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Volume 43, Issue 7 — July 2013


Effective Clean Air Act Enforcement in the Face of Statute-of- Limitations and Successor Liability Barriers

by Paul Wierenga

The volume of NOx and SO2 emissions each year from unregulated, grandfathered power plants demonstrates that the goal of the CAA’s PSD program, to ensure that air quality standards under NAAQS do not in effect become a ceiling, has achieved only limited success. One significant challenge under the PSD program is the difficulty associated with identifying major emitting facilities that have made major modifications. This repeatedly results in statute-of-limitations problems for enforcement efforts. To resolve this enforcement difficulty, reviewing courts have split into two competing interpretations of the statutory and regulatory requirements of the PSD program. The proper interpretation of the CAA and EPA’s regulations demands that PSD requirements be interpreted to impose ongoing operational obligations.

Community Solar: Reviving California’s Commitment to a Bright Energy Future

by Samantha Booth

Although California has typically led the nation’s march toward a renewable future, the state’s tenacious reliance on the traditional, centralized model of energy generation has artificially stunted the potential growth of the renewable energy sector. California should therefore adopt legal structures prerequisite to widespread penetration of the community solar model in the state. Community solar is a mechanism through which multiple ratepayers can buy “shares” in a local, off-site solar system and receive bill credits for energy generated by the system. The California Legislature must make key changes to eviscerate various legal barriers to the adoption of community solar in California.

Litigating Against Government Agencies: Case Studies in Challenges to Agency Decisions Under Federal Environmental Statutes

by Jeffrey W. Leppo

Record review challenges to federal agency decisions in the environmental context are, arguably, among the most frequently litigated and, yet, the least frequently won or favorably settled federal cases. Several case studies from the highly regulated oil, gas, and commercial fisheries industries reveal insights into successful strategies. These case studies suggest that for lawsuits won by industry plaintiffs, common notions of record review cases as simpler, quicker, less costly, and more predictable are untrue, and that the risk of Pyrrhic procedural victories is high. Plaintiffs looking to actually prevail, not just fight the good fight, must demonstrate commitment and stamina, significant forethought, and case-specific procedural and substantive strategies.

Legal Consequences of Adopting New Floodplain Maps in New Hampshire

by Katherine Garvey

To mitigate potential property damage and risk to human safety from increased flooding, many communities across the United States are considering whether to amend and expand floodplain maps and corresponding regulatory tools. Some local governments worry that new floodplain regulations will give rise to litigation, as new laws may restrict development on private property. A local government might face three potential challenges as a result of adopting such regulations, including that the ordinance exceeds the enabling authority, violates substantive due process, or violates equal protection.

Cap Without Trade: A Proposal for Resolving the Emissions Trading Problem Under CAA §111

by David M. Driesen

A “cap-without-trade program” to regulate greenhouse gas emissions under §111 of the CAA — a program that applies a mass-based cap to each regulated source — provides compliance flexibility, making it feasible to rely on end-use energy efficiency as a compliance technique, without running the legal risks involved in trying to graft an emissions trading program on the technology-based structure written into §111. These risks are substantial but vary with the scope of the trading program. A “cap-without-trade” approach also provides pollution sources with continuing incentives to favor comprehensive legislation addressing climate disruption and may facilitate a negotiated solution to §111 controversies.


CBD v. BLM, BLM’s Revised Proposed Regulations, and the Thorny Way Forward for Fracking

by Tyler Welti

On March 31, 2013, a magistrate judge with the U.S. District Court for the Northern District of California ruled in Center for Biological Diversity (CBD) v. Salazar that the U.S. Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) in issuing several oil and gas leases without first adequately analyzing the impacts of horizontal drilling and multistage hydraulic fracturing (fracking). Recognizing that land use planning for public lands has been outpaced by developments in drilling technology, the court held that additional NEPA review of fracking is required before BLM may issue leases that would constrain the agency’s ability to prevent surface disturbance on the leased land.

A Decade of Litigation Over the Roadless Rule Finally Nearing the End

by Daniel L. Timmons

After more than a decade of litigation over the management of roadless areas in national forests, several developments over the past months have brought this long and drawn-out fight nearly to a close. All but three states will be governed by the terms of the 2001 Roadless Rule, while state-specific rules in Idaho and Colorado will govern roadless areas in those two states. Alaska, with the nation’s two largest national forests, the Tongass and Chugach National Forests, as well as the most roadless acreage of any state, is the only state in which litigation continues. Alaska has strong arguments that national forests in the state should not be subject to the restrictions of the Roadless Rule.

Goodbye Fourth of July: Are Fireworks Displays Now Subject to CWA Regulation?

by Robert M. Howard, Jeffrey P. Carlin, and Taiga Takahashi

The federal Clean Water Act (CWA) has been instrumental in restoring the health and safety of the nation’s bays, harbors, and beaches from industrial and municipal discharges during the past 40 years. But does the CWA now regulate Independence Day fireworks? According to some California regulators, the answer may be yes. Recently, the California Regional Water Quality Control Board for the San Diego Region has interpreted the CWA in an unprecedented fashion that threatens some of San Diego’s most cherished community traditions—and dramatically extends the regulatory scope of the CWA—with potential unintended and far-reaching consequences throughout the United States.