State Fish Stocking Programs at Risk: Takings Under the Endangered Species Act

Part I of this article provides a brief background to fish stocking practices in the United States, including a discussion of beneficial fish stocking practices, as well as some of the allegations surrounding the detrimental effects. Part II of this article provides some necessary background on section 9 of the ESA, the “actual injury” prong, the “significant impairment” prong, and their application to fish stocking. Part III of this article sets forth recommendations for future clarification and increased consistency on these issues. Specifically, this article supports the use of two rules that can help reconcile the uncertain landscape surrounding a taking based on habitat modification. First, “actual injury” should be found where there is injury to either an individual or a population of protected species. Second, the degree of proof required to establish an “injury” where essential behaviors are impaired should be bifurcated into two tests, depending on which behavioral pattern is being adversely affected. Together, these rules can bring resolution not only to scenarios like fish stocking, but also to other future fact patterns scrutinized under the habitat modification analysis. Part IV of this article demonstrates how application of these rules to states can further the goals of the ESA, both through voluntary reevaluation of fish stocking programs, and through application for an Incidental Take Permit and corresponding Habitat Conservation Plan. These rules can provide two different paths to the same goal: to minimize adverse impacts to endangered and threatened species

Artificial Intelligence and Climate Change

As artificial intelligence (AI) continues to embed itself in our daily lives, many focus on the threats it poses to privacy, security, due process, and democracy itself. But beyond these legitimate concerns, AI promises to optimize activities, increase efficiency, and enhance the accuracy and efficacy of the many aspects of society relying on predictions and likelihoods. In short, its most promising applications may come, not from uses affecting civil liberties and the social fabric of our society, but from those particularly complex technical problems lying beyond our ready human capacity. Climate change is one such complex problem, requiring fundamental changes to our transportation, agricultural, building, and energy sectors. This Article argues for the enhanced use of AI to address climate change, using the energy sector to exemplify its potential promise and pitfalls. The Article then analyzes critical policy tradeoffs that may be associated with an increased use of AI and argues for its disciplined use in a way that minimizes its limitations while harnessing its benefits to reduce greenhouse-gas emissions

Artificial Intelligence and Climate Change

As artificial intelligence (AI) continues to embed itself in our daily lives, many focus on the threats it poses to privacy, security, due process, and democracy itself. But beyond these legitimate concerns, AI promises to optimize activities, increase efficiency, and enhance the accuracy and efficacy of the many aspects of society relying on predictions and likelihoods. In short, its most promising applications may come, not from uses affecting civil liberties and the social fabric of our society, but from those particularly complex technical problems lying beyond our ready human capacity. Climate change is one such complex problem, requiring fundamental changes to our transportation, agricultural, building, and energy sectors. This Article argues for the enhanced use of AI to address climate change, using the energy sector to exemplify its potential promise and pitfalls. The Article then analyzes critical policy tradeoffs that may be associated with an increased use of AI and argues for its disciplined use in a way that minimizes its limitations while harnessing its benefits to reduce greenhouse-gas emissions

Energy Emergencies

Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability. This Article challenges this long-standing assumption and is skeptical of the zero-sum framework that suggests accountability and expediency cannot coexist in statutory emergency delegations. Specifically, it develops an Executive Delegations Matrix to better evaluate the different delegation options, demonstrating that accountability and expediency need not be mutually exclusive. This Article then uses emergency energy powers to test the viability of the factors favoring unilateral delegations, ultimately finding these factors unpersuasive in the energy-emergency context. Instead of the common knee-jerk reaction to unilateral presidential control over emergencies, this Article finds that Congress can often cultivate a more balanced decision-making framework by providing a greater role for expert agencies. By challenging the assumptions underlying unilateral presidential delegations for energy emergencies, this Article provides a new framework for assessing the world of unilateral presidential delegations more broadly

Climate Change Under NEPA: Avoiding Cursory Consideration of Greenhouse Gases

Neither the National Environmental Policy Act (“NEPA”) nor its implementing regulations require consideration of climate change in NEPA documentation. Yet an ever-growing body of NEPA case law related to climate change is making it increasingly difficult for a federal agency to avoid discussing the impacts of those emissions under NEPA in its Environmental Impact Statements (“EISs”). Although consideration of climate change in NEPA documents sounds right in theory, within the current legal framework, the NEPA documents provide only lip service to the goals of NEPA without any meaningful consideration of climate change. An empirical evaluation of two years of selected EISs demonstrates that the degree of “consideration” is far from meaningful, an outcome that fails to reflect the purposes behind NEPA. As a result, the nation is left with more paperwork and more greenhouse gas emissions. This Article concludes that inclusion of climate change in NEPA documentation is inevitable, but that within the current judicial interpretations of NEPA and the Administrative Procedure Act, litigation has reached its maximum effectiveness to elicit meaningful consideration of climate change. It makes recommendations for fortifying NEPA with concrete requirements to address this new challenge, including a recommendation that all but de minimis greenhouse gas emissions be considered significant under a NEPA analysis

Reconsidering Regulatory Uncertainty: Making a Case for Energy Storage

This Article begins the complex dialogue that must take place to address the emerging technologies providing energy storage for our electricity grid. Energy storage has the capacity to be a game-changer for many facets of our grid, providing better integration of renewable energy, enhanced reliability, and reduced use of carbon-intensive fuels. Energy storage faces a number of obstacles, however, including technological, financial, and regulatory uncertainty. This Article focuses on the regulatory uncertainty, and defends the proposition that not all regulatory uncertainty is created equal. It argues for differential treatment of this uncertainty, depending on its context, scope, and source, and applies this framework to the uncertainty surrounding the classification of energy storage. It finds that this uncertainty operates against high baseline levels of uncertainty in the energy industry, is limited in its scope, and is intentionally embraced by the federal regulators in an effort to realize the benefits of regulatory uncertainty. This Article asserts that this form of uncertainty is one that can be managed in a way to avoid stifling the development of this important technology. This Article sets forth strategies for regulators and regulated entities to continue to function, even within this zone of regulatory uncertainty

