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


“A Greater Sense of Urgency”: EPA’s Emergency Authority Under the SDWA and Lessons From Flint, Michigan

by Eric Moorman

Section 1431 of the Safe Drinking Water Act (SDWA) grants the U.S. Environmental Protection Agency (EPA) expansive emergency authority to protect public drinking water sources from contamination. Specifically, §1431 authorizes the EPA Administrator to take any action necessary to protect public health where a contaminant posing an “imminent and substantial endangerment” to the public has entered—or is likely to enter—a public drinking water supply, and appropriate state and local authorities have not acted to abate the threat. In enacting §1431, Congress sought to vest EPA with broad enforcement authority to prevent public health crises. Surprisingly, EPA rarely invokes §1431, or—as in the recent water crisis in Flint, Michigan—invokes it too late to achieve Congress’ purpose. In the future, EPA must invoke its emergency powers earlier and more frequently to effectuate the SDWA’s preventative purpose and protect public health, which will allow EPA to realize its obligation to ensure the public is supplied with safe drinking water.

FIFRA at 40: The Need for Felonies for Pesticide Crimes

by Michael J. McClary and Jessica B. Goldstein

In 1996, Congress abandoned a seven-year effort by consecutive Republican and Democratic administrations to increase FIFRA’s misdemeanor penalties for criminal violations to the felony levels provided under the other major federal environmental laws. More than 20 years later, this disparity remains, despite a series of incidents and criminal prosecutions that demonstrate the inability of misdemeanor penalties to effectively deter pesticide crimes. This Article provides an overview of the FIFRA criminal provisions, reviews the previous failed attempts to amend FIFRA to increase its criminal penalties, describes cases that EPA and the U.S. Department of Justice have prosecuted since the failure of those legislative attempts, and discusses the consequent need today for stronger FIFRA criminal penalty provisions.

Expanding the U.S. Electric Transmission and Distribution Grid to Meet Deep Decarbonization Goals

by Alexandra B. Klass

This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (forthcoming in 2018 from ELI), addresses the critical role of the electric transmission and distribution grid in achieving deep decarbonization, and discusses the primary federal and state laws that govern expanding the grid. Although significant legal and political barriers exist to creating the new transmission necessary to meet deep decarbonization goals, there are public law and nonpublic law tools available to surmount these barriers. Moreover, technology developments in energy storage, demand response, distributed energy resources, and the smart grid can both improve the existing grid and reduce the extent of grid expansion required for deep decarbonization.


Prevention of Significant Deterioration: A Case for Repeal

by John C. Evans and Donald van der Vaart

The Prevention of Significant Deterioration (PSD) program was born 45 years ago from purposivist interpretation of the platitudinal phrase “protect and enhance” contained in the “findings and purposes” section of the 1970 Clean Air Act (CAA). The PSD program has since metastasized into big business, supporting scores of consultants, technical experts, and lawyers. The Donald Trump Administration’s push for regulatory reform has yet again raised calls for changes to the PSD program. Past reforms have provided some benefit but increased the complexity of an already byzantine program. Rather than reforming the program, a strong case can be made that the program has been rendered environmentally nugatory by the dramatic growth of the regulatory state over the past 45 years, and therefore should be repealed.


Conservation Easements in a Changing Climate

by Laurie A. Ristino, Jessica E. Jay, Adena Rissman, and Erik Meyers

Conservation easements are increasingly being used both for traditional conservation purposes and as a tool for critical climate change mitigation and adaptation. Because land use decisions are generally made at the local level, environmental and conservation stakeholders should consider using easements as a hedge against inactive or regressive federal policy as well as against the stressors from our warming climate. On May 17, 2017, ELI convened a seminar around the book A Changing Landscape: The Conservation Easement Reader (ELI Press, 2016), which excerpts leading articles and reports to illuminate various aspects of conservation easements. This discussion provided valuable information and strategies for maintaining the integrity of conservation easements in perpetuity while creating flexibility to address the dynamic threats of climate change. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.