Editors' Summary

The debate between Justices Scalia and Breyer during oral argument in Winter v. NRDC examines whether an NEPA violation constitutes irreparable harm for the purposes of injunctive relief. Whereas Justice Scalia conflated the showing of harm required for standing with the irreparable harm element of injunctive relief, Justice Breyer argued persuasively, as he did in his First Circuit opinions, that the harm from a violation of NEPA is irreparable in itself. Although Justice Breyer's position is both correct and will eventually prevail, given the current makeup of the Court, it may be some time before it becomes law.

Offshore areas are under pressure to industrialize for renewable energy. To plan for offshore wind development, Rhode Island engaged in a marine spatial planning process that resulted in the Ocean Special Area Management Plan (O-SAMP), a regulatory invention of the Coastal Zone Management Act. Notably, the Rhode Island O-SAMP maps and plans for uses in federal waters beyond the three-mile line dividing state and fedeal jurisdiction, as well as within the state's territorial sea, posing a challenge to the boundaries of offshore federalism. Conceiving of the question of how to balance federal, state, and local interests in siting offshore renewable energy facilities as one of "federalism choice," there are sound theoretical and pragmatic rationales that weigh in favor of encouraging other states to adopt the O-SAMP model.