38 Sustainable Development Law & Policy
42
42 U.S.C. § 2210-14; see Duke Power Co. v. Carolina Envtl. Study Grp.,
438 U.S. 59 (1978).
43 See Duke Power Co., 438 U.S. at 65, 67; Diane Cardwell, The Murky
Future of Nuclear Power in the United States, N.Y. Times (Feb. 18, 2017),
https://www.nytimes.com/2017/02/18/business/energy-environment/nuclear-
power-westinghouse-toshiba.html.
44
Am. NucleAr soc’Y, The Price-ANdersoN AcT, (Nov. 2005), http://www.
ans.org/pi/ps/docs/ps54-bi.pdf.
45
Taylor Meehan, Note, Lessons From the Price-Anderson Nuclear Industry
Indemnity Act for Future Clean Energy Compensatory Models, 18.1 coNN. iNs.
l. J. 339, 353 (2011); see u.s. deP’T of eNergY rePorT, supra note 11 (break-
ing down liability coverage in greater detail); see also Appropriations Watch:
FY 2018, comm. for A resPoNsible fed. budgeT (Mar. 23, 2018), http://www.
crfb.org/blogs/appropriations-watch-fy-2018 (placing federal energy funds in
the top half of largest pools); Matthew Wald, Tax on Oil May Help Pay for
Cleanup, N.Y. Times (May 1, 2010), http://www.nytimes.com/2010/05/02/
us/02liability.html (explaining that United States law requires payment of eight
cents per barrel of oil to the Oil Spill Liability Trust Fund for all oil imported or
produced; and in exchange for the payment, operators of offshore oil platforms,
among others, are limited in liability to $75 million for damages, which can be
paid by the fund, but are not indemnied from the cost of cleanup).
46
42 U.S.C. § 2210 (2012); see generally Wald, supra note 44.
47
See 42 U.S.C. § 2210.
48
u.s. NucleAr reg. comm’N, bAckgrouNder oN Three mile islANd
Accident (Feb. 2013), https://www.nrc.gov/reading-rm/doc-collections/fact-
sheets/3mile-isle.pdf (describing how the most serious accident in United States
commercial nuclear power plant operating history had little radioactive release
and no detectable health effects on plant workers or the public).
49
Nuclear Liability Insurance (Price-Anderson Act), NAT’l Ass’N of iNs.
comm’rsm (Nov. 15, 2017), http://www.naic.org/cipr_topics/topic_nuclear_lia-
bility_insurance.htm (outlining how the Three Mile Island (“TMI”) accident in
1979 demonstrated the ability of the PAA to effectively compensate the public).
50
Reitze, Jr. & Rowe, supra note 34 at 10,19090.
51
42 U.S.C. § 2210 (2012) (highlighting the insurance regime that provides
the industry a safety net but lacking in actual safety net language protecting
exposed victims and communities).
52
NucleAr iNdemNiTies 21st ed., 900 (1965), cQ AlmANAc cqal65-1258131,
http://library.cqpress.com.proxy.wcl.american.edu/cqalmanac/document.
php?id=cqal65-1258131&type=hitlist&num=2.
53
H.R. Rep. No. 100–04, pt. 3, at 13–16 1987). Contra Roberts v. Fla. Power
& Light Co., 146 F.3d 1305, 1306 (11th Cir. 1998) (explaining that Congress
passed the extension of Price-Anderson Amendments Act in 1988 to create an
exclusive federal cause of action for radiation injury).
54
See In re TMI Litigation Cases Consolidated II, 940 F.2d 832, 852 (3d Cir.
1991).
55
S. Rep. No. 85–296, at 9 (1957) (emphasis added) (“[T]here is no interfer-
ence with the state law until there is a likelihood that the damages exceed the
amount of nancial responsibility required together with the amount of the
indemnity.”).
56
H.R. Rep. No. 100–04, pt. 2, at 4 (1987).
57
42 U.S.C. § 2210(a) (2012).
58
Id. § 2014(q).
59
An ENO is “any event causing a discharge or dispersal of source . . . mate-
rial from its intended place of connement . . . [and] the Nuclear Regulatory
Commission or the Secretary of Energy determines [the event] has resulted
or will probably result in substantial damages to persons offsite or property
offsite.” Id. § 2014(j).
60
464 U.S. 238 (1984).
61
Id. at 251 (noting that the plaintiff’s claims did not meet the criteria den-
ing an ENO that were established by the Nuclear Regulatory Commission, as
plutonium processing plants were not required to register for indemnication
under Price-Anderson until 1977).
62
Id. at 240.
63
Id. at 248, 250–52.
64
§ 2210(o).
65
Id.
66
Id. § 2210(n)(2).
67
See generally Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59,
88 (1978) (afrming a strong and continuing national policy in favor of wide-
spread nuclear power development).
68
See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 252 (holding that
the Atomic Energy Act did not preempt a ten million dollar punitive award in
favor of the plaintiff); But see Northern States Power Co. v. Minnesota, 405
U.S. 1035, 1037–39 (1972) (arguing that state regulations setting strict limits on
the release of radioactive waste from nuclear power plants were preempted by
the Atomic Energy Act).
69
§ 2210(m) (permitting insurers of nuclear facilities to give immediate
nancial assistance to injured parties after an incident). See Jose, infra notes 93,
119, 179, 233 and accompanying text.
70
§ 2210(n)(1), 42 U.S.C.§ 2014(j).; see In re TMI Litigation Cases Con-
solidated II, 940 F.2d 832, 852 (3d Cir. 1991) (interpreting the Act to dene an
“extraordinary nuclear occurrence” as “any event causing a discharge or dis-
persal of source, special nuclear, or byproduct material from its intended place
of connement in amounts offsite, or causing radiation levels offsite, which the
Nuclear Regulatory Commission or the Secretary of Energy, as appropriate,
determines to be substantial, and . . . determines has resulted or will probably
result in substantial damages to persons offsite or property offsite”).
71
S. Rep. No. 899-1605, at 3209 (1966).
72
Id.
73
Id. at 3212.
74
§ 2210(n)(2).
75
El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 477 (1999) (citing S. Rep.
No., 100-218, at 488 (1988)).
76
§ 2014(w).
77
International Atomic Energy Agency, Convention on Supplementary
Compensation for Nuclear Damage, July 22, 1998, I.A.E.A. INFCIRC/567. The
CSC was implemented at a Conference at International Atomic Energy Agency
(IAEA) Headquarters in Vienna. The CSC strives to increase compensation
assigned for nuclear accidents by contracting funding partners on the basis of
their nuclear capacity. This international liability scheme strengthens relations
between signatories to other various nuclear energy safety conventions facili-
tated by the United Nations.
78
Id.; 42 U.S.C. § 17373 (outlining the purpose and cost allocations for the
Convention on Supplementary Compensation for Nuclear Damage).
79
Id.
80
Liability for Nuclear Damage, World NucleAr Ass’N (June 2017), http://
www.world-nuclear.org/information-library/safety-and-security/safety-of-
plants/liability-for-nuclear-damage.aspx.
81
International Atomic Energy Agency, Convention on Supplementary Com-
pensation for Nuclear Damage, July 22, 1998, I.A.E.A. INFCIRC/567.
82
Compare Denition of Nuclear Damage in CSC to 42 U.S.C. §2014(q)
(2012).
83
See generally Colorado-Ute Electric Ass’n v. Pub. Utilities Comm’n of
Colo., 760 P.2d 627 (Colo. 1988); W. Colo. Cong. v. Umetco Minerals Corp.,
919 P.2d 887, 890 (Colo. App. 1996) (challenging issuance of an amended
radioactive materials license); see also Reitze, Jr. & Rowe, supra note 35 at
10,186.
84
Cook v. Rockwell Int’l Corp., 273 F. Supp. 2d 1175, 1178 (D. Colo. 2003).
85
Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1133 (10th Cir. 2010).
86
See Patricia Buffer, Rocky Flats History, deP’T of eNergY (July 2003),
https://www.lm.doe.gov/WorkArea/linkit.aspx?LinkIdentier=id&ItemID=3026
(“[T]he sudden shutdown in 1989 by the FBI/EPA raid had left large quantities of
plutonium and other hazardous substances in various stages of processing and
storage. In addition, some past practices of waste disposal and material storage
posed potential environmental and health risks”).
87
Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1079, 1112 (D. Colo.
2006).
88
Id. at 1145–47.
89
Id. at 1080; see Petition for Writ of Certiorari at 5, Dow. v. Cook, 790 F.3d
1088, 1100 (10th Cir. 2015), (No. 15-791).
90
Cook, 580 F. Supp. 2d at 1078 (noting that although the site was owned by
the Department of Energy, independent contractors, Dow Chemical and Rock-
well International, actually operated it).
91
Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1132-33 (10th Cir. 2010).
eNdNoTes: A NeW NucleAr ThreAT: The TeNTh circuiT’s shockiNg misiNTerPreTATioN of PreemPTioN
demANdiNg AN AmeNdmeNT To The Price-ANdersoN AcT
continued from page 13
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39
Spring/Summer 2018
92
Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1090 (10th Cir. 2015).
93
Id.
94
See id.; Donald Jose, Comment, The Complete Federal Preemption of
Nuclear Safety Should Prevent Scientically Irrational Jury Verdicts in Radia-
tion Litigation, 26 Temp. J. Sci. Tech. & envTl. l. 1 (2007).
95
See Cook, 790 F.3d at 1090 (holding that the trial court had erred in its
instructions to the jury regarding the plaintiffs’ burden of proof under the PAA
with respect to a “nuclear incident” and the Tenth Circuit vacated the district
court’s judgment and remanded the case for further proceedings).
96
See 42 U.S.C. § 2014(q) (2012) (outlining that plaintiff who cannot dem-
onstrate bodily injury or property damage as dened by the PAA cannot meet
the prerequisites for a public liability action, and 11 thus cannot maintain any
action for a radiation-related claim).
97
Cook, 790 F.3d at 1096.
98
Id.
99
Id. at 1090-91.
100
Id. at 1099 (arguing that because the defendants did not use preemption as
an afrmative defense, the defense could not be raised on appeal).
101 See § 2014(w) (showing that the PAA is concerned with “public
liability”—i.e., harm to the offsite public from a release of radiation in excess
of federal limits. Federal or state workers’ compensation laws cover injuries
to onsite employees of licensees, and damage to onsite property is covered by
other insurance).
102
U.S. conST. art. VI, § 2.
103
Gibbons v. Ogden, 22 U.S. 1, 210, 212 (1824).
104
See U.S. conST. art. VI, § 2.
105
See William M. Bratton, Note, The Preemption Doctrine: Shifting Perspec-
tives on Federalism and the Burger Court, 75 colUm. l. Rev. 623, 623-24
(1975) (analyzing the complications of implied preemption interpretations).
106
See King, supra note 25, at 991 (analyzing how preemption can raise sig-
nicant philosophical questions related to federalism and the balance between
state and federal power. Additionally, preemption can be express or implied).
107
Preemption Under the Atomic Energy Act: Federal Courts Void California
and New York City Nuclear Power Laws, EnvTl. L. RepoRTeR, https://elr.info/
sites/default/les/articles/9.10045.htm (last visited Mar. 19, 2018) (citing Law-
rence H. Tribe, Am. conST. l. § 6-23, 377 (3d ed. 2000)).
108
See Pennsylvania v. Nelson, 350 U.S. 497, 499 (1956).
109
See Gibbons v. Ogden, 22 U.S. 1, 210, 212 (1824).
110
See Bratton, supra note 104, at 627 (referring to this process as implied
preemption: when the Court “ascertain[s] the purposes ‘necessarily implied’
in a federal statutory scheme, and strike[s] down any state law that inhibit[s]
their accomplishment”) (known as implied preemption). Known as implied
preemption.
111
See Nelson, 350 U.S. at 498–99, 504 (striking down the state law because
the enforcement of the state law diluted the effectiveness of the federal
regulation).
112
See, e.g., Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,
147–50 (1963) (holding that the factor which strongly suggests that Congress
did not mandate uniformity for each marketing order arises from the legislative
history); Campbell v. Hussey, 368 U.S. 297, 301–02 (1961) (arguing that legis-
lative history was replete with references to a need for “uniform’” or “ofcial”
standards, which could harmonize the grading and inspection of tobacco at all
markets throughout the country).
113
See, e.g., San Diego Building Trades Council v. Garmon, 359 U.S. 236,
241–44 (1959) (listing economic instruments like the strike and the picket line,
and claims between employers and labor unions as an area requiring uniformity
and noting that Congress considered centralized administration of the instru-
ments necessary to obtain uniform application of its substantive rules and to
avoid conicts likely to result from local procedures and attitudes towards labor
controversies); see also Pennsylvania v. Nelson, 350 U.S. 497, 502–04 (1956).
114
See Bratton, supra note 104, at 623 (analyzing the Supreme Court’s evolv-
ing application of federal preemption).
