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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — February 2011


Hurricanes, Oil Spills, and Discrimination, Oh My: The Story of the Mississippi Cottage

by Jennifer Evans-Cowley and Andrew Canter

Immediately following Hurricane Katrina, the Mississippi Governor’s Commission for Recovery, Rebuilding, and Renewal collaborated with the Congress for the New Urbanism to generate rebuilding proposals for the Mississippi Gulf Coast. One of the ideas to emerge from this partnership was the Katrina Cottage—a small home that could improve upon the FEMA trailer. The state of Mississippi participated in the resulting Alternative Housing Pilot Program, which was funded by the U.S. Congress. Over five years after Katrina, what are the regulatory barriers local governments have put in place to limit the siting of Mississippi Cottages? Are the strategies that local governments are using a violation of state and federal laws, including the Fair Housing Act? While the Mississippi Cottage program provided citizens with needed housing following Hurricane Katrina, there are significant policy and implementation challenges to providing post-disaster housing.

Domestic Mitigation of Black Carbon From Diesel Emissions

by Hannah Chang

Black carbon, a component of soot and particulate matter, competes closely with methane as the largest anthropogenic contributor to global warming after carbon dioxide. Regulation of black carbon has been identified as an affordable, politically feasible, fast-action means to mitigate the warming temperatures caused by climate change. With an emphasis on domestic mitigation, this Article examines how emissions are controlled under the CAA and what EPA, states, and municipalities can do to mitigate black carbon emissions further.

Stacking Opportunities and Risks in Environmental Credit Markets

by Jessica Fox, Royal C. Gardner, and Todd Maki

Environmental credit markets for mitigating impacts to wetlands, endangered species, water quality, and carbon emissions have been established throughout the United States. Recently, there has been much debate about whether a conservation project should be allowed to produce credits for multiple markets, a practice broadly referred to as credit stacking. But producing stacked credits for multiple markets using one conservation action is not itself controversial; rather, it is the resulting transactions—the sale or transfer of the stacked credits—that can be contentious. Agency rules regarding the relationship between environmental credit markets are not clear and sometimes conflicting. Despite this, projects are moving forward that establish frameworks for selling stacked credits. To reduce uncertainty for both ecosystems and markets, it is critical to establish coordinated policies and regulations to ensure that environmental mitigation markets result in real, verified, and additional mitigation, especially when credit stacking is involved.

Greenhouse Gas Regulation Under the Clean Air Act: Structure, Effects, and Implications of a Knowable Pathway

by Nathan Richardson, Art Fraas, and Dallas Burtraw

Absent legislative intervention, CAA regulation of GHGs is moving beyond mobile sources to the industrial and power facilities that emit significant U.S. GHG emissions. The authors analyze the mechanisms available to EPA for regulating such sources, and identify one, NSPS, as the most predictable, likely, and practical, i.e., knowable, pathway. Indeed, EPA announced in late 2010 that it intends to pursue this pathway. Based on the legal structure of the NSPS and EPA’s traditional approach, the authors analyze a hypothetical GHG NSPS for one sector, coal electricity-generation. This analysis indicates that efficiency improvements and perhaps biomass cofiring could be implemented through the NSPS, yielding modest but meaningful emissions reductions. Trading could also rein in costs. Though analysis is limited to one sector and does not include modeling of costs, it suggests that CAA regulation, though inferior to comprehensive climate legislation, could be a useful tool for regulating stationary source GHGs.


When Maybe Is Good Enough: The Title V Citizen Petition

by John C. Evans and Donald R. van der Vaart

This Article briefly describes a new basis for the objection that EPA has employed whereby operating permits can be delayed for significant periods of time without the expenditure of significant resources by EPA or environmental groups. In many cases, its use has shifted resource-intensive enforcement questions to the states. This new scheme turns the Title V permit process into an iterative process by remanding the permit back to the states without clear direction as to the remedy EPA is seeking. Under this scheme, rather than making a determination on the merits of a petition, EPA objects to the permit on the basis that the state failed to adequately respond to public comments. In remanding the permit back to the state agency, EPA does not state what its opinion is on the substantive citizen petition claim, and in fact does not allege that the permit contains any provision inconsistent with the CAA or regulations. This new approach allows EPA to shift an enforcement question to the states, rather than addressing the alleged noncompliance themselves. While few would argue that public input is important to the process, the inquiry here is whether there is a legal duty to provide written responses, and furthermore, whether that duty is a  requirement of the CAA. The inquiry is important because the Title V objection authority is limited to instances where the permit is not in compliance with the CAA.


Understanding the New Air Pollution Rules

by Chuck Knauss, Michael J. Bradley, Robert D. Brenner, John Walke

The U.S. Environmental Protection Agency embarked on an ambitious schedule of air pollution rulemaking following the vacatur of several Bush Administration rulemakings. The “transport rule” seeks to cap interstate emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx) from power plants to replace the Clean Air Interstate Rule (CAIR). Also scheduled are: a plan to review and update hazardous air pollution rules covering 28 types of industrial facilities; rules limiting mercury and other toxic emissions, including arsenic, dioxins, and hydrochloric acid; national health standards for ozone; and BACT standards that will likely address greenhouse gases. On October 20, 2010, at ELI’s Fall Practice Update, panelists discussed how these various rules interrelate and how they might fit with legislative developments in the next two years.