (RGGI), a cooperative effort among nine northeastern and mid-Atlantic states to reduce carbon dioxide (CO₂) emissions from the power sector.[3] RGGI employs a cap-and-invest approach in which the participating states set a regionally uniform, decreasing cap on CO₂ emissions from covered power plants, periodically auction off emission allowances, and invest auction proceeds in other programs including end-use energy efficiency, renewable energy, greenhouse gas abatement, and direct customer electric bill assistance.[4] One study estimates that CO₂ emissions in the RGGI region would have been approximately 24 percent higher in 2015 but for the program, which took effect in 2009.[5] At the same time, it is estimated that, through 2015, RGGI generated approximately $2.9 million in net economic benefits,[6] and that the investment of RGGI allowance auction proceeds in 2015 alone will return $2.31 billion in lifetime energy bill savings for consumers.[7]

Over approximately the same period of time, however, CO₂ emissions from the transportation sectors in RGGI states have remained relatively level or have increased. Transportation accounts for 44 percent total CO₂ emissions in the region, more than any other sector.[8] Each RGGI member state has adopted a long-term GHG reduction goal, set by statute or executive order, or in climate- or energy-related plans, “generally consistent with achieving an 80 percent reduction of GHG emissions by 2050 from 1990 levels.”[9] Most states’ goals do not include sector-specific emission targets, but because transportation is the largest source of emissions in the region, shifting to a cleaner transportation system is a “critical component of the action needed to meet economy-wide goals and to avoid further catastrophic harms of climate change.”[10] RGGI states already employ a variety of programs aimed at decarbonizing transportation,[11][N1]  but have been considering whether to employ a cap-and-invest approach similar to RGGI or California’s multi-sector cap-and-invest program, which includes the state’s transportation sector.[12]

This paper first discusses the mechanics of RGGI and California’s cap-and-invest program generally, including how auction proceeds are invested. It then discusses the potential to use a cap-and-invest approach to mitigate GHG emissions from transportation in the Northeast and mid-Atlantic and addresses two key policy considerations: the type of fuels to be covered and the point of regulation. It concludes that, if properly designed, a cap-and-invest approach could achieve significant GHG reductions from transportation in the region and generate substantial funds for other GHG mitigation and climate change adaptation initiatives.