JournalTOCs

Washington and Lee Journal of Energy, Climate, and the Environment
Number of Followers: 1

This is an Open Access Journal

Open Access journal
ISSN (Print) 1945-7499
Published by Washington and Lee University

[3 journals]

The Shifting Use of the So-Remote-as-to-be-Negligible Standard for
Qualified Conservation Contributions
- Authors: Ashley H. Waterbury
  Abstract: Qualified conservation contributions, also known as conservation easements, have become a subject of close scrutiny under the Internal Revenue Service within the past decade. One reason for such scrutiny is that conditions are being imposed on these contributions, testing the perpetuity requirement for conservation easement deductions. In order for a condition on the donation to survive, the condition must be “so remote as to be negligible.” The judicial interpretation of the so-remote-as-to-be-negligible standard has fluctuated since its addition to the Treasury Regulations in 1939. Most recently, the Tax Court in Graev v. Commissioner, explored the meaning of the so-remote-as-to-be-negligible standard outside of the traditional grantor/grantee relationship by assessing the likelihood of IRS action. By denying the deduction in Graev, the Tax Court highlighted that a condition based on IRS action, namely the allowance of a deduction, should not be a permissible condition for qualified conservation contributions. This Note will argue that further clarification of the so-remote-as-to-be-negligible standard should be included in the Treasury Regulations. In particular, conditions based on the IRS allowance of a deduction should be explicitly barred from consideration under the so-remote-as-to-be-negligible standard.
  PubDate: Fri, 30 Oct 2015 11:56:31 PDT
Moving Military Energy “Behind the Fence:” Renewable Energy Generation
on U.S. Defense Lands
- Authors: Cameron E. Tommey
  Abstract: The United States Department of Defense stands as the world’s single largest consumer of energy—domestic consumption alone by the Department amounts to nearly one percent of the United States’ total energy consumption and nearly eighty percent of the energy consumed by the Federal Government. Although a cadre of statutes, Executive Orders, and agency priorities set high goals for the introduction of renewable energy into the Department’s portfolio, it has historically failed to meet both its target for reducing facility energy use and its target for renewables integration. This Note suggests moving the Department’s energy production “behind the fence,” fixing technology to place to increase security and reduce environmental and economic impacts. To do so, however, a mountain of challenges will have to be overcome, including federal permitting restrictions on new energy projects, high capital costs for increased generation, a number of technological challenges with emerging renewable energy sources, and the existing contracts with traditional energy producers. Ultimately, a comprehensive and expansive initiative that couples site-specific technologies with agency-wide coordination will help the Department both meet its statutorily mandated targets for energy efficiency and production and also effect positive change in the environmental impact of our nation’s single largest energy consumer.
  PubDate: Fri, 30 Oct 2015 11:56:30 PDT
Necessary Change: Re-Calculating Just Compensation for Environmental
Benefits
- Authors: Scott Salmon
  Abstract: This Note is about the recent New Jersey Supreme Court case, Borough of Harvey Cedars v. Karan, and how other courts should adopt its holding of allowing all reasonably certain and calculable benefits to be considered in determining partial takings just compensation. Furthermore, it addresses the impact that the decision will have on environmental takings and its importance to the future of both property and environmental law.
  PubDate: Fri, 30 Oct 2015 11:56:29 PDT
An Increase in Beach Reconstruction Projects May Mean a Decrease in
Property Rights: The Need for a Multi-Factor Balancing Test when
Protecting Waterfront Property
- Authors: Amy Forman
  Abstract: In recent years, many states have struggled to come up with an adequate solution to the negative effects of climate change, specifically rising sea levels and severe storms. The most common and successful method of protection, erecting barriers on the waterfront, not only raises its own environmental concerns, but also forces the government to invade on a homeowner’s property rights for the sake of protecting the beach. Recent cases such as the Borough of Harvey Cedars v. Karan, illustrate that when courts abandon traditional property rights, it becomes easier to implement protective measures and save their waterfront properties. This protection comes at a cost, however, as many of these protective methods end up causing long-term environmental harm. On the other hand, if courts choose to respect all traditional property rights, it avoids any detrimental impact those structures would have on the environment but fails to offer any protection to waterfront properties. Courts must find a way to balance both the property concerns and environmental concerns. This can be done through a multi-factor balancing test, including the following three questions: (1) are there other more environmentally friendly alternatives that can be implemented; (2) does the value of damage done to the environment outweigh the value of protecting the homeowner receives; and (3) will denial of this protective measure cause imminent, rapid, or sudden loss of property? This test will weigh the interests of both property and environmental issues to determine when it is adequate to compromise traditional property rights and which protective measures are permissible.
