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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — July 2017


Hybridizing Law: A Policy for Hybridization Under the Endangered Species Act

by John A. Erwin

For centuries, hybridization was a poorly understood process thought to be a threat to endangered species. With the advent of genomic technologies, those views are starting to change; hybridization is now recognized as vital for the formation and continued persistence of many species. However, our current system of protection under the Endangered Species Act (ESA) fails to take many of the modern nuances of evolutionary biology into consideration. Despite calls for an explicit “hybrid policy” since the early 1990s, the U.S. Fish and Wildlife Service and National Marine Fisheries Service have instead chosen to apply a case-by-case approach with no guidance or overarching policy. With the new technologies, many species we are currently protecting could technically be unsuitable for protection based on a rigid interpretation of the ESA. A defined hybrid policy must be adopted, taking into consideration the twin aims of protecting genetic lineages and protecting ecosystems.

Legal Pathways for a Massive Increase in Utility-Scale Renewable Generating Capacity

by Michael B. Gerrard

Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (ELI Press forthcoming 2018), discusses the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Policy Act; state and local approvals; and species protection laws. It also presents recommendations for lowering the obstacles and briefly discusses several corollary actions that are needed.


Science and Sleuthing: Improving CITES Enforcement Through Innovations in Wildlife Forensic Technology

by Victoria Bogdan Tejeda

In 1975, 80 countries entered into the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Today, CITES covers 35,000 species. Though CITES is widely used, protected species continue to slide to extinction. Two main obstacles hinder its success: (1) fraudulent paperwork, where an individual attempts to pass an endangered or threatened species as a non-protected one in order to access a legal market; and (2) illicit poaching and trafficking. This Comment outlines the origins and mechanisms of CITES; examines the tools of wildlife forensics, current lab capacities and activities around the world, and how the science has been applied to CITES; assesses gaps in how CITES utilizes forensic science; and offers various proposals to address these challenges.

Sinking Small Island Nations: Calls for a Lifeboat

by Pratheek Maddhi Reddy

In the South Pacific, midway between Hawaii and Australia, lies the beautiful island nation of Tuvalu, home to about 10,000 people. In about 40 years, Tuvalu will be uninhabitable, and in 70 years, at best, it is likely to be underwater. Due to rising sea levels caused by global warming, other low-lying island nations such as Kiribati, Fiji, Marshall Islands, Vanuatu, Micronesia, and Nauru are bound to suffer the same fate eventually. This raises pressing calls for remedies for sinking small island nations, in the forms of migration, compensation, and reduction in greenhouse gas emissions. This Comment discusses what these remedies mean to the small island nations and their exigent nature, and proposes an alternative mechanism to litigation.

Time to Toss It Out? The “Once In, Always In” Policy for “Major Source” Hazardous Air Pollutant Standards

by Brian C. S. Freeman

EPA's recent call for regulatory reform suggestions offers a good opportunity for ending a long-standing regulatory overreach: EPA’s “once in, always in” policy for standards applicable to a major source of hazardous air pollutants under the Clean Air Act. The policy asserts that if a facility ever had potential hazardous air pollutant emissions above levels that trigger a major source control standard, the facility must comply with that standard permanently, even where the facility has since reduced its potential emissions below the trigger levels. The result is needless compliance burden and expense, transactions complicated or threatened by discovery of a once in, always in situation, and unwarranted enforcement actions and penalties. This Comment discusses the legal and policy weaknesses of the policy, as well as the practical considerations that support withdrawing it.


Sustainability in the Trump Era: Corporate, Global, and Enforcement Perspectives

by Tom Mounteer, John Cruden, Charles Di Leva, and Martha Rees

To commemorate Earth Day, Paul Hastings LLP hosted a panel discussion on April 18, 2017, featuring three prominent attorneys with extensive and diverse experience in environmental counseling and litigation. The panelists reflected on the transition to the Trump Administration and what it might mean for long-standing issues of federalism, globalization, private environmental governance, and enforcement and compliance. Here, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.