115
312 U.S. 52 (1941).
116
331 U.S. 218 (1947).
117
See Bratton, supra note 104, at 623–25.
118
Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
119
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
120
See generally Jose, supra note 93; Jason Steed, SUpReme coURT TRendS
in FedeRAl pReempTion (2013), originally published on Law360, Nov. 4, 2013
(since 2007, the U.S. Supreme Court held claims were preempted in eight out
of thirteen cases-and would have decided in favor of a ninth, but with Chief
Justice Roberts abstaining, the court was split 4-4).
121
See Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1098 (10th Cir. 2015)
(holding that because the defendants forfeited a defense of preemption that
it did not apply). But see Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249
(1984) (nding the punitive damages award against a nuclear power plant for
negligent contamination not impliedly preempted by federal law).
122
See Preemption Under the Atomic Energy Act: Federal Courts Void Cali-
fornia and New York City Nuclear Power Laws, 9 elR 10,045, 10,045 (1979).
123
See id.
124
Id. (recognizing a jurisdictional concern when raising a claim of injury
from a power plant).
125
447 F.2d 1143, 1154 (8th Cir. 1971), aff’d mem. 405 U.S. 1035 (1972).
126
Id. (holding the state regulation could have been invalidated under §
274(k) alone as an implicitly impermissible attempt to protect against radia-
tion hazards. The court concluded that the measure infringed upon § 274(k).
Reading the provision as reserving exclusive authority to regulate construction
and operation of nuclear plants for the federal government, the court held the
federal sphere encompasses the setting of radiation standards for such plants.
Thus, nding the state measure was implicitly preempted under both §§ 274(c)
and 274(k)).
127
659 F.2d 903 (9th Cir. 1981).
128
Id. at 907; see also Cal. Pub. Res. §§ 25000-25968 (West 1977) (showing
the law does more than implement safety by covering the prohibition of siting
new nuclear plants until the technology for reprocessing is certied by the fed-
eral government and requiring the state to perform a study on the consequences
of underground construction).
129
659 F.2d 903 at 926 (concluding that the state’s nuclear certication
requirements were preempted by the Atomic Energy Act because state laws
aimed primarily at reducing radiation hazards associated with reactor operation,
and were thus, preempted by § 274(k)).
130
See Comment, Preemption Under the Atomic Energy Act: Federal Courts
Void California and New York City Nuclear Power Laws, 9 elR 10045,
(1979).
131
42 U.S.C. § 2021 (1982).
132
Id. (showing the amendment specically allowed the AEC to transfer to
the states its regulatory authority over byproduct, source and special nuclear
materials in amounts not sufcient to form a critical mass); see also; 42 U.S.C.
§ 2014(e)(2)(aa) (1982) (dening these three types of radioactive hazards).
133
§ 2021(b)1984.
134
Id. § 2021(k).
135
Hearings on H.R. 1414 Before the Joint Comm. on Atomic Energy on
Federal-State Relationships in the Atomic Energy Field, 86th Cong. 307–08
(1959) (testimony of Robert Lowenstein, Ofce of the General Counsel, AEC).
136
See Rainer v. Union Carbide Corp., 402 F.3d 608, 616–17 (6th Cir. 2005)
(noting that by amending the Price-Anderson Act in 1988, Congress created a
cause of action arising from nuclear incidents called “public liability actions”
(“PLAs”)); Roberts v. Fla. Power & Light Co., 146 F.3d 1305, 1306 (11th Cir.
1998) (“Congress passed the Price-Anderson Amendments Act of 1988 . . .
creating an exclusive federal cause of action for radiation injury”), cert. denied,
525 U. S. 1139 (1999); O’Conner v. Commonwealth Edison Co., 13 F.3d 1090,
1113 (7th Cir. 1994) (stating that any “tension” between federal standards and
state liability standards must be resolved to avoid inconsistency with the Price
Anderson Act); In re TMI Litig. Cases Consol. II, 940 F.2d 832, 857 (3d Cir.
1991) (discussing the effect of the Price-Anderson Act on the law landscape,
especially the consistency in law with regard to a single nuclear incident).
137
See King, supra note 25, at 995.
138
See Nat. Res. Def. Council, Inc. v. U.S. Nuclear Reg. Comm’n, 685 F.2d
459, 481-84 (D.C. Cir. 1982) (highlighting the advantages of nuclear power
through a cost-benet analysis); Mike Conley & Tim Maloney, Nuclear Energy
vs. Wind and Solar, The eneRgy ReAliTy pRoJecT (Apr. 15, 2015), https://
framasphere.org/posts/689421 (acknowledging that disadvantages to nuclear
power exist, but reliability is not one of these disadvantages).
139
See Pac. Legal Found. v. State Energy Res. Conservation & Dev. Comm’n.,
659 F.2d 903, 907 (9th Cir. 1981).
140
See In re TMI Litigation, 557 F. Supp. at 108, 117.
141
See, e.g., William J. Broad, Experts Call Reactor Design “Immune” to
Disaster, n.y. TimeS (Nov. 15, 1988), http://www.nytimes.com/1988/11/15/
science/experts-call-reactor-design-immune-to-disaster.html?pagewanted=all
(detailing small modications to the new reactor and how the physical
characteristics make the machine immune to meltdown, which is the most
224813_AU_SDLP_Spg-Sum18.indd 39 10/18/18 1:53 PM
40 Sustainable Development Law & Policy
feared reactor accident. Designs rely on laws of nature rather than complicated
machinery and error-prone caretakers to prevent major accidents).
142 See In re TMI Litigation Cases Consol. II, 940 F.2d 832, 852 (3d Cir. 1991)
(explaining how the PAA provisions effectively provide care for the public fol-
lowing the Three Mile Island disaster).
143
See Bohrmann v. Me. Yankee Atomic Power Co., 926 F. Supp. 211, 216 (D.
Me. 1996) (holding that prior to the PAA, persons claiming injury from radia-
tion emitted from source, special nuclear or byproduct material could le state
law causes of action in state or federal courts and recover under any theory of
liability available in any of the fty states).
144
See generally The Price-Anderson Act – The Third Decade: A Report
to Congress, Nuclear reg. comm’N (Oct. 1983), https://www.nrc.gov/docs/
ML0727/ML072760026.pdf.
145
See Petition for Writ of Certiorari at 5, Dow v. Cook, 790 F.3d 1088 (10th
Cir. 2015), (No. 15-791).
146
See id.
147
See Cook v. Rockwell Int’l Corp., 273 F. Supp. 2d 1175, 1180 (D. Colo.
2003) (holding that Congress did not intend for federal regulatory standards to
preempt state law standards of care in PAA actions).
148
See u.S. Nuclear reg. comm’N, supra note 47; T.L. Fahring, Note,
Nuclear Uncertainty: A Look at the Uncertainties of a U.S. Nuclear Renais-
sance, 41 Tex. eNvTl. l.J. 279, 284–86 (2011).
149
See Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1098–99 (10th Cir.
2015). Contra Cotroneo v. Shaw Env’t & Infrastructure, Inc., 639 F.3d 186, 197
(5th Cir. 2011) (indicating “[r]ecovery on a state law cause of action without
a showing that a nuclear incident has occurred would circumvent the entire
scheme governing public liability actions.”).
150
Id. (quoting “Had Congress intended to limit recovery to these categories
of personal injury claims, it easily could have and probably would have plainly
and expressly said so.”).
151
See, e.g., Nieman v. NLO, Inc., 108 F.3d 1546, 1553 (6th Cir. 1997) (argu-
ing that an injured party seeking compensation for a PAA injury can le a claim
under the statute or not at all); see also Cotroneo, 639 F.3d 186, 193-200 (5th
Cir. 2011); Dumontier v. Schlumberger Tech. Corp., 543 F.3d 567, 569-571
(9th Cir. 2008); In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1009-
10 (9th Cir. 2008); Golden v. CH2M Hill Hanford Grp., Inc., 528 F.3d 681,
682-684 (9th Cir. 2008); TMI II, 940 F.2d at 855; O’Conner v. Commonwealth
Edison Co., 13 F.3d 1090, 1099 (7th Cir. 1994); Roberts v. Florida Power &
Light Co., 146 F.3d 1305, 1306 (11th Cir. 1998).
152
See Cotroneo, 639 F.3d at 186, 191-97 (relying on statutory textualism and
holding that a plaintiff who asserts any claim arising out of a “nuclear incident”
as dened in the PAA, 42 U.S.C. § 2014(q), can sue under the PAA or not
at all,” and to allow parties to recover under state law for lesser occurrences
would “circumvent the entire scheme governing public liability actions.”); see
also Roberts v. Fla. Power & Light Co., 146 F.3d 1305, 1306 (11th Cir. 1998)
(“Congress passed the Price-Anderson Amendments Act of 1988 . . . creating an
exclusive federal cause of action for radiation injury.”); O’Conner v. Common-
wealth Edison Co., 13 F.3d 1090, 1100, 1105 (7th Cir. 1994) (“[A] new federal
cause of action supplants the prior state cause of action . . . . [S]tate regulation
of nuclear safety, through either legislation or negligence actions, is preempted
by federal law.”).
153
See generally In re Hanford Nuclear Reservation Litigation, 534 F.3d 986
(9th Cir. 2008).
154
See Cook 790 F.3d, at 1098; see also In re Hanford Nuclear Reservation
Litigation, at 1009 (including the rationale that “[t]he issue before us isn’t what
happens in the event of a nuclear incident, but (again) what happens in the face
of a lesser occurrence”).
155
T.L. Fahring, Note, Nuclear Uncertainty: A Look at the Uncertainties of a
U.S. Nuclear Renaissance, 41 Tex. eNvTl. l.J. 279, 280–83 (2011).
156 Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 83 (1978).
157
William D. O’Connell, Note, Causation’s Nuclear Future: Applying
Proportional Liability to the Price-Anderson Act, 64 Duke l.J. 333, 335–38
(2014).
158 42 U.S.C. § 2210(s) (2012); see also § 2210(n)(2) (creating federal
jurisdiction and allowing removal to federal court for cases “resulting from a
nuclear incident”); § 2014(q) (dening “nuclear incident” as an injury “result-
ing from the radioactive, toxic, explosive, or other hazardous properties of
source, special, nuclear, or byproduct material”).
159 See Golden v. CH2M Hill Hanford Grp., 528 F.3d 681, 683–84 (9th Cir.
2008) (ruling that the operator was not liable under PAA for emotional injuries
and highlighting a difference between the PAA and state law coverage aims).
160
Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 64–65 (1987) (nding the
employee’s common-law contract and tort claims were preempted by ERISA
and fell within provision establishing exclusive federal cause of action).
161
Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1099 (10th Cir. 2015).
162
Id.; H.R. Rep. No. 1414, at 2 (1988).
163
§ 2014(j); § 2210(n)(2) (1992). But see Silkwood v. Kerr-McGee Corp.,
464 U.S. 238, 251 (1984) (explaining that “Congress’ decision to prohibit the
states from regulating the safety aspects of nuclear development” did nothing
to undermine the “ample evidence that Congress had no intention of forbidding
the states from [providing traditional tort] remedies”).
164
Cook, 790 F.3d at 1095 (walking the Court through the different types
of preemption, discussing how they are not met by the facts of this case as a
means to highlight Congressional intent).
165 El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 484 n.6 (1999) (quoting
Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987)) (noting that the Com-
plete Preemption doctrine, under which “the preemptive force of a statute is so
extraordinary that normal state law claims are converted into federal claims to
ensure the efcient and equitable resolution of claims).
166
Cook, 790 F.3d at 1095.
167
Id. (clarifying that an LNO is not an ENO).
168
Id. at 1090.
169
Id. (identifying alleged but unproven “nuclear incidents” as “lesser nuclear
occurrences”).
170
Id. at 1095–96.
171 Id. (showing how the Tenth Circuit looked to intent and legislative history
to discern meanings).
172
See supra notes 119–20 and accompanying text.
173
See King, supra note 25, at 989, 995 and accompanying text.
174
Cook, 790 F.3d at 1096.
175
See id. at 1093–94 (regarding the procedural mistake, the court claried
that arguments that were not asserted on appeal may not be asserted on remand)
(citing Dow Chemical Corp. v. Weevil-Cide Co., 897 F.2d 481, 486 n.4 (10th
Cir. 1990)).
176
42 U.S.C. § 2014(q) (2012) (dening a “nuclear incident” as “any occur-
rence, including an extraordinary nuclear occurrence, within the United States
causing . . . bodily injury, sickness, disease or death, or loss of or damage to
property, or loss of use of property, arising out of or resulting from the radioac-
tive, toxic, explosive or other hazardous properties of source, special nuclear, or
byproduct material . . . .”).
177 See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1133–34 (10th Cir. 2010)
(detailing the fteen-year litigation process that preceded a month long jury
trial).).