  PubDate: Fri, 30 Oct 2015 11:56:27 PDT
Implementation of the EU Directive on Environmental Impact Assessment in
the Czech Republic: How Long Can the Wolf Be Tricked?
- Authors: Veronika Tomoszkova
  Abstract: After the Velvet Revolution in 1989, the former Czechoslovakia experienced the most enthusiastic wave of environmental law drafting in its history. The Czech Act on Environmental Impact Assessment (“EIA Act”) was among the first new environmental statutes adopted already in 1992 with the intention to harmonize Czechoslovakian law with European Union (“EU”) law and to prevent exploitation and pollution of the environment in Czechoslovakia, which in the early 1990s counted for one of the worst in the world. The hardship of transition process that hit Czechoslovakia in 1992 caused a shift from enthusiastic pro-active environmental movement towards more pragmatic approach that there must be first the economic growth before focusing on environmental protection. Unfortunately this approach still dominates the Czech politics and adversely affects the Czech performance in meeting the obligations arising from the EU membership,namely the obligation to implement the EU environmental law.After more than twenty years of applying EIA, the Czech law is still not in compliance with the EU law. For more than ten years Czech politicians have successfully resisted the need for compliance with the EU requirements on public participation and access to justice. This active resistance is subject of relentless criticism from the environmental non-governmental organizations (“NGOs”) and lately also from the EU Commission. The Czech attitude towards its EU membership duties can be characterized by one Czech proverb that gained popularity during the Soviet rule: to trick the regime, act cunningly so as the hungry wolf fills up but the goat he wanted to eat remains unharmed. In this respect the Czechs often act as though they have fulfilled all their duties properly (so the hungry wolf filled up), but nothing has in fact changed (the goat remained whole).This article traces development of environmental impact assessment law in the Czech Republic during its preparation for the accession to the EU and then during EU membership and uses an example of environmental impact assessment law to show how the post-communist legacy lead the Czech Republic from an ambition to be a leader in environmental policymaking to a position of a laggard. It concludes that for the post-Communist countries, such as the Czech Republic, the EU membership plays an important role of a stabilizing factor and the only driving force for enhancing environmental standards
  PubDate: Fri, 30 Oct 2015 11:56:26 PDT
Rising Seas, Receding Ethics? Why Real Estate Professionals Should
Seek the Moral High Ground
- Authors: Keith W. Rizzardi
  Abstract: Despite the scientific consensus, some political leaders in the United States deny the need for policy making in response to sea level rise. Even in coastal Florida and Virginia, where communities face acute risks of flooding and economic damage, the problem has been denied. Land use development and real estate professionals, when discussing the subject, have a responsibility to do better than our political leaders. In fact, the ethical codes of the professions – law, architecture, engineering, planning, real estate, and corporate compliance – all demand honesty. Material facts must be disclosed, and professionals cannot conceal truth, particularly if it leads to fraud or misconduct. Elsewhere on Earth, ethical considerations have influenced sea level rise policy. In the Netherlands, where major cities exist below sea level, political leaders confront the risks of a tragic flood. Dutch engineers have planned and designed projects and revised safety standards related to river widening, flood management, and salt-water intrusion and freshwater supplies. The low-lying Republic of the Marshall Islands also fears the loss of lands and lifestyles. But lacking the economic resources to protect themselves, the nation submitted a resolution to the United Nations decrying the threats created by the rising seas upon human rights to life, property, culture, food,housing, health and water. While public sector representatives wrestle with decisions to adapt to, mitigate for, or retreat from sea level rise, the private sector has a role to play. Corporations, by law, have rights and privileges; with them must come corporate social responsibility. Mere compliance with law is insufficient when a company’s real estate endeavors fail to protect human rights. Ethical behavior by the real estate professions and corporations means informing the people, partnering with the public sector leaders, protecting the public interest, and ensuring a resilient community with a sustainable future.
