Law Archive of Wyoming Scholarship
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Conflicts and Confluences between Surface and Mineral Estates in CCUS
No full textCarbon capture, utilization, and storage (CCUS) presents a new way of using an old resource: the subterranean rock structures and their interstitial “pore” space that make up the subsurface of the earth. Injecting carbon into these structures also raises a number of new legal questions about their ownership and the relations between the owners of the structures and the owners of other subsurface resources contained within them, like oil and gas, coal, coalbed methane, and geologically native carbon dioxide. This Article explores these new legal questions and the conceptual difficulties they present with the aim of guiding participants in CCUS projects about the state of the law and its many open questions. Drawing on previous scholarship and analogies from oil and gas law, the Article suggests answers to, or at least ways of thinking about, several of the open questions. Specifically, this Article addresses the following: (1) ownership of subsurface rock structures and pore space under private, federal, and state-owned lands in the United States; (2) the respective rights and duties of the owners of pore space and mineral interests in the same tract of land; and (3) conflicts that may arise between pore space and mineral owners when CCUS projects are conducted alongside (a) oil and gas development, (b) coal mining and coalbed methane extraction, and (c) geologic carbon dioxide production
A Look Into NAGPRA: Application, Issues, and the Future
No full textDuring Colonization, American Indian tribes lost homes, language, and culture. The Native American Grave Protection and Repatriation Act (NAGPRA) was passed to help rebuild the relationship with American Indian tribes after it had been destroyed during colonization. NAGPRA sets forth laws regarding the repatriation of remains and cultural objects which are being held in museums and by federal agencies. The legislative history behind this act shows Congress worked hard to find the best device to help with repatriation. However, NAGPRA’s language left holes in the law which led to different issues argued in litigation. Many American Indians began feeling that NAGPRA was not the answer they were looking for. This Comment analyzes the NAGPRA including its legislative history, issues argued in litigation, and the proposed 2023 implementations to the regulations
Forest Service Grazing Preference
No full textThe Thunder Basin National Grassland is facing an imminent, and perhaps unique, problem. With the advent of surface strip-mining in the late 1970s, the Forest Service withdrew public lands within the National Grassland from grazing use and transferred the lands to energy production use. Some of that land has been fully mined. These mines are about to complete their reclamation process—where the land is restored to a condition suitable for its prior use—after which it will be released from the mines’ special use permits and returned to grazing. Currently, there are no explicit guidelines in place for the distribution of grazing permits on the reclaimed land. To address current grazing permit administration issues within the National Grasslands, the Forest Service should return to the historic right of grazing preference by strengthening and enumerating the remnants of that right still present in the rules and regulations of the Forest Service and grazing associations. This historic right has survived despite significant difficulty applying it within the courts and varying terminology within Forest Service regulations. Forest Service grazing preference, unlike similarly named grazing preferences on Bureau of Land Management lands, creates a limited, nonpossessory property interest in grazing land which provides the holder with priority for renewal of the grazing permit if, and only if, the Forest Service decides to continue to use the land for grazing. It does not prioritize grazing over other potential land uses but rather provides a priority for the permit over other potential permittees. If applied, grazing preference would require reissuance of the grazing permits to the party that held the grazing preference rights prior to the withdrawal of the land. Not only would applying grazing preference address the imminent issues within the Thunder Basin National Grasslands, but it would bring a number of ancillary benefits, such as economic stability and effective stewardship
Rethinking the CAFTA-DR: Addressing Implementation Gaps for Sustainable Commonity Production
No full textThis Comment evaluates the level of equality in the trade relationship between the United States (the U.S.) and Guatemala under the Central America-Dominican Republic Free Trade Agreement (the CAFTA-DR). Guatemala has the largest economy in Central America and is a major agricultural exporter to the U.S.; despite this, Guatemala suffers from high levels of poverty, inequality, and corruption that particularly affect its indigenous and rural populations. The CAFTA-DR is the best tool to address the inequalities between the U.S. and Guatemala. However, the CAFTA-DR does not balance the competing interests of commodity production, nor does it consider the unequal capacity of Guatemala to implement its labor and environment provisions. Transnational Commodity Law balances the competing interests of commodity production, making it the most effective framework to address the inequalities in the labor and environment sectors between the U.S. and Guatemala. This Comment proposes several amendments to the CAFTA-DR, such as viewing Guatemala as a Commodity-Dependent Developing Country, heavily dependent on agricultural exports, recognizing communally held land by indigenous populations, and broadening the free trade agreement’s anti-corruption provision to include private firms engaged in commodity production. These proposed amendments would bridge the trade-agreement-implementation gap between partner countries and promote sustainable development under Transnational Commodity Law
CCS in the Checkerboard West: Lessons on How to Move with the Federal Government on the Board
No full textFederal and tribal trust lands will be essential to the development of carbon removal projects in much of the western United States. As a result, project developers in Montana and Wyoming have already requested rights to pore space in nearly a million acres of public lands. Yet, despite the enactment of incentives for carbon removal and the Class VI regulatory program, Congress has not yet spoken with respect to the use of federally managed lands for sequestration. Notwithstanding this lack of direction, project developers and land managers throughout the western United States are working to enable projects relying on existing authorizations in the Federal Land Policy and Management Act (FLPMA). In the past two years, land management agencies have initiated rulemaking and issued guidance relating to sequestration in multiple use public land addressing topics including injection authorizations, conformance with management plans, NEPA compliance, and conflicts with other subsurface uses. There is considerably less certainty with respect to tribal lands. Development of sequestration projects in Indian Country requires understanding the history of federal acquisition and management of tribal land, differences among the checkerboard of property interests within reservations, regulations relating to surface and mineral use and consultation, and the role of tribes in environmental regulation. Carbon sequestration has opened a new frontier for the economic use of federal and tribal lands. Working within existing frameworks is possible with cooperation and communication among project developers, land managers, and, as appropriate, tribes. These first-mover projects, however, are likely to press on lingering uncertainties, prompting resolution by Congress, tribal governments, land management agencies, and the courts