178
See id. at 1133 (discussing the $926 million-dollar award by a jury verdict
for the plaintiff, which included compensatory and punitive damages, and
prejudgment interest).
179
§ 2014(q).
180
See Jose, supra note 93, at 20 (referencing the intervention by the United
States Supreme Court should courts split on the issue of federal statutory
interpretation).
181
See El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 485 n.6 (1999) (citing
Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)).
182
29 U.S.C. § 1001; 29 U.S.C. §§ 151-169; see generally Neztsosie, 526 U.S.
at 485.
183
See id. at 477 (observing that the creation of an exclusive federal cause
of action can provide benets, such as avoiding a proliferation of suits and
conserving limited compensatory funds).
184
Id.
185 Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1094 (10th Cir. 2015).
186
Daniel Kolomitz, Note, A Nuclear Threat: Why the Price-Anderson Act
Must Be Amended Following Cook v. Rockwell, 48 ariz. ST. l.J. 853, 858
(2016).
187
Nieman v. NLO, Inc., 108 F.3d 1546, 1553 (6th Cir. 1997); O’Conner v.
Commonwealth Edison Co., 13 F.3d 1090, 1104-05 (7th Cir. 1994).
188
42 U.S.C. § 2014(hh) (2012); see also In re TMI Cases Consolidated II,
940 F.2d 832, 850–58 (3d Cir. 1991) cert. denied, 503 U.S. 906, 112, S. Ct.
1262, 117 L.Ed.2d 491 (1992) (holding that federal law trumps state law and
that the Act was constitutional); O’Conner, 13 F.3d at 1105 (nding that federal
law pre-empts state law, whether created by legislation or common law); Nie-
man, 108 F.3d at 1553 (nding that Price-Anderson act specically dictates
that that state law only applies to the extent that it coincides with federal law);
Roberts v. Fla. Power & Light, 1997 WL 382035, at *4 (S.D. Fla. June 9, 1997)
224813_AU_SDLP_Spg-Sum18.indd 40 10/18/18 1:53 PM
41
Spring/Summer 2018
(nding that federal law provides the sole measure of a defendant’s liability),
aff’d, 146 F. 3d 1305 (11th Cir. 1998), cert. denied, 525 U. S. 1139, 1140
(1999); McLandrich v. S. Cal. Edison Co., 942 F. Supp. 457, 467 (S.D. Cal.
1996) (stating that the state law only applies if it is not inconsistent with federal
law); Smith v. Gen. Elec. Co., 938 F. Supp. 70, 76 (D. Mass. 1996) (holding
that the 1988 Amendments preserve state law as long as it is not “inconsistent
with federal law”); Coley v. Commonwealth Edison Co., 768 F. Supp. 625, 629
(N.D. Ill. 1991) (holding that state law is invalid if it contradicts federal law);
Hennessy v. Commonwealth Edison Co., 764 F. Supp. 495, 503 (N.D. Ill. 1991)
(nding that the standard of care is predicated on federal law); see generally
Neztsosie, 526 U.S. at 477; TNS, Inc. v. NLRB, 296 F.3d 384, 398 (6th Cir.
2002) (“[T]he Sixth Circuit has joined with almost every other circuit in hold-
ing that the Nuclear Regulatory Commission safety regulations conclusively
establish the duty of care owed by defendants in radiation safety personal injury
cases governed by the 1998 amendments to the Price-Anderson Act.”).
189
464 U.S. 238, 249 (1984).
190
Cook v. Rockwell Int’l Corp., 580 F. Supp. 2d 1071, 1150 (D. Colo. 2006).
191
Silkwood, 464 U.S. at 256 (contending that the award is pre-empted
because it frustrates Congress’ express desire “to encourage widespread
participation in the development and utilization of atomic energy for peaceful
purposes”).
192
See King, supra note 25, at 996 and accompany text.
193
Compare Silkwood, 464 U.S. at 256 (saying that the state law governing
punitive damages for nuclear liability was not preempted by the federal law)
with Price-Anderson Amendments Act of 1998, 42 U.S.C. §§ 2014, 2210
(1988) (establishing liability for punitive injury and thus prospectively preempt-
ing Silkwood).
194 In re TMI Cases Consolidated II, 940 F.2d 832, 850–58 (3d Cir. 1991) cert.
denied, 503 U.S. 906, 112, S. Ct. 1262, 117 L.Ed.2d 491 (1992) (“[I]t is clear
that federal law governs the standard of care for tort claims arising from nuclear
accidents”), cert. denied, 516 U.S. 1154 (1996). For a detailed discussion of
the background and legislative history of Price-Anderson, see generally Duke
Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 64–69 (1978); O’Conner
v. Commonwealth Edison Co., 13 F.3d 1090, 1095, 1105 (7th Cir. 1994) (stat-
ing that any “tension” between federal standards and state liability standards
must be resolved to avoid inconsistency with the Price Anderson Act).
195
Silkwood, 464 U.S. at 239.
196
Id.
197
Id. at 258 (acknowledging that there is “tension between the conclusion
that safety regulation is the exclusive concern of the federal law and the
conclusion that a state may nevertheless award damages based on its own law
of liability,” but nding that “Congress intended to stand by both concepts and
to tolerate whatever tension there was between them”); King, supra note 25, at
995.
198
Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1092 (10th Cir. 2015).
199 Id.; see, e.g., Mauldin v. Worldcom, Inc., 263 F.3d 1205, 1211 (10th Cir.
2001).
200 See Cook v. Rockwell Int’l Corp., 618 F.3d 1127 (10th Cir. 2010) (holding
that the jury was properly instructed on the elements of a nuisance claim and no
one had ever challenged the sufciency of the evidence in the record). Contra
Dow Chem. Corp. v. Weevil-Cide Co., 897 F.2d 481, 486 n.4 (10th Cir. 1990).
201
Cook, 618 F.3d at 1143.
202
Id. at 1136.
203
Cook, 790 F.3d at 1091-95 (acknowledging the defendants mentioning of
Cotroneo v. Shaw Environment & Infrastructure, Inc. as the only helpful argu-
ment in which the court reasoned more generally that to allow parties to recover
under state law for lesser occurrences would “circumvent the entire scheme
governing public liability actions,” refuting this rationale as implied preemption
rather than complete express preemption).
204
123 S. Ct. 2374, 2376 (2003).
205
Id. at 2388.
206
See In re TMI, 67 F.3d 1119, 1125 (3rd Cir. 1995) (“Congress clearly
intended to preempt state regulation of nuclear safety standards when it enacted
Price-Anderson . . .”). But cf. American Ins. Ass’n, 123 S. Ct. at 2393, 2401
(Ginsberg, J., dissenting) (arguing Courts step out of their proper role when
they rely on no legislative or even executive text, but only on inference and
implication, to preempt state laws on foreign affairs grounds).
207 42 U.S.C. § 2014(q) (2012).
208
Id.
209
Id.
210
Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1090-95 (10th Cir. 2015)
(failing to meet the PAA standards eliminated the PAA as an option, and there-
fore, eliminated preemption considerations).
211
See id.; Meehan, supra note 44.
212 § 2014(hh); see also El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 484
(1999) (“Congress thus expressed an unmistakable preference for a federal
forum . . . .”); Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 89,
98 (1978) (“The legislative history of the liability-limitation provisions and the
accompanying compensation mechanism reects Congress’s determination that
reliance on state tort law remedies and state-court procedures was an unsatisfac-
tory approach to assuring public compensation for nuclear accidents, while at
the same time providing the necessary incentives for private development of
nuclear-produced energy.”).
213 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249 (1984) (Blackmun, J.,
dissenting).
214 Justin Gundlach, Note, What’s the Cost of a New Nuclear Power Plant?
The Answer’s Gonna Cost You: A Risk-Based Approach to Estimating the
Cost of New Nuclear Power Plants, 18 N.Y.U. ENvtl. l.J. 600, 630 (2011);
see also Ayesha Rascoe, U.S. Approves First New Nuclear Plant in a Gen-
eration, REUtERs (Feb. 9, 2012, 5:55 PM), https://www.reuters.com/article/
us-usa-nuclear-nrc/u-s-approves-rst-new-nuclear-plant-in-a-generation-idUS-
TRE8182J720120209 (noting that on February 9, 2012, the Nuclear Regulatory
Commission voted to permit construction of two nuclear reactors at the Vogtle
nuclear-power plant in Georgia, the rst new reactors in more than thirty years).
215 See U.s. NUclEaR REg. comm’N, supra note 47 (discussing the risks associ-
ated with plant construction, engineering, fuel costs, stafng, security, safety,
and decommissioning, licensing, and waste management). Another reason
the preemptive nature is essential is because radiation exposure and improper
handling of materials or waste has the same consequence despite what state
the harm occurs in..U.S. Nuclear Regulatory Comm’n, Backgrounder on the
Three Mile Island Accident (Apr. 25, 2014), http://www.nrc.gov/reading-rm/
doc-collections/fact-sheets/3mile-isle.html..U.S. Nuclear Regulatory Comm’n,
Backgrounder on the Three Mile Island Accident (Apr. 25, 2014), http://www.
nrc.gov/reading-rm/doc-collections/fact-sheets/3mile-isle.html.
216
The Price-Anderson Act—Crossing the Bridge to the Next Century: A
Report to Congress, U.S. NUclEaR REg. comm’N (Oct. 1983), https://www.nrc.
gov/docs/ML0727/ML072760026.pdf (noting innovation with reliance on the
PAA also because radiation exposure and improper handling of nuclear waste
has the same consequence in Colorado as in Florida or New York).
217 See, e.g., Fact Sheet: Obama Administration Announces Actions
to Ensure that Nuclear Energy Remains a Vibrant Component of
the United States’ Clean Energy Strategy, thE WhitE hoUsE, avail-
able at https://www.whitehouse.gov/the-press-ofce/2015/11/06/
fact-sheetobama-administration-announces-actions-ensure-nuclear-energy.
218
See Petition for Writ of Certiorari at 5, Dow. v. Cook, 790 F.3d 1088 (10th
Cir. 2015), No. 15-791); Nuclear Energy Agency-OECD, Paris Convention
on Nuclear Third Party Liability (2014), https://www.oecd-nea.org/law/paris-
convention.html.
219
Laura Rimsaite, Nuclear Insurance Pools: Does the Horizontal Coorpera-
tion Lead to the Market Foreclosure?, am. REsEaRch iNst. foR PolicY DEv.,
(Dec. 2013), http://jblenet.com/journals/jble/Vol_1_No_1_December_2013/2.
pdf.
220
A. Vinod Kumar, Resolving India’s Nuclear Liability Impasse, iNst.
foR DEf. stUD. & aNalYsEs (Dec. 6, 2014), https://idsa.in/issuebrief/
ResolvingIndiasNuclearLiabilityImpasse_kumarpatil_061214.
221
See Nuclear Power in India, WoRlD NUclEaR ass’N (Mar. 2018), available
at http://www.world-nuclear.org/information-library/country-proles/countries-
g-n/india.aspx.
222
See Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 64 (1978)
(nding that the risk of potentially vast liability discouraged the growth of a
private nuclear power industry).
223
See Cardwell, supra note 42.
224
Cook v. Rockwell Int’l Corp., 618 F.3d 1127 (10th Cir. 2010).
225
In re TMI Litigation Cases Consol., 940 F.2d 832, 854 (3d Cir. 1991)
(“After the Amendments Act, no state cause of action based upon public liabil-
ity exists. A claim growing out of any nuclear incident is compensable under
the terms of the Amendments Act or it is not compensable at all.”); Cotroneo
v. Shaw Env’t & Infrastructure, Inc., 639 F.3d 186, 192, 197 (5th Cir. 2011)
(“[A] plaintiff who asserts any claim arising out of a ‘nuclear incident’ as
dened in the PAA, 42 U.S.C. § 2014(q), can sue under the PAA or not at all,”
and to allow parties to recover under state law for lesser occurrences would
224813_AU_SDLP_Spg-Sum18.indd 41 10/18/18 1:53 PM
42 Sustainable Development Law & Policy
“circumvent the entire scheme governing public liability actions.”); Nieman
v. NLO, 108 F.3d 1546, 1553 (6th Cir. 1997) (“the state law causes of action
cannot stand as separate causes of action, . . .”); O’Conner v. Commonwealth
Edison Co., 13 F.3d 1090, 1105 (7th Cir. 1994) (“a new federal cause of action
supplants the prior state cause of action. . . . [S]tate regulation of nuclear
safety, through either legislation or negligence actions, is preempted by federal
law.”); In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1009 (9th Cir.
2008) (“[t]he PAA is the exclusive means of compensating victims for any and
all claims arising out of nuclear incidents.”); Roberts v. Fla. Power & Light Co.,
146 F.3d 1305, 1306 (11th Cir. 1998) (“Congress passed the Price–Anderson
Amendments Act of 1988 . . . creating an exclusive federal cause of action for
radiation injury”).
