New York v. U.S. Nuclear Regulatory Commission

By Hillary H. Harnett

The Nuclear Regulatory Commission (“NRC” or “the Commission”) licenses and regulates the nation’s commercial nuclear power plants. Over a span of several decades, it has grappled with its environmental obligations and faced recurrent litigation regarding its responsibilities under the National Environmental Policy Act (“NEPA”). In 2012, the D.C. Circuit heard another NEPA challenge, New York v. U.S. Nuclear Regulatory Commission, just after a series of political events left the future of nuclear waste disposal less certain than ever before. In its decision, the court vacated a recent NRC rulemaking, holding that the Commission had violated NEPA through its failure to adequately assess the environmental impacts of long-term nuclear waste storage. This decision will lead to the NRC’s first Environmental Impact Statement analyzing the effects of continued nuclear power generation in the event that the nation fails to eventually establish a permanent geologic repository for nuclear waste.

This Comment argues that the decision was an appropriate NEPA holding and a welcome departure from earlier decisions that displayed more extreme deference to the Nuclear Regulatory Commission despite similarly lackluster environmental analyses. The decision also highlights a larger issue: the active role that the judiciary must take in response to legislative inaction in the environmental arena.

Cite as: Hillary H. Harnett, New York v. U.S. Nuclear Regulatory Commission, 37 Harv. Envtl. L. Rev. 589 (2013).

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Minard Run Oil Co. v. United States Forest Service

By Jonathan Thrope

Minard Run Oil Co. v. United States Forest Service  (Minard Run II) presents a traditional story with a unique cast of characters. The common law has long established that within a single parcel of property, the surface and the minerals can be separately owned.  Where property has been so divided into a “split estate,” the law presumes that the mineral estate is dominant; unless the deed severing the property provides otherwise, an implied easement burdens the surface estate, permitting the mineral owner to use the surface as may be reasonably necessary to access the minerals.  Minard Run II provides a twist on this common split estate arrangement — it asks what happens when a private party owns the minerals of a split estate and the federal government owns the surface. Specifically, in Minard Run II, private mineral owners sought access to oil and gas through surface owned by the federal government and included in a national forest. The case explores the extent to which the U.S. Forest Service, as the land management agency with jurisdiction over the surface, could regulate this surface access.  Minard Run II ultimately holds, perhaps surprisingly, that the Forest Service had no regulatory authority beyond what a private surface owner would have in an analogous situation. This constraining outcome, however, was not the result of a flawed opinion, but instead an unexpectedly restrictive statute.

This less common split estate arrangement is prone to litigation.  To date, there have been cases involving the Forest Service, the NPS, and the FWS disputing federal regulation of private mineral rights.  This Comment will focus on the latest in this series of controversies. In Minard Run II, the U.S. Court of Appeals for the Third Circuit affirmed a preliminary injunction granted to private mineral rights owners in the Allegheny National Forest (“ANF”) that barred the Forest Service from continuing a moratorium on new oil and gas development within the ANF.  The Forest Service had intended to continue the moratorium until it completed a forest-wide Environmental Impact Statement (“EIS”) for the ANF.  The court rejected the applicability of NEPA, consequently holding that private mineral rights owners do not need Forest Service authorization before disturbing the ANF surface, provided they supply the Forest Service with sufficient notice of their surface use plans. This Comment will describe the factual background of the case, discuss the Court of Appeals’ opinion, and assess Minard Run II in the broader context of split estates involving the federal government as surface owner.

Cite as: Jonathan Thrope, Comment, Minard Run Oil Co. v. United States Forest Service, 36 Harv. Envtl. L. Rev. 567 (2012).

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Rules Without Reasons: The Diminishing Role of Statutory Policy and Equitable Discretion in the Law of NEPA Remedies

By Daniel Mach

Historically, the law governing injunctive relief for violations of the National Environmental Policy Act of 1970 has been informed both by interpretation of the statute’s environmental purpose and by policies associated with the administrative law framework through which NEPA is implemented. The resulting case law reflects tensions between general legal canons and the fact-bound, equitable nature of trial courts’ injunction orders. This Note argues that the Supreme Court’s recent decisions addressing NEPA remedies do not effectively resolve those tensions. Through a case study of Monsanto v. Geertson Seed Farms, this Note argues that the Court’s development of rigid rules of equity for NEPA injunction decisions threatens to divorce those trial-level decisions from relevant legal, institutional, and factual considerations. For this reason, further efforts to circumscribe rules for NEPA injunctions by formalizing principles of equity ought to take into account that tradition’s most central tenet, that equity “eschews mechanical rules” and “depends on flexibility.” Specifically, an effective law of NEPA remedies will require a workable balance of statutory interpretation, administrative law policy, and deference to trial courts’ equitable discretion.

Cite as: Daniel Mach, Rules Without Reasons: The Diminishing Role of Statutory Policy and Equitable Discretion in the Law of NEPA Remedies, 35 Harv. Envtl. L. Rev. 205 (2011).

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