Journal of Environmental Law & Litigation : Vol. 26, no. 2 (Fall 2011)
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Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 2, p. 351-366 : Beyond the Backlash: Using Performance-Based Regulations to Produce Results Through Innovation(University of Oregon School of Law, 2011) Blumenauer, EarlThe discussion of regulatory reform should be a discussion of how the federal government does business. There is a tremendous opportunity to craft better programs to create more value for the public and regulated entities, and to demonstrate the capacity of the political process to solve problems and make improvements. This Article will examine the importance of a fresh approach to the federal regulatory process. Such an approach is important because regulation goes to the very core of governance. Regulation is how things are accomplished in the United States—how resources are allocated and activities are overseen. All the major domestic issues of the day—health, energy, infrastructure, climate, and finance—have significant regulatory components. Given the pervasive impact of regulation, the goal of regulatory reform should not just be to adopt a better approach to the regulatory process, but also to form a building block of trust and value-sharing that will promote better governance through a less toxic political atmosphere. At a time when the Obama administration and Congress have gone head-to-head over the executive confirmation process, government shutdowns, and the national debt, the stakes are high.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 2, p. 509-534 : Administering America’s Offshore Oil Fields: How Fewer, Performance-Based Regulations Can Produce Better Results(University of Oregon School of Law, 2011) Orth, DerekPart I of this Comment introduces the facts behind the BP disaster and compares the legal and legislative reactions to the Exxon Valdez and the Deepwater Horizon spills. Parts II–III document the development of the 1990 Oil Pollution Act and consider the Act’s effectiveness in preventing offshore spills. In Part IV, this Comment investigates current legislative reform efforts and explores their potential for effectiveness. Part V delves into the history of the Minerals Management Service and explains how its contradictory mission and subsequent regulatory failings contributed to the Deepwater Horizon disaster. Parts VI–VIII compare and contrast prescriptive versus performance-based regulatory regimes, utilizing the British and Norwegian models as case studies. Part IX advocates for the implementation of a performance-based regulatory regime in the United States and considers the feasibility of utilizing administrative rulemaking to accomplish this goal. Generally, this Comment will touch upon how partisan legislation and overly prescriptive regulations have halted effective safety improvements and technological development in the American offshore oil industry.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 2, p. 461-492 : Righting Environmental Wrongs: Assessing the Role of Legal Systems in Redressing Environmental Grievances(University of Oregon School of Law, 2011) Gellers, JoshDuring the second half of the twentieth century, many countries fundamentally altered the way in which their legal systems addressed environmental issues. In particular, legal innovations were developed to offer citizens a means of redressing grievances against the state or private entities for violating environmental regulations. The United States began expanding access to its courts for environmental litigation through a landmark decision that broadened the concept of standing; India enlarged the field of potential claimants in environmental litigation through a landmark decision and innovative constitutional interpretation; Japan sought to provide avenues for obtaining remedies through national environmental legislation, but grievances have been more successfully redressed through major decisions that have expanded the scope of constitutionally guaranteed rights. Despite differences in governmental structure, legal doctrine, and legislation, states have undergone dramatic transformations in the way that the public interfaces with the legal system in order to right environmental wrongs.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 2, p. 367-434 : Defining Biomass as a Source of Renewable Energy: The Life Cycle Carbon Emissions of Biomass Energy and a Survey and Analysis of Biomass Definitions in States’ Renewable Portfolio Standards, Federal Law, and Proposed Legislation(University of Oregon School of Law, 2011) Zeller-Powell, Christine ElizabethElectricity generated from woody biomass material is generally considered renewable energy and carbon neutral. However, this has recently been criticized by scientists, who argue that the greenhouse gas (GHG) emission profile of bioenergy is nuanced and the carbon neutral label is inappropriate. An initial carbon debt is created when a forest is harvested and combusted for bioenergy. Because forests regrow over a period of years, life cycle analyses show that bioenergy generated from whole trees from forests may not reduce GHG emissions in the short term, as is required to combat climate change. State renewable portfolio standards and federal laws and proposed legislation designed to incentivize renewable energy typically define eligible forms of biomass that qualify for these incentives. Most of these definitions are very broad and do not account for GHG emissions from bioenergy. Federal and state laws should incorporate life cycle analyses into definitions of eligible biomass so that these laws incentivize biomass electricity that reduces GHG emissions in the next several decades.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 2, p. 435-460 : Transgenic Plants and Substantial Success(University of Oregon School of Law, 2011) Keith, MaxwellThis Article discusses the validity of issuing patents for genetically engineered (GE) traits for plants. These patent applications present the USPTO with the issue of authorizing patents that have an ability to create significant detrimental effects on the environment and uncharted risks to health. The patents allow control over enormous segments of world agriculture. Invalidity arises from the utility standard in the Patent Statute.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 2, p. 535-570 : Addressing the Regulatory Collapse Behind the Deepwater Horizon Oil Spill: Implementing a “Best Available Technology” Regulatory Regime for Deepwater Oil Exploration Safety and Cleanup Technology(University of Oregon School of Law, 2011) Bush, Brittan J.The Deepwater Horizon spill exposed a variety of regulatory failures by the federal government. After the spill, critics attacked regulators for an inadequate environmental review process under the National Environmental Policy Act (NEPA). Policymakers also attacked the Minerals Management Service’s (MMS) numerous conflicts of interest with the oil industry. This Comment, however, focuses on the federal government’s failure to implement a regulatory regime mandating adequate safety and cleanup technology in deepwater oil exploration. Ultimately, this Comment seeks to remedy this failure by proposing a regulatory regime that implements a Best Available Technology (BAT) standard for deepwater oil exploration safety and cleanup technology.Item Open Access Journal of Environmental Law & Litigation : Vol. 26, No. 2, p. 493-508 : The Prosecution of Environmental Crimes in Oregon: An Interview with Attorney General John Kroger(University of Oregon School of Law, 2011) Kroger, John; Long, GeoffreyIn an effort to learn more about Oregon’s prosecution of environmental crimes, Journal of Environmental Law and Litigation (JELL) articles editor Geoffrey Long sat down with Attorney General John Kroger. AG Kroger has made protection of the environment one of the Department of Justice’s (DOJ) primary goals. The DOJ investigates and prosecutes environmental crimes, ensures the proper cleanup and containment of hazardous and nuclear waste, protects roadless wilderness areas, and fights to protect endangered species and important waterways. The following is a transcript of the interview from June 30, 2011.