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Volume 44, Issue 11 — November 2014


EPA’s Fine Particulate Air Pollution Control Program

by Arnold W. Reitze Jr.

This Article discusses the U.S. Environmental Protection Agency’s program to control fine particulate emissions 2.5 microns or smaller (PM2.5) in areas that fail to meet the national ambient air quality standards. The Article covers the sources and health effects of both direct emissions of particulate matter and secondary emissions that are transformed into PM2.5 in the atmosphere. Also discussed is the control of fine particulates from mobile, area, and major point sources; and the indirect control of PM2.5 through transportation planning and the program to reduce hazardous air pollutants. The Article concludes that controlling PM2.5 and its precursors from mobile sources by the federal government has been successful, but that control of these pollutants from area and point sources should be improved.

Big Data and the Environment: A Survey of Initiatives and Observations Moving Forward

by Linda K. Breggin and Judith Amsalem

This Article provides a general introduction to what is commonly referred to as “big data,” and offers an outline of over 60 initiatives underway in the public and private sectors to use big data to forward environmental protection. This initial survey is not intended to provide a comprehensive list of all efforts currently underway, but instead to illustrate the range of initiatives and approaches used by government agencies, nongovernmental organizations, and industry. The Article also discusses some of the legal and policy concerns associated with the use of big data to advance environmental protection.

Plain Meaning, Precedent, and Metaphysics: Interpreting the “Pollutant” Element of the Federal Water Pollution Offense

by Jeffrey G. Miller

This Article, the second in a series of five, examines the meaning of “pollutant” under the Clean Water Act. Congress and EPA have defined “pollutant” to mean a list of specific substances and broad categories of materials and wastes discharged into water, e.g., “biological materials” and “chemical wastes.” The definition is broad enough to encompass virtually all substances associated with human activity that are discharged to water, regardless of whether the substances cause pollution or are produced through human endeavor. Therefore, “pollutant” is rarely a limiting element. Instead, the issues with the definition of “pollutant” primarily address whether it includes material used in common and productive activities, such as adding hatchery-raised fish (“biological material”) to trout streams or spraying pesticides to suppress disease-bearing mosquitoes (“biological material” or “chemical wastes”). EPA can easily fix these and other problems by a better regulatory definition.

The National Marine Sanctuary System: The Once and Future Promise of Comprehensive Ocean Governance

by Jason Patlis, Donald Baur, Tom Lindley, Alan Murphy, and Priscilla Hampton

Despite repeated recommendations for improved ocean governance, little has happened legislatively to update federal ocean protection. But administratively, NOAA has advanced a number of rulemakings to expand the size of existing national marine sanctuaries, and has finalized a rulemaking to allow the consideration of new designations of national marine sanctuaries. This Article analyzes the legal underpinnings of the centerpiece of the National Marine Sanctuaries Act and compares it to other federal and state legal authorities that govern ocean ecosystems and resources. The Article concludes that the new regulation creates an open-sourced, grassroots approach to identifying special marine places that are important to local communities nationwide.


In Memoriam: David Sive (1922-2014) and Joseph Sax (1936-2014)

by Nicholas A. Robinson

In 1995, Professor of Law David Sive and Pace’s Law Faculty established this lectureship, in honor of Lloyd K. Garrison, to commemorate Scenic Hudson Preservation Conference v. Federal Power Commission.  Known as the Storm King case, this ruling inaugurated what we today call environmental law. Two individuals above all others guided and framed the jurisprudential foundations for environmental law. We honor these founders today. Their lives were intertwined.

Requiem for Regulation

by Garrett Power

Since 1952, Cornell University Prof. Emeritus John W. Reps has taught, studied, and written about the planning of cities, suburbs, and farms. The American Planning Association has recognized him as a planning pioneer. He is perhaps the first scholar to recognize that the best way to understand planning’s future is to study planning’s past. In 1964, Professor Reps delivered the Pomeroy Memorial Lecture at the American Society of Planning Officials’ annual conference. With the benefit of 50 years’ hindsight, this Comment considers the prescience of Professor Reps’ observations and predictions.