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This Month's News & Analysis

Volume 48, Issue 7 — July 2018

Comment(s)

A Pendulum Seldom Stops in the Middle: Shifting Views on “Take” of Raptors and Other Migratory Birds

by David Freudenthal, Steven P. Quarles, and Rebecca Barho

This Comment provides background on the evolution of the expanded reach of the Migratory Bird Treaty Act (MBTA) take prohibition as interpreted in multiple FWS policies, and the contradictions inherent in those policies. To illustrate the problems with FWS’ mutating interpretation of the MBTA, the Comment focuses on oil and gas development on public lands. While the discussion here primarily addresses protections afforded to raptors, the MBTA covers nearly every bird species in the United States. And while raptors are among the more than 1,000 bird species protected under the MBTA, certain raptor species are also protected pursuant to the ESA or the Bald and Golden Eagle Protection Act. The Comment also includes a brief discussion of the issues of prosecutorial and/or enforcement discretion, the potential for litigation by third parties, relevance of the Federal Land Policy and Management Act, and application of the FWS Buffer Zone Policy and expansive interpretation of the term “take” under the MBTA to private lands and private actions.

Union of Concerned Scientists v. Pruitt: Can EPA Purge Its Academic Science Advisors?

by Andrew Taylor

This Comment analyzes Union of Concerned Scientists v. Pruitt by providing relevant background and then examining the four specific claims put forth in the suit. Ultimately, based upon this analysis, the Comment concludes that Pruitt’s conflict-of-interest policy is arbitrary and capricious. As such, the conflict-of-interest policy contained in Pruitt's October 31, 2017, directive should be vacated, declared arbitrary and capricious, remanded to the Agency for coherent explanation, and any Agency actions based upon it enjoined.

The Judicial Contribution to Water Justice: The Australian Experience

by Brian J. Preston

The Brasilia Declaration of Judges on Water Justice, adopted at the eighth World Water Forum in Brasilia on March 21, 2018, recognizes that water justice involves environmental stewardship, intergenerational equity, sustainable ecological systems, customary rights, the prevention and precautionary principles, the in dubio pro natura principle, the internalization of external environmental costs (including the polluter-pays and the user-pays principles), good governance, holistic approaches involving integration of environmental factors, and procedural water justice. This Comment examines each of these aspects of water justice, illustrated by examples of cases in Australia where courts can be seen to have upheld them.

Articles

Decarbonizing Light-Duty Vehicles

by Amy L. Stein and Joshua Fershée

Reducing the United States’ greenhouse gas emissions by at least 80% from 1990 levels by 2050 will require multiple legal pathways for changing its transportation fuel sources. The Deep Decarbonization Pathways Project (DDPP) authors characterize transforming the transportation system as part of a third pillar of fundamental changes required in the U.S. energy system: “fuel switching of end uses to electricity and other low-carbon supplies.” The goal is to shift 80%-95% of the miles driven from gasoline to energy sources like electricity and hydrogen. Relying upon the DDPP analysis, this Article, excerpted from Michael B. Gerrard & John C. Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (forthcoming in 2018 from ELI Press), addresses that challenge as applied to light-duty vehicles such as cars and SUVs.

Illegal Water Use, Marijuana, and California’s Environment.

by Asha Wiegand-Shahani

The illicit and illegal use of water to grow marijuana is an environmental problem that has plagued the recently legalized crop for decades. Because growing marijuana has consistently been a more visible crime than theft and diversion of the water used, the industry’s environmental crimes have largely been ignored until recently. The recent legalization of marijuana in California included new environmental regulations aimed at curbing the environmental damage done by marijuana farmers; however, these reforms may have the converse effect of encouraging marijuana farmers’ continued illicit water use. This Article explores the history of marijuana legislation, why water use rights are such a central issue, and the environmental damage that has been done to California watersheds. It analyzes how the trend toward legalization could potentially encourage marijuana farmers to continue illegal water use practices, considers the means by which California regulators are encouraging marijuana farmers to comply with water regulations, and recommends additional methods to encourage compliance, such as shorter application times, a tiered system that incentivizes complying with current legislation, and educational programs aimed at both educating farmers on the advantages of compliance and changing their mindset around water use.

In the Courts

District court dismisses challenge to Congressional Review Act.

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In the Courts Archive

In the Agencies

EPA proposes to rescind CAA rule on accidental air releases.

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In the Agencies Archive

In the Congress

House votes to amend Nuclear Waste Policy Act.

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In the Congress Archive

In the States

New York proposes CO2 limits for existing power plants.

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In the States Archive