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Shaun A. Goho, Marcello Saenz & Tom Neltner, Rates Could Fund Lead Pipe Replacement in Critical States: Laws in States with the Most Lead Service Lines Support the Practice (Emmett Envtl. L. & Pol’y Clinic, Apr. 2019).
Categories:
Environmental Law
,
Government & Politics
,
Health Care
Sub-Categories:
Energy & Utilities Law
,
Water Law
,
State & Local Government
,
Health Law & Policy
Type: Other
Abstract
We reviewed state laws and policies in 13 states with the most lead service lines (LSLs), and found no explicit barriers to using rate funds to replace the lines on private property. These states have an estimated 4.2 million LSLs, more than two-thirds of the nation’s total. In these states, publicly-owned utilities can act pursuant to existing state legislation by determining that the practice serves a public purpose—protecting public health. Investor-owned utilities can do the same, but typically need approval of the state’s utility commission. While we have not reviewed the remaining states, we anticipate that the state laws and policies are similar to the ones we evaluated.
Sara Dewey, Liz Hanson, Claire Horan, Wendy Jacobs & Shaun Goho, Opportunities to Address Climate Change in the Farm Bill (Harv. L. Sch. Emmett Envt’l L. & Pol’y Clinic, Dec. 2017).
Categories:
Environmental Law
Sub-Categories:
Agriculture Law
,
Climate Change
Type: Other
Joshua Kestin & Shaun A. Goho, Detecting Lead in Household Tap Water: Sampling Procedures for Water Utilities (Emmett Envtl. L. & Pol’y Clinic, Nov. 2017).
Categories:
Environmental Law
Sub-Categories:
Water Law
,
Energy & Utilities Law
Type: Other
Drew R. Michanowicz, Jonathan J. Buonocore, Sebastian T. Rowland, Katherine E. Konschnik, Shaun A. Goho & Aaron S. Bernstein, A National Assessment of Underground Natural Gas Storage: Identifying Wells with Designs Likely Vulnerable to a Single-Point-of-Failure, 12 Envtl. Res. Letters 064004 (2017).
Categories:
Environmental Law
Sub-Categories:
Climate Change
,
Oil, Gas, & Mineral Law
Type: Article
Abstract
The leak of processed natural gas (PNG) from October 2015 to February 2016 from the Aliso Canyon storage facility, near Los Angeles, California, was the largest single accidental release of greenhouse gases in US history. The Interagency Task Force on Natural Gas Storage Safety and California regulators recently recommended operators phase out single-point-of-failure (SPF) well designs. Here, we develop a national dataset of UGS well activity in the continental US to assess regulatory data availability and uncertainty, and to assess the prevalence of certain well design deficiencies including single-point-of-failure designs. We identified 14 138 active UGS wells associated with 317 active UGS facilities in 29 states using regulatory and company data. State-level wellbore datasets contained numerous reporting inconsistencies that limited data concatenation. We identified 2715 active UGS wells across 160 facilities that, like the failed well at Aliso Canyon, predated the storage facility, and therefore were not originally designed for gas storage. The majority (88%) of these repurposed wells are located in OH, MI, PA, NY, and WV. Repurposed wells have a median age of 74 years, and the 2694 repurposed wells constructed prior to 1979 are particularly likely to exhibit design-related deficiencies. An estimated 210 active repurposed wells were constructed before 1917—before cement zonal isolation methods were utilized. These wells are located in OH, PA, NY, and WV and represent the highest priority related to potential design deficiencies that could lead to containment loss. This national baseline assessment identifies regulatory data uncertainties, highlights a potentially widespread vulnerability of the natural gas supply chain, and can aid in prioritization and oversight for high-risk wells and facilities.
Shaun A. Goho, The Legal Implications of Report Back in Household Exposure Studies, 124 Envtl. Health Persp. 1662 (2016).
Categories:
Environmental Law
,
Health Care
Sub-Categories:
Toxic Torts
,
Health Law & Policy
,
Bioethics
Type: Article
Abstract
Background: Scientists conducting research into household air or dust pollution must decide whether, when, and how to disclose to study participants their individual results. A variety of considerations factor into this decision, but one factor that has not received attention until now is the possibility that study participants’ receipt of their results might create legal duties under environmental, property, landlord–tenant, or other laws. Objectives. This article examines relevant laws and regulations and explores the scope of participants’ legal duties and the resulting legal and ethical consequences for researchers. Participants could be required in some situations to disclose the presence of certain chemicals when selling or renting their homes or to frequent visitors. The article discusses hypothetical case studies involving the reporting back of results regarding lead, polychlorinated biphenyls, and phthalates. Discussion: The potential legal duties of study participants have both ethical and legal implications for researchers. Issues include whether the legal consequences for participants should affect the decision whether to report back individual results, how researchers should disclose the legal risks to participants during the informed consent process, and whether researchers would be liable to study participants for legal or economic harm arising from reporting study results to them. The review provides recommendations for language that researchers could use in the informed consent process to disclose the legal risks. Conclusions: Researchers should still report back to participants who want to see their results, but they should disclose the risks of obtaining the information as part of the informed consent process.
Elsie M. Sunderland, Charles T. Driscoll, Jr., James K. Hammitt, Philippe Grandjean, John S. Evans, Joel D. Blum, Celia Y. Chen, David C. Evers, Daniel A. Jaffe, Robert P. Mason, Shaun Goho & Wendy Jacobs, Benefits of Regulating Hazardous Air Pollutants from Coal and Oil-Fired Utilities in the United States, 50 Envtl. Sci. & Tech. 2117 (2016).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Energy & Utilities Law
,
Natural Resources Law
,
Administrative Law & Agencies
Type: Article
Shaun A. Goho, The Unlamented Demise of the Federal Defendant Rule, 29 J. Envtl. L. & Litig. 467 (2014).
