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Issue

Volume 42, Issue 2 — February 2012

Articles

Real Environmental Protection: Not a Paper Exercise

by Douglas T. Nelson, Joshua Saltzman, William K. Rawson, Claudia O’Brien, and Bart J. Kempf

In an Article published in the October issue of the Environmental Law Reporter, Elisabeth Holmes and Charles Tebbutt argued that H.R. 872, a bill that would amend FIFRA and the CWA as they pertain to aquatic pesticide applications, should not be enacted. To the contrary, H.R. 872 is a commonsense approach to harmonizing regulatory obligations under FIFRA and the CWA, and it should be enacted promptly. NPDES permits for aquatic pesticide applications are not needed to protect human health and
the environment because EPA already possesses the tools under FIFRA to do the job. Additional CWA permitting requirements are not only unnecessary, overly burdensome, and expensive, they would also place unwarranted strains on governments, the regulated community, and the public in this time of economic uncertainty.

Stacking Ecosystem Services Payments: Risks and Solutions

by David Cooley and Lydia Olander

Healthy ecosystems provide many services to society, including water filtration, biodiversity habitat protection, and carbon sequestration. A number of incentive programs and markets have arisen to pay landowners for these services, raising questions about how landowners can receive multiple payments for the ecosystem services they provide from the same parcel, a practice known as stacking. Stacking can provide multiple revenue streams for landowners and encourage them to manage their lands for multiple ecosystem services. However, if not well-managed, it may also lead to a net loss of services.

Promoting Clean Energy in the American Power Sector: A Proposal for a National Clean Energy Standard

by Joseph E. Aldy

The difficulty of coming to agreement on comprehensive energy and climate change legislation highlights the need for a more targeted and incremental approach. One promising intermediate step would be a technology-neutral national clean energy standard for the power sector. The proposed standard would lower carbon dioxide emissions by as much as 60% relative to 2005 levels over 20 years, streamline the fragmented regulatory system, generate fiscal benefits, and finance energy innovation. Through a simple design and transparent implementation, the national clean energy standard would provide certainty about the economic returns to clean energy that would facilitate investment and lower the emission intensity of the power sector. It would also serve as an ambitious bridge to economywide energy and climate policy.

Comment(s)

Rapanos Guidance III: “Waters” Revisited

by Richard E. Glaze Jr.

On May 2, 2011, EPA andthe Corps issued draft joint guidance for the interpretation of the phrase “waters of the United States” under the CWA. Determinations of CWA jurisdiction are critical for the agencies in issuing permits to fill wetlands under §404 of the CWA and in CWA enforcement actions. The proposed guidance purports to “clarify” how the agencies will “understand” existing requirements of the CWA and identify waters protected by the CWA “in light of” the holdings in Solid Waste Agency of Northern Cooke County v. U.S. Army Corps of Engineers and Rapanos v. United States. The author argues that the guidance would, if issued in its current form, do more than “clarify understanding.” Instead, it would provide the agencies a basis for exercising broader authority over the nation’s waters than current policy supports. This
expansion would be wrought by a few definitional and linguistic changes, some of which would be consistent with the CWA as interpreted in Rapanos and SWANCC and others that would be inconsistent.

Dialogue

TSCA Reform: Hazard, Use, and Exposure Data

by Linda Breggin, Connie Deford, Mary Marrero, Daniel Rosenberg

Several key issues emerged as pivotal in ongoing efforts to reform TSCA. Progress on these complex issues is central to the success of TSCA reform. To foster further discussion of these critical topics, ELI convened a series of issue-specific lunchtime webinars during the summer and fall of 2011 that provided a forum for focused dialogue among key players. On September 20, 2011, ELI convened the third panel in this series to explore reform of TSCA requirements and procedures for developing and reporting data on chemical hazards, use, and exposure. Topics included the scope of EPA authority to require information and data, including on new chemicals, such as nanomaterials; testing, including mutual acceptance of data and emerging methodologies; and the role of downstream users of chemicals.