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


Cooperative Federalism, Nutrients, and the Clean Water Act: Three Cases Revisited

by Oliver A. Houck

Cooperative federalism varies widely from program to program, and depends on the relationship each statute prescribes. The Clean Water Act (CWA), while providing ample room for state participation, is heavily federal and leaves little about this relationship to chance. Nonetheless, the federal-state interplay goes on in as many venues as there are states and clean water programs, and the tensions that arise are inevitable. The cases discussed here raise three different aspects of CWA federalism: inaction by the federal partner, inaction by the state partner, and collaborative action by both partners that is also being challenged on grounds of cooperative federalism. These questions are not abstract. They affect the most uncontrolled form of water pollution in America, and three of the most iconic ecosystems on the continent.

Wolf Delisting: Old Wine in New Bottles

by Edward A. Fitzgerald

The Obama Administration’s effort to divide and delist portions of the Northern Rocky Mountain wolf population was rejected by the Montana federal district court. Congress intervened and enacted a rider on Interior’s 2011 appropriation bill that delisted the wolves in the Northern Rockies, except Wyoming, and precluded judicial review of the action. The Ninth Circuit upheld the congressional action, which should have been rejected under alternative legal theories. The Obama Administration has proposed delisting the gray wolf across most of the United States. The proposal relies on questionable scientific evidence and was developed through a dubious administrative process. The premature proposal focuses on the current range of the wolf, but fails to recognize that the wolf is still missing from significant portions of its historic range.

Fundamental Inconsistencies Between Federal Biofuels Policy and Their Implications

by Adam Christensen and Connie Lausten

Biofuel policies under the Renewable Fuel Standard (RFS) housed in the CAA and administered by EPA and under the Internal Revenue Code administered by the Internal Revenue Service are reviewed to demonstrate inconsistencies not only between the statutes, but also the regulations developed by each agency. The lack of harmonization creates unintended consequences of some fuels reaping government incentives and others, being used in similar applications and delivering equitable environmental benefits, receiving no government assistance in the form of tax credits or participating in the RFS. Environmental, end-use applications, fuel property requirements, and financial incentive differences are discussed.

Regulation of CO2 Emissions From Existing Power Plants Under §111(d) of the Clean Air Act: Program Design and Statutory Authority

by Robert R. Nordhaus and Ilan W. Gutherz

EPA is establishing carbon dioxide (CO2) emission standards for existing electric generating units (EGUs) under §111(d) of the Clean Air Act (CAA). The prospect of undertaking such a significant regulatory program under the authority of a little-used provision of the law has generated a number of questions about what EPA may and may not do in shaping this new regulatory policy. Although the CAA can be read to authorize EPA to require comprehensive, systemwide emission reductions from EGUs, the fact that so many fundamental legal questions about the scope of EPA’s authority have not yet been conclusively resolved by the courts introduces a level of legal uncertainty that has seldom been seen in the Agency’s 40-plus year history of regulating air pollution.


The Price of Chemical Control: Learning From Struggle and Success

by Charles L. Franklin

When President Gerald Ford signed the Toxic Substances Control Act (TSCA) into law in 1976, he declared it “one of the most important pieces of environmental legislation . . . enacted by the Congress,” one that would “close a gap in our current array of laws to protect the health of our people and the environment.” History has not been kind to President Ford’s prediction. Throughout its 37-year implementation period, commentators have cited TSCA more for its shortcomings than for its accomplishments, and the public literature is replete with papers, arguments, and opinions on the need to reform, modernize, or revolutionize federal chemical control policy.

What’s in a Name?: Legal Implications of the EU Recommendation on Shale Gas

by Cándido García Molyneux and Luca Tosoni

On January 22, 2014, the European Commission published its Recommendation on Shale Gas calling on the Member States of the European Union (EU) to apply a set of common principles for the performance of exploration and production of hydrocarbons by means of high-volume hydraulic fracturing. These principles are considered as minimum and “complementary” to existing EU environmental and safety legislation.

The Indian Supreme Court Promotes Interlinking of India's Rivers: Judicial Overreach?

by Abhimanyu George Jain and Dr. Armin Rosencranz

The much-discussed and oft-criticized Indian interlinking of rivers project, initiated on its own motion by the Supreme Court of India (SC), will involve connecting 37 rivers in India through 30 links and 36 dams. The SC seems to have been motivated by concerns about the disparate regional availability of water in India: while parts of India are host to perennial rivers that frequently flood, other parts have access to surface freshwater resources only during the monsoon and are frequently afflicted by droughts. In this context, the idea of linking India’s rivers to divert waters from areas with a surplus to areas of scarcity seems intuitively desirable.

LDAR: A Problem and a Solution for Hydraulic Fracturing

by Myriah Jaworski

Valves, pumps, connectors, and other component parts are the crucial joints in an industrial plant’s skeletal system. Without them, movement—or in the case of a refinery or chemical manufacturing facility, processing—would be impossible. And, just as with skeletal joints, without proper care and maintenance, normal wear and tear can cause component parts to become arthritic and leak, releasing contained gas and liquids into the environment. Leaking parts are particularly problematic to the expansion of high-volume hydraulic fracturing, as they may undermine the greenhouse gas reduction otherwise gained by transitioning to natural gas.