UCLA Journal of Environmental Law and Policy

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Clapper v. Amnesty International USA further muddies the already confusing doctrine of injury-in-fact in the law of Article III standing. This article examines Clapper and proposes clarification of three problematic aspects of injury-in-fact, which arise in environmental litigation: the concepts of “certainly impending harm;” “reasonable concern;” and “geographic nexus.” Clapper’s broad language suggesting that imminent injury must meet a very strict, “certainly impending” standard should be viewed in light of the case law adjudicating probabilistic harms, which reveals that “certainly impending” does not even approach a preponderance standard. Rather, it encompasses a wide range of environmental and public health risks where the plaintiffs have established a nexus to the challenged action. Clapper should be interpreted as denying standing because of the plaintiffs’ inability to establish a nexus to surveillance activities, akin to the geographic nexus required in environmental cases. Clapper can also be distinguished because of its reliance on the uncertainty associated with subsequent, intervening actions required to consummate the alleged injury. Clapper’s language conflating the “reasonable concern” doctrine from Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. with the “certainly impending” test must be corrected, and “reasonable concern” should be presumed in future cases where the plaintiffs establish a geographic nexus to violations of environmental law. Finally, the test for geographic nexus in environmental cases should account for indirect and cumulative impacts, and should not depend on proof of nexus to precise acreages.

Congress passed the Organic Foods Production Act (the “OFPA”), and over a decade later, rules implementing the Act were finally promulgated in 2002. In the time between the Act’s passage and its implementation, the number of consumers purchasing organic food in the United States, and globally, increased dramatically. Since 1990, the market has grown approximately 20 percent per year. The consumer interest in organic food is particularly striking given the OFPA does not guarantee that food sold as “organic” will be free from toxins or pesticide residues. Indeed, the legislative history of the Act makes clear that Congress did not intend to guarantee that food labeled “organic” would be free from toxins or pesticide residues.

Rather, the OFPA focuses intently on process rather than end product regulation. In this regard, the OFPA has a different focus than much of American business regulation, where the focus appears to be mainly on end product regulation.

This paper asserts that regulation of organic food products should be more product-based for a number of reasons. The most important reason is that organic farming and marketing is unique. Not only does the process by which the food is produced matter to these particular consumers, but consumers also care deeply about the quality of the end product. Organic food buyers recognize that the process by which food is produced has moral and ethical implications. This process impacts farm workers, the environment, and ultimately the quality of the food itself. Given that concerns about farming methods and their relation to environmental health are on the rise, this paper will discuss consumer preferences for process and/or product information.

Additionally, in analyzing this product/process distinction, this paper will discuss the “market for lemons” theory first espoused by Professor and economist, George A. Akerlof, in “‘The Market For ‘Lemons:’ Quality Uncertainty and the Market Mechanism.” In “Lemons,” Professor Akerlof analyzed a market where buyer and seller relied on asymmetric information. This market ultimately resulted in low quality goods, or “a lemons market.” This paper explores the application of the “Market for Lemons” theory to the organic foods market, and considers that while the organic market is one where asymmetric information exists between buyer and seller, the market for organic foods continues to flourish.

Part I of this paper discusses the current regulation of organic food under the OFPA and the implementation of regulations, including recent changes to regulations effective January 2013. Part II discusses consumer perceptions about, and preferences for, organic food, analyzing whether those perceptions align with reality. Part II also explores factors that influence consumers’ reasons for buying in the organic food market.  In light of these perceptions and preferences, Part III discusses the shortcomings of the OFPA. Finally, Part IV of this paper urges that the market for organic food ought to be more heavily regulated from a product perspective in spite of the fact that the market for organic food is not a “Lemons” market.

This paper ultimately asserts that, despite asymmetric information about ultimate product quality, the reasons for purchasing  organic food will remain sound, and the market for organic food will remain fundamentally strong. However, for a multitude of other reasons, including the religious and ethical concerns of consumers relative to health and environment, I propose a regulatory paradigm that would include stricter “organic specific” regulation, as well as thorough end product testing to support the continued expansion of this profitable market.

