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Volume 51, Issue 7 — July 2021


Funding and Facilitating Public Participation at FERC

by Luther Caulkins

The Federal Energy Regulatory Commission has embarked on an effort to implement a long-dormant provision of the Federal Power Act, §319, which could lead to broader participation by diverse and underresourced constituencies in Commission matters. This Article traces §319’s history and discusses several implementation choices that will affect what types of participation the Commission facilitates. Specifically, it explores implementation issues that will affect the mix of technocratic and grassroots participation, and suggests a general approach of accommodating both types of participation according to the character and needs of the particular proceeding. While certain aspects of §319’s intervenor funding program inherently favor better-resourced technocratic groups, the Article suggests several options for improving access to process for smaller grassroots organizations as well.

Governing Shared Watercourses Under Climatic Uncertainty: The Case of the Nile Basin

by Mahemud Eshtu Tekuya

Climate change is projected to have catastrophic impacts on the hydrological cycle. Responding to its projected adverse impacts requires building flexibility and adaptability into watercourse treaties. Exploring the treaty practices of other shared watercourses, this Article studies the context of the Nile Basin, and concludes that the legal regime governing the Basin lacks the flexibility needed to adapt to climate change. It argues that the Declaration of Principle, which contemplates a flexible agreement for governing the Grand Ethiopian Renaissance Dam, is a step in the right direction. It also proposes mechanisms for governing the Nile under climatic uncertainty, and calls upon Nile Basin States and other water-sharing States to set aside their egoistic national interests and develop climate-proof treaties.

Private Environmental Governance to Address Manufacturing Releases of Antibiotics

by Michael G. Mahoney

Demand for generic pharmaceuticals has resulted in China and India becoming the largest producers of these products in the world. Pollution from pharmaceutical manufacturing in both of these countries is a recognized environmental and public health problem, and the release of residual antibiotics is a contributor to antimicrobial resistance, which is projected to result in 10 million deaths per year by 2050 unless significant action is taken. This Article argues that implementation of voluntary sustainability standards is needed to address pharmaceutical manufacturing wastewater pollution, that this approach would drive market demand for pharmaceuticals produced in this way, and that this market response should also drive other manufacturers to improve their operations.

Critical Habitat's “Private Land Problem”: Lessons From the Dusky Gopher Frog

by Jonathan Wood and Tate Watkins

The Endangered Species Act provides for the designation as “critical habitat” of habitat deemed “essential” for conservation of listed species. To understand the incentive effects of critical habitat designations, this Article examines the designation for the dusky gopher frog, which included private land unoccupied by the frog and which reached the U.S. Supreme Court. It argues that critical habitat designations can penalize landowners for conserving habitat features, thereby disincentivizing habitat maintenance and restoration. Market-based alternatives that reward landowners for habitat features would provide the needed incentives for private landowners to protect and restore habitat.


Revisiting Small Populations in Jeopardy: A Rejoinder to Börk et al.

by Paul S. Weiland and Dennis D. Murphy

This Comment responds to a comment by Karrigan Börk et al. published in the September issue that critiqued a biological opinion issued by the U.S. Fish and Wildlife Service (FWS) under §7(a)(2) of the Endangered Species Act (ESA) that analyzes the effects of ongoing operations of the Central Valley Project and State Water Project on the Delta smelt. Specifically, the Comment describes the ESA consultation process and its reliance on effects analysis, an analytical technique analogous to risk assessment, whereby FWS is obliged to follow a stepwise process to evaluate presumptive effects of agency actions on listed species and their designated critical habitat, and contrasts the effects analysis with the approach taken by Börk et al. in evaluating the adequacy of FWS’ determination and developing an alternative.


Food Scrap Recycling: Opportunities and Realities

by Carol A. Jones, Melissa Pennington, Julia Levin, Mark McDannel, and John Hanselman

When food waste decomposes, it releases methane, a greenhouse gas with at least 25 times the warming potential of carbon dioxide. Municipalities and organizations are beginning to prioritize diverting food waste from landfills by preventing waste, rerouting edible food to food-insecure households, or recycling waste through composting, animal feeding operations, or anaerobic digestion (AD), a process in which microorganisms break down organic material and create biogas and digestate. On April 8, 2021, the Environmental Law Institute, BioCycle, and the American Biogas Council hosted a panel of experts that explored the opportunities and challenges of developing AD projects to divert food waste and recycle it to create valuable products. Below, we present a transcript of that discussion, which has been edited for style, clarity, and space considerations.