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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — November 2019


State Authority to Regulate Mobile Source Greenhouse Gas Emissions, Part 1: History and Current Challenge

by Greg Dotson

The National Highway Transportation Safety Administration (NHTSA) and the U.S. Environmental Protection Agency (EPA) have proposed a new reading of the Energy Policy and Conservation Act of 1975 (EPCA) that governs federal fuel economy standards. The regulations would relax federal greenhouse gas tailpipe standards and fuel economy standards, and preempt emissions standards put in place by California and adopted by other states. This Article examines the agencies’ proposal in light of previous regulatory actions; it considers the agencies’ rationale and finds that their expansive theory of preemption poses significant practical problems and logical flaws. Finally, it examines the agencies’ proposal in light of the U.S. Supreme Court’s preemption jurisprudence, and argues that the agencies’ analysis is lacking because it fails to adequately discuss the objectives of the federal fuel economy laws, nor the purpose and effect of the state requirements.

Ongoing Actions, Ongoing Issues: Trying Again to Free Federal Dams From the ESA

by Reed D. Benson

Federal dams have been the focus of major disputes involving application of the Endangered Species Act (ESA), especially its §7 prohibitions on federal actions causing jeopardy to protected species. Operating agencies and project beneficiaries have sought to keep the ESA from restricting dam operations, including by arguing that such operations are non-discretionary and thus exempt. In proposing new ESA implementing rules, the Trump Administration suggested, but did not formally propose, that ongoing federal actions should be considered part of the “environmental baseline” for §7 purposes. Redefining the environmental baseline could have dramatically changed over 25 years of practice in applying the ESA to federal dams, reducing or even eliminating crucial §7 protection. Although the Administration ultimately adopted a more modest change, it apparently did so due to legal rather than policy concerns. This Article examines the policy goals that the Administration apparently sought to pursue with the suggested rule, and identifies issues that will likely arise from ongoing efforts to pursue them at the project level. Although the Administration decided against a national rollback, there are sure to be ongoing battles over the application of the ESA to federal dams.


Electric Utility Wildfire Liability Reform in California

by Myanna Dellinger

As climate change worsens, so does the risk of wildfires. This is especially so in already hot, dry areas such as the western United States. Adding to this problem is the rapid growth of the wildland-urban interface (WUI). As more and more houses are built in the WUI, wildfires will pose an even greater risk to lives and homes, they will be harder to fight, and letting natural fires burn will become impossible.  This Comment argues that end-consumers who live in the WUI should, to a much greater extent than is currently the case, internalize the full costs of their choices and actions under principles of environmental justice and other notions of fairness in law and policymaking.


2019 Endangered Species Act Regulatory Revisions

by Jake Li, Peg Romanik, Greg Sheehan, Ramona McGee, Anna Seidman, and Jonathan Wood

The U.S. Department of the Interior and National Oceanic and Atmospheric Administration recently finalized comprehensive changes in how the Endangered Species Act (ESA) is implemented. These changes address the species listing process, critical habitat designations, protections for threatened species, and the §7 consultation process. On August 23, 2019, the Environmental Law Institute hosted an expert panel that highlighted reactions to the changes and explored how they will be implemented, whom they will affect, their impact on state and local agencies, and how they will impact species conservation. This Dialogue is a transcript of the discussion, which has been edited for style, clarity, and space considerations.