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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — March 2014


Federal Control of Air Emissions From New Heavy-Duty Road Vehicles

by Arnold W. Reitze Jr.

Heavy-duty road vehicles are subject to a regulatory program administered primarily by the federal government, a program that evolved out of concerns about increasing smog in California in the 1960s. Among the applicable regulations today are Clean Air Act mobile source provisions, Tier 2 standards, and the proposed Tier 3 standards. The mobile source program has existed for one-half century, but regulation of heavy-duty vehicles developed much later than the program for light-duty vehicles. More recently, the federal government has begun implementing a program to control greenhouse gas emissions from heavy-duty vehicles.

Reimagining Environmental Law for the 21st Century

by Sanford E. Gaines

Aldo Leopold's 1947 observation still rings true today: we are "slipping two steps backward for each forward stride." Environmental law, which once expressed a social movement, has failed to keep pace with comprehensive ecological degradation. How can we reimagine it? Agreeing with Leopold that we need to change our "wants and tolerances" in order to change the "economic factors bearing on the land," we can draw from European sociology of law scholarship and two recent books invoking Plato as a philosopher-guide to a new set of social norms to argue that environmental lawyers should be leaders of a broad social movement to change norms. This means a fresh outlook on the role of law in society and the training of lawyers as social and business leaders cognizant of the natural world who are oriented to restructuring social norms and economic behaviors in order to alleviate today's extreme pressures on ecosystems and preserve social and ecological resilience for future generations.


Reliance Interests and Takings Liability for Rail-Trail Conversions: Marvin M. Brandt Revocable Trust v. United States

by Danaya C. Wright

On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case, Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, "[t]he right of way [200 feet wide] through the public lands of the United States." The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over 94 million acres of public lands were given over to the transcontinental and other state-chartered railroads for sale to assist in financing the road's construction. Besides being an obscure case based on an equally obscure law, the procedural posture of the case is even more unusual, as the government prevailed in the U.S. Court of Appeals for the Tenth Circuit, and yet it supported the grant of certiorari.

Nutrients in the Courts: Cooperative Federalism Entangles EPA Actions on Nitrogen and Phosphorus

by Richard E. Schwartz, David Y. Chung, and Tony Mendoza

For over a decade, the regulation of nutrients (nitrogen and phosphorus) under the Clean Water Act has been a focus of the U.S. Environmental Protection Agency's (EPA's) attention. Now, it is a focus of litigation. Hypoxia in the Gulf of Mexico, algal blooms in Florida, and reduced aquatic life in the Chesapeake Bay have spawned three very different lawsuits, each shedding light on different issues of administrative law and a different stage of the CWA's process for protecting water quality. The one broad issue these cases share is that—at their core—all three stem from fundamental disputes about when EPA may (or must) step in to take action that the CWA reserves in the first instance (or solely) to the states. At the core of each case is a dispute about the contours of the CWA's system of cooperative federalism.

Obama Administration Proposes New Federal Role in Siting Shale Gas Development in Combination With Renewables

by E. Donald Elliott

One of the most interesting aspects of the State of the Union for the energy industry was not what the president said, but something buried in the accompanying White House fact sheet: a proposal for the federal government to assume an enhanced role in "helping" to plan shale gas development and at the same time promote renewable energy.

Combating Climate Change: China’s Efforts on Environmental Legislation

by Ying Shen

As the largest developing country, China has become a primary focus of discussions about involving developing nations in global climate change mitigation efforts because of the size of its population and its rapid, double-digit economic growth. According to a recent inventory of the International Energy Agency (IEA), China is now the world's largest source of energyrelated carbon dioxide (CO2) emissions, surpassing the United States in 2007 and accounting for 29% of global annual emissions. Excessive CO2 emissions in China not only contribute to global climate change, but also endanger the lives of countless citizens and sap the nation's economic vitality.