Among the most daunting challenges the holder of a perpetual conservation easement faces is the enforcement of the easements it holds, for all time, and against all violators. National organizations estimate that at least forty million acres of land in the United States are protected with perpetual conservation easements. Each of these conservation easements is held by an entity, either a government agency or a tax-exempt, non-profit land trust, charged with the responsibility of enforcing easement violations against any and all violators. Holders must contend with violations caused by landowners and third parties. In the latter instance, someone who is not the owner of the easement-protected property enters the land by trespass without the knowledge or permission of the landowner or the easement holder, and violates the conservation easement. A Land Trust Alliance (Alliance) survey, specifically designed to gather information on conservation easement violations, reveals that behind successor-generation landowners, third parties are the most frequent class of easement violators. The findings of this survey track those of an earlier Alliance survey and are consistent with violation reporting in the most recent Alliance census. Further, anecdotal reporting of conservation easement violations indicates that many violations are caused by third parties—possibly as much as forty percent.

Violations caused by landowners whose lands are protected with conservation easements present fairly linear practical and legal avenues for resolution. The easement holder has an established means of reaching the landowner through the conservation easement document. When a third party causes a violation, the legal and practical avenues are less clear. Part II of this Article explores the legal and practical avenues available for pursuing third-party violators in the context of holders’ responsibilities regarding the applicable law of perpetual conservation easements. Part III identifies the tools available for conservation easement drafting, stewardship, management, and enforcement of third-party violations. Part IV distills lessons learned from litigated and non-litigated cases of third-party violations. The Article concludes by offering practical guidance to easement holders anticipating or addressing third-party violations.

On October 29, 2012, Hurricane Sandy blew through the largely populated areas of New Jersey, New York, and Connecticut. It was, at the time, the largest storm in the region’s history. While many areas lost electricity from the electrical grid, the few buildings equipped with Combined Heat and Power (“CHP”) remained lit and heated. For example, many residential and commercial facilities lost power for days after the storm, but natural gas powered CHP systems at the Co-Op City apartment complex and New York University, Fairfield University, and Princeton University kept their buildings functioning. According to Ross Tomlin, an employee of Gulf Coast Clean Energy Application Center of the Department of Energy, “because CHP relies on natural gas delivered through underground pipelines, [the systems] can weather just about any storm.” But minimizing the effects of natural disasters is only one of CHP’s many benefits.

CHP is the process of capturing heat from existing heat sources, such as boilers, and using the heat to power energy sources, such as steam-powered turbines, to create electricity, hot water, and heat. The technology not only reduces energy costs through efficiency—at least twenty to thirty percent more efficient than separate heat and power systems—but it also protects the environment by burning less fuel, and thus reducing greenhouse gas emissions and air pollution. While this technology has seen continued barriers over the years, one company, Recycled Energy Development (“RED”), recognized that “the US lags far behind the world leaders when it comes to producing energy through [CHP]” and has taken steps to utilize the technology.

The average increase in energy costs for households between 2001 and 2012 was forty-three percent. This increase in energy costs affects consumers and businesses alike, with electricity costs topping many businesses’ lists of expenses. America undeniably faces a severe energy crisis both in the private sector, due to rising energy costs, and in the public sector, due to gridlock in government. Among the many green energy technologies currently available, CHP is “the least sexy” and considered “a ‘homeless’ suite of technologies” when compared to solar, wind, and hydropower energy systems. Recently, however, the federal government gave CHP a second look as it attempted to educate state governments and companies about the benefits of the CHP technology. The severe lack of effective and efficient state government incentive programs is hindering the CHP technology from reaching its full potential of providing cheap, sustainable power to businesses.

This Comment will argue that, given the policy benefits of the CHP technology, the federal government should create an organization to establish and monitor a CHP legislative blueprint with three financial incentive program options; states should establish two of those three financial incentive programs; and states should include CHP in their Renewable Portfolio Standards. This Comment will analyze the financial barriers hindering effective widespread use of CHP among private sector companies, examine current effective and ineffective state financial incentive programs, and determine which financial incentive regulations the federal government should include in the legislative blueprint. Because this is mainly a state law issue, no “one size fits all” approach will suffice; however, a legislative blueprint can educate state legislatures about the financial incentives that can be put in place to allow for effective and widespread use of the CHP technology. Such a legislative blueprint must include: 1) a rebate for installed costs of the technology, 2) a feed-in tariff to entice companies to re-funnel excess power through the grid system, and 3) a provision of grants to companies who successfully complete CHP installations.

Section II includes a background discussion of the CHP technology that will help facilitate an understanding of how the technology works and what financial incentives previously existed. Section III includes an analysis of financial incentives, illustrated by state examples that will help analyze how the incentives operate. Section IV includes an analysis of states with little financial incentive programs and demonstrates why it hinders the CHP technology. Section V discusses the proposed solution to this problem, as introduced above.