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This Month's News & Analysis

Volume 45, Issue 1 — January 2015

Dialogue

2014 Supreme Court Review and Preview

by John Cruden, Robert Percival, and E. Donald Elliott

On October 1, 2014, the Environmental Law Institute held its annual U.S. Supreme Court update for the 2014 term, again featuring the leading experts in the country. ELI President John Cruden led a discussion with two of the most distinguished environmental law school professors in the nation to review the important Clean Air Act cases decided this year, and forecast their implications for future rulemaking, particularly in the greenhouse gas arena. This dialogue presents a transcript of the event, which has been edited for style, clarity, and space considerations.

Comment(s)

Leaning on NEPA to Improve the Federal Permitting Process

by David J. Hayes

President Barack Obama has launched a little-known effort to improve the permitting process for infrastructure projects. The president’s initiative has identified a number of permitting improvements, but it does not include a serious effort to force multiple agencies to align their permitting processes. A key to forcing multiple agencies to work together on project reviews and approvals is found in an unlikely place: NEPA. The statute is overdue for a makeover that will strengthen how it identifies and analyzes environmental impacts for federal decisionmakers. In doing so, it can provide the framework that will require multiple agencies to act as one when reviewing large projects.

China’s New Environmental Protection Law

by Robert L. Falk and Jasmine Wee

On January 1, 2015, China will formally begin implementing an updated Environmental Protection Law. Originally promulgated in 1989, this is the first time China’s fundamental environmental protection statute has been revised, and, in many ways, it reflects how far China has come in its environmental awareness from 25 years ago. After sacrificing environmental quality in exchange for economic development for the past 30 years, the national government in China is now stating that environmental protection considerations must be incorporated with socioeconomic development plans and that environmental awareness and socioeconomic development will be measured in tandem.

Articles

A Response to the IPCC Fifth Assessment

by Sarah J. Adams-Schoen, Deepa Badrinarayana, Cinnamon Carlarne, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Alexandra B. Klass, Katrina Fischer Kuh, Stephen R. Miller, Jessica Owley, Shannon Roesler, Jonathan Rosenbloom, Inara Scott, and David Takacs

The Intergovernmental Panel on Climate Change’s (IPCC) Fifth Assessment Report presented significant data and findings about climate change. But the IPCC’s working groups’ summaries for policymakers avoid making normative statements about the IPCC’s findings. The authors, members of the Environmental Law Collaborative, bridge this gap by identifying the normative claims that stem from the working groups’ summaries to spark deeper discussion and help shape the IPCC’s sixth assessment.

Beyond the CDM: Regulating China’s Domestic Offset Scheme

by Hao Zhang and Christopher Arup

Success in China moving from participation in the Clean Development Mechanism to a national offset scheme is critical to the development of climate law and policy within China. Examination of the regulatory and institutional arrangements underpinning China’s offset scheme suggests that there is potential for the domestic offset sector to contribute to emissions reductions. However, China will have to navigate several potential pitfalls, ranging from ensuring environmental integrity to avoiding double counting and other issues, to ensure success.

The Minamata Convention on Mercury and the Future of Multilateral Environmental Agreements

by Tseming Yang

The 2013 Minamata Convention on Mercury is a wide-ranging treaty posed to address the serious threat of mercury pollution. The United States adopted it as an executive agreement, breaking a decades-long stretch of failure to adopt multilateral environmental agreements, largely because no domestic legislation is needed to enact the convention’s requirements. The convention itself is notable for its scope and coverage, as it offers significant implementation parameters, similar to traditional legislative requirements. The Minamata Convention is an important, positive milestone in the evolution of modern environmental treaties that offers critical progress on key problems.

The Maryland Environmental Policy Act: Resurrecting a Tool for Environmental Protection

by Russell B. Stevenson Jr.

Maryland’s version of the National Environmental Policy Act has lain essentially dormant because its environmental assessment requirements only apply to actions required or requested by the legislature. While it is unclear whether the political costs of amending the statute to make it more effective are worth it, there are still aspects of the statute that should be used by Maryland agencies. In particular, agencies should adopt rules to ensure that environmental concerns receive adequate consideration in agency decisions. Agencies should also designate individuals as having particular responsibility for ensuring that environmental considerations are taken into account in agency decisions and take steps to make information of environmental concern more readily available to the public. Finally, agencies should ensure that environmental concerns are clearly and expressly considered in their rulemaking proceedings.

In the Courts

District court outlines Commerce Clause limits to federal authority over species protection.

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In the Courts Archive

In the Agencies

EPA decommissions CERCLIS for hazardous waste sites, kicks off “SEMS.”

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In the Agencies Archive

In the Congress

House passes several bills targeting EPA reform.

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In the Congress Archive

In the States

Minnesota starts special review of neonicotinoids.

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In the States Archive