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