226
In re TMI Litig. Cases Consol. II, 940 F.2d at 852-53 (noting that
approximately every ten years since enacting Price-Anderson Act, Congress
has amended it, continually building a comprehensive federal structure that has
governed and regulated the nuclear industry).
227
O’Conner, 13 F.3d at 1100, 1105 (“Congress recognized that state law
would operate in the context of a complex federal scheme which would mold
and shape any cause of action grounded in state law and that Price-Anderson
operates within “a stringent regulatory background.”).
228
Id. at 1105 aff’d, 13 F.3d 1090 (7th Cir. 1994).
229 International Atomic Energy Agency, Convention on Supplementary
Compensation for Nuclear Damage, July 22, 1998, I.A.E.A. INFCIRC/567
(reecting key principles that nuclear liability law should contain, in the U.S.
and around the world for uniformity.
230
Kolomitz, supra note 185.
231
See Jose, supra note 93, at 9 and accompanying text.
policies-helped-south-koreas-capital-decrease-food-waste (explaining how the
polluter-pay system for food waste has actually decreased the amount of food
waste being produced and helped pay for the food recycling factories).
33
Rothman, supra note 32.
34
Id.
35
Id.
36
LC PaPer, supra note 7, at 5.
37
The 2nd 3R Int’l Scientic Conference on Material Cycles
& Waste Management, Jang-Soo Lee et al., Estimation of Green
House Gas Emission Associated with Statistics of Waste Man-
agement in Korea, (May, 2015), https://www.researchgate.net/
publication/280644261_Estimation_of_Green_House_Gas_Emission_Associ-
ated_with_Statistics_of_Waste_Management_in_Korea?enrichId=rgreq-
04fd5551ba4c67f6ca478a271a7c7295-XXX&enrichSource=Y292ZXJQY-
WdlOzI4MDY0NDI2MTtBUzoyNzI0ODQxMTcyNTAwNTlAMTQ0MT-
k3NjY4NDM4MA%3D%3D&el=1_x_2&_esc=publicationCoverPdf.
38
Howard Fischer, Forced recycling, plastic bag bans now illegal, az. DaiLy
Sun (Apr. 14, 2015), http://azdailysun.com/news/local/forced-recycling-plastic-
bag-bans-now-illegal/article_cc2abbc8-5de4-513d-bf1d-b3c4a1f2adb1.html.
39
Id.
40
Erin Schumaker, The Psychology Behind Why People Don’t Recycle, WaSh.
PoSt (Aug. 3, 2016, 8:14 AM ET), https://www.hufngtonpost.com/entry/
psychology-of-why-people-dont-recycle_us_57697a7be4b087b70be605b3.
enDnoteS: reCyCLing aS a nation
continued from page 17
33
Rosenberg, supra note 4, at 660; see aDvantageS anD ChaLLengeS of WinD
energy, supra note 22 (citing wind power as “the largest renewable generation
capacity of all renewables in the United States”); see also Juan Ramos, Wind
Energy Pros and Cons: The True Advantage of Wind Power, SCienCe trenDS
(Dec. 20, 2017), https://sciencetrends.com/wind-energy-pros-cons-true-advan-
tage-wind-power/; U.S. Wind Industry Fourth Quarter 2017 Market Report,
supra note 31, at 3 (reporting that the wind capacity within the United States
at the end of 2017 includes 13,332 Megawatts under construction and 15,336
Megawatts in more complex stages of implementation).
34
Rosenberg, supra note 4, at 660; see aDvantageS anD ChaLLengeS of WinD
energy, supra note 22 (citing wind power as a clean renewable energy source
that does not create any “atmospheric emissions that cause acid rain, smog, or
greenhouse gases”).
35
Rosenberg, supra note 4, at 662; see aDvantageS anD ChaLLengeS of WinD
energy, supra note 22 (stating wind does not emit any “particulate matter,
nitrogen oxides, and sulfur dioxide” that have shown to produce economic
disadvantages and problems related to human health).
36
Rosenberg, supra note 4, at 662.
37
Rosenberg, supra note 4, at 666; see aDvantageS anD ChaLLengeS of WinD
energy, supra note 22 (describing need for construction of transmission lines to
bring electricity from the farms to the cities); see also Merrill Matthews, Chal-
lenges for Wind Energy’s Future, the inSt. for PoLiCy innovation (July 2014),
http://www.ipi.org/docLib/20140728_ChallengesforWindEnergysFuture3.pdf
(explaining that wind energy may require generating plants to have back up
energy sources in case the wind energy is not constant and readily available);
see, e.g. Kayla Matthews, The Advancements and Challenges Affecting Wind
Turbine Implementation, PLanetizen (Sept. 25, 2017, 5:00 AM), https://www.
planetizen.com/node/94961/advancements-and-challenges-affecting-wind-
turbine-implementation (discussing the geographical challenges related to wind
farms).
38
Rosenberg, supra note 4, at 665; see Jess White, Disadvantages of Wind
Energy, reneWabLe energy SPot, http://www.renewableenergyspot.com/disad-
vantages-of-wind-energy/ (discussing the varying efciency and uniformity of
wind energy).
39
Rosenberg, supra note 4, at 666-67. The startup expenses for wind farms
are expensive and sometimes not easily competitive with other electricity
sources. Matthews, supra note 37; see White, supra note 38 (discussing the cost
of wind turbines and the large amounts of land required to space out the wind
turbines to avoid damage or collisions among them).
40
Rosenberg, supra note 4, at 667; see footnote 37 for details on the geo-
graphical limitations of wind farms.
41
Adam M. Dinnel & Adam M. Russ, The Legal Hurdles to Developing Wind
Power as an Alt. Energy Source in the United States: Creative and Comparative
Solutions, 27 nW. J. int’L. L. & buS. 535, 537 (2007); see also Rosenberg,
supra note 4, at 667-69; White, supra note 38 (discussing the effects of defor-
estation, noise from the turbines affecting bats and humans, and disruption to
ecosystems originating from wind turbines).
42
Rosenberg, supra note 4, at 668; see Environmental Impacts of Wind
Power, union of ConCerneD SCientiStS (Mar. 5, 2013), https://www.ucsusa.
org/clean-energy/renewable-energy/environmental-impacts-wind-power#.
WnczW5M-dsM.
43
Rosenberg, supra note 4, at 668-69; see also aDvantageS anD ChaLLengeS
of WinD energy, supra note 22; Marc Kavinsky, Wind Farm Interference
Shows Up on Doppler Radar, nat’L Weather Serv., https://www.weather.gov/
mkx/windfarm (last visited Feb. 26, 2018) (addressing wind farms interference
with the radar line of sight of the Doppler radar at the Wisconsin National
Weather Service ofce); see generally u.S. DeP’t of energy, effiCienCy &
reneWabLe energy, feD. interagenCy WinD turbine raDar interferenCe
Mitigation Strategy (Jan. 2016), https://energy.gov/sites/prod/les/2016/06/
f32/Federal-Interagency-Wind-Turbine-Radar-Interference-Mitigation-Strategy-
02092016rev.pdf.
enDnoteS: WinD PoWer anD the LegaL ChaLLengeS With nePa anD the eSa
continued from page 27
224813_AU_SDLP_Spg-Sum18.indd 42 10/18/18 1:53 PM
43
Spring/Summer 2018
44
Rosenberg, supra note 4, at 669; see Purdue University, Wind Turbines
Killing More Than Just Local Birds, Science Daily (Sept. 29, 2016), https://
www.sciencedaily.com/releases/2016/09/160929143808.htm (discussing the
effects of wind farms on golden eagles).
45
Wildlife and Wind Energy, OhiO Dep’t Of nat. ReS. Div. Of WilDlife,
http://wildlife.ohiodnr.gov/species-and-habitats/sh-and-wildlife-research/
wildlife-and-wind-energy (last visited Feb. 26, 2018). This is known as Senate
bill 221. Id.; see OhiO Rev. cODe § 4298.64 (2018).
46
See OhiO Rev. cODe § 4298.64.
47
Brandon Baker, Ohio Gov. John Kasich Signs Nation’s First Renew-
able Energy Freeze, ecOWatch (June 13, 2014, 3:25 PM), http://www.
ecowatch.com/ohio-gov-john-kasich-signs-nations-rst-renewable-energy-
freeze-1881923801.html. Ohio Governor John Kasich’s signature put the
renewable portfolio standard on hold until 2017 as a committee will address at
that time whether the bill’s passage will be permanently frozen. Id. This freeze
effectively “halted the requirements for the renewable energy at 2014 levels.”
Lauren Miller, Ohio’s Renewable Portfolio Standard: It’s Time for a Thaw,
SOlSySteM (Oct. 19, 2016), http://www.solsystems.com/blog/tag/freeze/.
Instead of an increase in its renewable energy initiatives, Ohio has mandated
only 2.5% of energy from renewable energy sources. Id. As of January 1, 2017,
the freeze will stop. Id. Governor John Kasich vetoed against continuing the
freeze allowing renewable energy to grow. Jim Provance, Kasich Vetoes Bill
Delaying Renewable Energy Mandates, the BlaDe, (Dec. 27, 2016, 4:18 PM)
http://www.toledoblade.com/Energy/2016/12/27/Ohio-governor-vetoes-bill-
making-renewable-mandates-optional.html. Ohio Revised Code 4928.64 was
amended in September 2017 extending the mandate to 2027 to meet the 12.5%
mandate. Id.; see also § 4298.64 (2017) (focusing on House Bill 49).
48
U.S. Wind Indus. 2016 Annual Market Update, supra note 21.
49
Id.
50
About the OPSB, OhiO pOWeR Siting BD., http://www.opsb.ohio.gov/opsb/
index.cfm/About/ (last visited Feb. 26, 2018).
51
Id.
52
Id.
53
OhiO Rev. cODe §§ 4906.03, 4906.04 (2018).
54
Id. § 4906.02.
55
Id.; see About the OPSB, supra note 50.
56
OhiO Rev. cODe § 4906.02 (2018); see About the OPSB, supra note 50.
57
OhiO Rev. cODe § 4906.02 (2018); see About the OPSB, supra note 50.
58
OhiO Rev. cODe § 4906.01 (2018); see About the OPSB, supra note 50;
59
About the OPSB, supra note 50; see §§ 4906.13, 4906.20, 4906.98.
60 OhiO aDMin. cODe 4906-3-03(A) (2018); see also Standard Application
Process Flowchart, OhiO pOWeR Siting BD. (June 7, 2017), https://www.opsb.
ohio.gov/information/process-owchart/.
61
OhiO aDMin. cODe 4906-3-03(B)(1) (2018); About: How Can I Participate
in the Process? OhiO pOWeR Siting BD., [hereinafter How Can I Participate in
the Process?] http://www.opsb.ohio.gov/opsb/index.cfm/About/ (last visited
Feb. 8, 2018).
62
How Can I participate in the Process?, supra note 61.
63
OhiO Rev. cODe §4906.06 (2018); OhiO aDMin. cODe 4906-2-02 (2018);
see also Standard Application Process Flowchart, supra note 60.
64
How Can I Participate in the Process?, supra note 61.
65
OhiO aDMin. cODe 4906-3-06 (2015); see also Standard Application Pro-
cess Flowchart, supra note 60.
66
OhiO aDMin. cODe 4906-3-06 (2015); see Standard Application Process
Flowchart, supra note 60.
67
See OhiO aDMin. cODe 4906-3-07 (2015) (describing the requirements an
applicant must follow once the applicant receives notication from the chair-
man that the standard certicate application is complete).
68
See Application Fees and Billing, OhiO pOWeR Siting BD., http://www.opsb.
ohio.gov/opsb/index.cfm/application-fees-and-billing/ (last visited Mar. 22,
2018) (delineating the power siting application fees for Ohio).
69
Standard Application Process Flowchart, supra note 60. For ling fees
and other costs associated with the application process, see Application Fees
and Billing, supra note 69; see also OhiO aDMin. cODe 4906-1-04, 4906-3-12
(2015).
70
How Can I Participate in the Process?, supra note 61; see OhiO aDMin.
cODe 4906-2-09 (2018) (describing the protocol for hearings); OhiO Rev. cODe
§ 4906.07(A) (2018) (discussing scheduling for hearings).
71
How Can I Participate in the Process?, supra note 61.
72
Id.
73
Id. (limiting the amount of cases a participant can be involved).
74
Who is Involved in the Siting Process? OhiO pOWeR Siting BD., http://www.
opsb.ohio.gov/opsb/index.cfm/about/ (last visited Mar. 23, 2018) (dening who
can be an intervener).
75
How Can I Participate in the Process?, supra note 61.
76
OhiO aDMin. cODe 4906-3-09(A)(1) (2015); see also Standard Application
Process Flowchart, supra note 60.
77
See Standard Application Process Flowchart, supra note 60.
78
OhiO Rev. cODe § 4906.07(C) (2018); see also Standard Application Pro-
cess Flowchart, supra note 60.
