Michigan Journal of Environmental & Administrative Law








This dilemma of environment-energy decisions that have major positives and negatives from either a health or ecosystem perspective poses an important ethical challenge that this Essay explores. Namely, in many cases, one can value humans, species, and ecosystems, and still not be able to resolve the best way forward. The Essay focuses in particular on a core problem at the environment-energy interface: people demand cheap and reliable energy, which pushes us towards new technology or the massive expansion of existing technology, both of which carry risks and possibilities for a cleaner future. The Essay considers this dilemma in the U.S. context with respect to a wide range of emerging technologies at the energy-environment interface, each of which poses its own unique challenges. At times, such as with respect to deepwater drilling and hydraulic fracturing, the key issue is the most appropriate way to constrain risk. In other situations, the technology has the potential to limit risk but is still quite experimental and expensive. For example, the proposed EPA rule to regulate carbon pollution from power plants includes partial carbon sequestration and storage. This decision represents a compromise between the most emissions-limiting option and technological and economic reality. The Essay uses examples from the energy transition context to explore questions of uncertainty, federalism, inclusion, and equity. Managing technological development and expansion is made more difficult by the messiness of the applicable law and key stakeholders. A diverse set of public and private actors at multiple levels of government interact with energy technology, and the authority to regulate it is often divided in somewhat overlapping ways among different local, state, and federal agencies. Moreover, in the U.S. context, environmental and energy laws are mostly regulated separately, under varying statutes and agencies, with inconsistent federalism arrangements. The Essay analyzes the ways in which complicated value choices interface with hard governance challenges. Part I provides a context for its analysis by discussing the way in which the demand for cheap, reliable energy interacts with the development and expansion of risky technology. Part II then considers how scientific, technological, and legal uncertainty interact with efforts to create an effective regulatory approach. The Essay concludes in Part III by proposing principles for addressing these complex value choices more effectively.


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