The UCLA Journal of Environmental Law and Policy produces a high quality biannual journal on cutting-edge environmental legal and policy matters. JELP is entirely run and produced by students at UCLA School of Law. Articles in JELP are written by leading scholars throughout the country and often the world, and by students focusing on environmental law at UCLA.
Volume 36, Issue 1, 2018
UCLA Journal of Environmental Law & Policy
Table of Contents
Reducing the amount of carbon dioxide in the atmosphere is vital to mitigate climate change. To date, reduction efforts have primarily focused on minimizing the production of carbon dioxide during electricity generation, transport, and other activities. Going forward, to the extent that carbon dioxide continues to be produced, it will need to be captured before release. The captured carbon dioxide can then be utilized in some fashion or injected into underground geological formations (e.g., depleted oil and gas reserves, deep saline aquifers, or basalt rock reservoirs) where it will hopefully remain permanently sequestered. This injection process is referred to as “carbon capture and storage” (CCS).
Significant research has been undertaken to identify possible carbon dioxide injection sites in the continental United States. There is also growing interest in the possibility of injecting carbon dioxide offshore into geological formations underlying the seabed. However, little is currently known about the legal regime for sub-seabed injection. This article outlines the key legal requirements for injecting carbon dioxide into the seabed off the northeast coast of the U.S.
The legal requirements for offshore carbon dioxide injection differ depending on the location of the injection operation. Injection operations undertaken in the Northeastern U.S., within three nautical miles of the coast (i.e., in “state waters”), are regulated under the Environmental Protection Agency’s (EPA) Underground Injection Control Program. That Program does not, however, apply to operations in “federal waters,” 3 to 200 nautical miles from shore, or on the “high seas” beyond those waters.
There is currently no regulatory regime specific to carbon dioxide injection in federal waters or on the high seas. However, injection operations in those areas may be regulated under general programs, such as the ocean dumping regime established in the Marine Protection, Research, and Sanctuaries Act (MPRSA). The MPRSA was enacted to fulfill the U.S.’s obligations under the London Convention, which aims to prevent pollution of the seas by waste and/or other materials. Consistent with the terms of the Convention, the MPRSA regulates the disposal of material at sea. The EPA has suggested that the MPRSA may apply to the injection of carbon dioxide into the seabed.
Assuming it applies to seabed injection, the MPRSA may operate as a barrier to offshore CCS. Under the MPRSA, any person transporting material from the U.S. for the purpose of dumping it at sea, whether in state waters, federal waters, or on the high seas, must obtain a permit from the EPA. Notably, the EPA cannot grant a permit when the material consists of industrial waste, which is defined as “solid, semi-solid, or liquid waste generated by a manufacturing or processing plant.” The dumping of such waste is therefore effectively prohibited by the MPRSA.
Depending on whether carbon dioxide is considered an industrial waste, the MPRSA may operate either to ban its offshore injection or allow its injection with a permit from the EPA. Various other permits and authorizations may also be required depending on where and how injection occurs. The key requirements are outlined in this article.
Climate change is precipitating social issues that are not traceable to a discreet, culpable actor. This is because greenhouse gas accumulation in the stratosphere is a global problem transcending the socio-political boundaries that law uses to assign responsibility. The diffuse nature of climate change calls for new legal approaches that can provide greater juridical responsiveness to social problems and universal human vulnerability that is emerging in the wake of one of the most pressing environmental challenges facing the international community today. Those social problems include displacement and dispossession of indigenous communities whose livelihoods depend directly on their environment, such as Arctic communities in Alaska, rural dwellers in the Himalayas, livestock farmers in the Kalahari, and forest-dwellers in the Amazon. Farming communities reliant upon rain-fed agriculture also face food insecurity due to changing, unpredictable rainfall patterns. While social impacts may be most keenly felt at the local level, the global nature of climate change means that jurisprudential bases of law at all levels—local, national, regional, and international—need to promote coherent legal responses that recognize the global genesis of what may be seen as localized problems.