Reconsidering Regulatory Uncertainty: Making a Case for Energy Storage

This Article begins the complex dialogue that must take place to address the emerging technologies providing energy storage for our electricity grid. Energy storage has the capacity to be a game-changer for many facets of our grid, providing better integration of renewable energy, enhanced reliability, and reduced use of carbon-intensive fuels. Energy storage faces a number of obstacles, however, including technological, financial, and regulatory uncertainty. This Article focuses on the regulatory uncertainty, and defends the proposition that not all regulatory uncertainty is created equal. It argues for differential treatment of this uncertainty, depending on its context, scope, and source, and applies this framework to the uncertainty surrounding the classification of energy storage. It finds that this uncertainty operates against high baseline levels of uncertainty in the energy industry, is limited in its scope, and is intentionally embraced by the federal regulators in an effort to realize the benefits of regulatory uncertainty. This Article asserts that this form of uncertainty is one that can be managed in a way to avoid stifling the development of this important technology. This Article sets forth strategies for regulators and regulated entities to continue to function, even within this zone of regulatory uncertainty

Assuming the Risks of Artificial Intelligence

Tort law has long served as a remedy for those injured by products—and injuries from artificial intelligence (“AI”) are no exception. While many scholars have rightly contemplated the possible tort claims involving AI-driven technologies that cause injury, there has been little focus on the subsequent analysis of defenses. One of these defenses, assumption of risk, has been given particularly short shrift, with most scholars addressing it only in passing. This is intriguing, particularly because assumption of risk has the power to completely bar recovery for a plaintiff who knowingly and voluntarily engaged with a risk. In reality, such a defense may prove vital to shaping the likelihood of success for these prospective plaintiffs injured by AI, first-adopters who are often eager to “voluntarily” use the new technology but simultaneously often lacking in “knowledge” about AI’s risks.To remedy this oversight in the scholarship, this Article tackles assumption of risk head-on, demonstrating why this defense may have much greater influence on the course of the burgeoning new field of “AI torts” than originally believed. It analyzes the historic application of assumption of risk to emerging technologies, extrapolating its potential use in the context of damages caused by robotic, autonomous, and facial recognition technologies. This Article then analyzes assumption of risk’s relationship to informed consent, another key doctrine that revolves around appreciation of risks, demonstrating how an extension of informed consent principles to assumption of risk can establish a more nuanced approach for a future that is sure to involve an increasing number of AI-human interactions—and AI torts. In addition to these AI-human interactions, this Article’s reevaluation also can help in other assumption of risk analyses and tort law generally to better address the evolving innovation-risk- consent trilemma

Reconsidering Regulatory Uncertainty: Making a Case for Energy Storage

This Article begins the complex dialogue that must take place to address the emerging technologies providing energy storage for our electricity grid. Energy storage has the capacity to be a game-changer for many facets of our grid, providing better integration of renewable energy, enhanced reliability, and reduced use of carbon-intensive fuels. Energy storage faces a number of obstacles, however, including technological, financial, and regulatory uncertainty. This Article focuses on the regulatory uncertainty, and defends the proposition that not all regulatory uncertainty is created equal. It argues for differential treatment of this uncertainty, depending on its context, scope, and source, and applies this framework to the uncertainty surrounding the classification of energy storage. It finds that this uncertainty operates against high baseline levels of uncertainty in the energy industry, is limited in its scope, and is intentionally embraced by the federal regulators in an effort to realize the benefits of regulatory uncertainty. This Article asserts that this form of uncertainty is one that can be managed in a way to avoid stifling the development of this important technology. This Article sets forth strategies for regulators and regulated entities to continue to function, even within this zone of regulatory uncertainty

The Tipping Point of Federalism

As the Supreme Court has noted, “it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product that is used in virtually every home and every commercial or manufacturing facility. No state relies solely on its own resources in this respect.” And yet, the resources used to generate this electricity (e.g., coal, natural gas, or renewables) are determined largely by state and local authorities through their exclusive authority to determine whether to approve construction of a new electricity generation facility. As the nation finds itself faced with important decisions that directly implicate the source of our electricity, including climate change and grid reliability, the proper functioning of a system of exclusive state control over the siting of electricity generation is increasingly strained. Continued state control over the siting of electricity generation is particularly curious when viewed in relation to other infrastructure siting regimes. This Article traces the evolution of authority governing the siting of railroads, natural gas pipelines, wireless telecommunications, and electricity transmission, finding that they share many of the same federalism justifications for centralized control that exist in the siting of electricity. Yet, in every case except for electricity generation, Congress tipped the balance of power to allow for more federal authority over these siting decisions. This Article explores this disparity between state control over the siting of electricity generation and enhanced federal control in the other siting regimes. It concludes that this disparity may be at least partially explained by more initiative on the part of relevant federal agencies. Whereas federal agencies played a minimal role in affecting the tensions caused by increasing national interests in the other infrastructure regimes, federal agencies are taking significant steps to further the national interest in the siting of electricity generation. These actions can reduce the pressure to formally alter the federalism balance through congressional action, and can play a key role in the broader federalism literature surrounding the circumstances that foster tips from state towards federal authority