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Volume 43, Issue 11 — November 2013


Protecting Our Environment in a Virtual Age: How Wildlife Webcams Could Strengthen Enforcement of the Endangered Species Act

by Erin J. Coburn

With the introduction of wildlife webcams, anyone with an Internet connection can view real-time, live video feed capturing a variety of species, including endangered species, in their natural habitats from a remote location. The U.S. Supreme Court held in Lujan v. Defenders of Wildlife that a potential citizen plaintiff must have plans to physically visit the species in its natural habitat in order to satisfy the injury-infact requirement. As a result of the development of wildlife webcam technology, and based on the neurological processes that stimulate aesthetic enjoyment of an object, the distinction between physically visiting a species and viewing it in real time from a remote location for purposes of standing makes little sense. Citizens who engage in aesthetic enjoyment of wildlife remotely via wildlife webcam should be able to satisfy the injury-in-fact prong of constitutional standing and should be able to bring suit under the ESA to protect the species that they view.

A Looming Fracking Explosion: The Inadequate NEPA Cumulative Effects Analysis for the Keystone XL Pipeline

by Jessica Kabaz-Gomez

The Keystone XL Pipeline has drawn tremendous media attention over the past seven years as the U.S. Department of State has assessed the Project’s environmental impacts through the NEPA review process. Despite the lengthy process, the Keystone XL Pipeline environmental reviews fail to adequately assess the Project’s impacts in the Bakken region, where increased pipeline transport capacity is likely to cause increased levels of hydraulic fracturing for oil production. These environmental reviews did not adequately assess the cumulative effects of the Keystone XL Pipeline or its connected actions, which could result in serious and far-reaching environmental consequences if the Pipeline is approved.

The Legislative Experience and Lessons of China’s Renewable Energy Law and Its Future Development

by Jiejun Yang

The Renewable Energy Law of China was enacted and had been amended relatively quickly. Further modifications to the law would enhance its effectiveness in promoting the development of renewable energy. Deficiencies exist in the current Renewable Energy Law, and its amendments should be improved. First, the legislative approach should be less politically driven but more pragmatic. Second, further amendments of the law should enhance its enforceability. Third, the law should be able to solve current problems and foresee future trends. Fourth, stakeholders’ involvement and public participation should be encouraged.

Shifting the Debate: In Defense of the Equal Access to Justice Act

by Brian Korpics, Jay Austin, and Bruce Myers

For three decades, the Equal Access to Justice Act (EAJA) has enhanced parties’ ability to hold government agencies accountable for their actions and inaction. EAJA allows individuals, small businesses, and nonprofits to recover attorney fees from the federal government after vindicating a variety of federal rights. Recent political rhetoric has attacked EAJA for its allegedly improper usage by environmental groups. EAJA has been cost-effective, applies only to meritorious litigation, and existing legal safeguards and the independent discretion of federal judges will continue to ensure its prudent application. In the absence of sound reasons to pare back EAJA’s coverage, most current “reform” efforts are actually directed at restricting unwelcome legal challenges or a subset of disfavored plaintiffs—namely nonprofit environmental organizations.


Become a Rulemaking Ninja: Exploring the OIRA Web Portal

by Robert R.M. Verchick

In the first term of the Obama Administration, the White House Office of Information and Regulatory Affairs (OIRA) introduced an interactive web portal designed to give you better information about the president’s centralized system of regulatory review. On entering the portal, there are only two things to keep in mind. First, don’t be afraid to snoop around: sometimes the most useful stuff is found three or four levels down. Second, don’t fall in love. OIRA’s slick website is a fresh breeze for advocates of government transparency. But there’s still a lot missing. Remember the line about statistics and swimsuits: what they reveal is interesting, but what they conceal is vital.

EPA Administrative Orders on Consent, CERCLA §113(f) Contribution Actions, and the Operative Statute of Limitations After Atlantic Research

by Keri Holleb Hotaling, Allison A. Torrence, and Alexander J. Bandza

Parties seeking to address their CERCLA liability with the U.S. Environmental Protection Agency (EPA) without protracted litigation may find attractive a nonjudicial negotiated settlement, known as an Administrative Order on Consent (AOC). However, after the U.S. Supreme Court’s seminal United States v. Atlantic Research Corp. and Cooper Industries, Inc. v. Aviall Services, Inc. decisions, subsequent lower court guidance has generated three complex issues that should be considered when entering into an AOC with EPA.

The Overwhelming Case for Clean Air Act Reform

by Bill Pedersen and David Schoenbrod

Congress designed the current CAA around two fundamental misunderstandings about air pollution, misunderstandings that make the statute clumsy and that hinder further attempts at emissions reductions. The authors describe a new approach that could solve these problems and allow Congress to dramatically streamline the CAA. They conclude with a word on GHG control.