Transmission and Transport of Energy in the Western U.S. and Canada: A Law and Policy Road Map

This collection of short essays arose from the inaugural meeting of the Idaho Symposium on Energy in the West, which was held in November, 2014. The topic for this first Symposium was Transmission and Transport of Energy in the Western U.S. and Canada: A Law and Policy Road Map. The essays in this collection provide a notable introduction to the major energy issues facing the West today. Topics include: building a resilient legal architecture for western energy production; natural gas flaring; transmission planning for wind energy; utilities and rooftop solar; special considerations for western states and the Clean Power Plan; the Clean Power Plan's implications for the western grid; siting renewable energy on public lands; and implications of utility reform in New York and Hawaii for the Northwest.

An Introduction to Conservation Easements in the United States: A Simple Concept and a Complicated Mosaic of Law

The idea of a conservation easement – restrictions on the development and use of land designed to protect the land’s conservation or historic values – can be relatively easily understood. More significant and more challenging is the complex body of state and federal laws that shapes the creation, funding, tax treatment, enforcement, modification, and termination of conservation easements. The explosion in the number of conservation easements over the past four decades has made them one of the most popular land protection mechanisms in the United States. The National Conservation Easement Database estimates that the total number of acres encumbered by conservation easements exceeds 40 million.Because conservation easements are both novel and ubiquitous, understanding how they actual work is essential for practicing lawyers, policymakers, land trust professionals, and students of conservation. This article provides a “quick tour” through some of the most important aspects of the developing mosaic of conservation easement law. It gives the reader a sense of the complex inter-jurisdictional dynamics that shape conservation transactions and disputes about conservation easements. Professors of property law, environmental law, tax law, and environmental studies who wish to cover conservation easements in the context of a more general course can use the article to provide their students with a broad but comprehensive overview of the relevant legal and policy issues.

A Proposed Environmental Policy for the Evaluation of State Funded Projects for use by the Utah Department of Transportation

Utah lacks a NEPA-equivalent environmental law for state funded projects. UDOT policies provide guidance on complying with NEPA but not on environmental reviews of state funded transportation projects. These projects are either not evaluated for impacts or are evaluated without a formal process, resulting in inconsistent and inadequate consideration of resources and project alternatives, with limited public involvement. This capstone provides a standard policy for UDOT. The policy incorporates elements from other state DOT polices and is based on federal NEPA, CEQ regulations, FHWA technical guidance, and existing UDOT procedures. Implementation will ensure consideration of project impacts to resources, analysis of project alternatives, encourage meaningful public involvement, and improve interagency coordination.

Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs)

The most dynamic component of the conservation movement in the United States for the past three decades has been land conservation transactions. In the United States, land conservation organizations have protected roughly 40 million acres of land through transactions. Most of these acres have been protected using conservation easements. Climate change threatens the vast conservation edifice created by land conservation transactions. The tools of land conservation transactions are, traditionally, stationary. Climate change means that the resources that land conservation transactions were intended to protect may no longer remain on the land protected. Options to purchase conservation easements (OPCEs) have long played a modest but important role in conservation law practice. In the world climate change is creating, with its substantial uncertainties and shifting windows of opportunity, OPCEs can serve more complicated and strategic purposes. The ability of OPCEs to serve important roles in protecting land in the context of uncertainty would be significantly increased if state legislatures amend current conservation easement statutes to (1) specifically recognize OPCEs, (2) immunize OPCEs from a range of potential common law challenges, (3) guarantee the durability and transferability of OPCEs, and (4) integrate OPCEs into the burgeoning body of conservation easement law. These statutory amendments would do for OPCEs what conservation easement statutes have done for conservation easements: transform them into an essential multi-purpose tool for conservation in a changing world.

