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Volume 49, Issue 12 — December 2019


Overboard? The Complexity of Traditional TMDL Calculations Under the Clean Water Act

by Matthew DeGioia

The Clean Water Act (CWA) requires states to calculate total maximum daily loads (TMDLs) of individual pollutants that impair their waters. But the means by which TMDLs are calculated are imprecise, because (1) it is difficult to geographically isolate the effects of a single pollutant; (2) it is difficult to account for the effect of numerous catalysts that alter the calculation; (3) it is difficult to isolate the effects of a single pollutant source on an individual water body; (4) it can be difficult to categorize a source either as point or nonpoint; (5) extant methods fail to fully account for catalytic variables and/or assume current regulatory programs are working more efficiently than they actually are; and (6) the federal government has not allocated sufficient funds to allow state agencies to perform proper analyses. To mitigate these effects, Congress should amend the CWA to permit states to calculate TMDLs by proxy in areas in which proxies are found to be strongly correlative with water quality. This would bring clarity to interpretation of the Act and flexibility in its execution.

Learning From Tribal Innovations: Lessons in Climate Change Adaptation

by Morgan Hepler and Elizabeth Ann Kronk Warner

Although a vast literature focuses on the efforts of states on climate change, they are not the only sovereigns who are working to address its negative impacts. This Article argues that though tribal governments are not part of the federalist system, they are still capable of regulatory innovation that may prove helpful to other sovereigns, such as other tribes, states, and the federal government. It examines the steps tribes are taking on climate change adaptation and mitigation, and demonstrates that tribal climate change adaptation planning is truly innovative in notable ways when compared to state planning. First, the inclusion of traditional ecological knowledge is unique to tribes and can prove quite beneficial. Tribes also involve their communities by surveying and involving community members in the implementation phase. Further, tribal adaptation plans promote the preservation of cultural resources. Other sovereigns would do well to learn from how tribes are providing valuable paths forward to develop effective climate adaptation measures.

Climate Engineering Under the Paris Agreement

by Neil Craik and William C.G. Burns

Recent assessments of the international community’s ability to hold the increase of global average temperature to well below 2°C, while pursuing efforts to limit that increase to 1.5°C, indicate that this goal is unlikely to be achieved without large-scale implementation of climate engineering (CE) technologies. In light of the prominent, albeit contested, role that CE is likely to play in international climate policy, this Article analyzes the specific provisions of the Paris Agreement with a view to assessing the extent to which the Agreement can provide an institutional framework to effectively govern CE internationally, and how it may shape the development and implementation of CE options. In particular, the Article examines a number of critical interpretive questions that will need to be addressed as states begin to develop CE technologies at large scales, including the need to provide guidance respecting the acceptability of exceeding the Paris targets before drawing down atmospheric CO2 levels, the challenges for equity, human rights, and sustainability objectives that CE poses, and the need to incorporate CE technologies into accounting and incentive structures.


The Clean Air Act, Pigouvian Pricing, and Climate Governance

by Ross Astoria

Two carbon pricing bills were introduced during the 115th Congress. Reps. Carlos Curbelo (R-Fla.) and Brian Fitzpatrick (R-Pa.) introduced the MARKET CHOICE Act during the summer of 2018. Reps. Ted Deutsch (D-Fla.) and Francis Rooney (R-Fla.) introduced the Energy Innovation and Carbon Dividend Act (Energy Innovation Act) in November 2018, and reintroduced it early in the 116th Congress, where it presently has more than 65 cosponsors. By different methods and with different comprehensiveness, both of these bills place a Pigouvian tax on greenhouse gas (GHG) emissions. Among other things, they are notable for attracting Republican cosponsors and amending the Clean Air Act (CAA) to temporarily suspend certain of the U.S. Environmental Protection Agency’s authority over GHGs. This Comment analyzes the legal implications of the CAA amendments found in the Energy Innovation Act, and conducts a comparative evaluation of a selection of CAA programs vis-à-vis Pigouvian pricing.


Technology and the Seas: Enforcement in Marine Protected Areas

by Xiao Recio-Blanco, John Amos, Wynn Carney, and Monica Goldberg

Established in over 65 countries and territories, marine protected areas (MPAs) embody a range of habitats, enable the provision of fundamental ecosystem services, protect marine biodiversity and cultural resources, and provide spaces to conduct cutting-edge research and implement innovative policies. Yet management of MPAs can face challenges, including the lack of adequate tools, the need for rules to secure comprehensive monitoring, the vastness of the ocean, and more. There remain questions of how agencies work together to establish these areas both domestically and internationally, what are the innovative technologies that can aid in monitoring, and how MPAs can be enforced. On September 24, 2019, the Environmental Law Institute hosted an expert panel that delved into groundbreaking technologies, innovative legal frameworks, and examples of successful domestic and international MPAs. This Article present a transcript of the discussion, which has been edited for style, clarity, and space considerations.