  PubDate: Fri, 30 Oct 2015 11:56:24 PDT
The Privatization of Antarctica
- Authors: Leonid A. Krasnozhon et al.
  Abstract: The seventh continent, Antarctica, is a no man’s land in terms of economic development. This is not due to its harsh weather conditions. Parts of Alaska, Canada and Russia are almost equally inhospitable. Rather, this Article argues that Antarctica’s economic isolation is the result of political paralysis and a lack of appreciation for private property rights. This Article makes the case for adding Antarctica to the family of nations, whether as one or several countries.
  PubDate: Fri, 30 Oct 2015 11:56:22 PDT
Masthead and Front Matter
- PubDate: Fri, 30 Oct 2015 11:56:21 PDT
Dr. CARB or: How I Learned to Stop Worrying About the Feds and Love
States’ Rights
- Authors: Dan Strong
  Abstract: Climate change is one of the largest environmental problems the world is currently facing. At the forefront of the climate change issue is the problem of carbon emissions. Environmentalists were hopeful that a national regulatory structure would be created with the enactment of the Clean Air Act in the 1970s. Since its enactment, however, it is clear the Clean Air Act was not the solution to the national carbon emissions problem environmentalists were hoping for. With the federal government failing to act, states have taken it upon themselves to regulate carbon emissions. California, with its enactment of the California Low Carbon Fuel Standard, has taken important steps to reduce carbon emissions through the regulation of carbon production in the creation of alternative fuels. But regulation of an interstate problem raises certain constitutional issues, namely the dormant Commerce Clause. The dormant Commerce Clause is the inverse of the Commerce Clause found in Article I, Section 8, clause 3 of the United States Constitution, which gives Congress the power to regulate commerce among the several states. Inversely, the dormant Commerce Clause prohibits a state from regulating commerce that extends beyond its borders. The United States Ninth Circuit Court of Appeals recently held that California’s Fuel Standard did not violate the dormant Commerce Clause. This Note analyzes the California Low Carbon Fuel Standard and the ruling of the Ninth Circuit. Based on this analysis, this Note explains what will and will not work when drafting emissions regulations after the Ninth Circuit’s decision. Finally, this Note makes recommendations to state legislatures attempting to draft carbon emissions regulations. These recommendations will hopefully aid states in drafting legislation that will avoid dormant Commerce Clause violations.
  PubDate: Tue, 03 Feb 2015 11:06:21 PST
Fracking Preemption Litigation
- Authors: James K. Pickle
  Abstract: Fracking is not a new technology, but it only recently came to the forefront of energy industry news. Fracking’s recent fame has been both positive and negative. Fracking proponents have lauded the economic and environmental benefits of the process. They cite the process’ ability to extract formerly inaccessible oil and natural gas, which reduces the U.S.’s demand for foreign oil and natural gas and reduces the use of coal. In contrast, fracking opponents state fracking damages the environment by diluting drinking water with harmful chemicals, generating emissions, and creating general nuisances for communities. They believe fracking’s harmful impacts clearly outweigh any benefits that arise from the process. Instead of having a uniform regulatory scheme for this controversial topic, the federal government, state governments, and municipal governments have created a mishmash of regulations, and much consternation and litigation have arisen from conflicts between state and municipal laws. This Note will explore the litigation currently in state courts, specifically West Virginia, Pennsylvania, New York, Ohio, and Colorado, which will decide the future of fracking. This Note will also explain how the arguments in each case are essentially the same. After reviewing the pertinent litigation surrounding this issue, this Note proposes that a more centralized, comprehensive federal regime is the best regulatory option for fracking.
