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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — November 2018


Natural Resource Damages, Mitigation Banking, and the Watershed Approach

by Cynthia R. Harris and James M. McElfish, Jr.

This Article examines potential opportunities for state and tribal natural resource trustees to integrate restoration and compensation for natural resource damages with other ecological restoration programs and coordinating with mitigation banks and in-lieu fee (ILF) programs developed under Clean Water Act §404. The Oil Pollution Act and the Comprehensive Environmental Response, Compensation, and Liability Act provide for recovery of funds from responsible parties to restore natural resources damaged by the release of petroleum or hazardous substances. Programs under other laws are designed to offset permitted impacts to waters of the United States. Integrating §404 banking and ILF programs, the watershed approach, and conservation banking with the natural resource damage assessment process offers three potential advantages: (1) It may reduce the time period until active restoration occurs; (2) it provides for potential efficiencies in evaluating ecosystem services, identifying restoration options, and implementing needed actions; and (3) it may produce a more regionally oriented outcome by identifying sites that can serve multiple ecosystem goals.


The First Amendment Implications of a Mandatory Environmental, Social, and Governance Disclosure Regime

by Rebecca Susko

It is undeniable that globalization has increased the extent to which corporate entities are connected to the daily lives of people from every corner of the world. Yet coupled to the growing reach of corporations is a growing demand that the behavior of private business reflect public aims. Specifically, there is a rapidly growing interest across business, government, and civil society in using disclosure regimes to transform corporate behavior. In many ways, this trend has been embraced by the corporate world through the adoption of voluntary reporting on environmental, social, and governance (ESG) indicators. While the United States has certain environmental and social disclosure requirements in industry-specific contexts, there is currently no mandatory general ESG reporting framework. One safeguard shielding corporations from a potential mandatory disclosure regime is the free speech protections afforded by the First Amendment. This Comment analyzes the First Amendment implications if the U.S. Securities and Exchange Commission were to implement a mandatory ESG disclosure regime.

An American (State) in Paris: The Constitutionality of U.S. States’ Commitments to the Paris Agreement

by Kristin McCarthy

In June 2017, President Donald Trump confirmed that the United States will withdraw from the Paris Agreement. Almost immediately, individual states began to pledge their commitments to the Paris Agreement despite the lack of federal support. This combination of federal withdrawal and state involvement triggers a series of questions surrounding the constitutionality of individual state action in the Paris Agreement. Some scholars have noted that states' involvement with the Paris Agreement may be unconstitutional because it could violate some combination of the Supremacy Clause, the Treaty Clause, and the Compact Clause. This Comment takes a different view, outlining each of these three constitutional hurdles—the Supremacy Clause, the Treaty Clause, and the Compact Clause—and arguing that individual states’ involvement with the Paris Agreement is not violative of the U.S. Constitution.

China’s Emissions Trading System: What the United States and China Can Teach Each Other

by Kimberly Peterson

China is working hard on an ambitious policy to become a world leader in addressing climate change, with plans to transform its energy policy primarily using carbon emissions trading. The National Development and Reform Commission announced on December 19, 2017, that it was deploying its National Carbon Emissions Trading Market Construction Plan for the Power Generation Industry. This rollout will go slowly, in three stages, and actual trading is not expected to begin until 2020. This Comment analyzes the climate goals that China's central government has set for the country; the legal issues that China must resolve as it rolls out its national emissions trading system (ETS) and the different ways the government can resolve the issues; how emissions trading is conducted in the United States; and the key legal lessons from China's struggle to roll out a national ETS and how that could provide a useful framework if the United States should decide to roll out its own national system.


The Trump Administration’s Proposed ESA Regulations

by Caitlin McCarthy, Ya-Wei (Jake) Li, Dave Owen, Holly Pearen, Steve Quarles, and Jonathan Wood

The U.S. Department of the Interior and the National Oceanic and Atmospheric Administration recently proposed comprehensive changes in how the Endangered Species Act (ESA) is implemented. These address the species listing process, critical habitat designations, and the §7 consultation process. If approved, these rules could have a significant impact on species conservation in the United States. On July 31, 2018, ELI hosted a webinar that highlighted reactions to the proposed changes. The panelists provided an advance look into the potential benefits and repercussions of applying the ESA under these proposed regulations. This article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.