Sam Panarella

This article looks at the opportunities and challenges presented by leasing state trust lands for renewable energy projects. The enormous growth in installed capacities of renewable energy sources, primarily wind and solar energy projects, in the United States, the European Union, and China over the last ten years shows no signs of slowing as we enter the third decade of the millennium. Indeed, even in the midst of a worldwide pandemic that wreaked havoc on manufacturing capacities… Show more

This article looks at the opportunities and challenges presented by leasing state trust lands for renewable energy projects. The enormous growth in installed capacities of renewable energy sources, primarily wind and solar energy projects, in the United States, the European Union, and China over the last ten years shows no signs of slowing as we enter the third decade of the millennium. Indeed, even in the midst of a worldwide pandemic that wreaked havoc on manufacturing capacities, construction timelines, and supply chains for key components for renewable energy projects, global installations of renewable energy sources in 2020 grew by 45 percent from 2019 levels. Globally, 261 gigawatts of new renewable energy capacity were added in 2020, 50 percent more than the previous record for annual global renewable energy additions. Looking forward, renewables are projected to account for 90 percent of total global power capacity increases in both 2021 and 2022.

Given the strong political, market, and policy forces driving the rise of renewable energy generation, the siting of an increasing number of renewables projects on state trust lands over the next several years is all but assured. This is good news for state trust land managers, who are ever cognizant of their fiduciary duty to the beneficiaries of these lands. It is also, however, a challenge. It will not be easy, but the benefit to both parties (and to our rapidly warming planet) from meeting these challenges is more than worth the effort. Show less

The world is experiencing the sixth episode of mass extinction for life on earth. The National Academy of Sciences reports that this “biological annihilation” is even more dire than previously believed. Unlike previous episodes of mass extinction, this one is caused by human overpopulation, overconsumption, and anthropogenic climate change. The United States has been a world conservation leader for over a century, but its commitment to biodiversity is flagging while its contributions to the… Show more

The world is experiencing the sixth episode of mass extinction for life on earth. The National Academy of Sciences reports that this “biological annihilation” is even more dire than previously believed. Unlike previous episodes of mass extinction, this one is caused by human overpopulation, overconsumption, and anthropogenic climate change. The United States has been a world conservation leader for over a century, but its commitment to biodiversity is flagging while its contributions to the causes of extinction are growing. Although the United States is only one player in the global crisis, it is a major one, and its legal mandates for biodiversity protection, when assessed in the context of both global leadership and on-the-ground impacts, are essential for combatting extinction. Due to its broad influence, this article focuses on the Endangered Species Act (ESA), and analyzes its overarching conservation mandate and the delisting process for formerly listed species. The nation cannot afford to allow newly recovered species to slip back into danger because of inadequate post-listing protections. As we near the close of the second decade of the 21st century on a rapidly warming planet, the time has come to transition from generalized discussion of recovery to an actionable plan to improve post-listing outcomes, one which includes adequate regulatory measures to protect the species and its habitat in the present and in the foreseeable future. A logical starting point is to apply the candidate conservation agreement (CCA) approach, used to keep a species from being listed in the first place, to newly-recovered species to keep them from requiring relisting. We assess the merits of CCAs, recovery plans, and delisting decisions to reach our recommendation of a new tool for species conservation, the Recovery Conservation Agreement. Show less

It is beyond credible dispute that the planet is heating up at an alarming rate and that the ecological effects of global warming pose real questions about the continued viability of human and non-human life on earth in the not-too-distant future. A primary cause of global warming is the burning of carbon-based fuels to generate electricity. Clearly, more must be done, and done soon, to stave off the worst impacts of global warming. Drastically reducing global carbon emissions features… Show more

It is beyond credible dispute that the planet is heating up at an alarming rate and that the ecological effects of global warming pose real questions about the continued viability of human and non-human life on earth in the not-too-distant future. A primary cause of global warming is the burning of carbon-based fuels to generate electricity. Clearly, more must be done, and done soon, to stave off the worst impacts of global warming. Drastically reducing global carbon emissions features prominently in any serious proposal to combat global warming. However, given that humans are extremely unlikely to willingly give up the massive recreational, economic, health, and quality-of-life benefits that come from having access to plentiful, cheap, and reliable electricity, any reductions in carbon-generated electricity will likely have to be made up for by massive increases in non-carbon-based means of generation, such as wind, solar, and hydroelectricity.

The current regulations governing small hydropower discourage investment and unnecessarily burden developers by requiring them to navigate a costly, complex, and time-consuming regulatory framework that may be appropriate for large dams given the environmental and ecological damage such dams can cause, but are regulatory overkill for the comparatively small impacts from a small hydro project.

