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Volume 41, Issue 12 — December 2011


The Attack on Frack: New York’s Moratorium on Hydraulic Fracturing and Where It Stands in the Threat of Takings

by Holli Brown

The Marcellus Shale region is experiencing a boom in natural gas drilling due to high-volume horizontal hydraulic fracturing, more commonly known as hydrofracking. This process has recently become controversial due to alleged drinking water contamination in Pennsylvania. New York prohibited hydrofracking through a de facto moratorium pursuant to an Executive Order that required the New York Department of Environmental Conservation to undertake a comprehensive review of the supplemental generic environmental impact statement required for drilling permits.  While the moratorium has since been lifted, this Article examines whether New York could have effectively defended it against any takings claims.

Obama Administration Efforts to Control Stationary Source Greenhouse Gas Emissions Through Rulemaking

by Tom Mounteer

The Obama EPA has put forth several actions to regulate the emissions of greenhouse gases from stationary sources. These regulatory developments take place in the context of failed efforts to pass comprehensive federal legislation and the Supreme Court’s death blow to federal common-law remedies. Two of the Administration’s regulatory initiatives—the Endangerment Finding and the embrace of greenouse gases in the prevention of significant deterioration program—are embroiled in litigation, the outcome of which may not be known for some time. The Administration’s new source performance standard for electric generating units has yet to be proposed. Actual reductions in greenhouse gas emissions achieved through these rules will not be knowable for years.

The Intended Scope of Clean Water Act Jurisdiction

by Jon Devine, Joan Mulhern, Jan Goldman-Carter, Jim Murphy, Rebecca Hammer, and Jared Thompson

In an unnecessarily exaggerated response to U.S. Supreme Court decisions over the past decade, the agencies that implement the Clean Water Act have substantially reduced the scope of waters that are considered jurisdictional “waters of the United States” under the Act. The agencies are now working on new guidance and regulations that would be a step toward restoring the intended scope of “waters of the United States.” However, in an attempt to narrow interpretations of the Act, opponents of clean water regulation have sought to rewrite the history of the Act and its implementation. Their revisionism seeks to obfuscate the intended scope of “waters of the United States” and dissuade the agencies from reaffirming the broad scope and purpose of the Act.

Preventing Significant Deterioration Under the Clean Air Act: The BACT Determination— Part I

by John-Mark Stensvaag

PSD permits issued to major emitting facilities must include BACT standards for each pollutant subject to regulation under the CAA. These standards must be determined by permitting authorities on a case-bycase basis, subject to EPA review and approval. Step 1 of the EPA’s preferred “top-down” procedure for making these determinations presents difficult interpretive issues, particularly as the Agency struggles to clarify its policy against using BACT to redefine the applicant’s facility.


How Lawsuits Could Ignite an Energy Market: The Case of Anaerobic Digestion

by Catherine M.H. Keske

This Article demonstrates that it is possible for lawsuits to ignite a market for an innovative energy technology that otherwise would be too costly to implement. For example,
early adopters of a technology might be able to create conditions that make that technology feasible because they are motivated to settle a nuisance lawsuit.  Focusing on  anaerobic digestion (AD)--a technology that converts biomass into methane that can be captured and used as biogas, or that can be converted into electricity through a generator---the Article presents the author’s original research illustrating that mitigating imminent nuisance lawsuits potentially can make AD technology economically feasible in the western part of the United States.

Treatment of CERCLA Claims for Hazardous Waste Cleanup Costs in Bankruptcy

by Christopher Dow

In this challenging economic climate, it is not uncommon for some companies who are potentially responsible parties (PRPs) involved in hazardous substances cleanup litigation under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to file for bankruptcy protection. Where government authorities propose to spend millions of dollars to clean up hazardous substances at a site, and where one or more of the PRPs potentially liable for these costs files for bankruptcy protection, the following question necessarily arises: What steps can the remaining solvent PRPs involved in the litigation take to try to ensure that funds of
the insolvent PRP (debtor-PRP) are preserved for cleanup? The answer can depend in part on what CERCLA claims for relief a solvent PRP is asserting, i.e., a CERCLA §107 claim for cleanup costs that the PRP has itself expended to clean up a site, or a CERCLA §113 claim for contribution for any costs that the PRP may have to pay over to another PRP, or the state or federal government, who has incurred costs in cleaning up hazardous substances at a site.


TSCA Reform: The Standard of Safety

by Linda Breggin, James V. Aidala, Wendy Cleland-Hamnett, and Dr. Richard Denison

Several key issues have emerged as pivotal in ongoing efforts to reform TSCA. Progress on these complex issues is central to the success of TSCA reform. On July 21, 2011, ELI convened a panel of experts to examine the central issue of whether and what standard of safety should replace TSCA’s current “unreasonable risk” standard for regulating chemicals. Topics addressed included: hazard/exposure/risk criteria; burden of proof; judicial review of Agency decisions; sensitive populations; cost-benefit analysis; and application of the safety standard to new materials/technologies.