79 OhiO aDMin. cODe 4906-3-09(A)(2) (2018); see also Standard Application
Process Flowchart, supra note 60.
80
OhiO Rev. cODe § 4906.07(A) (2018); OhiO aDMin. cODe 4906-2-09(A)
(2018); see also Standard Application Process Flowchart, supra note 60.
81
Ohio Power Siting Bd. Wind Summary, OhiO pOWeR Siting BD., http://
www.opsb.ohio.gov/opsb/index.cfm/About/ (last visited Feb. 27, 2018).
82 How Can I Participate in the Process?, supra note 61.
83
Id.
84
Id.
85
OhiO Rev. cODe § 4906.10(A); OhiO aDMin. cODe 4906-2-30 (2018); see
also Standard Application Process Flowchart, supra note 60.
86
OhiO Rev. cODe § 4903.10 (2018); OhiO aDMin. cODe 4906-2-32 (2018);
How Can I Participate in the Process?, supra note 61.
87
OhiO Rev. cODe § 4903.10 (2018); OhiO aDMin. cODe 4906-2-32 (2018);
How Can I Participate in the Process?, supra note 61.
88
OhiO Rev. cODe § 4903.13 (2018); OhiO aDMin. cODe 4906-2-33 (2018);
How Can I Participate in the Process?, supra note 61.
89
Ohio Power Siting Bd. Wind Summary, OhiO pOWeR Siting BD., http://
www.opsb.ohio.gov/opsb/?LinkServID=895FE98C-C363-FCF9-6BFDC7D-
F3A3F7AA2 (last updated Feb. 5, 2018).
90
Id. Timber Road IV and Seneca are both in the pre-application stages.
91
Provance, supra note 47.
92
Dinnel & Russ, supra note 41, at 562; see also 42 U.S.C. §§ 4321-47
(2016).
93
Council on Environmental Quality, Office Of nepa pOlicy anD cOMpli-
ance, http://energy.gov/nepa/council-environmental-quality-ceq (last visited
Feb. 27, 2018); see 42 U.S.C. §§ 4341-47 (2016). The Center on Environmental
Quality (“CEQ”) provides guidance and interprets regulations that seek to
apply NEPA. Council on Environmental Quality, the White hOuSe, https://
www.whitehouse.gov/ceq/ (last visited Feb. 27, 2018). Also, the CEQ reviews
federal agencies’ compliance with NEPA, reviews emergent situations to allow
substitute NEPA compliance, and supervises federal agencies’ application of the
environmental impact statements process. Id.
94
42 U.S.C. § 4321 (2016).
95
Shearwater v. Ashe, No. 14-CV-026830-LHK, 2015 U.S. Dist. LEXIS
106277, at *3 (N.D. Cal. Aug. 11, 2015) (quoting High Sierra Hikers Ass’n v.
Blackwell, 390 F.3d 630, 639 (9th Cir. 2004)).
96
42 U.S.C. § 4332(2)(C) (2018); see Dine Citizens Against Ruining Our
Env’t v. Klein, 747 F. Supp. 2d 1234, 1264 (D. Colo. 2010) (holding that the
surface coal mining’s permit revision application, a federal action, did not
comply with NEPA, vacated the permit approval, and laid out the requirements
to comply with NEPA).
97
5 U.S.C. § 702 (2018); see cOuncil On envtl. Quality, exec. Office Of
the pReSiDent, a citizen’S guiDe tO the nepa: having yOuR vOice heaRD 30
(2007), [hereinafter a citizen’S guiDe tO the nepa] https://energy.gov/sites/
prod/les/nepapub/nepa_documents/RedDont/G-CEQ-CitizensGuide.pdf.
98
42 U.S.C. § 4332(2)(C)(i)–(v) (2018); see National Environmental Policy
Act Review Process, u.S. envtl. pROtectiOn agency (Jan 24, 2017), https://
www.epa.gov/nepa/national-environmental-policy-act-review-process (explain-
ing that federal agencies must perform an EIS “if a proposed federal action is
determined to signicantly affect the quality of the human environment”). The
U.S. Department of Energy has provided a comprehensive summary of the
NEPA process; see u.S. Dep’t Of eneRgy, DOe, nepa, anD yOu: a guiDe tO
puBlic paRticipatiOn 1–2 (2010), http://energy.gov/sites/prod/les/nepapub/
nepa_documents/RedDont/G-DOE-NEPA_Brochure.pdf; see also 40 C.F.R.
§ 1506.9 (2018) (providing an overview of the EIS ling requirements); 40
C.F.R. § 1506.10 (2018) (explaining the requirements of time regarding a fed-
eral agency’s action).
99
National Environmental Policy Act Review Process, supra note 98. 42
U.S.C. § 4332 (2018). The draft EIS that the federal agency creates includes
a variety of items: (1) purpose and need of the document (see 40 C.F.R. §
1502.13 (2016)); (2) identication and examination of alternative methods
224813_AU_SDLP_Spg-Sum18.indd 43 10/18/18 1:53 PM
44 Sustainable Development Law & Policy
to satisfy the potential action’s purpose and need (see 40 C.F.R. § 1502.14
(2018)), including preferred alternatives (see 40 C.F.R. § 1502.14(e)) (2018));
and the “full range of direct, indirect and cumulative effects of the preferred
alternative, if any, and of the reasonable alternatives identied in the draft EIS.”
A Citizen’s Guide to the nePA, supra note 97, at 17 (citing 40 C.F.R. §§
1508.7, 1508.8 (2018)). The draft EIS should also address the human impact on
the environment. See 40 C.F.R. § 1508.14 (2018)); see also A Citizen’s Guide
to the nePA, supra note 97, at 16–18 (for a more in-depth discussion).
100
40 C.F.R. § 1508.18(a) (2018).
101
40 C.F.R. § 1508.22 (2018); see National Environmental Policy Act Review
Process, supra note 98.
102
See National Environmental Policy Act Review Process, supra note 98.
103
40 C.F.R. § 1506.10 (2018); see A Citizen’s Guide to the nePA, supra
note 97, at 16; see generally, How Citizens Can Comment and Participate in the
National Environmental Policy Act Process?, u.s. envtl. ProteCtion AGenCy,
https://www.epa.gov/nepa/how-citizens-can-comment-and-participate-national-
environmental-policy-act-process (last visited Feb. 6, 2018) (noting that agen-
cies must provide at minimum of forty-ve days for public comment).
104
40 C.F.R. § 1506.10(c) (2018); see A Citizen’s Guide to the nePA, supra
note 97, at 16.
105
40 C.F.R. §§ 1506.10(a), (b)(2), 1503.4 (2018).
106
Id. § 1506.10. When the termination of the thirty days is less than ninety
days after the Federal Register published the Notice of Availability of the Draft
EIS, the agency’s decision is required to wait for the ninety-day period to nish.
See A Citizen’s Guide to the nePA, supra note 97, at 18. Sometimes, a federal
agency may conclude a potential action as “environmentally unacceptable” and
refer the problem to the CEQ during the following twenty-ve days subsequent
to the issued Notice of Availability for the nal EIS. Id. at 18–19. Further dis-
cussion of this is beyond the scope of this author’s paper.
107
40 C.F.R. § 1505.2 (2018).
108 40 C.F.R. § 1502.9(c) (2018); National Environmental Policy Act Review
Process, supra note 98; see A Citizen’s Guide to the nePA, supra note 97, at
20.
109
40 C.F.R. § 1502.9(c)(4) (2018); see National Environmental. Policy Act
Review Process, supra note 99; Impact Statements (EIS): When is a Supplement
to the EIS required, u.s. envtl. ProteCtion AGenCy, https://www.epa.gov/
nepa/national-environmental-policy-act-review-process (last visited Feb. 4,
2018).
110
40 C.F.R. §§ 1501.3, 1501.4, 1508.9 (2018).
111
Id. § 1508.9.
112
Id.; see Environmental Assessment/ Finding of No Signicant Impact, u.s.
envtl. ProteCtion AGenCy, https://www.epa.gov/nepa/national-environmental-
policy-act-review-process (last visited Mar. 17, 2018) (recognizing the purpose
of an environmental assessment).
113
Id. For the including text, see also, A Citizen’s Guide to the nePA, supra
note 97, at 11 (summarizing the contents of an environmental assessment).
114
40 C.F.R. § 1508.13 (2018) (circumstances that necessitate a FONSI).
115
Id.; see Environmental Assessment/ Finding of No Signicant Impact,
supra note 112 (explaining why a FONSI would be issued).
116
Id. (explaining what happens when a federal action is found to have signi-
cant environmental impact).
117
40 C.F.R. § 1508.4 (2018) (stating what kinds of actions are categorically
excluded from requiring an EA or an EIS).
118
Id.; see also A Citizen’s Guide to the nePA, supra note 97, at 10-11 (lay-
ing out what situations require an agency to prepare an EA or an EIS).
119
40 C.F.R. § 1508.4 (2018); see also A Citizen’s Guide to the nePA, supra
note 97, at 10-11 (recognizing that actions that are classied as categorical
exclusions may still impact the environment).
120
Ezekiel J. Williams & Kathy L. Schaeffer, What Every Land Professional
Should Know about NEPA, lA. st. u. Min. lAw inst. 8 (2007) (citing to Ka
Makani O’Kohala Inc., v. Dep’t of Water Supply, 295 F.3d 955, 960 (9th Cir.
2002), and laying out what actions are subject to NEPA oversight).
121
Id. (triggering NEPA regulation because of the required federal authoriza-
tion, permission, or nances).
122
Id. (highlighting a particular federal action that triggers NEPA regulation).
123
Sarah Matsumoto et al., Citizens’ Guide to the Endangered Species Act,
eArth JustiCe 11 (2003), http://earthjustice.org/sites/default/les/library/
reports/Citizens_Guide_ESA.pdf (explaining why Congress enacted and Presi-
dent Nixon signed the Endangered Species Act).
124
16 U.S.C. § 1531(c)(1) (2018); Dinnel & Russ, supra note 41, at 559. The
Act also safeguards subspecies and distinct population segments of species as
well. Matsumoto et al., supra note 123, at 12 (addressing how the ESA works to
maintain genetic diversity).
125
Summary of the Endangered Species Act, u.s. environMentAl ProteCtion
AGenCy (Aug. 8, 2017), https://www.epa.gov/laws-regulations/summary-endan-
gered-species-act; see also Matsumoto et al., supra note 123, at 12 (naming
two, among several, federal agencies that operate under the ESA).
126
Shearwater v. Ashe, No. 14-CV-026830-LHK, 2015 U.S. Dist. LEXIS
106277, at *7 (N.D. Cal. Aug. 11, 2015) (requiring that federal actions do not
jeopardize the continued existence of any endangered species).
127
16 U.S.C. § 1538(a)(1)(B) (2018); see also Endangered Species Act:
Section 9, u.s. Fish & wildliFe serv. (July 15, 2013), https://www.fws.gov/
endangered/laws-policies/section-9.html.
128
16 U.S.C. § 1533 (2018); see Matsumoto et al., supra note 123, at 15
(detailing the listing process).
129
Endangered Species Act, nAt’l wildliFe Fed’n, https://www.nwf.org/
Educational-Resources/Wildlife-Guide/Understanding-Conservation/Endan-
gered-Species (last visited Mar. 17, 2018) (dening the mandate of the ESA and
dening endangered species).
130
Id.
131
Matsumoto, supra note 123, at 15 (addressing the listing process).
132
16 U.S.C. § 1533(b)(5)(A) (2018); see also, Matsumoto et al., supra note
123, at 15.
133
16 U.S.C. § 1533(a)(6)(A) (2018); see also, Matsumoto et al., supra note
123, at 15.
134
Matsumoto et al., supra note 123, at 15, 17 (addressing the listing process).
The species as a potential candidate for listing remains pending until the FWS
or the NOAA Fisheries re-evaluate it, a process that occurs at least once a year
where the FWS or the NOAA Fisheries nally determine whether the species
should be listed. Id. Sometimes, the result for the listing of the species may be
“‘warranted but precluded’” when the Secretary of Interior or Commerce has to
decide on different species rst. See 16 U.S.C. § 1533(b)(3)(B)(iii) (2018).
135
§ 1533(b)(3)(A) (2018); see also, Matsumoto et al., supra note 125, at 18
(addressing citizens’ petitions).
136
Matsumoto et al., supra note 123, at 18.
137
16 U.S.C. § 1533(b)(3)(A) (2018); see also Matsumoto, supra note 123, at
18.
