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Volume 42, Issue 11 — November 2012

Articles

Observations on Indiana University’s Report, Regulating Industrial Chemicals: Lessons for U.S. Lawmakers From the European Union’s REACH Program

by Joseph H. Guth

The REACH regulation in Europe is a unique product of the European system and European political compromises, so that REACH would be very difficult to replicate in the United States. There are no substantial discussions about doing so in the United States today. Thus, any lessons learned from REACH would be much more helpful if they were directed to the TSCA reform proposals actually being discussed in the United States rather than to the report's hypothetical effort to replicate REACH. The report's recommendations for ways to simplify REACH fail to analyze the impact of the proposals on the overall effectiveness of REACH in view of its comprehensive chemicals policy objectives.

Comment on Regulating Industrial Chemicals: Lessons for U.S. Lawmakers From the European Union’s REACH Program

by Lynn L. Bergeson

It is entirely appropriate to consider how REACH may influence reconsideration of the U.S. chemical regulatory environment, and the report provides some critical insights. But REACH is not the only consideration—Canada’s Chemical Management Plan should be considered as well. Further, REACH should be considered from a practitioner’s, not an academic’s, perspective to learn lessons relevant to U.S. chemicals management.

Regulating Industrial Chemicals: Lessons for U.S. Lawmakers From the European Union’s REACH Program

by Adam D.K. Abelkop, Ágnes Botos, Lois R. Wise, and John D. Graham

Should Europe’s chemicals law, called REACH, be considered by U.S. policymakers interested in reform of TSCA? The new REACH registration process, while burdensome, is more workable than was originally feared. However, it appears that REACH is much more complex than it needs to be to accomplish its objectives. U.S. policymakers should consider simplifications of the REACH program.

Comment(s)

Recommendations for Complying With Ballona Wetlands’ Definitive Rejection of “Converse-CEQA” Analysis

by Jennifer Hernandez and Chelsea Maclean

On March 21, 2012, the California Supreme Court denied the petition for review and requests for depublication of the Second District Court of Appeal’s opinion in Ballona Wetlands Land Trust et al. v. City of Los Angeles. Ballona Wetlands held that the environment’s effects on a proposed project do not have to be analyzed under the California Environmental Quality Act (CEQA), thereby creating the likelihood that a wide range of impacts previously analyzed in CEQA documents will now be considered outside CEQA’s statutory authority. This Article analyzes the
Ballona Wetlands opinion and suggests practical recommendations for addressing impacts of the environment on projects under CEQA.

FERC Order 1000 as a New Tool for Promoting Energy Efficiency and Demand Response

by Shelley Welton and Michael B. Gerrard

In July 2011, the Federal Energy Regulatory Commission (FERC) issued Order No. 1000, the latest in a series of orders directed at improving federal transmission access, planning, and coordination. Order 1000 requires, for the first time, that electricity transmission providers engage in regionwide transmission planning, and further mandates that such planning consider how federal and state public policies affect transmission needs. Public utility transmission providers are now in the process of amending their operating tariffs to comply with this new order. It is therefore an important time for all those with an interest in the future of the electric grid to pay attention to how Order 1000 is being interpreted and implemented by various regions across the country.

A Detailed Look at the Effects of Sackett v. EPA on Administrative Enforcement Orders

by Richard E. Glaze Jr.

On March 21, 2012, the U.S. Supreme Court issued its opinion in Sackett v. U.S. Environmental Protection Agency and settled the question of whether “pre-enforcement” judicial review is available for an administrative compliance order issued under §309(a)(3) of the Clean Water Act (CWA). Despite much speculation by commenters, questions remain as to what the decision means for enforcement under the affected programs. This Article examines enforcement mechanisms that may be affected by the Sackett holding and the possible consequences to enforcers and the regulated community under the CWA and other environmental statutes administered by EPA.