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Issue

Volume 50, Issue 5 — May 2020

Articles

NEPA’s Trajectory: Our Waning Environmental Charter From Nixon to Trump?

by Sam Kalen

Heralded in 1970 as the nation’s environmental Magna Carta, the National Environmental Policy Act’s (NEPA’s) luster seems faded and its future uncertain. While Trump Administration initiatives threaten to diminish further and perhaps even dismantle aspects of NEPA, this Article chronicles how the current assault merely continues NEPA’s unfortunate trajectory, examining how the courts, the U.S. Congress, and the executive branch each have whittled away at the Act. NEPA consequently sits at a critical juncture: it could soon fade away or it could hew back toward its original promise. The Article urges the latter path, and proposes two atypical and one oft-recommended changes. First, the Council on Environmental Quality (CEQ) ought to be charged with authority to oversee the development of environmental documents. Next, CEQ ought to require that agencies engage in balancing environmental harms against the benefits of a proposed action. Finally, the NEPA process should better incorporate the post-decision ability to monitor and adapt as new information and effects are understood.

OIRA’s Dual Role and the Future of Cost-Benefit Analysis

by Stuart Shapiro

The role that cost-benefit analysis (CBA) plays in regulatory decisionmaking is at a crossroads, as is the role played by the agency that oversees its implementation, the Office of Information and Regulatory Affairs (OIRA). The Trump Administration has largely demonstrated agnosticism toward CBA; this has left many to question whether OIRA can still play the role of ensuring quality analysis while serving as the eyes and ears of the president in overseeing regulation. This Article discusses the history of these dual functions within OIRA, the challenges posed by the regulatory policy of the Trump Administration, and possible alternative homes for CBA to ensure that there is a place for quality analysis of executive branch regulations.

Comment(s)

Compliance Models for Off-Grid Wastewater Treatment and Reuse

by Avital Li and Taylor Lilley

Throughout the world, people struggle to gain access to stable sources of clean water. While there are increasingly innovative solutions being developed, many communities simply do not have access to efficient, centralized wastewater management systems, and as a result, face difficulty finding reliable sources of water for daily use. There is a great need to implement novel systems that can fill the gap, especially for isolated or “off-grid” communities. One particular system that exhibits particular potential in alleviating access challenges is greywater reclamation. After simple filtration, greywater can be safely recycled for reuse in agriculture and irrigation, and is a promising option for water-stressed communities that are not on a centralized water grid. This Comment explores common governance considerations for off-grid, decentralized water systems and examines the roles of key stakeholders; discusses the unique challenges and opportunities for greywater reclamation systems in the West Bank; and outlines important considerations for implementing greywater systems in off-grid communities.

Dialogue

Brexit and Environmental Law

by Caitlin F. McCarthy, Miriam Aczel, Begonia Filgueira, Markus Gehring, Ambereen K. Shaffie, and Sarah Williams

The United Kingdom’s departure from the European Union is anticipated to have a breadth of impacts on its environmental law and policy. Proponents point to opportunities ahead for the government to draft and enact U.K.-specific environmental laws and regulations that are more attuned to issues facing the country. Others believe the departure could lead to deregulation, a lack of consistency and stability, and potential decreases in advances made. On February 3, 2020, the Environmental Law Institute hosted an expert panel that explored these implications of the U.K.’s departure, the role the U.K. will play in meeting the Paris Accord goals, and the looming challenges and areas of opportunity. This Article presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.