This essay will draw on human vulnerability theory to discuss law’s role in promoting social justice in the wake of climate change. Vulnerability is the “characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between the state and its institutions and the individual.” Vulnerability theory critiques the contemporary understanding of “the legal subject,” which is built on an ideology that values liberty over equality and manipulates contractual concepts such as choice and consent to justify exploitation and structural inequality. That inequality has distorted and constrained the conception of the legal subject into a narrow and limited autonomous subject that is at the center of the analysis that law uses to organize society. Human vulnerability theory calls for enriching the legal subject by placing it in social context, and engaging with its complex and dynamic characteristics.The paper is divided into five Parts. Part I provides an overview of human vulnerability theory. Part II presents a vulnerability perspective on liberalism and neoliberalism, two theories that underlie the current global climate regime. Part III examines the concept of vulnerability in the climate discourse, while Part IV applies human vulnerability theory to the global climate regime. The final part states the conclusions.
 Anna Grear, Vulnerability, Advanced Global Capitalism and co-Symptomatic Injustice: Locating the Vulnerable Subject, in Vulnerability: Reflections on a New Ethical Paradigm for Law and Politics 41, 41 (Martha Alberston Fineman & Anna Grear eds., 2013).
 David Hunter, James Salzman & Durwood Zaelke, International Environmental Law & Policy 3rd ed. 631. Foundation Press, NY (2007).
Climate Change and Indigenous Peoples, United Nations Permanent Forum on Indigenous Issues, http://www.un.org/en/events/indigenousday/pdf/Backgrounder_ClimateChange_FINAL.pdf [http://perma.cc/7G3H-M9MP].
 Berhanu F. Alemaw & Timothy Simalenga, Climate Change Impacts and Adaptation in Rainfed Farming Systems: A Modeling Framework for Scaling-Out Climate Smart Agriculture in Sub-Saharan Africa, 4 Am. J. of Climate Change 313 (2015).
See Klaus Bosselmann, The Rule of Law Grounded in Earth (2013), p.5.
Definitions of Vulnerability and the Human Condition Initiative, Emory University, http://web.gs.emory.edu/vulnerability/about/definitions.html [http://perma.cc/D363-SFCR].
See Martha Albertson Fineman, The Autonomy Myth, The New Press (2004). In this book, Fineman argues that popular ideology in the United States (and adopted in other common law based legal systems) has become fixated on the myth that citizens are and should be autonomous. However, the fact is that dependency is unavoidable in any society and human beings are more or less dependent on others at all stages in the human life-cycle. I extend the notion of dependency to our dependence on the environment and the resources it provides for our subsistence on Earth throughout our lives.
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Livestock production accounts for 19 percent of greenhouse gas (GHG) emissions and 9 percent of anthropogenic GHG emissions. It requires up to 30 percent of all land surface area on earth, 33 percent of all arable land, and 70 percent of agricultural land. It contributes to climate change in a myriad of ways, including land erosion, water contamination, and abundant resource use. Current practices are not sustainable for a rapidly growing population. Lab-grown meat, also known as cultured meat, provides an alternative that may address many of the environmental harms stemming from livestock production. Cultured meat requires 99 percent less land, 90 percent less water, and 45 percent less energy, which would help accommodate population growth while lowering food-based ecological impacts, including climate change. It can also be placed in areas inhospitable to traditional livestock production, and it would reduce animal cruelty. Currently, however, the federal statutory and regulatory framework governing livestock production is not prepared to address cultured meat. After introducing cultured meat and the technology behind it, this essay explores how current federal regulations fail to adequately address this development. The essay concludes by recommending the adoption of new regulations to clarify the growth, inspection, certification, and sale of cultured meat in the United States.
The Law and Policy of Rainwater harvesting: A Comparative Analysis of Australia, India, and the United States
Rainwater harvesting is increasingly being turned to as a viable water conservation measure in the face of increasing water shortages. Legislatures at local, state, and national levels have begun implementing legislation that regulates rainwater harvesting; in some cases, governments choose to make the practice mandatory. This article examines four mandatory rainwater harvesting policies implemented in Australia, India, and the United States. The article summarizes the relative success of each policy’s adoption, and then moves on to discuss the impact of the policy on overall water conservation. In comparing the relative success of the policies, one finds that while financial investment plays an important role in determining the impact of the programs, other factors, such as the leniency of the mandate, cost to consumer, and support from non-governmental organizations play an important role in determining whether the policies are adopted. Furthermore, policymakers can encourage greater water conservation by incentivizing behavioral change and creating more robust financial incentives.