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Volume 48, Issue 9 — September 2018


Improving Water Quality and Ecosystem Health in California's Marine Managed Areas

by Elizabeth Taylor, Stephanie Talavera, and Alejandro E. Camacho

California’s marine conservation regime is a model for the world, and includes a statewide network of marine protected areas and other marine managed areas (MMAs). But management authority remains distributed across multiple government entities, potentially compromising ecosystem-based approaches and adaptive management. The University of California, Irvine School of Law's Center for Land, Environment, and Natural Resources conducted extensive interviews and roundtable discussions to explore the current framework for managing coastal water quality and monitoring in the context of MMAs. This Article synthesizes the results of those discussions, and identifies challenges to and opportunities for enhancing MMAs through California’s existing water quality and coastal protection programs, coordinating water quality monitoring and data access, and offsetting resource constraints on programs that protect marine water quality.

Financing at the Grid Edge

by C. Baird Brown

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), discusses legal impediments and solutions for customer, community, and third-party financing of behind-the-meter and community-scale clean energy generation, storage, and energy efficiency. Current levels of investment by utilities and independent power producers fall well below levels needed to meet deep decarbonization goals. Investments at the “grid edge” driven by customers and communities not only contribute to clean energy goals, but also reduce energy prices and improve the resilience of the power supply. Legal reforms are needed to permit ownership of local energy resources and sales of energy and other services by customers, communities, and their local suppliers; to encourage utilities and regional transmission organizations to foster transparent markets for services from grid-edge resources; to provide better information on the usage of customers and the needs of the grid; and to adapt and reuse existing finance markets and create new institutions that support grid-edge finance.


A New Environmentalism: The Need for a Total Strategy for Environmental Protection

by Scott Fulton and David Rejeski

On the first Earth Day in 1970, Sen. Edmund Muskie (D-Me.) called for “a total strategy to protect the total environment.” More than 50 years later, the parameters of a “total strategy” are at last coming into view. Environmental quality has no doubt improved, but the pace of change is leaving in the dust the linear strategies of the past. What constituted a strategy 15 or even 10 years ago—analyze, plan, execute—no longer works in operating environments that are increasingly unpredictable, fragmented, and characterized by high rates of technological change, big data, crowd communication, young industries, and an incessant drive for competitive advantage. This Comment identifies the need for a total strategy for environmental protection and investigates the role of an emerging ecosystem of drivers in developing a total strategy for tackling existing and emerging environmental challenges. 


The Burden of Unburdening: Administrative Law of Deregulation

by Caitlin McCarthy, Bethany Davis Noll, Susannah Landes Weaver, Kathryn Kovaks, and Fred Wagner

The Donald Trump Administration has been attempting to roll back a wide array of regulations, including rules that have governed methane emissions, established energy-efficiency standards, and defined “waters of the United States.” The U.S. administrative law framework allows rules to be changed or undone, but governs how these modifications can happen. In most cases, the Administrative Procedure Act (APA) mandates justifications similar to those required for an original rulemaking if a regulation is to be cancelled or rescinded. If an agency seeks to disregard the factual record on which an original rule rests, it must provide a more detailed justification for the change, and satisfy additional requirements. Suspending rules or delaying their effective date also places procedural obligations on agencies. On May 16, 2018, ELI convened experts to discuss obstacles to deregulation, including when and how an agency must consider costs and benefits of staying, repealing, and rewriting rules. Speakers commented on current challenges to the Trump Administration’s deregulation agenda, and offered insights on the ways administrative law is developing through interpretation of the APA and other relevant statutes. This article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.