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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 2012


Don’t Judge a Book by Its Cover: Use of an Analytic Framework and Empirical Data in Analyzing Environmental Policy Tools

by Dorit Kerret

What is the most effective mix of policy tools for achieving environmental improvements? Are governments leaving behind the “hard” law of legislation and regulation in favor of “soft” instruments like environmental management systems and voluntary disclosure agreements? A case study of pollutant release and transfer registries, an environmental policy designed as a soft law tool, reveals that hard uses may go hand in hand with soft uses of a policy. Results of the analysis demonstrate that policy tools may be used in various fashions simultaneously. These findings support the contention that governments are going “hybrid,” rather than soft, finding both hard and soft uses for a broad range of policy tools.

Hold On to Tribal Sovereignty: Establishing Tribal Pesticide Programs That Recognize Inherent Tribal Authority and Promote Federal-Tribal Partnerships

by Jane Kloeckner

The weak tribal/federal partnership in regulating pesticide pollution can be strengthened by building pesticide programs that recognize tribal inherent authority and enhance the opportunities for tribal members and non-members to learn about indigenous knowledge for protecting human health and the environment. A regulatory
reinterpretation or congressional amendment of FIFRA that recognizes tribal inherent authority would address the issue of treating tribes as the appropriate
authority for implementing FIFRA in Indian country and hopefully, the overwhelming federal role would decrease and the tribal role would increase.

The Development of Payments for Ecosystem Services in China: Cutting Through the Cloud of Confusion Over China’s. Eco-Compensation

by Michael I. Jeffery and Gao Qi

Though Payments for Ecosystem Services (PES) was initially designed as a voluntary market-oriented mechanism, PES development in China became a top-down, government driven process that is gradually evolving from centralized large-scale projects to decentralized smaller scale ones. Aside from the main objective of ecosystem conservation, poverty alleviation is often an additional important objective of PES. To improve the PES scheme in China, government needs to enhance administrative efficiency and promote multijurisdictional/sectoral cooperation and coordination; promote and develop more decentralized local initiatives and small-scale PES; cultivate a more favorable investment environment to attract greater participation of private actors; and encourage and support initiatives and legislation to ensure access to
information and public participation leading to more rational, transparent, and informed PES decisionmaking.

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

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-by-case basis, subject to EPA review and approval. Steps 2 through 5 of EPA’s preferred “top-down” procedure for making these determinations involve the elimination of technically infeasible options, the ranking of remaining technologies by control effectiveness, the evaluation of energy,  environmental, and economic impacts, the selection of BACT technology, and the specification of BACT emission limitations. As old pollution control technologies are continually replaced by newer ones, these steps present daunting burdens for permit applicants and fertile opportunities for their opponents. [This Article continues from the December 2011 issue of News & Analysis.]


Recovering Endangered Species in Difficult Times: Can the ESA Go Beyond Mere Salvage?

by Jason C. Rylander

Although tomes could be written about delisting trends and the delisting of the gray wolf in particular, the purpose of this Comment is to explore current issues related to
endangered species recovery. Congressional delisting of the gray wolf short-circuited an important debate about what it means to recover a species. When should the protections of the ESA be removed? What do we even mean by recovery? Is it enough merely to prevent extinction? Might some species require federal protection forever?


Recent Air Regulations: What Picture Will the Jigsaw Pieces Create?

by Robert Brenner, Jay Duffy, Pamela M. Giblin, Frank O’Donnell, Patrick Traylor

Air law and policy are moving at a lightning-fast pace. At ELI’s annual Fall Practice Update, held October 21, 2011, attendees joined our expert panel to learn how developments in air law and policy interact and what picture they create when pieced together. What is the resulting regulatory tableau that industry must navigate? What are the potential political ramifications for the 2012 elections? The panel discussed the potential benefits and drawbacks of the Cross-State Air Pollution Rule and the proposed Utility MACT rule. In addition, the panel looked at EPA’s rule designating NSPSs and NESHAPs for oil and gas production and natural gas transmission and storage and introduced attendees to anticipated proposed and final rules on topics such as the ozone NAAQS and upcoming greenhouse gas regulations.