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Issue

Volume 43, Issue 5 — May 2013

Articles

Can TMDLs Serve as ARARs?

by Lea M. Colasuonno

The CWA and CERCLA were passed to clean up the environment and protect public health. Both statutes required Congress to set a standard for cleanliness. Under
CERCLA, Congress determined that Superfund sites had to meet applicable or relevant and appropriate requirements (ARARs), and under the CWA, Congress said water bodies must meet water quality standards and, if those fail, must meet TMDLs. TMDLs are not usually able to serve as ARARs, but there are a variety of solutions federal and state authorities could use to enable TMDLs to serve as ARARs.

Adaptive Law and Resilience

by Craig Anthony (Tony) Arnold and Lance H. Gunderson

Environmental law is under intense pressure to develop an adaptive framework. According to resilience science, interconnected ecological and social systems are dynamic, complex, and subject to abrupt and unpredictable change. In contrast, environmental law’s foundations assume that nature is relatively stable, changing primarily in linear patterns within a range of predictable conditions. Moreover, the U.S. legal system aims to create certainty and security in the distribution of resources, favors top-down “panacea” or “optimal instrument” solutions to problems, and uses linear processes. These features of U.S. environmental law are maladaptive, making it ill-suited for emerging environmental challenges. Improving the adaptive capacity of environmental law will require the development of overarching systemic principles that maintain the resilience and adaptive capacity of ecological and social systems, not merely the occasional use of specific adaptive methods.

Comment(s)

Annual Review of Chinese Environmental Law Developments: 2012

by Mingqing You and Jiaqi Liu

As the Communist Party of China (CPC) is the leading political party of China and in effect determines the policies of the Chinese government, this Comment reviews the change in top CPC leadership during late 2012, and what that change means for environmental protection and environmental law. This Comment then examines developments in water protection, revision of the Clean Production Promotion Law, revision of the Civil Procedure Law, public participation in environmental protection, and some important implementation plans of the Twelvth Five-Year Plan, along with other government plans.

Carbon Capture and Storage (Sequestration)

by Arnold W. Reitze Jr.

Carbon dioxide (CO2) is an end product created by the combustion of carbon-based fuel. It is usually released to the atmosphere, and most scientists believe these emissions are a major contributing factor to climate change. Under both international law and U.S. domestic law, CO2 is a pollutant, but it cannot be controlled with the techniques used to control traditional air pollution. One option for preventing CO2 emissions from being released to the atmosphere is to require combustion sources to utilize carbon capture and storage (sequestration) (CCS). This involves capturing CO2, compressing it to a supercritical state, injecting it into an underground geological depository, and managing the site to assure permanent sequestration. Because the electric power industry emits over 40% of U.S. CO2 emissions, it is a primary target for government efforts aimed at developing and using CCS.

The U.S. Supreme Court Opens a Door: Expanded Opportunities for Environmental Taxes

by Janet E. Milne

In 2012, the U.S. Supreme Court decided a landmark case about the federal government’s power to tax. Although the case involved the constitutionality of President Barack Obama’s health care reform legislation, the Court’s analysis has greater impact. Its definition of the federal taxing power opens the door for the expanded use of environmental taxes. This Comment explores the environmental tax implications of this extraordinary case.

Dialogue

Key Legal Issues Facing the Administration in 2013: Environment, Energy and Natural Resources

by John Cruden, Scott Fulton, Suedeen G. Kelly, William H. Meadows

What effects will the second Obama Administration have on environmental law, policy, and practice in 2013? What are the implications of a new EPA Administrator for current regulatory trends? What priorities will the new Administration place on public land development and conservation? How will the U.S. energy policy change, if at all? On February 27, 2013, ELI invited four expert practitioners to discuss upcoming policies and regulatory agendas at EPA, DOJ, FERC, and DOI, among other regulatory agencies.