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


Annual Review of Chinese Environmental Law Developments: 2011

by Mingqing You

In 2011, China began its Twelfth Five-Year Plan. The Plan includes both new and revised rules and goals for environmental protection and management. This annual review covers updates in climate change mitigation, environmental protection as it relates to economic and social development, new rules on the protection of water resources, solid and radioactive waste issues, and public participation goals.

Dangerous Air Apparent: How EPA’s Hazardous Air Pollutant Program Has Failed to Address Toxic Hotspots

by Rhonda L. Ross and Tammy Asher

The Clean Air Act (CAA) mandates that EPA regulate emissions of more than 180 commonly used industrial chemicals and compounds known as hazardous air pollutants
(HAPs). Unfortunately, EPA does not regulate or restrict emissions of these HAPs based on the health risks posed by ambient-air concentrations or actual exposures
to these toxic substances. Instead, EPA has primarily regulated emissions of these HAPs by imposing technology-based emission controls on major sources of these HAPs. Years after those controls are installed, EPA evaluates the health risks that remain, i.e., residual risks, from facilities that emit the HAPs. Even then, EPA does not evaluate these health risks based on actual ambient concentrations of these pollutants—instead, EPA bases its assessment on engineering calculations. EPA’s own
research indicates that air pollution is posing significant health risks, particularly in urban areas. EPA needs to focus on devising and implementing the programs that
were delegated to them under the 1990 CAA Amendments to restrict ambient concentrations of HAPs to levels that will provide adequate protection of public health.

How “Extraordinary” Is Injunctive Relief in Environmental Litigation? A Practitioner’s Perspective

by Eric J. Murdock and Andrew J. Turner

Despite recent efforts by the U.S. Supreme Court to emphasize the “drastic and extraordinary” nature of injunctive relief, many lower federal courts continue to issue injunctions in cases alleging harm to the environment as if injunctive relief were the norm rather than the exception. Apparently reluctant to accept constraints on the exercise of equitable powers, a number of federal courts have interpreted and applied the governing legal standard as set out in the Supreme Court’s 2008 Winter
decision with more latitude than that decision would seem to permit. This circumstance may well lead in time to additional clarification by the Supreme Court. In the meantime, defense practitioners should be prepared to advocate for a strict application of the Winter standard, while recognizing that the standard as actually applied by
some courts may be somewhat less demanding in practice.

Water, Climate Change, and the Law: Integrated Eastern States Water Management Founded on a New Cooperative Federalism

by Robert Hakell Abrams

More robust planning and management is needed to confront new patterns of water use and increasingly extreme and less predictable climate-induced variations in water availability. Issues such as water allocation law, gaps in the array of water management objectives, and comparatively rigid and unresponsive operating rules for water  facilities are increasingly more significant. Neither the water law of most eastern states nor the existing water institutions are adequate to adapt to the challenges of less stable and potentially diminished water supply. A new water governance regime that builds upon regulated riparianism and the federalism structure of the Coastal Zone Management Act could offer several means for improving water management in the eastern United States as water shortages become more common.


EPA’s Missed Opportunity to Ground Its GHG Tailoring Rule in the Statute: What the Situs Argument Would Mean for the Future of the PSD Program

by Chuck Knauss and Shannon Broome

On February 28 and 29, 2012, the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit heard oral argument in a series of closely watched lawsuits challenging regulations issued by the U.S. Environmental Protection Agency (EPA) to regulate greenhouse gas (GHG) emissions from automobiles and manufacturing facilities under the Clean Air Act (CAA). Many observers consider the suite of GHG lawsuits, brought by industry groups and state petitioners, among the most significant in CAA and  administrative law in the last 30 years. This is because the D.C. Circuit’s decision will address the proper scope of EPA’s prevention of significant deterioration (PSD) program and of rarely invoked judicial doctrines of last resort like “absurd results” and “administrative necessity.” Moreover, the court’s decision will address those issues
in the context of GHG emissions, one of the most politically and scientifically charged issues of our times.


TSCA Reform: Information Confidentiality, Availability, and Sharing

by LInda K. Breggin, Blake A. Biles, Dr. Richard Denison, Andrea V. Malinowski, Pam Myrick, and Scott M. Sherlock.

Several key issues emerged as pivotal in ongoing efforts to reform the Toxic Substances Control Act (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 Oct. 26, 2011, experts met to discuss a range of TSCA reform issues related to information disclosure and dissemination, including: reform of CBI Practices; public access to information/ databases; and information-sharing down the supply chain.