UCLA Journal of Environmental Law and Policy

Many aspects of carbon taxes have been studied in the academic literature.  This paper focuses on an area that has received insufficient attention by examining some of the specific institutional challenges a carbon tax proposal would face in Congress.  A relatively unknown recent debate in the House of Representatives over a resolution to denounce the concept of carbon taxes provides a window into these challenges, demonstrating the arguments and tactics that can impede solution-oriented action to address climate change.  Developing a policy that responds to these arguments is likely to add complexity to a carbon tax proposal, to increase the number of congressional committees involved in consideration of the proposal, and to create additional demand for the revenue that a proposed carbon tax would generate.  Moreover, opponents of a policy can exploit these complicating factors and the lengthy time needed in Congress to consider legislation, so they can preemptively attack emerging concepts and proposals.  The paper concludes by arguing that enacting a carbon tax at the federal level, with the policy elements that are often contemplated, will require a great deal of agreement or complaisance among lawmakers.  Understanding this challenge well in advance of the opportunity for congressional consideration of a carbon tax will best prepare carbon tax advocates for a successful outcome.

Hydraulic fracturing, or “fracking,” continues to grow rapidly as an oil and gas extraction method in the United States, and its growth has recently led to the emergence of natural gas as the nation’s new leading energy source for power generation.  However, the hydraulic fracturing process carries innumerable environmental and health-related concerns, and federal regulations to address these concerns have struggled to keep up with the blistering pace of fracking’s growth and development within the United States.

In 2015, the Bureau of Land Management (BLM), under the Obama administration, promulgated a rule to ‘complement’ its regulations with respect to hydraulic fracturing on federal and Indian lands, citing the Mineral Leasing Act (MLA) and Federal Land Policy and Management Act (FLPMA) as sources of statutory authority.  This 2015 Fracking Rule faced intense opposition, first from industry and state parties within the federal court system, and later from the BLM itself under a newly-elected President Trump.  This Note argues that the Bureau of Land Management has the statutory authority to regulate hydraulic fracturing on federal public lands under the MLA and FLPMA, by cause of the plain language, general history, and reasonable agency interpretation of these statutes.  This Note further supports BLM’s authority to regulate hydraulic fracturing with justifications related to both natural resource protection and the effectiveness of federal-level regulation.