  PubDate: Tue, 03 Feb 2015 11:06:20 PST
Water You Waiting For? Balancing Private Rights and Public Necessity in
the South Atlantic Wetlands
- Authors: Alison Leary
  Abstract: A healthy and robust network of wetlands protects coastal communities from storm damage caused by hurricanes. Unfortunately, development pressures threaten wetlands along the South Atlantic coast, the region most susceptible to an increased risk of climate change induced hurricanes. If these wetlands are not protected from destruction, coastal communities will be left without a buffer against flooding, storm damage, and sea level rise. In addition to putting the public at large in physical danger, significant environmental justice concerns accompany the failure to protect coastal wetlands. In order to protect these ever-diminishing resources, federal and state law makers have enacted regulatory regimes that combat wetland degradation. However, these regimes are severely flawed, as they: (1) are difficult for private property owners to navigate; (2) lack inter-governmental coordination; and (3) give rise to litigable conflicts between private property owners and state and federal regulators. The 2013 Supreme Court decision Koontz v. St. John’s River Water Mgmt. Dist., which extends the essential nexus and rough proportionality requirements of Nollan v. California Coastal Commission and Dolan v. City of Tigard to monetary exactions, threatens to further undermine the efficacy of these regulatory regimes by inducing a regulatory chilling effect, Thus, this note argues that courts should extend the application of the public necessity defense to regulatory takings cases, thereby absolving the government of takings liability, where the state can show that the destruction of coastal wetlands will expose vulnerable communities to harm from hurricanes and sea level rise.
  PubDate: Tue, 03 Feb 2015 11:06:19 PST
FERC Anti-Manipulation Enforcement and the Barclays Proceeding: What
Factors Should Regulated Entities Consider before Deciding to Follow
Barclays' Path to Federal Court?
- Authors: Matthew Hale
  Abstract: Energy regulation is not a new topic, but after the Enron scandal, Congress made significant changes. The changes were embodied in the Energy Policy Act of 2005. One major change was to FERC's ability to hand down penalties for market manipulation. Recently, FERC has been aggressively enforcing its power and anticipates anti-manipulation enforcement will be a point of emphasis in the future. The first entity to challenge FERC's power in federal court is Barclays. The Barclays case, other recent enforcement actions, and the regulations FERC has promulgated provide a guide to regulated entities about how and when they should challenge FERC in federal court. The outcome of the Barclays case will have an immense impact on future FERC enforcement actions.
  PubDate: Tue, 03 Feb 2015 11:06:17 PST
The IMOs Climate Change Challenge: Application of the Principle of Common
but Differentiated Responsibilities and Respective Capabilities
- Authors: Stathis N. Palassis
  Abstract: Since 1997 the International Maritime Organization, the United Nations agency responsible for the regulation of the international shipping sector, has been developing rules for the reduction of the sector’s greenhouse gas emissions. Significant difficulties have, however, emerged in the creation of appropriate economic instruments for reducing its greenhouse gas emissions, bringing to the forefront the application of the principle of common but differentiated responsibilities and respective capabilities (“CBBDRC”). A key principle within international climate change law, CBDDRC allows developing States, least developed States and the most environmentally vulnerable to be differentially treated based on their special situation and needs. Developing States, within the International Maritime Organization, rely on this principle in questioning the appropriateness of application of uniform international shipping standards to the greenhouse economic instruments currently in development, viewing this uniformity as economically disadvantageous to them. Developed State members, on the other hand, maintain the traditional view that all of the Organization’s instruments, including those for the reduction of ship-source greenhouse gas emissions, must have uniform application to all States. This article addresses the difficulties that have arisen in creating economic instruments for the reduction of the international shipping sector’s greenhouse gas emissions and highlights the significant compatibility issues between the work of the International Maritime Organization and international climate change law. By providing a contemporary analysis of the international law principle of CBDDRC and its application to the international shipping sector it is argued that the International Maritime Organization cannot currently attain the synthesis necessary to effectively apply the CBDDRC principle. The article advocates that further work is needed in identifying the legal content of the CBDDRC principle and its constituent elements that are necessary before States can effectively negotiate the formation of a differential layer of responsibilities for developing States.
