UCLA Journal of Environmental Law and Policy

This Article compares the pattern of fundamental change, legal and regulatory response, and judicial adaptation underlying the electricity sector’s twentieth century beginnings to its current and ongoing rapid transition.  This comparison is then used as a basis to examine and contextualize the collaborative federalism jurisdictional framework that the Supreme Court employs when adjudicating modern-day jurisdictional disputes in the sector.

The early 1900s saw a period of rapid industry expansion, with the electricity sector progressing from small intrastate utilities to a sprawling interstate grid.  The expanding grid rapidly outgrew the state-led regulatory framework that had organically developed.  In turn, Congress responded by passing the Federal Power Act to fill what is now known as the Attleboro gap.  Courts in turn needed to resolve consequent jurisdictional tensions that arose under the new federal and state balance of authority.  The courts employed a bright-line jurisdictional framework that divided authority on the basis of location, adjudicating disputes by determining where the contested action took place.  This line-drawing split federal authority on one side of the juridical line—such as wholesale sales and interstate activities—and state authority on the other, such as retail sales and intrastate activities.

Just as the interstate expansion of the grid disrupted industry and regulatory structure in the 1900s, modern rapid change is once again creating new benefits and interests through foundational sector disruption.  This disruption has similarly placed pressure upon the electricity sector and its regulation.  This Article analyzes three foundational changes to the electricity sector that are spurring energy transition and grid modernization: opening the industry to competitive market forces; technological advances making a multidirectional grid possible; and evolving state policy preferences and priorities that seek to combat climate change.

The foundational change underway in the electricity sector has spurred a legal and regulatory response in order to create new connections between longstanding statutory mandate and sector change.  Congress, the Federal Energy Regulatory Commission (FERC), and states have responded with laws and regulations that acknowledge a sector that now resists simple, bright-line jurisdictional division.  These responses have invited increasingly frequent court review.  In adjudicating disputes in the electricity sector, the courts have turned to and fully embraced a functionalist, ‘collaborative federalism’ jurisdictional framework.  This jurisdictional framework considers an issue’s intent, target, and effect rather than an issue’s location.  It best enables courts to adjudicate disputes in the context of changes occurring within the modern electricity sector.

As cities continue to expand, the issues of flood control and urban water quality have become major modern sustainability challenges. Green infrastructure—the use of nature-based solutions to target, treat, and store stormwater at its source—has emerged as a possible solution. While green infrastructure does offer multiple benefits for urban users, its performance is also highly variable. This Article addresses a key gap in existing literature by explicitly addressing how uncertainty in environmental and anthropogenic factors affects green infrastructure performance and integration within the Clean Water Act’s municipal separate storm sewer (MS4) regulatory program.

California’s cap-and-trade system is a vital laboratory for testing the effectiveness of this market-driven approach in meeting greenhouse gas emission reduction goals and the use of forestry-based carbon offsets within these systems generally. Based on this experience, this Article explores one of the primary challenges, layering offsets with working forest conservation easements, which currently limits opportunities to effectively use these tools in concert. Ultimately, this market may need to foster and rely on natural linkages with working forest conservation easements to develop these offsets and to better ensure that the critical societal objectives of these projects are being met.

The Arctic Outer Continental Shelf is the next great legal battleground over oil and gas resources, environmental protection, and environmental justice.  The Arctic is home to an array of sensitive ecological resources and a large Native Alaskan population that relies heavily on the natural environment for food and supplies.  The Arctic Ocean also holds a vast amount of untapped oil and gas resources that had previously been largely inaccessible because of harsh climatic conditions and withdrawals of large swaths of the Shelf by Congress and multiple presidents.  However, climate change is melting Arctic sea ice and opening up previously inaccessible areas.  In addition, President Trump is pushing to expand oil and gas development everywhere, including the Arctic.  If President Trump’s plans prevail against the many legal challenges seeking to protect the Arctic, Native Alaskans will face a multitude of threats to their health, safety, and way of life.

Scholars, journalists, and environmental groups have already illuminated the threats of oil spills and climate change.  This Comment focuses on a less discussed impact of offshore oil and gas development: air pollution and its effects on Native Alaskans.  Onshore oil and gas development has already been polluting the air of Alaskan communities, causing increases in respiratory illnesses and other health problems, and leading to climate change, which is disrupting the natural environment upon which Native Alaskans depend for food and supplies.  A new era of offshore development would amplify these problems and create new and unique challenges that disproportionately burden Native Alaskan communities.

This Comment makes two novel contributions.  First, it illuminates the erratic history and disjointed nature of air quality regulation on the Outer Continental Shelf.  Second, this Comment highlights how the federal government’s current regulatory structure for offshore air emissions uniquely fails Native Alaskans who are seeking to protect their health and way of life.  In addition, this Comment makes some recommendations for statutory and regulatory changes to better address the environmental justice impacts of air pollution from offshore oil and gas development in the Arctic.