138
16 U.S.C. § 1540(g)(1) (2018); see infra note 168.
139
16 U.S.C. § 1533(a)(3)(A) (2018); see Dinnell, supra note 41, at 559.
140
Matsumoto et al., supra note 123, at 20 (discussing critical habitats); see 16
U.S.C. § 1532(5) (2018). The United States Court of Appeals for the Ninth Cir-
cuit concluded that a nding of “harm” did not mandate a particular member of
the species to die, but even habitat destruction that could result in the species’
elimination could be categorized as “harm” and is not permitted under Section
9 of the ESA. Palila v. Hawaii Dep’t of Land and Nat. Res., 852 F.2d 1106,
1108, 1110 (9th Cir. 1981) (dening “take” using the broadest denition where
sheep and goats fed on mamane seeds that eliminated trees for the Palila birds).
Moreover, the United States’ Supreme Court held that the “ordinary meaning of
‘harm’ naturally encompasses habitat modication that results in actual injury
or death to members of an endangered or threatened species.” Babbitt v. Sweet
Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 699, 701-04
(1995) (concluding that indirect and direct actions may be considered as a take,
given the Act provides broad protection).
141
16 U.S.C. § 1533 (a)(3)(A) (2018); see also Dinnell & Russ, supra note 41,
at 559.
142
16 U.S.C. § 1533 (b)(2) (2018); see Matsumoto et al., supra note 123,
at 20 (discussing critical habitats). A critical habitat evaluates “physical and
biological habitat features: [s]pace for individual and population growth and
for normal behavior; [c]over and shelter; [f]ood, water, air, light, minerals, or
other nutritional or physiological requirements; [s]ites for breeding and rearing
offspring; [and] [h]abitats that are already protected from disturbances or are
representative of the historical, geographical, and ecological distribution of a
species.” Id. An economic analysis may be included as well. Id.
143
50 C.F.R. § 424.12(a)(1) (2018); see Dinnell & Russ, supra note 41, at
559-60.
144
16 U.S.C. § 1533(b)(2) (2018).
145
Matsumoto et al., supra note 123, at 21.
146
16 U.S.C. § 1533(b)(8) (2018).
147
Matsumoto et al., supra note 123, at 21. Similar to listing, the critical
habitat’s designation is the rulemaking process. Listing and Critical Habitat,
u.s. Fish & wildliFe serv. (Jan. 12, 2015), https://www.fws.gov/endangered/
what-we-do/critical-habitats-faq.html. A private individual may have his or her
224813_AU_SDLP_Spg-Sum18.indd 44 10/18/18 1:53 PM
45
Spring/Summer 2018
land become designated as a section of a critical habitat, but this only occurs
when the private individual receives federal funding, a federal permit, or a
federal action. Id. The FWS may additionally create recovery plans for species
as well. Matsumoto et al., supra note 123, at 22 (focusing on critical habitats).
A recovery plan focuses on the reversal of an endangered or threatened spe-
cies’ diminution and the deletion of threats, such that the listed species will
thrive. Id. (citing to Endangered Species Recovery Program, U.S. FiSh and
WildliFe Service endangered SpecieS program (June 2011), https://www.fws.
gov/endangered/esa-library/pdf/recovery.pdf). 16. U.S.C. § 1533(f) (2018)
mandates the government to create and apply recovery plans, except where
the plan would not preserve the listed species. Id. A recovery plan involves: “a
description of site-specic management plans that may be necessary to achieve
conservation and survival of the species; a recovery objective (i.e. a target pop-
ulation number) and a list of criteria for indicating when the objective has been
achieved; an implementation schedule with task priorities and cost estimates;
[and] a recovery plan may also call for species reintroduction, habitat acquisi-
tion, captive propagation, habitat restoration and protection, population assess-
ments, research and technical assistance for landowners, and public education.”
Id. Many different actors come into play, and the FWS develops a guide for the
recovery plan’s design, including peer review and public commentary. Id. at 24
(discussing critical habitats). Once an endangered species has recovered, the
species is considered to be “delisted” from the endangered species’ list under
the ESA. Id. A species may also be “‘downlisted’” from its consideration as
endangered to threatened. Id.
148
16 U.S.C. § 1536(a)(1) (2018).
149
Id.; see also Matsumoto et al., supra note 123, at 29 (examining Section 7
of the ESA).
150
50 C.F.R. § 402.14(a) (2018) (listing the consultation requirement).
151
50 C.F.R. § 402.14(e), (g)(4) (2018) (clarifying the FWS’ mandates
and suggestions regarding the mitigation of the harmful effects on activities
involving “sh, wildlife, [and] plants” as well as their relative habitats);
Stephanie Clark & Sue Meyer, U.S. Fish and Wildlife Service Announces
Changes to Mitigation Policy, JdSUpra (Dec. 12, 2016), http://www.jdsupra.
com/legalnews/u-s-sh-and-wildlife-service-announces-17013/. The FWS
implemented its modications after the Presidential Memorandum: Mitigating
Impacts on Natural Resources from Development and Encouraging Related
Private Investment was issued. Id. The Presidential Memorandum instructed
the FWS to “nalize a mitigation policy to establish principles to guide the
[FWS] in its planning and permitting practices and other activities.” Id. The
aforementioned policy establishes a guideline regarding the implementation of
“a landscape-scale approach to mitigation to achieve a net gain in conservation
outcomes, or at a minimum, no net loss of resources and their values, services,
and functions resulting from proposed actions.” Id. When an activity requires
a “Section 7 biological opinion and incidental take statements [or] Section 10
incidental take permits,” the activity will deal with the FWS’ “statutory and
regulatory” mandates pursuant to the ESA and the policy’s published modica-
tions. Id. The FWS could potentially implement the policy when the FWS
maintains “a statutory or regulatory mandate” that obligates mitigation like with
ESA or when the FWS gives suggestions for conservation as an agency com-
plying with the National Environmental Policy Act. Id. For more information
on the implemented modications, see 81 Fed. Reg. 83440-83492 (2016).
152
50 C.F.R. § 402.14 (g)(4) (2018) (outlining the purpose for formulating a
biological opinion).
153
See 50 C.F.R. § 402.13 (2018) (noting that, during informal consultation,
if the Federal agency and Service agree that the action will not adversely affect
the listed species or critical habitat, there is no need for further consultation).
154
See Matsumoto et al., supra note 123, at 31 (focusing on biological opin-
ions, which are scientic documents used to both assess a project’s potential
impact to a protected species as well as recommends measures if the project is
“likely to jeopardize the continued existence” or harm the critical habitat).
155
Id. (including alternative such as moving a planned road to avoid an eagle
nest and delaying construction of a structure until after mating season is done).
156
Shearwater v. Ashe, No. 14-CV-026830-LHK, 2015 U.S. Dist. LEXIS
106277, at *7 (N.D. Cal. Aug. 11, 2015) (quoting to 50 C.F.R. § 402.13(a)
(2018)).
157
Id. at *9 (quoting to 50 C.F.R. § 402.13(a), 402.14(a)-(b) (2018)).
158
16 U.S.C. § 1538 (a)(1)(B) (2018) (prohibiting the taking of endangered
species of sh or wildlife).
159
Id.; Id. § 1532(19) (dening the term “take” as “to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct”).
160
Matsumoto et al., supra note 123, at 32 (examining the ESA’s prevention
on takings); See supra note 142 and accompanying text discussing what consti-
tutes a take under the ESA.
161
Dinnel & Russ, supra note 41, at 560 (citing to Christopher Carter, A Dual
Track for Incidental Takings: Reexamining Sections 7 and 10 of the Endangered
Species Act, 19 B.c. envtl. aFF. l. rev. 135, 155 (1991), which refers to H.R.
Rep. No. 304, 97th Cong. 2d. Sess. 31 (1982), reprinted in 1982 U.S.C.C.A.N.
2807, 2831, and Richard Webster, Note, Habitat Conservation Plans Under
the Endangers Species Act, 24 San diego l. rev. 243, 247 (1987); see also
Matsumoto, supra note 123, at 35 (evaluating the exceptions to the prohibition
on takings Congress included in its 1982 amendments to the ESA).
162
16 U.S.C. § 1539(a)(1)(B) (2018) (permitting incidental taking of endan-
gered species).
163
16 U.S.C. § 1539(a)(2)(A) (2018 (stating that participants, whose use
constitutes a taking, need to obtain a permit from the Secretary).
164
Id. § 1539(a)(2)(B) (stating that the secretary opens the application up for
public comment).
165
Id. (highlighting the minimization process).
166
Matsumoto et al., supra note 123, at 35 (covering habitat conservation
plants).
167
Dinnel & Russ, supra note 41, at 561. (incentivizing the private individual
through section 10 (a)(1)(B), the ESA assures the private individual that the
government would expect more in the future for the listed species once an HCP
is approved); Matsumoto et al., supra note 123, at 35, 37 (evaluating the no
surprises exception within the ESA); see What are No Surprise Assurances?,
U.S. FiSh & WildliFe Serv. (July 15, 2013), https://www.fws.gov/endangered/
what-we-do/hcp-faq.html (eliminating any unforeseen circumstances and
permits minor changes, not affecting additional land nor expenses). An HCP
also permits the private individual to enter into voluntary agreements with the
federal government to safeguard endangered species. Matsumoto et al., supra
note 123, at 37 (discussing safe harbors). These agreements permit the private
individual to enhance his or her land for the protected species’ benet on a
voluntary basis for a time duration, and consequently, may have the ability to
return his or her land to the land’s baseline without any ESA violation. Id. The
FWS provides an “‘enhancement for survival’” permit pursuant to section 10(a)
(1)(A) that presents the individual the opportunity to return the property to its
baseline when the time duration with the voluntary understanding nishes. Id.
168
16 U.S.C. § 1540 (2018) (outlining the civil and criminal penalties).
169
Id. § 1540(g).
170
Id.
171
16 U.S.C. § 1540(e) (2018).
172
Matsumoto et al., supra note 123, at 14 (examining versions of states’
ESAs).
173
See generally ohio rev. code §§ 1531.25, 1531.99 (2018).
174
Id. § 1531.25.
175
Id.
176
Id.
177
Id.
178
Id.
179
Id. § 1531.99 (indicating that a wind developer should be aware that this
Ohio law exists. However, this law has been addressed rarely in litigation if a
violation should occur within Ohio); see State v. Althiser, No. 97CA14, 1997
Ohio App. LEXIS 6054, at *15 (Ohio Ct. App. Dec. 30, 1997) (afrming the
lower court’s decision that ofcers’ search into a storage bay to combat mussel
poaching had probable cause with exigent circumstances); see also Wilkins v.
Daniels, 744 F.3d 409 (6th Cir. 2014) (holding that microchipping animals was
not an unconstitutional taking), aff’d, 913 F. Supp. 2d 517 (S.D. Ohio 2012).
180
ohio admin. code § 1501:31-23-01 (2018).
181
Id. §§ 1501:31-23-01 (B), (C), (F).
182
Id. § 1501:31-23-01 (D).
183
Id. § 1501:31-23-02.
184
Id. § 1531.25.
185
See State v. Althiser, No. 97CA14, 1997 Ohio App. LEXIS 6054, at *15
(Ct. App. Dec. 30, 1997) (upholding petitioners’ convictions under ohio rev.
code §§ 1531.25, 1531.02 for illegal possession of endangered mussels);
see also Wilkins v. Daniels, 744 F.3d 409, 419 (6th Cir. 2014) (holding that
provisions under ohio rev. code §§ 935.01–935.99 relating to microchipping
requirements for permitted owners of certain endangered species did not violate
the Fifth Amendment). These cases illustrate that Ohio’s version of the ESA is
rarely used in litigation.
224813_AU_SDLP_Spg-Sum18.indd 45 10/18/18 1:54 PM
46 Sustainable Development Law & Policy
186
See Union Neighbors United, Inc., v. Jewell, 831 F.3d 564, 570-71 (D.C.
Cir. 2016) (concerning a wind developer who planned to construct and manage
a commercial wind energy farm located on land that overlapped with the terri-
tory and migration patterns of the endangered Indiana bat).
187
Id. at 57.
188
Id. (noting that several months later, the FWS initiated a second round
of public comments regarding plans to develop an EIS and HCP addressing
impacts of Buckeye’s proposed development).
189
Id.
190
Id. (specifying that the HCP included measures to minimize the effects on
the Indiana bat and its habitat in addition to other non-listed birds and bats, and
the HCP suggested the issuance of the ITP based on the HCP).
191
Id. at 573.
192
Union Neighbors United, Inc., v. Jewell, 831 F.3d 564, 573 (D.C. Cir.
2016).
193
Id.
194
Id. at 574 (noting that plaintiffs brought their lawsuit against the “Secretary
of the Department of the Interior, the Director of the Service, and the Regional
Director for Midwest region of the Service” seeking declaratory and injunctive
relief).
195
Id.
196
Id.
197
Id. at 574; see Union Neighbors, Inc., v. Jewell, 83 F.Supp.3d 280, 287-88
(D.D.C. 2015) (while providing a level of deference, the court decided FWS
utilized the best evidence available at that time and properly concluded that the
wind project’s proposal’s mitigation efforts would completely counterbalance
the Indiana bats’ taking).