Public Lawyers and Marijuana Regulation

Although 23 states and the District of Columbia have now legalized marijuana for medical purposes, marijuana remains a prohibited substance under federal law. Because the production, sale, possession and use of marijuana remain illegal, there is a risk of prosecution under federal laws. Furthermore, those who help marijuana users and providers put themselves at risk — federal law punishes not only those who violate drug laws but also those who assist or conspire with them to do so. In the case of lawyers representing marijuana users and businesspeople, this means not only the real (though remote) risk of criminal prosecution but also the more immediate risk of professional discipline. Elsewhere, we wrote about the difficult place in which lawyers find themselves when representing marijuana clients. We argued that while both the criminal law and the rules of professional conduct rightly require legal obedience from lawyers, other countervailing factors must be considered when evaluating lawyers’ representation of marijuana clients. In particular, we asserted that considerations of equity and access to justice weigh dispositively in favor of protecting lawyers who endeavor to help their clients comply with state marijuana laws, and we suggested means of interpreting relevant criminal law provisions and rules of professional conduct to achieve this result. This article builds on that analysis, taking on the particular issue of the public lawyer’s’ role in marijuana regulation. For government lawyers, the key issues in exercising discretion in the context of marijuana are not clients’ access to the law and equality but rather determining the clients’ wishes and serving them diligently and ethically. Lawyers representing state agencies, legislatures and the executive branch of government draft and interpret the rules and regulations regarding marijuana. Lawyers for federal, state and local governments then interpret those rules to determine the obligations and responsibilities of those they represent and to help their clients meet those obligations and carry out their required tasks. Both state and federal prosecutors are charged with determining what conduct remains illegal under the new rules and, perhaps more importantly, with exercising discretion regarding whom to prosecute and to what extent. Marijuana regulation is not a niche area of government regulation; it will influence the practice of virtually every public lawyer in the years to come. Public lawyers must understand the changes in marijuana law and the implications for government clients. Given the pervasiveness of the modern regulatory state, the situation is no easier — and, in many ways, it is more complicated — for public lawyers than it is for private ones. Public lawyers face myriad practice challenges with respect to marijuana law reform, and while we do not purport to identify and resolve all of the issues that are sure to arise in this short paper, we hope that the article helps alert public lawyers to some of the risks involved in participating in marijuana regulation so that they can think carefully about their obligations when these issues arise.

The Superagency Solution

In many parts of the country, hydraulic fracturing has brought energy development onto people’s doorsteps. Efforts by local governments to employ traditional land use mechanisms to study and mitigate some of the impacts of these latest intrusions have erupted into battles over the scope of statewide agencies’ control. Forgotten in this fray are many renewable energy resources. As a general rule, they are not subject to statewide oversight, and consequently renewable energy providers must navigate the myriad of siting and permitting requirements of local jurisdictions. For several years, scholars have urged more statewide renewable energy siting procedures to level the playing field. California is the national leader in renewable energy deployment, yet its statewide energy commission does not have jurisdiction over the siting of photovoltaic solar or wind energy plants. This article explores when statewide siting is beneficial and when it may be contraindicated, making a case for consolidation of all large-scale siting under the purview of California’s “superagency,” the California Energy Commission.

