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Volume 46, Issue 11 — November 2016


A “Cost-Benefit State”? Reports of Its Birth Have Been Greatly Exaggerated

by Amy Sinden

In a spate of recent cases (Michigan v. EPA, EME Homer City v. EPA, and Entergy Corp. v. Riverkeeper), the U.S. Supreme Court has been widely viewed as abruptly changing course in its treatment of cost-benefit analysis (CBA) in environmental decisionmaking. In fact, these cases represent less of a change in course than is commonly believed. They did not so much eliminate the Court’s previously emerging anti-cost presumption as narrow and perhaps more clearly define it. The term “cost-benefit analysis” can refer to a broad range of decisionmaking techniques, and an even longer list of methods involve agencies “considering costs” in one way or another. These cases indicate that the Court’s anti-cost presumption no longer applies to informal CBA or feasibility analysis, but they do nothing to disturb the presumption as applied to other cost consideration tools. Indeed, Riverkeeper can be read to at least gesture in the direction of a continuing presumption against formal CBA. It is not entirely clear that Michigan articulated a pro-cost presumption at all, but to the extent it did, that presumption can be read to exclude or at least de-emphasize formal CBA.

Whose Coast Is It Anyway? Climate Change, Shoreline Armoring, and the Public’s Right to Access the California Coast

by Lee A. Kaplan

The public trust doctrine provides that a state holds its tidelands, submerged lands, and navigable waters in trust for the benefit of the general public. California has codified the principles of this doctrine through various statutes, including the California Coastal Act of 1976. However, as climate change drives increased sea-level rise and erosion along California’s coast, landowners have sought to protect their property with hard armoring structures that impede coastal access and cause the sea to swallow previously accessible public beaches. This raises the issue of who should bear the burden of the inevitable property losses resulting from sea-level rise: private landowners, or the general public. This Article explores the legal issues surrounding coastal armoring in California, including the pending case of Lynch v. California Coastal Commission, which could have broad implications for coastal armoring and access rights in California.

China’s Air Pollution Rules: Compliance and Enforcement Lessons From Global Good Practices

by Xiaopu Sun, Kenneth J. Markowitz, Durwood Zaelke, and Jin Wang

In recent years, air pollution issues have received unprecedented public attention in China. Partly for this reason, the Chinese government has made significant efforts toward reducing air pollution. However, compliance and enforcement will be key to cleaning up the air in China and around the globe. This Article discusses seven specific challenges to achieving effective compliance with and enforcement of the air pollution rules in China. In this regard, global good practices can be useful references for the Chinese government and other stakeholders. Yet such discussions and considerations are only truly useful when viewed and considered within the context of China’s unique rulemaking and governance systems, as well as its cultural background.


Protecting Species or Hindering Energy Development? How the Endangered Species Act Impacts Energy Projects on Western Public Lands

by Melinda Taylor, Romany Webb, and Vanessa Puig-Williams

Since it was enacted in 1973, the ESA has been one of the most celebrated environmental laws, but also one of the most reviled. Industry groups argue that the consultation process frequently delays and sometimes halts much needed energy, transportation, water supply, and other projects and often dramatically increases project costs. Environmentalists disagree with this view, contending that the process actually rarely stops anything and that the FWS lacks the backbone to impose meaningful conservation requirements that would be costly or inconvenient for the project developer. In 2015, the authors decided to delve deeply into ESA §7 to analyze how it actually works in practice and to assess the validity of various parties’ claims about the consultation process. They focused on the impact of §7 consultation on energy development on public land. This Comment is an overview of that study and key findings. In a nutshell, the authors learned that only a small fraction of energy projects developed on public land are reviewed at all under §7. When it applies, the consultation process appears to go quickly and smoothly for the vast majority of oil and gas projects, for a variety of reasons. On the other hand, consultation on solar energy and wind energy projects tends to be lengthy and complicated.


Recent Developments in Oil Pollution Act Litigation

by Russ Randle, Karen A. Mignone, Steven O’Rourke, and Cyn Sarthou

Congress enacted OPA in 1990 following the Exxon Valdez oil spill, to strengthen the federal government’s ability to prevent and respond to oil spills, to establish financial resources to aid response, and to raise standards for contingency planning. It is an area of law that is still evolving, particularly in the wake of the 2010 Deepwater Horizon spill and subsequent developments in Gulf of Mexico restoration and recovery. A number of recent cases have since dealt with issues related to the spill. On June 28, 2016, the Environmental Law Institute convened a panel of experts to discuss recent events in oil pollution law, including the resolution of Deepwater Horizon civil penalties and developments regarding natural resource damage assessments and liability. Here, we present a transcript of that discussion, which has been edited for clarity and readability.