198
831 F.3d, at 574.
199
Id. at 575.
200
Id. at 576.
201
Id. (stating that the other alternative evaluated was the “Max Alternative”
that would require the wind turbines be turned off at night between the months
of April through October).
202
Id.
203
Id.
204
Id. at 577 (stating that, “because the [FWS] in these circumstances did not
consider any other reasonable alternative that would have taken fewer Indiana
bats than Buckeye’s plan, it failed to consider a reasonable range of alternatives
and violated its obligations under NEPA”).
205
Id. at 568.
206
Id. at 580 (applying Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
207
Id. (discussing that the statutory denition of “‘impacts’ refers to more than
the discrete number of individual members of a listed species”).
208
Id. at 581. (examining the Habitat Conservation Planning and Incidental
Take Permit Processing Handbook (“Handbook”) to conclude that relevant
legislative history, though partially probative, is inconclusive).
209
Id. at 582.
210
Id. at 583.
211
Id. at 582.
212
Id.
213
Id. at 582 (noting that the ESA uses the conjunctive “and” between “mini-
mize” and “mitigate,” rather than “then,” suggesting that the terms should be
read together, not as a sequence).
214
Id. at 583 (evaluating the FWS’s answers to the Handbook’s commentary,
which included a conclusion that “Buckeye ‘ha[d] minimized the quantity of
take’”).
215
Id. at 583.
216 Id.
217
Id. at 577.
218
Id. at 578.
219
Id. at 568-69.
220
Id. at 568, 577.
221
See generally id. at 568, 569-70.
222
Sierra Club v. Kenna, No. 1:12-cv-1193 AWI JLT, 2013 LEXIS 4743, at
*3, 4 (E.D. Cal. Jan. 11, 2013) (anticipating 102 turbines that would produce up
to 300 megawatts of electricity, NSRE sought to build a wind farm on private
land in the Sierra Nevada mountain range).
223
Id. at *4.
224
Id.
225
Id.
226
Id.
227
Id. at *4-5.
228
Id. at *2.
229
Id. at *2, 5 (parties had agreed that the private road would be longer than
the service road over the federal land and that the service road would involve
more construction with affected acreage than the private road).
230
Id. at *5-6 (contesting BLM’s conclusion that the service road “would have
value independent of its use as to an access road” for the development project).
231
Id. at *7.
232
Id. at *25.
233
Id.
234
Id.
235
Id. at *25-26.
236
Id. (concluding that the administrative record supported BLM’s determina-
tion that NSRE could have nished the project without the right-of-way).
237
Id.
238
Id.
239
Id. at *26.
240
Id. at *29-30.
241
Id. at *30.
242
Id. at *32-33.
243
Id. at *33-36 (declining to substitute its judgment for BLM, as it was not
“permissible” pursuant to the standard of review; BLM maintained “wide defer-
ence” to its decisions and was the “primary intermediary . . . between private
activity and public resource ownership”).
244
Id. at *36 (deciding the court was “in no position to impose a contrary
conclusion simply because an opposing party is of the opinion that more proof
should have been required”).
245
Id. at *34.
246
Id. at *38.
247
Id. at *40-41 (E.D. Cal. Jan. 11, 2013).
248
Sierra Club v. BLM, 786 F.3d 1219, 1222 (9th Cir. 2015) (afrming Sierra
Club v. Kenna, No. 1:12cv1193 AWI JLT, 2013 LEXIS 4743 (E.D. Cal. Jan. 11,
2013)).
249
Id. at 1224 (holding that a federal agency’s duty to consult on these direct
effects occurs when the action is “afrmatively authorized, funded, or carried
out [by a federal agency]” and “in which there is discretionary Federal involve-
ment for control” (citing Karuk Tribe of Cal. v. Forest Serv., 681 F.3d 1006,
1020-21 (9th Cir. 2012)).
250
Id.
251
Id.
252
Id. at 1224-25 (explaining the plaintiff must illustrate that an indirect effect
is “caused by the action” (citing San Luis & Delta-Mendota Water Auth. v.
Locke, 776 F.3d 971, 1009 (9th Cir. 2014)).
253
Id. at 1225 (examining whether the action was an interrelated or interde-
pendent action).
254
Id. at 1225-26.
255
Id. at 1226.
256
Id. at 1226-27.
257
Sierra Club v. Kenna, No. 1:12-cv-1193 AWI JLT, 2013 LEXIS 4743, at
*26, 40-41 (E.D. Cal. Jan. 11, 2013); BLM, 786 F.3d at 1224, 1225-26.
258
BLM, 786 F.3d at 1227; Kenna, 2013 U.S. Dist. LEXIS 4743 at *25, 26.
259
See generally BLM, 786 F.3d 1219 (afrming Kenna, 2013 LEXIS 4743 at
*16).
260
Animal Welfare Inst. v. Beech Ridge Energy LLC, 675 F. Supp. 2d 540,
542 (D. Md. 2009).
261
Id.
262
Id. at 549-50.
263
Id. at 550.
264
Id.
265
Id. (indicating that the project would result in 6,746 bat deaths yearly and
noting that Indiana bats could be present at the site during the summer; how-
ever, none were found).
266
Id. at 551.
267
Id.
268
Id. at 552.
269
Id. at 551-53.
270
Id. at 553.
271
Id. at 554.
272
Id. at 554-55 (describing that the Department additionally disregarded
the FWS’ recommendations and employed certain provisions within the order,
224813_AU_SDLP_Spg-Sum18.indd 46 10/18/18 1:54 PM
47
Spring/Summer 2018
including site conditions before and after construction, specically for endan-
gered species).
273
Id. at 555.
274
Id. at 556.
275
Id. at 556-57.
276
Id. at 557 (stating that, at the time of trial, “foundations for [sixty-seven]
turbines had been powered, turbine deliveries had commenced, and transmis-
sion lines were being strung in agreed upon areas”).
277
Id. at 542.
278
Id.
279
Id. at 557 (noting that a BHE employee claimed that he had utilized
AnaBat detectors during the rst summer of mist netting, in areas that were not
ideal for capturing bats, and that BHE did not evaluate nor provide the data to
the Department or FWS).
280
Id. at 561, 563-64 (holding that under section 9 of the ESA, a plaintiff’s
suit had to demonstrate by a preponderance of evidence that “the challenged
activity is reasonably certain to imminently harm, kill, or wound the listed
species” and must address issues such as: “whether Plaintiffs have proven by a
preponderance of evidence that (i) Indiana bats are present at the Beech Ridge
Project site and (ii) the project is reasonably certain to imminently harm, kill, or
wound Indiana bats, in violation of [section 9] of the ESA”).
281
Id. at 564-68.
282
Id. at 568-69 (nding that although no conclusion can be made about the
existence of maternity colonies at the site, the project constructed new habitat
that could have attracted Indiana bats and that clearing the forest to build new
transmission lines could develop lanes for Indiana bats’ travel, thus expanding
the possibility that the Indiana bats were at the project’s location). Id. (giving
“signicant weight” to one expert’s testimony that determined that the Indiana
bats were present at the site).
283
Id. at 575.
284 Id.
285
Id. at 575-76.
286
Id. (stating that even though the higher elevation of the project’s location
makes it less possible, yet not improbable, that the maternity colonies are
located there in the summer months, the Indiana bats could still exist at the
location “during migration, fall swarming, and spring staging”).
287
Id. (concluding that although four hours of acoustic data was gathered and
investigated during two consecutive nights, more acoustic surveillance over all
four seasons and at various sites “would almost certainly yield a greater number
of Indiana bat calls”).
288
Id.
289
Id. at 577-78.
290
Id. at 578.
291
Id. at 578-79 (noting that all three of plaintiff’s experts testied that
the project would likely harm the Indiana bats and that the court was “not
surprised” that the Indiana bats have not been found killed at any wind project
since “few post-mortality studies have been conducted, mortality searches
[were] generally insufcient, and Indiana bats [were] rare”).
292
Id. at 579.
293 Id. at 579-80 (determined awarding injunctive relief because the defendants
would not apply adaptive management after the project was completed, and
the defendants disregarded the FWS’ correspondence advising preconstruction
surveys and methods).
294
Id. at 580-81 (using this mandate as a form of injunctive relief).
295
See id. at 581-83 (concluding “that the only avenue available to Defendants
to resolve the self-imposed plight in which they now nd themselves is to
do belatedly that which they should have done long ago: apply for an ITP”);
see e.g. Protect Our Cmty. Found. v. Ashe, No. 12-cv-2212-GPC(PCL), 2013
LEXIS 165987, at *2, 12, 32, 36 (S.D. Cal. Nov. 20, 2013) (nding that where
a wind power plant complied with an issued incidental take permit and with the
ESA, the challenged biological opinion regarding the endangered species was
not arbitrary or capricious). See also Protect Our Lakes v. U.S. Army Corps
of Eng’r, No. 1:13-CV-402-JDL, 2015 WL 732655, at *1, 5 (D. Me. Feb. 20,
2015) (addressing whether the issuance of the section 404 permit for a wind
power development project violated the ESA and the Bald and Gold Eagle
Protection Act).
296
See generally Ashe, 2013 LEXIS 165987, at *10-11 (S.D. Cal. Nov. 20,
2013) (quoting 50 C.F.R. § 402.14(g)(1)-(4); (h)(3)) (stating “the consulting
agency must ‘review all relevant information, evaluate the current status of the
listed species or critical habitat, evaluate the effects of the action and cumula-
tive effects on the listed species or critical habitat,’ and issue a Biological
Opinion assessing whether the proposed action is ‘likely to jeopardize the
continued existence of a listed species or result in the destruction or adverse
modication of critical habitat’).
297 Union Neighbors United, Inc., v. Jewell, 831 F.3d 564, 568-69 (D.C. Cir.
2016).
298
See Animal Welfare Inst., at 583 (concluding that construction of Defen-
dant’s wind project would have violated the ESA and Defendants should have
applied for an incidental take permit); Sierra Club v. BLM, 786 F.3d 1219 (9th
Cir. 2015) (holding that although the Bureau of Land Management’s federal
road project was subject to NEPA, its wind project, which granted “a right-of-
way over federal land for a wind energy project developed on private land,”
was not because the wind project was not a federal action or connected to the
road project.); aff’g Sierra Club v. Kenna, No. 1:12 –cv-1193 AWI JLT, 2013
LEIXIS 4743 (E.D. Cal. Jan. 11, 2013); Union Neighbors United, 831 F.3d at
568-69 (nding that NEPA applied where the United States Fish and Wildlife
service granted an incidental take permit to Defendant for construction of a
wind farm).
299
Protect Our Cmty. Found. v. Salazar, No. 12cv2211-GPC(PCL), 2013
LEXIS 159281, at *2 (S.D. Cal. Nov. 6, 2013).
300
Id.
301
Id. at *4.
302
Id. at *7.
303
Id. at *7-9, 10-13 (evaluating the NEPA, what the EIS should include, and
the standard of reasonableness that the EIS should include. Based upon BLM’s
statement for purpose and need, the court determined that the BLM’s “Purpose
and Need” detailed how the wind project would promote BLM to execute the
executive and Department of Interior’s orders and a separate section addressed
the project’s goals).
304
Protect Our Cmty. Found. v. Salazar, No. 12cv2211-GPC(PCL), 2013
LEXIS 159281, at *13-14 (S.D. Cal. Nov. 6, 2013).
305
Id. at *14-15 (reasoning that the Final EIS showed BLM’s rationale for the
elimination of the renewable energy alternatives besides wind power and BLM
determined six alternatives were reasonable and included a No Project/Action
Alternative as well. Therefore, the court determined that BLM reasonably
examined the alternatives).
306
Id. at *3-4, 16 (nding that the project’s location was the “only area
with high wind density.” (citing to OWEF 908; 914 (the led Administrative
Record). Other locations are in use or proposed for different wind energy plans
(citing OWEF 908). Id. Other private properties did not have wind energy pos-
sibilities (citing OWEF 907). Id. Also, locating the project outside of the county
would defeat BLM’s purpose and need. Id.
307 Id. at *16-17.
308
Id. at *17-24 (acknowledging that BLM had deference with its expertise
and knowledge. The court also compared the studies that the Plaintiffs and
BLM supported their respective positions with. The court nally examined
that BLM conducted its only studies of inaudible noise and concluded that
the impacts from inaudible sounds were “minimal.” The court recognized that
“it [was] not the Court’s role to determine which scientic studies that BLM
should adopt” and should provide deference to BLM’s conclusion).
309
Id. at *23-24.
310
Id. at *24.
311
Id. at *24-28 (noting that a disagreement with the agency’s use of certain
methods was not considered a NEPA violation the court reasoned (citing Native
Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012)). BLM
used the County’s General Plan Noise Element as its method. Plaintiffs contend
that “normalization increases the reported values by 15dBA to nearly 65dBA in
some cases,” but the court determined they failed to discuss why BLM’s chosen
method was insufcient. Although BLM’s examination did not include night-
time noise, the court found that BLM considered both the ambient noise during
the daytime and the nighttime in its analysis. Id.