Fracking/Takings

As the use of fracking has spread during the recent oil and gas boom, inevitable conflicts have arisen between industry and its neighbors, particularly as fracking has moved into densely populated urban and suburban areas. Concerned over the impacts of fracking – such as risks to health and safely, diminished property values, air and water pollution, as well as noise, traffic, and other annoyances – many people have demanded a government response. Government regulation of fracking has struggled to catch up, although in recent years many state and local governments have taken steps to reduce the impacts of fracking in their communities. This article focuses on government restrictions in New York and Colorado, two of the key battlegrounds in the fight over fracking. New York recently prohibited fracking across the entire state, after several towns had enacted their own bans. In Colorado, the people have used the ballot initiative process to enact restrictions on fracking directly. The industry has responded not only with public relations spending to improve the fracking’s damaged reputation, but also legal challenges to these efforts to rein in oil and gas development. In addition to suing local governments, often arguing they do not have authority to regulate fracking, industry threatens to bring costly takings claims for compensation due to alleged economic harms. This Article examines the numerous legal and factual issues that should make it difficult for industry to succeed on fracking/takings claims. First, regulation of fracking, even including outright bans, can almost always be defended as necessary to prevent a nuisance or other background principle of law that justifies government regulation. Even if a nuisance defense could be overcome, industry would have difficulty proving that regulation has destroyed all economic value in their property, unless courts take a narrow view of property that would highlight the arbitrary nature of the “denominator problem.” When fracking/takings claims are considered under the default balancing of the Penn Central case, takings are unlikely to be found except in rare outlier cases. Finally, because requiring governments to pay compensation in fracking/takings cases would likely create a windfall for industry, particularly if the oil and gas eventually is extracted in the future, courts should resist the temptation to rule against government restrictions to protect public health, safety, and the environment.

Marijuana Legalization in Colorado -- Lessons for Colombia

In 2012 Colorado became the first jurisdiction anywhere in the world to legalize marijuana possession and use for all adults. The regulated and taxed marijuana industry that arose in Colorado following legalization was also the first of its kind and stands a model for other states considering marijuana law reform. In this brief article I discuss the results of the Colorado experiment; I demonstrate that while Colorado’s regulatory model was largely successful, it also demonstrates the limits of generating revenue through taxing and regulating marijuana. I then discuss the implications of this conclusion for post-conflict Colombia, drawing a comparison to the situation California confronts as it considers legalizing marijuana for adult use.

The Battle of the Bulge: The Surprising Last Stand Against State Marijuana Legalization

Although marijuana possession remains a federal crime, twenty-three states now allow use of marijuana for medical purposes and four states have adopted tax-and-regulate policies permitting use and possession by those twenty-one and over. In this article, I examine recent developments regarding marijuana regulation. I show that the Obama administration, after initially sending mixed signals, has taken several steps indicating an increasingly accepting position toward marijuana law reform in states; however the current situation regarding the dual legal status of marijuana is at best an unstable equilibrium. I also focus on what might be deemed the last stand of marijuana-legalization opponents, in the form of lawsuits filed by several states, sheriffs, and private plaintiffs challenging marijuana reform in Colorado (and by extension elsewhere). This analysis offers insights for federalism scholars regarding the speed with which marijuana law reform has occurred, the positions taken by various state and federal actors, and possible collaborative federalism solutions to the current state-federal standoff.

Analysis of the Convention on International Trade in Endangered Species (CITES) and the Endangered Species Act (ESA) and Its Effects on Giant Panda Conservation

The giant panda, Ailuropoda melanoleuca is an endangered species that is protected under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Endangered Species Act (ESA). Numerous factors have led to a decline in giant panda populations in China including habitat loss from human activity, poaching, panda inbreeding and a low reproductive rate. This capstone analyzes the effects of CITES and ESA as policies for the protection of panda populations and their habitat. CITES and ESA provide some protection for panda populations in the United States. However, these policies do not address panda habitat protection in China.

Land Reform in South Africa in Light of Emerging Urbanization, Industrialization, and Globalization Trends

Black South Africans experienced centuries of mistreatment and land dispossessions, leaving their population in dire poverty and dependence. The 1994 democratization of South Africa birthed a three-fold land reform program dedicated to land restitution, land redistribution, and tenure reform. The first decade of implementation left government goals unmet. The relevance of land reform is examined given modern-day urbanization, industrialization, and globalization. This paper affirms land reform is still relevant socially and is therefore relevant politically and economically. Improvements to program implementation are suggested in the following areas: implementing agency support; rural representation; information management; land market stimulation; beneficiary support; and agrarian reform. Land reform limitations are discussed, and industrialization is briefly explored as the more likely solution to poverty issues.