Section 45Q Tax Credits For Carbon Capture, Utilization, And Storage Projects
No full textIn order to reduce greenhouse gas emissions in the United States, the federal government has provided financial support to incentivize taxpayers to develop and utilize technologies for capturing and storing carbon oxide. In addition to making annual appropriations to the U.S. Department of Energy for carbon capture and storage research, Congress enacted Section 45Q of the Internal Revenue Code to provide qualifying taxpayers with an income tax credit for each metric ton of carbon oxide that is captured and stored or utilized. This Article aims to provide an overview of the history and requirements of Section 45Q and the methods by which the credit may be claimed or otherwise monetized
Putting Trust in Voluntary Demand Management: How and Why Wyoming Should Encourage the Development of a Water Trust
No full textThe development of water trusts in the American West has followed a similar concept to the land trust model of conservation. Climate change has raised concerns among Colorado River Basin states about their water rights being curtailed. A key avoidance measure taken by states has been to focus on demand management, reducing the amount of water diverted from the river system through voluntary water transactions. While governments have made some investments in water conservation, more money is needed to keep adapting to a changing climate; water trusts can provide such money through investment from private sources. But the legal regime in Wyoming does not support the development of a water trust. Wyoming should change its laws regarding instream flows, conservation incentives, and water markets to create a friendlier environment for a water trust
The Gate Keepers of Trucking Safety: Keeping Motor Carriers Accountable For Their Negligent Employment Actions
No full textIn an America which has become more dependent than ever on the transportation industry, a common law rule known as the McHaffie rule barricades the tort system from its candid operation. Americans trust the tort system with assessing and distributing fault among numerous actors in complicated factual scenarios. For the system to do this, all the facts and all the parties must be permitted to traverse through the tort system. The McHaffie rule, however, allows motor carrier principals a rather peculiar luxury: the dismissal of all direct negligence claims against them when they admit vicarious liability for their driver agents. Under the McHaffie rule, the negligent management actions of a motor carrier in their hiring, training, and supervision practices of drivers never see judicial nor juror scrutiny. The McHaffie rule allows motor carriers to prioritize the satisfaction of consumers at home over the safety of travelers on the road. This Comment examines the context and arguments for and against the McHaffie rule and concludes that courts should eliminate or, at a minimum, narrow the rule to truly duplicative claims
Local Government Regulation of CCS
No full textCarbon capture and storage is being used in an increasing number of locations in the United States as a tool to address climate change, and many more projects are in the planning stages. Although government, industry, and some prominent environmental organizations support the use of CCS, some environmental organizations and many citizens who live in the vicinity of proposed CCS projects oppose CCS. This has prompted several local governments to enact ordinances that attempt to prohibit or regulate CCS. These ordinances take many forms—moratoria, zoning restrictions and setbacks, effective bans, outright bans, construction and operational restrictions, and various other types of regulation. However, these local government ordinances may be vulnerable to attack on grounds that the ordinances are invalid. One potential line of attack is that the local regulations are ultra vires, but preemption typically will be a stronger basis for challenging the ordinances. Preemption is a legal doctrine that laws from one level of government preempt and thereby render unenforceable certain laws from another level of government. For example, federal law might preempt state and local laws. Further, state law may preempt local law. In both cases, courts and commentators often refer to three types of preemption—express, implied, and field. This Article explores the motivations for opposition to CCS, the types of local regulations that may be used in an attempt to regulate CCS at the local level, and the potential legal challenges to such local regulation
Out of Hand: Why Federal Protection of Biometric Privacy is a Pressing Issue in U.S. Employment
No full textThe practice of using biometric identifiers such as fingerprints, facial recognition, and eye scans in place of usernames and passwords is becoming widespread in the workplace. Because of the lack of federal protection, employers may compel employees’ participation in biometric-enabled systems as a term of employment. A person’s biometric data cannot be replaced and is often linked to personal and financial accounts. Additionally, employers collecting biometric data often rely on third parties for information technology service and storage. Biometric data collection creates the potential for data breaches, for system malfunctions, and for third parties to learn additional information about the person surrendering biometric data. Federal regulation of employers’ collection of biometric data is critical because of the magnitude of the risks inherent to data breaches and the continual encroachment of technology on privacy interests in the workplace. This Comment examines the evolution of conceptions of privacy and the law, and state regulation of personal and biometric data under the Illinois Biometric Information Privacy Act and the California Consumer Privacy Act to demonstrate the critical need for federal regulation of biometric data, particularly within employment. After pointing out the inadequacies of these Acts discussed as applied to the workplace, this Comment suggests a series of mandatory federal procedures that would better safeguard employees’ privacy. Employers should be subject to policies that increase transparency of biometric data retention, inform employees of potential risks before enrolling, provide time for consideration, and offer alternatives