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This Month's News & Analysis

Volume 45, Issue 11 — November 2015


EPA’s “Waters of the United States” Rule: Substance and Significance

by Scott Schang, Ken Kopocis, Craig R. Schmauder, Deidre G. Duncan, and Jon Devine

Four hundred stakeholder meetings and one million comments later, the U.S. Environmental Protection Agency released the final Waters of the United States (WOTUS) rule on May 27, 2015. Response to the rule has been immediate, vocal, and varied across the political spectrum. Some environmental advocates have criticized the rule for what it explicitly excludes, arguing that the rule leaves out too many streams and wetlands. At the same time, industry and agriculture interests have decried the rule as federal overreach. Understanding the scope, vulnerabilities, and likely implementation of the WOTUS rule is central for practitioners. What does the Clean Water Act (CWA) actually cover under the final rule? Are there activities that may be subject to the CWA for the first time or no longer covered? Where do the uncertainties lie? What legal challenges might advocates bring against the rule? Will the federal government have new tools to extend federal jurisdiction, and how will states react? On June 8, 2015, the Environmental Law Institute convened a panel of experts to explore this vitally important new rule. In this Dialogue, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.


State Implementation of the Clean Power Plan: Why It Matters to Industries Outside the Power Sector

by Robert B. McKinstry Jr. and Ronald M. Varnum

On August 3, 2015, President Barack Obama announced the U.S. Environmental Protection Agency’s Clean Power Plan (CPP), which establishes guidelines that states must apply to achieve reductions in carbon dioxide emissions from the existing fleet of fossil fuel-fired electric generating units. Organizations and companies outside of the utility sector have expressed concerns regarding the impacts of the CPP on electricity prices and reliability. However, the mechanism that states employ to achieve the reductions required under the CPP is likely to have a more profound impact on industry sectors outside of the utility sector in the long term than the relatively modest impacts of the CPP itself. The power industry is just the first of many industries that likely will become subject to greenhouse gas emissions standards for existing facilities under the Clean Air Act. And a state’s decision on how to implement the CPP for the power industry could constrain its ability to use other mechanisms for other industry sectors.


Assessing the Impacts of Climate Change on the Built Environment: A Framework for Environmental Reviews

by Jessica Wentz

Federal agencies are beginning to incorporate descriptions of climate change impacts into environmental reviews for buildings and infrastructure, but there is no consistent methodology for evaluating these impacts and mitigating any foreseeable risks to the project or affected environment. This Article asserts that an assessment of climate-related risks and adaptation options falls within the scope of considerations that should be addressed under the National Environmental Policy Act and similar laws. It concludes with a set of recommended protocols for identifying the impacts of climate change on projects and their affected environment, evaluating physical and environmental risks, and selecting appropriate mitigation measures.

Tropical Conservation and Liability for Environmental Harm

by Carol Adaire Jones, John Pendergrass, John Broderick, and Jacob Phelps

Tropical countries face a host of challenges to their natural environment and resources. Environmental law liability provisions offer one set of potential protections. This Article surveys such provisions in a variety of tropical country contexts. Of the seven countries studied, spanning a range of legal systems and economic development and environmental governance performance, all but one have the authority to bring liability claims for harms to the environment. However, a variety of impediments to effective implementation have resulted in a limited number of cases being resolved, and frequently with low damage awards relative to the injuries. The authors offer a range of recommendations for improving the effectiveness of the drafting and implementation of liability provisions to promote environmental protection.

Deployment of Ocean Renewable Energy Through Area-Based Management: Finding an Adequate Legal Framework

by Xiao Recio-Blanco

Renewable energy projects located in the ocean are likely to play an increasingly important role in supplying electricity worldwide. Experience in ocean management indicates that, as new uses of the seas are made available, ocean space allocation becomes an increasingly controversial issue, demanding the attention of regulators and policymakers alike. Nations interested in developing their ocean renewable energy (ORE) potential can learn from the history of regulatory reform in countries such as Belgium, China, or the United Kingdom, as well as by analogy to the development of utility-scale solar projects on federal lands in the American Southwest. They can take steps to develop an area-based legal framework for ocean resources that is adequate to promote these renewable sources of energy, while at the same time balancing the interests of ORE investors, other sea users, and protection of the environment.

In the Courts

Ninth Circuit vacates and remands EPA’s sulfoxaflor registrations.

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In the Courts Archive

In the Agencies

Gulf Coast Ecosystem Restoration Council proposes Spill Impact regulations.

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In the Agencies Archive

In the Congress

Energy and oil export bills advance.

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In the States

PADEP seeks comments on drafting compliance plan for EPA Clean Power regulations.

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In the States Archive