With low-impact small hydropower technologies offering a politically-promising approach to utilizing untapped hydropower potential in America, while also allowing fisheries to thrive and rivers to run free, this regulatory scheme is ripe for reform. The article offers targeted suggestions for reform to the federal oversight of small hydropower licensing, with a particular focus on making a regulatory distinction between low-impact and more physically-intrusive methods of hydropower generation and streamlining and expediting the approval process for low impact small hydropower projects. Show less

The Migratory Bird Treaty Act (MBTA) will soon celebrate its 100th birthday, making it one of the oldest federal wildlife protection laws in the United States. The MBTA led a relatively quiet existence for much of its life, but has in recent years been the focus of an intense debate between industry and bird advocacy groups about whether its strict liability criminal and civil penalties for killing a protected bird extend to incidental killings of birds by otherwise lawful commercial… Show more

The Migratory Bird Treaty Act (MBTA) will soon celebrate its 100th birthday, making it one of the oldest federal wildlife protection laws in the United States. The MBTA led a relatively quiet existence for much of its life, but has in recent years been the focus of an intense debate between industry and bird advocacy groups about whether its strict liability criminal and civil penalties for killing a protected bird extend to incidental killings of birds by otherwise lawful commercial activities.

This fundamental question about the scope of the MBTA remains unresolved and is the subject of a current circuit split among federal courts of appeal. To date, neither Congress nor the U.S. Supreme Court have shown any inclination to step in to resolve this dispute, creating an unacceptable level of developmental and operational uncertainty for industries whose commercial activities unintentionally kill birds, such as oil and gas companies and renewable energy developers. The unsettled state of the law surrounding MBTA liability for incidental takes recently made headlines across the country when the 5th Circuit, in United States v. Citgo Petroleum Corp., reversed Citgo’s MBTA misdemeanor conviction for migratory bird deaths caused by birds landing in its oil pits. Amazingly, the lack of clarity around the scope of MBTA criminal liability even extends to seemingly innocuous noncommercial activities such as driving a car or owning a cat, both of which, under a plain meaning reading of the MBTA, could result in criminal prosecution.

In the article I trace the byzantine reasoning underlying this circuit split and offer a practical solution to resolve it by using a category-based approach to criminal liability under the MBTA that builds off the clear congressional intent behind the MBTA to criminalize industrial activities directed at killing birds. Show less

Any business organization may become a party to litigation. Counsel representing a business organization and employees within the business organization itself need to know how to identify, preserve, collect, review and produce electronically stored information that could become part of the pool of evidence in litigation.

eDiscovery Response Planning: A Guide for Corporate Legal Departments includes:

• Detailed pointers for assessing an organization's state of litigation… Show more

Any business organization may become a party to litigation. Counsel representing a business organization and employees within the business organization itself need to know how to identify, preserve, collect, review and produce electronically stored information that could become part of the pool of evidence in litigation.

eDiscovery Response Planning: A Guide for Corporate Legal Departments includes:

• Detailed pointers for assessing an organization's state of litigation readiness
• Perspectives on how to make the needed cultural changes in the organization
• Suggestions on how to build a discovery response team (DRT)

eDiscovery Response Planning: A Guide for Corporate Legal Departments will help you:

• Learn how to find the gaps in the organization's current processes
• Showcase how to get "buy-in" from organizational leadership and move all within the organization toward understanding and accepting litigation readiness as an important priority
• Become ready to respond to the organization's discovery demands during each phase of discovery with focused, prepared individuals and clearly defined responsibilities Show less

Wind turbines kill birds. A lot of birds. You would be hard pressed to find someone who is happy with that fact, including anyone in the wind energy development community. But until and unless there are technological advances in wind turbine design that eliminate their deadly impact on birds, it is something we must accept. Of course, acceptance does not and should not mean issuing a blank check to wind energy developers to wantonly injure birds. To do so would violate both the spirit and… Show more

Wind turbines kill birds. A lot of birds. You would be hard pressed to find someone who is happy with that fact, including anyone in the wind energy development community. But until and unless there are technological advances in wind turbine design that eliminate their deadly impact on birds, it is something we must accept. Of course, acceptance does not and should not mean issuing a blank check to wind energy developers to wantonly injure birds. To do so would violate both the spirit and letter of a host of environmental laws that have at their core a stubborn insistence that human demands on the environment must be balanced against duties of stewardship owed to all animals. Among these laws is the BGEPA, which makes manifest our commitment to preserving bald and golden eagles. It does no damage to this commitment to recognize that it must be balanced other environmental imperatives, including and especially an imperative of the scope and seriousness of global warming. The Service’s creation of programmatic incidental eagle take permits in the Eagle Permit Rule was a clear but thus far unsuccessful effort to strike this balance by allowing for the responsible development of wind energy projects in eagle habitat. By adopting the targeted changes to the Eagle Permit Rule suggested in this article, however, balance is still possible. Show less

An experience-based strategic guide to establishing and embedding a business process for managing the complexities of electronic discovery within an organization.