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This Month's News & Analysis

Volume 45, Issue 4 — April 2015

Dialogue

Determining the Conservation Value of Habitat: Modern Challenges Under the Endangered Species Act

by Lawrence R. Liebesman, Angela Somma, Sean Skaggs, and Jason Rylander

More than one decade after two circuit courts struck down the regulatory definition of “adverse modification” of critical habitat, two agencies, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, are now proposing a comprehensive package of changes to the Endangered Species Act (ESA). In May 2014, the Services proposed two rules and one new policy regarding the ESA. The first rule redefines “adverse modification” to place additional emphasis on species recovery after being listed as endangered. The second rule contains numerous clarifications of the scope of critical habitat in terms of the species’ geographical range. The proposed policy deals with exclusions from critical habitat designations, specifying that the government will consider issues such as national security and economic impact when deciding whether to include land in designations; in addition, the policy includes a benefits analysis. On October 7, 2014, the Environmental Law Institute hosted a seminar to address issues raised by these proposed rules and new policy. Here, ELR presents a transcript of the event, which has been edited for style, clarity, and space considerations.

Comment(s)

Does EPA’s §111(d) Proposal Rely on an Unprecedented and Legally Forbidden Approach to Emission Reduction?

by William F. Pedersen

In June 2014, the U.S. Environmental Protection Agency (EPA) proposed standards under §111(d) of the Clean Air Act (CAA)1 for state plans to reduce carbon dioxide emissions from existing fossil fuel-fired electric generating units (EGUs). These standards do not require states to use any particular means of emission reduction. However, their stringency depends in part on EPA’s conclusion that states could reduce these emissions not only by measures that directly reduce fossil fuel EGU emissions, but also by making the grid less dependent on fossil fuel through increased energy efficiency and increased reliance on nuclear and renewable generation. Some claim that this approach abandons a basic principle of CAA regulation without statutory warrant. This Comment argues the contrary. The rule could and probably would be implemented by long-established regulatory mechanisms that the U.S. Supreme Court has upheld. Moreover, EPA’s approach is neither unprecedented nor unlimited. Finally, the structure of the CAA sets limits in general and in particular on how far EPA could push this precedent.

What’s Old Is New Again: State Common- Law Tort Actions Elude Clean Air Act Preemption

by Matthew Morrison and Bryan Stockton

It usually takes at least three to start a trend, but two recent appellate-level decisions suggest a new air pollution enforcement trend is in the making: Environmental plaintiffs may be able to avoid Clean Air Act (CAA) preemption by bringing state common-law tort claims against an intrastate emitting source. The plaintiffs in both Bell v. Cheswick and Freeman v. Grain Processing Corp. successfully convinced the U.S. Court of Appeals for the Third Circuit and the Iowa Supreme Court, respectively, that the CAA did not preempt their tort claims based on state common law. The result—as well as the U.S. Supreme Court’s denial of certiorari in both cases—surprised observers because the Supreme Court has held previously that the CAA preempts similar tort claims based on federal common law. It is too early to ascertain the full impact of these decisions, however, and recent rulings in other class action cases suggests that courts may be hesitant to certify classes of plaintiffs with injuries that vary significantly from one plaintiff to another. Nevertheless, by resorting to torts that date back over 400 years, plaintiffs may open the door to litigation against facilities that are otherwise meeting their regulatory obligations.

Articles

Administering the National Environmental Policy Act

by Jamison E. Colburn

In practice, the Council for Environmental Quality (CEQ) has been treated as the “administering agency” for the National Environmental Policy Act (NEPA), and courts and most action agencies have regarded its rules as binding law. Yet, a close examination of NEPA’s language and evolution reveals that CEQ authority is grounded more in the president’s Article II power than in any statutory delegation from Congress. This executive-branch authority to implement NEPA has garnered strong judicial deference and remained unquestioned despite prevailing doctrine to the opposite effect. The paradox of NEPA also creates an opportunity, as the president’s constitutional authority could likewise be used to put NEPA’s more substantive elements into effect. NEPA’s administration can and should inform a refocused approach by the White House that executes NEPA to its fullest potential: the making of America into a sustainable civilization.

Crafting Collaborative Governance: Water Resources, California’s Delta Plan, and Audited Self-Management in New Zealand

by Cameron Holley

Since the 1980s, water governance has increasingly been linked to institutions and laws that engage local actors and closely relate to local ecosystems and catchments. These approaches, referred to as collaborative water governance, encompass new coalitions among governments, their agencies, and institutions of civil society, and are typically held together via guidelines, plans, and nonbinding agreements. This Article offers an empirical look at two examples, Audited Self-Management in New Zealand and California’s Delta Plan, asking whether these initiatives promote genuine, effective stakeholder collaboration and how they blend their collaborative elements with traditional legal systems.

Addressing Affordability and Long-Term Resiliency Through the National Flood Insurance Program

by Becky Hayat and Robert Moore

Given projections of sea-level rise and extreme precipitation from climate change, the United States will experience more frequent and more severe flood events in coming years. National Flood Insurance Program (NFIP) policies, therefore, should be geared toward making relocation the easiest and most attractive option for property owners to pursue. The authors propose that property owners should agree in advance not to rebuild following floods that cause substantial damage and, instead, to accept a government buyout of their property and relocate. In exchange, they would receive a discount on their federal flood insurance coverage, a guarantee that their property would be purchased at its pre-disaster market value, and a faster buyout process. This model could be implemented as part of the NFIP, or alternatively by states, local governments, and conservation organizations through the purchase of conservation easements on flood-prone properties.

Internal Investigations of Environmental Crimes

by Craig D. Galli

The initiation of a government environmental criminal investigation or discovery of a serious compliance issue often triggers the need to conduct an internal investigation. The decision to conduct an internal investigation entails complex issues regarding the scope of the investigation, who conducts the internal investigation, how to conduct the investigation in parallel with an ongoing government investigation, how to use experts to assist in the investigation, how to manage whistleblowers, when and how to disclose the results of the investigation to regulators and prosecutors, and many other issues. This Article addresses internal corporate investigations in the environmental compliance context and provides practical tips for handling the investigations.

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In the Courts

Louisiana flood board’s suit against oil and gas companies dismissed.

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In the Courts Archive

In the Agencies

DOI proposes new rules for exploratory drilling on Arctic OCS.

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In the Agencies Archive

In the Congress

House passes SDWA amendments on cyanotoxins.

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In the Congress Archive

In the States

New Mexico proposes pollution prevention and monitoring rule for dairies.

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In the States Archive