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Volume 49, Issue 6 — June 2019


The D.C. Circuit Takes a Wrong Turn: Redefining Solid Waste Under RCRA

by Rachel Sullivan

Under RCRA, EPA must impose rules for the control, management, and disposal of “hazardous waste.” The definition of solid waste (DSW) issue refers to a set of complex rules for determining whether recycled hazardous secondary materials are subject to RCRA Subtitle C. The U.S. Court of Appeals for the District of Columbia (D.C.) Circuit has issued several decisions on the DSW issue; the most recent invalidated two significant provisions of EPA’s most recent DSW rule, the “along for the ride” criterion and the verified recycler exclusion. This Article argues that the D.C. Circuit broke with DSW precedent and with the traditional deferential application of both Chevron and “arbitrary and capricious” review, and that EPA’s rule should have survived. It also discusses the potential future of the DSW issue, and examines the likely outcome of the D.C. Circuit’s “hard look” review as applied to a new DSW challenge.

Making the International Trade System Work for the Paris Agreement: Assessing the Options

by Kasturi Das, Harro van Asselt, Susanne Droege, and Michael Mehling

If the Paris Agreement’s 2°C goal is to be achieved, unprecedented efforts across all areas of socioeconomic activity are needed. National climate policy measures with direct or indirect trade implications stand the risk of colliding with the rules and requirements put forward by international trade agreements. Leaving the fate of climate measures to the WTO dispute settlement system is associated with risks and uncertainty, and could lead to a chilling effect on investment in climate mitigation and adaptation. This Article identifies a set of options for improved alignment of the trade and climate regimes, and offers recommendations for policy reform.


Annual Review of Chinese Environmental Law Developments: 2018

by Mingqing You and Haijing Wang

In China, the year 2018 witnessed important institutional changes for environmental protection and the development of some major environmental legislation. These included administrative restructuring; the revision and adoption of legislation on environmental impact assessment (EIA), soil pollution, and noise pollution; and a judicial interpretation on damage to the marine environment. This Comment summarizes some of the year’s major developments.

CWA In-Lieu Fee Mitigation: Project and Programmatic Risks

by Royal C. Gardner, Erin Okuno, Rebecca Kihslinger, and Christina Libre

In 2008, after prompting by the U.S. Congress, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) issued a regulation governing compensatory mitigation under the Clean Water Act (CWA). The agencies’ primary goal was to improve the effectiveness of mitigation projects to offset the impacts of filling wetlands and streams. The 2008 Compensatory Mitigation Rule was also designed to level the playing field for the three types of mitigation providers: mitigation banks, in-lieu fee (ILF) programs, and permittee-responsible mitigation. After a decade of experience with this regulation, it is appropriate to reflect on its implementation. Although much has been written about mitigation banks, less attention (in the literature at least) has been paid to ILF programs and permittee-responsible mitigation.5 This Comment focuses on ILF programs.

Proposed Revisions to Improve and Modernize CEQ’s NEPA Regulations

by Lance D. Wood

When the president’s Council on Environmental Quality (CEQ) produced its Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (CEQ NEPA Regulations) in 1978, those regulations were sufficiently comprehensive and of such high quality that they have received hardly any amendment or modification since 1978. Nevertheless, because of the long period of time since the regulations were issued, and in response to President Donald Trump’s call in Executive Order No. 13807 for CEQ to enhance and modernize the federal environmental review and authorization process, in the summer of 2018, CEQ announced its intentions to revisit and revise its longstanding NEPA regulations. This took the shape of a June 2018 advanced notice of proposed rulemaking (ANPRM) soliciting the various federal agencies and the general public to provide recommendations “on potential revisions to update the regulations and ensure a more efficient, timely, and effective NEPA process consistent with the national environmental policy stated in NEPA.” There are at least four very important NEPA implementation matters (three closely related) that CEQ should have addressed in 1978, and that it should address now by revising several sections of the regulations. The changes that I recommend in this Comment would address these four serious problems that have troubled federal agencies and the federal courts ever since 1978. Adopting the recommendations and the specific changes to the CEQ NEPA Regulations set forth and explained here would go a long way to help answer the call for NEPA modernization.


Pollution Prevention and Rethinking "Waste"

by Jim McElfish, Linda Breggin, Byron R. Brown, Carol Adaire Jones, and Anna Vinogradova

“Reduce, Reuse, Recycle” is the call to arms of the mainstream environmental movement. While these actions may seem simple for households, decisions to reduce, reuse, and recycle in the commercial and industrial spheres require innovation, creativity, and risk. New practices in the organic waste and hazardous waste sectors have revolutionized our perspectives on waste and resource use, and contributed to reductions in pollution. On January 31, 2019, the Environmental Law Institute hosted an expert panel that explored how industrial and commercial institutions are finding sustainable, economic, and innovative solutions for recycling undesirable materials. This Article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.