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Volume 48, Issue 4 — April 2018


Incorporating Climate Change Adaptation Into Framework Environmental Laws

by Sofia Yazykova and Carl Bruch

This Article examines the various ways countries throughout the world have started to incorporate considerations of climate change adaptation into their framework environmental laws, implementing regulations, and other binding instruments. Drawing upon searches in databases of environmental laws, it examines national legislative and regulatory language, focusing on various types of provisions that address climate change adaptation. These laws serve as a valuable source of mechanisms that can be used to implement adaptation, providing a toolbox of approaches. The authors identify seven particularly important categories of adaptation provisions—assessment and science, planning, EIA, disaster preparedness and response, funding, coordination through creation of special committees and expert groups, and monitoring and evaluation of adaptation measures—and offer their reflections on practical considerations.

Deep Decarbonization and Hydropower

by Charles R. Sensiba, Michael A. Swiger, and Sharon L. White

Hydropower—both conventional and pumped storage hydropower—is crucial to sustaining our transition to a decarbonized grid. Additional hydropower development that meets modern environmental requirements is essential to reduce the United States’ dependence on carbon. Realizing the full potential of hydropower and maintaining the current hydropower fleet will likely depend on overcoming a number of impediments, including lengthy and complex regulatory requirements, failure of electricity markets to adequately compensate hydropower generators for the grid benefits they provide, environmental opposition to new hydropower, and interest in dam removal. This Article, excerpted from Michael B. Gerrard & John C. Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (forthcoming in 2018 from ELI Press), examines how these challenges can be overcome with targeted legal and policy reforms.


Keeping the “Public” in Public Lands

by Sharon Buccino

The U.S. Department of the Interior (DOI) touches more lives in more ways than any other federal agency. Currently led by Secretary Ryan Zinke, the agency manages one-fifth of the land in the United States, including our national parks, wildlife refuges, and the delivery of water and power in the West. We have entrusted Secretary Zinke and DOI with the care of wildlife, fish, waterways, and land for the benefit of us all. As trustee, Secretary Zinke is accountable to us—the beneficiaries of the trust—to show that he has managed them for the common good. So, how is he doing?

New Wine in Old Bottles: Distorting the Antiquities Act to Aggrandize Executive Power

by Bruce Fein and W. Bruce DelValle

President Donald Trump promised to undo much of the regulatory handiwork of his White House predecessors. On the heels of his inauguration, President Trump tasked Secretary of the Interior Ryan Zinke to review national monument declarations of previous presidents issued under the Antiquities Act of 1906, and to recommend monument modifications or revocations. The plain meaning of the Antiquities Act, however, does not delegate legislative power to the president to revoke or to materially disturb prior presidential national monument declarations.

Prevention of Significant Deterioration: A Scalpel, Not an Axe

by Craig N. Oren

Does the United States need the Clean Air Act’s Prevention of Significant Deterioration (PSD) program to guard against degradation of air quality? In their recent Comment in these pages, John C. Evans and Donald van der Vaart say no, but the right answer is more nuanced. While the program is flawed in some respects, PSD helps to protect national parklands, guard against pollution “hot spots,” and decrease air pollution emission levels in the United States, thus helping to remedy regional pollution problems.


Current Developments in U.S. Fisheries Policy

by Xiao Recio-Blanco, Monica Goldberg, Mike Gravitz, and Shana Miller

The Trump Administration’s approach to fisheries management appears to constitute a significant policymaking shift. Recent NOAA decisions, such as extending the Gulf of Mexico red snapper season or overturning an Atlantic States Marine Fisheries Commission decision to cut New Jersey’s recreational quota for summer flounder, seem to go against the agency’s traditional approach of placing scientific information at the center of fisheries decisionmaking. On January 25, 2018, ELI held a webinar to discuss these and other recent developments, and to assess the direction U.S. fisheries policymaking may take in the future. In this Dialogue, ELR presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.