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Issue

Volume 41, Issue 3 — March 2011

Articles

How Do Clean Development Mechanism Projects Contribute to Sustainable Development in China: An Assessment of the Performance of the CDM in China

by Xiaoyi Jiang

The Clean Development Mechanism under the Kyoto Protocol has been in place in China for several years, and today, China exists as the global center of CDM project development. Although the CDM has brought and is expected to bring considerable benefits to China, its limited and in some cases negative impacts may affect China’s sustainable development in the long run. Moreover, as the first Kyoto period is set to expire in 2012, the climate legal regime and the CDM are likely to be changed. The limitations of the CDM in promoting sustainable development in China beyond 2012 could be addressed by setting up clear sustainable development standards, effective management of the CDM, and legal strategies for emission reductions.

The Future of the Greenhouse Gas Tailoring Rule

by James R. Farrell

On January 2, 2011, EPA’s much-anticipated prevention of significant deterioration and Title V Greenhouse Gas Tailoring Rule took effect, expanding the reach of the Clean Air Act and creating a phased-in approach to greenhouse gas regulation that initially targets the nation’s largest emitters but will gradually encompass additional sources. Numerous challenges threaten the rule’s long-term viability, including a regulatory alternative that could gain traction in the continued absence of a legislative response to the issue of climate change.

Place-Based National Forest Legislation and Agreements: Common Characteristics and Policy Recommendations

by Martin Nie

Throughout the country, divergent interests are collaborating about how they would like particular national forests to be managed. Some of these initiatives are seeking place-based legislation as a way to secure such agreements, while others use an assortment of different approaches and memoranda of understanding. What is most remarkable about these initiatives is the similarities they share, from a widespread frustration with the status quo to the search for more certainty in forest management.

The Clean Water Act Returns (Again): Part I, TMDLs and the Chesapeake Bay

by Oliver A. Houck

The CWA, with multiple paths to its destination, is reinventing itself once more. Enacted in modern for  in 1972, the next quarter century saw EPA focused on the development of technology standards for industrial and municipal point sources. In the mid-1990s, prodded forward by a stream of citizen suits, the Agency started to address nonpoint sources of pollution through water quality standards and the TMDL program. This movement stalled from 2000-2009, and the current revival raises the question whether EPA, at last, can make nonpoint and ambient-based controls effective. The answers are being tested in two venues where the problems are among the most acute and their solutions the most resisted: the Chesapeake Bay and Florida. As go the Chesapeake and the Sunshine State, so will go the future of clean water for years to come.

Comment(s)

The Outer Limits of Endangered Species Act Liability—The ESA’s Indirect Effect Regulation and Its Application to Climate Change

by Hanspeter Walter

Good scientists have active minds and creative imaginations. These traits allow scientists to develop hypotheses and design experiments to test them with the hope of moving scientific inquiry and the state of knowledge ever further. While most laws do not implicate or emphasize science, the federal Endangered Species Act (ESA) is among the few that does. Specifically, ESA §7 demands that during consultation on the potential effects of federal actions on ESA-listed species, “each [federal] agency shall use the best scientific and commercial data available.” Unlike in pure scientific investigation, however, the ESA limits the scope of inquiry with regard to assessing the indirect effects of an action. Thus, where a scientist might conceive of a potential indirect effect from use of a pesticide, implementation of a resource management regime, or carbon emissions from a local power plant, the ESA demands more before such possibilities are labeled indirect effects of the action.

NEPA and Assessment of Greenhouse Gas Emissions

by Neal McAliley

The growing national focus on greenhouse gas (GHG) emissions is creating new challenges for the application of one of the most venerable federal environmental laws, the National Environmental Policy Act (NEPA). NEPA requires federal agencies to analyze the environmental effects of their proposed actions in formal environmental studies. The purpose of the law is to generate better information on environmental impacts for agency decisionmakers and the public, so that agencies can make better decisions.

Environmental Law Goes Global: Taking Back Eden: Eight Environmental Cases That Changed the World, by Oliver A. Houck

by Robert V. Percival

The author reviews Oliver Houck’s inspirational book, Taking Back Eden: Eight Environmental Cases That Changed the World. In this book, Houck tells the stories of courageous citizens in eight countries who took legal action to defend the environment.

Dialogue

The “Perfect Storm” for Renewable Energy: Policy Drivers and Decisionmaking

by David Lazerwitz (moderator), Joshua Basofin, Ashley Conrad-Saydah, Roger Johnson, and Sue Kateley

The American Recovery and Reinvestment Act, AB 32, multiple memoranda of understanding, and recent Executive Orders have created a “perfect storm” of renewable energy policies, making California the hottest place for large-scale renewable energy development in the country. These policies and laws have inspired collaboration among multiple agencies, streamlined project review processes, and triggered substantial engagement from stakeholders throughout the state and country. On September 29, 2010, the Environmental Law Institute brought together a panel of experts representing federal and state agencies industry, and the environmental community to discuss the successes and pitfalls of the policies, the lesson learned, and what the panel believed should be done in the future to either protect or improve the regulatory framework for developing renewable energy.