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Volume 49, Issue 3 — March 2019


Environmental Deconfliction 2019: The National Defense Authorization Act for FY 2019

by Rachel Jacobson and Matthew F. Ferraro

As in prior years, the National Defense Authorization Act for Fiscal Year 2019 contains a variety of provisions setting U.S. Department of Defense priorities for energy, environmental, and natural resource issues. These include measures that touch on climate change and infrastructure investment, and that thus represent some degree of consensus on these often politicized topics. In this Article, the second in an annual series, the authors canvass how the Act addresses a host of issues in the areas of climate resiliency, energy management, hazardous substances, and environmental and natural resource management, and its implications for practitioners in these areas.

Fields of Dreams: An Economic Democracy Framework for Addressing NIMBYism

by Ori Sharon

Local opposition to development of socially desirable facilities is one of the most important policy challenges in the United States. Despite decades of effort, a formula to reduce “Not in My Back Yard” (NIMBY) opposition is yet to be found. Cash payments, inclusive deliberation, benefits negotiations, and statutory mandates are only a few of the policy and legislative measures that have been attempted. This Article offers a different approach. Disempowerment is one of the main drivers of NIMBY sentiments. People oppose certain developments largely because they feel a lack of control over decisionmaking procedures that directly affect their lives. Ownership, the author explains, empowers. When a resource is owned by a community, the community possesses the power to set the agenda for the resource. It follows that if communities own, develop, and manage socially desirable facilities, NIMBY sentiments will be attenuated. To test this hypothesis, the Article explores two recent successful examples of communal ownership—the development model for windfarms and the U.K.’s Community Right to Build reform. Both demonstrate the potential of communal ownership to mitigate NIMBY sentiments and provide valuable legal and policy lessons for addressing NIMBY.

The Impact of Citizen Environmental Science in the United States

by George Wyeth, LeRoy C. Paddock, Alison Parker, Robert L. Glicksman, and Jecoliah Williams

An increasingly sophisticated public, rapid changes in monitoring technology, the ability to process large volumes of data, and social media are increasing the capacity for members of the public and advocacy groups to gather, interpret, and exchange environmental data. This development has the potential to alter the government-centric approach to environmental governance; however, citizen science has had a mixed record in influencing government decisions and actions. This Article reviews the rapid changes that are going on in the field of citizen science and examines what makes citizen science initiatives impactful, as well as the barriers to greater impact. It reports on 10 case studies, and evaluates these to provide findings about the state of citizen science and recommendations on what might be done to increase its influence on environmental decisionmaking.


The Uncertain Future of California’s Vehicle Emission Standards

by Robert L. "Buzz" Hines, Ann Carlson, and Ben Grumbles

The Donald Trump Administration has proposed to revoke California’s long-standing authority to set its own vehicle emission standards. The success of California in mitigating air pollution and reducing greenhouse gas (GHG) emissions under CAA §209—and that of the 15 states that have invoked waivers under §177—is now in question. The Trump Administration argues that the §209 waiver was not intended to “solve climate change” and that its new standards would save consumers $500 billion. Critics have decried this as a lost opportunity to make significant progress on reducing GHG emissions; they also point out that it contradicts the Administration’s stated preference to allow states flexibility to accomplish environmental goals. On December 6, 2018, ELI hosted a Breaking News webinar to discuss the implications of this proposal. As panelists looked forward, they also looked back to the establishment of standards regulating tailpipe pollution in California, an exception that if altered will have significant implications for the future of climate and environmental law nationwide. This Article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.