Since it was enacted in 1973, the ESA has been one of the most celebrated environmental laws, but also one of the most reviled. Industry groups argue that the consultation process frequently delays and sometimes halts much needed energy, transportation, water supply, and other projects and often dramatically increases project costs. Environmentalists disagree with this view, contending that the process actually rarely stops anything and that the FWS lacks the backbone to impose meaningful conservation requirements that would be costly or inconvenient for the project developer.

Congress enacted OPA in 1990 following the Exxon Valdez oil spill, to strengthen the federal government’s ability to prevent and respond to oil spills, to establish financial resources to aid response, and to raise standards for contingency planning. It is an area of law that is still evolving, particularly in the wake of the 2010 Deepwater Horizon spill and subsequent developments in Gulf of Mexico restoration and recovery. A number of recent cases have since dealt with issues related to the spill.

It is well-known that land use patterns can affect climate change—particularly the relation between land use development and transportation infrastructure. Yet even the most aggressive efforts to address climate change have largely ignored land use. This disconnect was noted in the Intergovernmental Panel on Climate Change’s most recent series of reports, collectively known as the Fifth Assessment Report (AR5).

Electric utilities are increasingly invoking the takings clause, general notions of fairness, and fears of a “death spiral” in their attempts to erode the efficacy of net metering policies. This Article considers each of these arguments and concludes they are best addressed through the political process, as courts applying the takings clause are ill-equipped to address the minutiae of the ratemaking process. Threats of takings litigation only serve to push risk-averse regulators to create inefficient outcomes.

The Clean Power Plan (CPP) is expected to play an important role in reducing U.S. greenhouse gas emissions. In February 2016, responding to appeals from some of the affected industries and states, the U.S. Supreme Court issued a stay suspending implementation of the CPP until after the judicial review process. Industry groups stated the CPP will pose large and “irreparable” costs to the coal sector during the period of judicial review.

There are many sites in the United States that are blighted or undeveloped because of actual or perceived environmental contamination. Often, these sites are “orphans,” without existing owners having the wherewithal to undertake responsibility for environmental remediation. Federal and state laws developed since the 1980s placed strict responsibility for remediation costs on many types of parties associated with such sites, including subsequent owners with no involvement in the acts that caused the contamination.

When the ESA was drafted, no one could have foreseen climate change, much less thought seriously about how the ESA should address species loss on a warming earth. Climate change blows up the ESA’s operative mandate for federal agencies to prevent human disturbance of especially vulnerable species. Species loss due to climate change operates on an altogether different paradigm, muddling all causal connections between human actions and harm to a particular species.

Richard Revesz’s and Jack Lienke’s new book, Struggling for Air, has attracted considerable attention: for instance, it was the subject of a symposium in this publication. I want to build on that discussion here, taking a different perspective from any expressed in the symposium.

In 2010, FWS found listing the greater sage-grouse under the ESA was “warranted but precluded” by other ESA priorities. In an effort to avoid future listing, one of the largest voluntary conservation efforts was undertaken by state and federal agencies, private landowners, industry, and environmental groups to protect grouse habitat. After a status review, in the fall of 2015 FWS determined listing the grouse was not warranted.

Under CERCLA, nonsettling parties and EPA take the position that the statute of limitations for a right of contribution can be triggered whenever the agency and a potentially responsible party sign an administrative order on consent (AOC). Although the overall costs of the settlement are not set, this view is that the statute of limitations expires three years from the signing of the order no matter how long it takes to fully comply with the order. This amounts to an AOC recipient’s “Catch-22” and is an incorrect interpretation of the statute.