312
Id. at *28-33 (showing the Plaintiffs relied upon experts to support their
position that a setback of 1.25 miles is required for residential properties from
a wind project, and many people lived within that range for this project. The
court, however, deferred to BLM’s determination. The court emphasized that
BLM’s scientic research setbacks were not needed, the Plaintiffs’ experts did
not address the particular project, and no mitigation was available).
313
Id. at *33-36 (determining that wind turbines would alter the scenic
environment. However, the court noted that BLM conducted a full examination
of the project’s visual materials, including the “non-turbine facilities, roads,
observations tower,” and the court concluded that the wind turbines were the
most impactful. The court concluded BLM’s analysis as “appropriate”).
224813_AU_SDLP_Spg-Sum18.indd 47 10/18/18 1:54 PM
48 Sustainable Development Law & Policy
314
Id. at *36-41 (evaluating the Final EIS, which found no Peninsular
Bighorn Sheep were located on the land for the project). The Final EIS also
recognized the potential direct impacts of the project, including death to the
Peninsular Bighorn Sheep, “‘elimination of access to foraging areas, disruption
of reproduction or lambing activities, prevention of dispersal or intermountain
movements.’” (citing to OWEF 1588). Id. The FWS performed a Section 7
ESA consultation on the Peninsular Bighorn Sheep as well, resulting in certain
mitigation plans to be implemented if Peninsular Bighorn Sheep were found.
Id. The court recognized that, while the impact of the Peninsular Bighorn Sheep
is not known, BLM acted reasonably to develop mitigation plans. Id.
315
Id. at *41.
316
Id. at *44-46 (indicating that the U.S. Court of Appeals for the Ninth Cir-
cuit found such impacts are not cognizable under NEPA).
317
Id. at *46-49.
318
Id. at *49.
319
Vermonters for a Clean Env’t, Inc. v. Madrid, 73 F. Supp. 3d 417, 435 (D.
Vt. 2014) (holding that the Plaintiffs’ challenge to U.S. Department of Agricul-
ture Forest Service’s issuance for a special use permit for a wind power project
was denied since no violations of NEPA nor the Wilderness Act had occurred).
320
Protect Our Comtys. Found. v. Jewell, 825 F.3d 571, 588 (9th Cir. 2016)
(dismissing Plaintiffs’ objection to the Bureau of Land Management’s approval
for a right-of-way for a wind power development project because the court
found no violations of NEPA, the Migratory Bird Treaty Act, the Bald and
Golden Eagle Protection Act, or the APA).
321
Or. Nat. Desert Ass’n v. Jewell, 823 F.3d 1258, 1260 (9th Cir. 2016)
(nding that the Bureau of Land Management’s environmental review for a
right-of-way for the wind power development project did not properly examine
the effects on the greater sage grouse was afrmed).
29
Holy Cross, 455 F. Supp. 2d at 536-37.
30
Blanco, 2006 WL 2366046, at *9-10.
31 See San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm’n,
449 F.3d 1016, 1028-30 (9th Cir. 2006); N.J. Dep’t of Envtl. Prot., v. U.S.
Nuclear Regulatory Comm’n, 561 F.3d 132, 143-44 (3d Cir. 2009).
32
Mothers for Peace, 449 F.3d at 1028-30; New Jersey, 561 F.3d at 143-44.
33 Trump’s InfrasTrucTure plan, supra note 14, at 36-37, 49-50.
34
See Fixing America’s Surface Transportation Act (FAST Act), 42 U.S.C. §
4370m et seq. (2015); see also Permitting Dashboard: About the Federal Infra-
structure Permitting Dashboard, Federal Infrastructure Projects (2017), https://
www.permits.performance.gov/about (last updated Aug. 31, 2017).
35 lITTle InformaTIon, supra note 15, at 10-11.
36 congressIonal research servIce, R-42479, The role of The envIron-
menTal revIew process In federally funded hIghway projecTs: Background
and Issues for congress, 1, 36-37 (2012) (citing Thomas, H.R. and Ellis,
R.D, Avoiding Delays During the Construction Phase of Highway Projects,
naTIonal cooperaTIve hIghway research program TransporTaTIon, Trans-
porTaTIon research Bd., (2001) (“More time spent in design identifying
problems will reduce construction time and result in a shorter overall project
time. A widely recognized principle is that spending more monies during
planning and design will reduce the time and cost required for construction by
avoiding unforeseen conditions, reducing to a minimum design errors and omis-
sions, and developing schemes that will support the most efcient approach to
construction.”)
37
Dep’t of Transp., v. Public Citizen, 541 U.S. 752, 767 (2004).
38
See Schaper, supra note 4.
39
See 40 C.F.R. §§ 1506.6(b), 1500.2(d), 1500.1; supra note 13 and accom-
panying text.
endnoTes: InfrasTrucTure and developmenT In an era of exTreme weaTher evenTs: we need The naTIonal
envIronmenTal polIcy acT!
continued from page 35
23
Beyond Misclassication, supra note 5, at 593 (stating that Uber has
lobbied heavily and even given state legislators “model codes” to pass); see
Michael Hiltzik, How Uber’s big settlement may make things worse for its
drivers, l.a. TImes (Apr. 22, 2016), http://www.latimes.com/business/hiltzik/
la--hiltzik-uber-settlement-20160422-snap-htmlstory.html (stating that Uber’s
policy to no longer deactivate riders for low ride acceptance rates was created
because of settlement discussions).
24
Dependent Contractors, supra note 11, at 648-49; Seth D. Harris & Alan
B. Krueger, A proposal for Modernizing Labor Laws for Twenty-First-Century
Work: The “Independent Worker”, 17-18 (Hamilton Project, Discussion Paper
No. 2015-10, 2015), http://www.hamiltonproject.org/assets/les/moderniz-
ing_labor_laws_for_twenty_rst_century_work_krueger_harris.pdf (furthering
that another classication for workers called “independent workers” that would
address the issue) [hereinafter Independent Worker].
25
See Beyond Misclassication, supra note 5, at 597 (explaining that Lyft’s
ring methods were revised to allow the right to arbitration before booted from
the app because of the settlement discussions arising from Cotter v. Lyft, 60 F.
Supp. 3d 1067 (N.D. Cal 2015)).
26
See id. at 600 (describing these jobs as “precarious” as the work shifts from
“projects” to “task,” and requires a lower level of skill to complete them).
27 Independent Worker, supra note 24, at 9 (providing an example of the
problem with paying a driver when they are “waiting” for a ride with the app
open as they do personal tasks). But see Ross Eisenbrey & Lawrence Mishel,
Uber business model does not justify a new ‘independent worker’ category,
econ. pol’y InsT. (Mar. 17, 2016), https://www.epi.org/publication/uber-
business-model-does-not-justify-a-new-independent-worker-category/ (arguing
against the example from Harris and Krueger [Independent Worker]).
28
See Stephen Gandel, Uber-nomics: Here’s what it would cost Uber
to pay its drivers as employees, forTune (Sept. 17, 2015), http://fortune.
com/2015/09/17/ubernomics/ (estimating that it would cost Uber $4.1 billion
a year to cover employee benets); see also Caroline O’Donovan, Some Uber
Customers Will Pay More So Drivers Can Buy Injury Insurance, Buzzfeed
news (May 9, 2017), https://www.buzzfeed.com/carolineodonovan/uber-cus-
tomers-will-pay-more-so-drivers-can-buy-insurance?utm_term=.pqPGLj3Vo#.
doGVJ9gWZ (stating that Uber raised ride costs by ve cents a mile in certain
states to cover its pilot personal injury insurance program for drivers).
29
See Press Release, Econ. Pol’y Inst., Uber drivers should be paid for time
spent waiting for fares (Mar. 17, 2016), https://www.epi.org/press/uber-drivers-
should-be-paid-for-time-spent-waiting-for-fares-facts-of-being-an-uber-driver-
reveal-no-need-to-create-a-third-category-of-worker/ (stating that apps that
prevent multitasking and ignoring the app when it is on could prevent workers
from earing minimum wage without accepting tasks).
30
See Star ratings, uBer, https://www.uber.com/drive/resources/how-ratings-
work/ (last visited Apr. 2, 2018) (explaining that a driver gets deactivated if the
driver’s rating goes below and maintains a certain level).
31
See Hiltzik, supra note 23 and accompanying text; see also Uber Com-
munity Guidelines, uBer, https://www.uber.com/legal/community-guidelines/
us-en/ (last visited Apr. 2, 2018) (detailing the current policy about low ride
acceptance rates).
32
See Kessler, supra note 21.
33
See Greg Bensinger, Uber’s Driver Dilemma: Fare Hikes and Cuts Don’t
Change Pay, wall sT. j. (Nov. 12, 2017, 5:45PM), https://www.wsj.com/arti-
cles/ubers-driver-dilemma-fare-hikes-and-cuts-dont-change-pay-1510491602
(mentioning that Uber’s large investment into self-driving vehicles could allow
Uber to avoid having any drivers); Gandel, supra note 28 and accompanying
text.
34 Autonomous Vehicles; Self-Driving Vehicles Enacted Legislation,
naT’l conference of sTaTe legIslaTures, http://www.ncsl.org/research/
endnoTes: The uBer drIve: self-drIvIng cars could creaTe more uncerTaInTy wITh gIg economy’s
“IndependenT conTracTors”
continued from page 37
224813_AU_SDLP_Spg-Sum18.indd 48 10/18/18 1:54 PM
49
Spring/Summer 2018
transportation/autonomous-vehicles-self-driving-vehicles-enacted-legislation.
aspx (last visited Apr. 2, 2018); Aarian Marshall, Congress Unites (Gasp) to
Spread Self-Driving Cars Across America, Wired (Sept. 6, 2017, 4:33 PM),
https://www.wired.com/story/congress-self-driving-car-law-bill/; see Stan
Horaczek, The role of humans in self-driving cars is even more complicated
after Uber’s fatal crash, PoPular Sci. (Mar. 23, 2018), https://www.popsci.
com/human-drivers-and-self-driving-cars (stating that most self-driving cars
still need drivers to be present and aware to be able to take over driving).
35
Jack Barkenbus, People Aren’t Ready for Self-Driving Cars, citylab (Jan.
4, 2018), https://www.citylab.com/transportation/2018/01/autonomous-vehi-
cles-consumer-backlash/549650/; Kirsten Korosec, A Majority of U.S. Drivers
Still Don’t Trust Self-Driving Cars, Fortune (Jan. 24, 2018), http://fortune.
com/2018/01/24/aaa-drivers-fear-self-driving-cars/ (stating that a majority of
U.S. drivers are wary about riding in a fully self-driving car).
36
inStacart, https://instacart.com/ (last visited Apr. 2, 2018) (grocery
delivery service); PoStmateS, https://about.postmates.com/ (last visited Apr.
2, 2018) (delivery service); Cf. Davey Alba, Instacart Shoppers Can Now
Choose To Be Real Employees, Wired (Jun. 6, 2015, 5:46 PM), https://www.
wired.com/2015/06/instacart-shoppers-can-now-choose-real-employees/
(reporting that Instacart began allowing employees in select cities choose to be
employees).
37
Enrique Dans, The evolution of the taxi: Didi Chuxing puts its pedal to the
metal, medium (Apr. 29, 2017), https://medium.com/enrique-dans/the-evolu-
tion-of-the-taxi-didi-chuxing-puts-its-pedal-to-the-metal-f57901408304 (stating
that self-driving vehicles are developing fast, and that Waymo’s self-driving
taxis that already operating in Arizona).
38
How Employers Can Benet From the Gig Econmy: 31 Business Own-
ers, Founder & Experts Reveal the Biggest Ways the Gig Economy Benets
Employers, Wonolo, https://www.wonolo.com/blog/how-employers-benet-
from-the-gig-economy/ (last updated Jan 13, 2018); Samantha Raphelson, As
the Gig Econmy Grows, Advocates Raise Concerns About Workers’ Safety,
NPR (Dec. 4, 2017), https://www.npr.org/2017/12/04/568377471/as-the-gig-
economy-grows-advocates-raise-concerns-about-workers-safety (discussing
liabilities that companies avoid with independent contractors); Kessler, supra
note 21 (stating that a company was able to operate with up to thirty percent
less in labor costs with independent contractors).
39
See Maya Kosoff, Why the “sharing economy” keeps getting sued, Hive
(Nov. 9, 2017, 11:52 AM), https://www.vanityfair.com/news/2017/11/post-
mates-worker-classication-lawsuit (discussing cases against non-ride-hailing
gig economy companies like Postmates and Grubhub).
224813_AU_SDLP_Spg-Sum18.indd 49 10/18/18 1:54 PM