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Volume 38, Issue 1 — January 2008


Preventing Significant Deterioration Under the Clean Air Act: New Facility Permit Triggers

by John-Mark Stensvaag

Editors' Summary: The CAA's PSD program is extraordinarily complex. This Article is the third in a series on preventing significant deterioration under the CAA. The first two Articles, which appeared in the December 2005 and January 2006 issues of News & Analysis, focused on baselines, increments, and ceilings. In this Article, Prof. John-Mark Stensvaag turns his focus to the circumstances under which a new stationary source must obtain a PSD permit. After explaining the benefits of avoiding a PSD permit requirement, he explores the statutory and regulatory language relevant to construction of a new major emitting facility.

Risky Business? Massachusetts v. EPA, Risk-Based Harm, and Standing in the D.C. Circuit

by Amanda Leiter, Chet Thompson, Allison Zieve, and David B. Weinberg

Editors' Summary: On September 19, 2007, the Environmental Law Institute hosted a seminar to examine developments in environmental standing in the U.S. Court of Appeals for the District of Columbia Circuit following the Supreme Court's decision last term in Massachusetts v. EPA. The panelists discussed the concept of a risk-based standard for proving "injury-in-fact" in environmental and public safety cases in light of such recent decisions as NRDC v. EPA I and II and Public Citizen v. NHTSA. The seminar concluded with a question-and-answer period. Below is a transcript of the event. [Transcribed by ACE Transcription Service, Washington, D.C. The transcript has been lightly edited, and citations have been added, for ease of reading.]

Greening Environmental Rights: Separating Law and Morality in Environmental Public Interest Litigation in Pakistan

by Dominic J. Nardi Jr.

Editor's Summary: Many environmentalists consider active environmental litigation in developing countries to be a positive development. However, in Pakistan, a country that encourages public interest litigation, this system poses serious institutional and legal problems that may hinder the development of an effective national response to environmental challenges. Those litigating for environmental protection in Pakistan may be relying too heavily on the courts to take measures that should be within the jurisdiction of the Pakistan EPA. In this Article, Dominic J. Nardi Jr. warns that judicial activism might lead to conflicts with the executive, or could encourage environmental regulators to spurn responsibility for handling future environmental problems. He recommends that the judiciary relegate public interest cases based on statutes to the country's Environmental Tribunals, since they presumably have the expertise necessary to adjudicate these types of cases. For public interest cases relying on fundamental rights or morality, the Federal Shariat Court may be the best venue for equitable relief.

<i>National Association of Home Builders v. Defenders of Wildlife</i> and the Meaning of Agency Indiscretion

by Linus Chen

Editors' Summary: The Supreme Court's decision in National Ass'n of Home Builders v. Defenders of Wildlife left unresolved the question of the meaning of discretion and agency authority. This decision and ensuing litigation over the meaning of discretionary agency action could impact the fate of over 1, endangered and threatened species. In this Article, Linus Chen explains the circuit court split over the conflicting statutory requirements of ESA §7 and CWA §402(b) regarding consultation and agency discretion. He argues that the Court wrongly decided that EPA did not have to consider ESA §7 and the loss of §7 protections before delegating CWA permitting program authority to the states. He cautions that by dismissing the plain language of §7(a)(2) requiring consultations to occur for any action by the federal government, the Court has placed new attention on the issue of discretion, and that the Supreme Court's decision may only increase the trend of using discretion as a defense for agency action or inaction.

An Economic Review of Inefficiency in Utah Groundwater Law: Cache County Emphasis

by Kevin L. Brady

Editors' Summary: The demand for groundwater is projected to grow over the next 20 years, resulting in increasing requests for groundwater extraction permits. However, current groundwater allocation laws in some states are economically inferior for a number of reasons; therefore, these states may have difficulty meeting the growing demand for groundwater. In this Article, Kevin L. Brady reveals the reasons for inefficiency in groundwater allocation and management in Utah. He identifies beneficial use rankings, high transaction costs, permit transfer difficulties, and forfeiture clauses as some of the main causes of inefficiency. He argues that Utah should adopt better groundwater allocation laws in order to prepare for future stresses. He advocates the disbandment of beneficial use hierarchies, increased freedom in permit trading, and the elimination of deed expiration periods to improve Utah's groundwater law efficiency.