  PubDate: Tue, 03 Feb 2015 11:06:16 PST
Vulnerability and Power in the Age of the Anthropocene
- Authors: Angela P. Harris
  Abstract: Feminist legal theorist Martha Fineman has suggested that recognition of universal human “vulnerability” should be the starting point for thinking about the state’s obligations to its citizens. This Article argues that Fineman’s concept of vulnerability is valuable for situating political and legal theory within a concern for the natural world. We live in what some scientists have dubbed the Anthropocene—an age in which our collective behavior has serious implications for the flourishing of all life on earth. The concept of “ecological vulnerability” recognizes that humans are vulnerable not only because they age, become ill, and die, but because their survival depends on complex macro- and micro-ecologies—all of which are, in turn, vulnerable to harm. Ecological vulnerability can serve as an important conceptual bridge between critical legal theory and the emerging “green” legal theory, helping to close the gap between projects of social justice on one hand and environmental sustainability on the other. Misused, however, vulnerability analysis can make power relations, and therefore injustice, invisible. Legal and political theorists in search of conceptual frameworks appropriate to the Anthropocene must therefore be careful to incorporate a robust anti-subordination principle into their analyses as they adopt the language of ecological vulnerability.
  PubDate: Tue, 03 Feb 2015 11:06:15 PST
Calling Foul: Deficiencies in Approaches to Environmental Whistleblowers
and Suggested Reforms
- Authors: Emily Becker
  Abstract: Whistleblowers could facilitate the regulation of the environmental sector at little to no cost to the taxpayer. Often, potential whistleblowers have timely access to information that would enable them to avert or minimize environmental damage and to protect our communities. However, existing federal and state regulations fail to adequately protect environmental whistleblowers and to incentivize potential environmental whistleblowers. These failures unjustly penalize whistleblowers and discourage potential whistleblowers. This article uses research findings and a case study to illuminate these failings and to argue for reforms that would better protect and incentivize whistleblowers
  PubDate: Tue, 03 Feb 2015 11:06:14 PST
Billionaires, Birds, and Environmental Brawls: Reconceptualizing Energy
Easements
- Authors: Nadia B. Ahmad
  Abstract: In the substantial power outages associated with Hurricane Sandy and the 2013 Oklahoma tornadoes and Colorado floods, which left millions without power, the United States witnessed the insufficiency of its existing energy infrastructure. The lack of access to reliable energy widens the cleavage between the rich and poor, particularly in times of disaster and crisis. Policymakers and government regulators involved with long distance energy transmission projects have not adequately instituted laws and policies for existing and future energy access. This Article holds that current regulations, practices, and norms for long distance energy transmission may be doomed because of complications with right-of-way and transmission line easements unless the energy easement itself is reconceptualized. I explore how improving laws for transmission line and right-of-way easements can lead to greater eco-efficiency and access to energy. I also look at government and corporate best practices that can be utilized to facilitate energy for the greater good. This Article surveys competing community attitudes and national and regional laws and looks at ways to manage community expectations for the creation of sustainable, reliable and universal energy access. I examine sustainable energy regulations, policies, and community expectations for projects such as solar transmission lines in Colorado, Wyoming’s 1,000-turbine Chokecherry and Sierra Madre Wind Energy Project, and energy projects in Tennessee, Texas, and Saudi Arabia.
  PubDate: Tue, 03 Feb 2015 11:06:13 PST
Masthead & Front Matter
- Abstract: Masthead & Front Matter
  PubDate: Tue, 03 Feb 2015 11:06:12 PST
“To Comply or Not To Comply?” An Argument in Favor of Increasing
Investigation and Enforcement of MARPOL Annex I Violations
- Authors: Katriel Statman
  Abstract: The 1973 International Convention for the Prevention of Pollution from Ships and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) seek to protect the world’s oceans from environmental harms. Traditional maritime law, principles of international law, and difficulties in detecting violations of MARPOL 73/78 have made it difficult for nations to enforce the strict requirements regarding oil pollution under Annex I. In light of these difficulties, the United States authorities have used other means under United States law to prosecute these violations. This note argues that while the United States’ increased enforcement is controversial it is necessary in order to ensure that MARPOL 73/78 is effective and to protect the world’s oceans from environmental disaster.
  PubDate: Tue, 12 Aug 2014 07:36:37 PDT