Categories:
Civil Practice & Procedure
,
Environmental Law
,
Government & Politics
Sub-Categories:
Practice & Procedure
,
Administrative Law & Agencies
,
Courts
Type: Article
Abstract
For two decades, courts in the Ninth Circuit enforced the so-called Federal Defendant Rule, under which intervention as of right was prohibited in cases brought under the National Environmental Policy Act (NEPA). The Ninth Circuit eventually abandoned this rule in its 2011 en banc decision in Wilderness Society v. U.S. Forest Service. This Article traces the history of the Federal Defendant Rule, showing how it evolved through a common law-like process from a fact specific decision in one case to a bright-line rule. It also explains how, despite the Rule’s apparent clarity, it produced confusion in the district courts of the Ninth Circuit, leading to a series of inconsistent decisions. The Article concludes that the Ninth Circuit was right to reject the Rule and uses the history of the Rule to draw more general lessons about the processes through which judicial doctrines emerge, evolve, and are abandoned.
Shaun A. Goho, Municipalities and Hydraulic Fracturing: Trends in State Preemption, Planning & Envtl. L., July 2012, at 3.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Natural Resources Law
,
Oil, Gas, & Mineral Law
,
Water Law
,
State & Local Government
,
Administrative Law & Agencies
Type: Article
Abstract
Hydraulic fracturing is a technology used to extract natural gas from shale rock formations found deep beneath the earth. It raises many public health and environmental issues of concern to municipalities and planners, both urban and rural. These issues range from potential water contamination and air pollution to noise, dust, truck traffic, and even minor earthquakes. This article identifies regulatory options that municipalities and planners may consider if hydraulic fracturing is a possibility in their community. The options range from outright bans to regulating "where" and "how" hydraulic fracturing may be carried out in the community. Such municipal regulations frequently provoke opposition from gas developers, some landowners, and state legislatures that want to promote energy development. To provide examples of how such conflicts play out in practice, this article will also highlight the responses of courts and legislatures to municipal regulations in six states.
Shaun A. Goho, NEPA and the “Beneficial Impact” EIS, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 367 (2012).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
The National Environmental Policy Act (“NEPA”) requires that federal agencies prepare an environmental impact statement (“EIS”) for any major federal action “significantly affecting the quality of the human environment.” Some courts—in dicta—and some commentators have suggested that agencies must prepare an EIS for actions that will have significant beneficial impacts on the environment but no significant adverse impacts. In a recent case, the Ninth Circuit declined to address this question, but suggested that there was a circuit split on the issue. In this Article, I argue that agencies do not need to prepare such a “Beneficial Impact” EIS. First, there is actually no circuit split on the issue. All courts that have directly addressed the question have found that there is no Beneficial Impact EIS requirement. Cases that have been cited in support of such a requirement are either distinguishable or make such statements only in dicta. Second, while the statute does not directly address this question, some regulations and guidance indicate that an EIS should not be required under these circumstances. Third, the policies underlying NEPA are in tension with a Beneficial Impact EIS requirement. Such a requirement would produce unnecessary cost and delay for environmentally beneficial projects and create perverse incentives for federal agencies without any compensating informational benefits.
Rachel Heron, Justin S. DuClos & Shaun A. Goho, The Interpretation of Surface Easements in Severance Deeds as a Limit on Hydraulic Fracturing Practices, 19 Buff. Envtl. L.J. 73 (2012).
Categories:
Property Law
,
Environmental Law
Sub-Categories:
Oil, Gas, & Mineral Law
,
Natural Resources Law
,
Energy & Utilities Law
,
Property Rights
,
Real Estate
Type: Article
Abstract
Hydraulic fracturing has driven a boom in natural gas production in the Marcellus Shale. While providing a growing source of domestic energy, this boom also raises signicant environmental concerns. Many of the impacts of hydraulic fracturing predominantly affect the inhabitants of the property where the drilling occurs. Yet when those inhabitants own only the surface estate, they have relatively little influence over whether and how the drilling occurs and will not profit from the gas extraction. This article provides a jurisdictional case study set in West Virginia to assist in understanding the nuances relevant to an interpretation of the scope of express and implied surface easements pertinent to mineral extraction. West Virginia takes a unique approach to the accommodation doctrine. It permits a surface owner to argue that certain overly burdensome practices may not have been contemplated by the parties to the original severance deed and easement, thus weakening the likelihood of their propriety and giving surface owners leverage. Depending on the type of easement at issue, the analysis can include a review of the burden to the surface, the nature of surface uses, the necessity of a practice, the compatibility of a practice, and/or contractual intention.
Shaun A. Goho, Process Oriented Review and the Original Understanding of the “Public Use” Requirement, 38 SW. L. Rev. 37 (2008).
Categories:
Constitutional Law
,
Property Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Fifth Amendment
,
Supreme Court of the United States
,
State & Local Government
,
Property Rights
,
Eminent Domain
Type: Article
Abstract
Competing visions of the original understanding of the public use requirement underlie the current debate on the appropriate interpretation of the Takings Clause. In this article, I argue that neither Justice Thomas's view that the original understanding embodied the narrow "use by the public" test, nor the view, espoused by Matthew Harrington and others, that "public use" was thought to impose no substantive limit on legislatures,accurately captures the original understanding. Instead, the founding generation understood the public use requirement to impose real, but limited, bounds on legislative power. The fundamental purpose of the public use requirement was to prevent arbitrary or discriminatory seizures of property. In particular, the archetypal constitutional violations were transfers of property "from A to B" with no justifying public purpose. In the last part, I propose that process-oriented review, while not compelled by the original understanding, is consistent with the purpose of the public use requirement.