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Volume 45, Issue 12 — December 2015


EPA’s Clean Power Plan: Understanding and Evaluating the Proposed Federal Plan and Model Rules

by Julie DeMeester and Sarah Adair

The U.S. Environmental Protection Agency’s (EPA’s) Clean Power Plan was accompanied by model rules for states that provide both a mass-based and a rate-based approach. The model rules, once finalized, will give states a streamlined but customizable template that is trading ready. EPA also provided proposed mass- and rate-based federal plans that would be implemented absent state-promulgated plans. They are similar to the proposed model rules, but they exclude certain compliance options, such as demand-side energy efficiency under the rate-based approach. This Article explores the details and important aspects of these various compliance approaches.

Plain Meaning, Precedent, and Metaphysics: Interpreting the “Point Source” Element of the Clean Water Act Offense

by Jeffrey G. Miller

This Article, the fourth in a series of five, examines the continuing struggles to define “point source” and “nonpoint source” under the Clean Water Act. State regulation of nonpoint sources is neither pervasive nor robust, and most continuing water pollution problems can be traced primarily to nonpoint sources. EPA should define nonpoint sources by regulation and begin to expand the definition of point source by incorporating established case law and Agency practice to bring more nonpoint sources into the point source definition.

Livestock Production, Climate Change, and Human Health: Closing the Awareness Gap

by Debra L. Donahue

Livestock should be removed from public lands for myriad reasons. Eliminating what is now extensive grazing by ruminants would cut methane emissions, with attendant benefits for climate mitigation. Removing livestock from public lands also mirrors federal nutrition policy, particularly the recommendation to eat less red meat. Much of the degraded environmental conditions on public lands and waters caused by ruminant grazing would end, thereby enabling improvement or even recovery. Finally, undertaking this policy shift would make fiscal sense by saving taxpayer dollars.


Regulating Groundwater in California: Will Groundwater Sustainability Agencies Change the Landscape?

by Wesley A. Miliband

“The history of California is written on its waters. . . .” These words by California appellate justice Ronald B. Robie in State Water Resources Control Board Cases reflect the state’s reputation for epic water wars, past and present. With landmark groundwater legislation—the Sustainable Groundwater Management Act (SGMA)—passed into law late last year, the landscape for groundwater will change for years and decades to come. That much is certain: Groundwater basins in California will be mandatorily regulated and managed statewide for the first time in California’s 165-year history. However, still uncertain is to what extent unintended consequences or adverse impacts will result from implementing SGMA.

Green NGOs Win China’s First Environmental Public Interest Litigation: The Nanping Case

by Yanmei Lin and Jack Tuholske

The September 2015 issue of News & Analysis looked at China’s new Environmental Protection Law, including the first environmental public interest litigation case heard under it, the “Nanping case.” On October 29, 2015, the court ruled in the environmentalists’ favor. The decision sends a strong signal that Chinese courts have jurisdiction to enforce environmental laws beyond awarding money damages for pollution injuries. It may also signal a more active role for Chinese courts and nongovernmental organizations in protecting natural resources.


EPA’s Coal Ash Rule: Implications for Regulated Entities, Results for the Environment

by Tom Mounteer, Lisa Widawsky Hallowell, and Douglas H. Green

The disposal of coal ash, a combustion byproduct from coal-fired power plants, came to national attention when, on December 22, 2008, the Tennessee Valley Authority Kingston power plant suffered one of the largest coal ash spills in history. The Duke Energy Dan River spill on February 2, 2014, reignited the focus on the handling of coal ash. In December 2014, the U.S. Environmental Protection Agency Administrator signed a rule that, for the first time, regulates the disposal of coal ash. Under the new rule, coal ash is to be regulated as a solid waste under Subtitle D of the Resource Conservation and Recovery Act, not as a hazardous waste. The rule also provides new national minimum criteria for the coal ash disposal. On March 24, 2015, the Environmental Law Institute convened a panel of experts to provide an in-depth examination of the final coal ash rule. Here, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.