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This Month's Issue of ELR

Volume 50, Issue 4 — April 2020

Dialogue

Navigating NEPA 50 Years Later: The Future Of NEPA

by Seema Kakade, David Bancroft, Oliver A. Houck, and Viktoria Seale

The National Environmental Policy Act (NEPA) plays a crucial role in the authorization and approval of more development projects than any other federal law. Proponents believe NEPA protects communities and the environment from potentially detrimental projects, while critics counter the Act prevents timely review of important infrastructure projects. At a NEPA 50th Anniversary conference on December 17, 2019, the Environmental Law Institute hosted a panel that looked toward the Act’s near and distant future, exploring recent permitting developments, the project approval process, collaboration with regulatory agencies, legislation that may affect NEPA, and issues related to greenhouse gas emissions. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Comment(s)

The Trump Card: Tarnishing Planning, Democracy, and the Environment

by Robert L. Glicksman and Alejandro E. Camacho

One of the most important and transformative mechanisms the U.S. Congress has ever created to protect the environment is under assault from the Donald Trump Administration. The National Environmental Policy Act (NEPA) ushered in the modern era of U.S. environmental law. In early 2020, the Council on Environmental Quality (CEQ) issued proposed regulations that would overhaul, and fundamentally enfeeble, NEPA and its existing regulations. This Comment provides a brief introduction to NEPA’s purposes, structure, and mechanisms; addresses the narrowed scope of agency obligations that would result from the proposal; and describes how CEQ’s proposal would thwart public participation in the NEPA process, thereby impairing NEPA’s most fundamental goal: fostering deliberation and democratic participation to improve the government’s capacity to promote social welfare.

Ethics and the Human Enterprise in the Anthropocene Age

by William Eichbaum

In the first decades of the 21st century, those working to assure that earth continues to be a viable home for humanity as well as for all other life have been in a crisis regarding their purpose and direction. This is a departure from the past century and a half, when the giants of conservation and environmental protection—personalities such as John Muir, Rachel Carson, and David Brower— were certain of their cause and the actions needed to sustain it. The realization is emerging that while a few battles have been won, particularly for nature protection, overall, the fight to safeguard the vital fabric of the earth is being lost. This Comment argues that the nature of the environmental crisis facing humanity is significantly more fundamental than was appreciated in the latter half of the past century. In order for society to successfully address that challenge, sweeping changes will be needed in our systems for managing the conduct of science, global governance, and the allocation of financial resources. Ultimately, it suggests success in this daunting challenge will come about only through a revolutionary expansion of the sense of those alive today about to whom their highest ethical obligations are owed—namely future generations.

Annual Review of Chinese Environmental Law Developments: 2019

by Mingqing You and Haijing Wang

The Communist Party of China (CPC) reaffirmed its emphasis on environmental protection in a decision adopted by the fourth plenum of its 19th Central Committee, held in December 2019.1 Part 10 of this decision specifically addresses environmental protection under the topic of Developing a System of Rules for Ecological Civilization, and consists of an introductory paragraph and four additional paragraphs calling for (1) the most stringent legal rules for environmental protection, (2) rules on the efficient use of resources, (3) rules on ecological protection and restoration, and (4) rules on responsibilities and liabilities. This Comment summarizes experimental measures and rules adopted in recent years as well as a plan to further develop environmental rules in the future.

Articles

Bankruptcy Actions Involving Environmental Legacy Portfolios

by Neil M. Ram, Chase A. Gerbig, and Nancy Nevins

This Article reviews the legal and environmental issues in bankruptcy matters involving: (1) a trustee responsible for dispersing funds to stakeholders, including those responsible for addressing environmental liabilities; or (2) alleged fraudulent transfer actions claiming inadequate environmental cost projections for environmental liabilities. In the first instance, the trustee must assign current costs for necessary and appropriate actions to achieve regulatory closure so that excess funds can be distributed to remaining stakeholders. In the second instance, a trier of fact considers the costs as of the date of the alleged fraudulent transfer to clean up environmental legacy sites. In both instances, stakeholders may have opposing views, those that contend cleanup costs are minimal and those projecting more costly actions. Common to both is the need to properly characterize the nature and extent of contamination, the risks posed to human health and the environment, and the associated environmental response actions needed. Ultimately, it is up to the trier of fact to weigh the legal issues, facts, and technical arguments to determine the necessary costs to address environmental legacy sites or portfolios.

Federalism's Blind Spots: The Crisis of Small Drinking Water Systems

by Madeline Kane

Drinking water contamination in Flint, Michigan, has garnered much-needed nationwide attention, but such contamination is neither isolated, nor a primarily urban problem. A hidden water crisis is straining thousands of smaller communities that share Flint’s risk factors—shrinking populations, social marginalization, and deficient funds. This Article posits that the Safe Drinking Water Act’s increasingly decentralized monitoring and funding scheme has drained communities of the capacity to deliver safe water. It examines the federal government's deliberate and inadvertent blindness to small systems' needs, which has left them in disrepair and unable to access assistance. Finally, it proposes a series of solutions to restore small systems’ viability and visibility, including (1) smart pricing, (2) renewed federal investment, (3) capacity development, (4) consolidation, (5) community engagement, and (6) enforcement.

No Road to Change: The Weaknesses of an Advocacy Strategy Based on Agency Policy Change

by Frank Sturges

The Trump Administration has aggressively rolled back prior administrations’ environmental regulations and natural resource policies, and critics of this agenda have turned to the judiciary. A remarkable string of federal court decisions has faulted the Administration for failing to follow the standard for agency policy change articulated in Federal Communications Commission v. Fox Television Stations, Inc. The aftermath of these decisions, though, has revealed legal and policy problems with that standard, including a lack of new procedures on remand; circumvention of public participation; an uncertain level of deference to agencies; the Administration’s efforts to weaken the standard; and the possibility that district courts may be out of step with how the current U.S. Supreme Court might view the standard. As a result, both defenders of the regulations and deregulatory interests have reasons to be wary. This Article uses the example of a proposed road exchange agreement in Alaska’s Izembek National Wildlife Refuge to illustrate and examine these problems. The Izembek story and other recent examples suggest that the surge in application of the Fox Television Stations standard may be short-lived, and that moving away from it could produce better environmental outcomes.

Legal Tools for Achieving Low Traffic Zones

by Amy E. Turner

Cities around the world are looking to reduce greenhouse gas and other emissions from vehicles through the use of low emission zones and congestion pricing. These strategies have been employed to great success abroad, including in central London, where both congestion pricing and fees and restrictions on higheremitting vehicles are in effect. In the U.S. law context, these policy approaches give rise to significant legal issues that have not been well-explored. This Article proposes that these policy approaches be called “Low Traffic Zones” (LTZs), and surveys those legal considerations. The areas of law explored are: (1) potential for preemption of LTZ policies by U.S. federal laws; (2) U.S. constitutional considerations; (3) federal tolling authority; (4) state enabling laws; (5) laws to protect individual privacy and data security; and (6) other claims that may be raised in litigation. It concludes by outlining guidance U.S. lawmakers and policymakers may take into account in drafting LTZ policies to comport with U.S. and state law.

In the Courts

Corps not liable for Hurricane Harvey downstream flooding.

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In the Courts Archive

In the Agencies

EPA proposes no CERCLA financial requirements for chemical manufacturing.

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In the Agencies Archive

In the Congress

House votes to reauthorize Chesapeake Bay and National Estuary Programs.

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In the Congress Archive

In the States

Pennsylvania proposed amendments to its land recycling program.

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In the States Archive