Sessions Information

  • April 30, 2023
    9:00 am - 10:15 am
    Session Type: Works-in-Progress
    Session Capacity: N/A
    Hotel: N/A
    Room: Plaza B
    Floor: Lobby Level

    Group #1 Creating and Maintaining Structures for Environmental Protection

    Navigating Public Citizen and Restoring the Power of the National Environmental Policy Act

    Jaclyn Lopez, Stetson University School of Law

    Our nation’s bedrock environmental law, the National Environmental Policy Act, calls for the sustainable and harmonious existence between humans and their environment. But nearly 20 years ago, the Supreme Court in Public Citizen held that federal agencies do not need to analyze or disclose the indirect impacts of the projects they authorize when they are not the proximate cause of the impacts or do not have statutory authority to address the impacts. The circuit courts have become deeply divided in interpreting this precedent, perhaps because the opinion appears to undermine Congress’ intent that federal agencies use “all practicable means and measures…to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony.”

    There is a growing minority of circuits that employ an expansive interpretation of Public Citizen. The consequence is that people and natural resources in the jurisdiction of these courts may be less protected from the significant impacts of federal agency action than those in other jurisdictions. Litigators must grapple with the disparities among the jurisdictions and counsel their clients accordingly.

    My paper will examine in broad strokes how courts are interpreting Public Citizen and define the contours of circuit splits and how they can be generally characterized. I will provide an update on the status of the Council on Environmental Quality’s regulations interpreting NEPA and make recommendations for restoring meaning to the statute in light of the new regulations and emerging caselaw precedent.

    Moderator and Discussant: Elizabeth J. Hubertz, Washington University School of Law

    Who Will Own the Energy Transition?

    Peter Norman, University of Baltimore School of Law

    Accelerated by the Inflation Reduction Act, new renewable energy capacity in America is being deployed at unprecedented rates. The transition to renewable energy may finally be moving, in the words of environmentalist Bill McKibben, from “exhortation to execution.”

    If this transition continues to gain momentum, its projected geographic and economic scope will be vast. Under one scenario modeled by Princeton researchers, by 2050, wind and solar farms could cover more land than Texas, Florida, and New York State combined. Total investment in wind and solar capacity alone could reach $6.3 trillion.

    Who are the actors poised to design, control, and profit from this transformed power generation system? They are, by and large, not the investor-owned utilities and fossil fuel companies that have traditionally dominated the energy industry (and often resisted the development of renewables), but rather an ecosystem of developers, suppliers, contractors, private equity firms, and institutional tax equity investors.

    This article describes the history and current structure of the renewable energy industry. It critically examines whether this emerging industry will support or undermine goals of energy justice, energy democracy, and a just transition. The article finds that the industry lacks transparency, treats vital infrastructure as financial instruments, and focuses exclusively on maximizing returns on capital. Accordingly, the article asks whether the industry can be incentivized to support just, democratic, and egalitarian ends, as the Inflation Reduction Act presupposes, or whether it should be supplemented by or replaced with public, democratic forms of ownership and investment.

    Discussant: Laurie Hauber, University of Oregon School of Law



Session Speakers
University of Oregon School of Law
Works-in-Progress Presenter

Washington University in St. Louis School of Law
Moderator and Discussant

Stetson University College of Law
Works-in-Progress Presenter

University of Baltimore School of Law
Works-in-Progress Presenter

Session Fees

Fees information is not available at this time.