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Volume 48, Issue 12 — December 2018


Developments in Standing for Public Lands and Natural Resources Litigation

by James M. McElfish Jr.

This Article offers a framework for analysis of potential developments in the law of standing in cases involving public lands and natural resources. It is based on recent federal case law and academic literature addressing the law of standing in cases that involve planning, conservation, exploitation, and disposition of public lands and resources administered by the federal government. While necessarily grounded on U.S. Supreme Court doctrines, the focus is on the application and development of standing law in the lower federal courts. The Article examines public lands and natural resources cases decided by the U.S. Courts of Appeals since the turn of the 21st century in order to capture developments applying standing doctrines within the modern Supreme Court framework. It also discusses district court opinions, particularly in the D.C. Circuit and in the western circuits, mostly where these were final decisions on standing issues. It identifies current developments, and incremental and logical steps that might support and extend the ability of interested parties to access judicial review.

Preventing Toxic Lead Exposure Through Drinking Water Using Point-of-Use Filtration

by David Domagala Mitchell

Lead exposure through drinking water is an acute and persistent problem in the United States. The Flint, Michigan, water crisis brought national attention to this problem, but every city is at risk where lead-containing materials are present in water infrastructure and building plumbing. Preventing childhood exposure to lead is the consensus policy in the medical community and exposure costs the U.S. tens of billions of dollars annually, but the federal Lead and Copper Rule requires remediation only after lead is present at levels considered medically unsafe, and relies on an inherently unreliable testing program. Recent federal and state efforts to reduce exposure focus resources on lead pipe replacement and testing to identify lead risk; neither course adequately protects the public. This Article recommends promoting point-of-use filtration to remove lead, an approach that has received little attention despite the fact that filtration technology is inexpensive and very effective.


Legal Tools to Reduce Radon’s Risk: An Evaluation of Mandatory Radon-Resistant New Construction in Building Codes

by William C. Bellamy and Paul A. Locke

According to the U.S. Environmental Protection Agency (EPA), residential exposure to radon gas represents the second-leading cause of lung cancer among smokers and the leading cause of lung cancer among nonsmokers in the United States. To reduce the lung cancer risk associated with inhaling radon, EPA, and almost all states, have created programs to protect the public. Among other things, federal and state programs recommend that all existing homes be tested for radon and that homes found to have high levels undergo mitigation. Many programs also recommend that new homes incorporate radon-resistant new construction techniques, which include depressurization systems and sealants to prevent the entry of radon from the underlying soil. This Comment evaluates the lung cancer risk reduction potential of one legal tool, a radon-resistant new construction ordinance.


Beyond Politics: The Private Governance Response to Climate Change

by Cassie Phillips, Jonathan Gilligan, Stephen Harper, Jackie Roberts, and Michael P. Vandenbergh

When the United States withdrew from the Paris Climate Agreement, 100 private corporations reaffirmed their commitment to fighting climate change. While governments are often tasked with facing climate change, many major private institutions are taking steps to significantly reduce carbon emissions, reaping the benefits of favorable public image and reduced operational costs from energy and other savings. On September 5, 2018, ELI held an expert panel discussing the role of private institutions in climate change mitigation, the incentives for private actors pursuing carbon reduction initiatives, key factors in successful case studies, and methods for developing and evaluating successful private climate initiatives. This article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.