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Harvard Environmental Law Review

Print Archives

Vol. 42 (2018) No. 2Vol. 42 (2018) No. 1Vol. 41 (2017) No. 2Vol. 41 (2017) No. 1Vol. 40 (2016) No. 2Vol. 40 (2016) No. 1Vol. 39 (2015) No. 2Vol. 39 (2015) No. 1Vol. 38 (2014) No. 2Vol. 38 (2014) No. 1Vol. 37 (2013) No. 2Vol. 37 (2013) No. 1Vol. 36 (2012) No. 2Vol. 36 (2012) No. 1Vol. 35 (2011) No. 2Vol. 35 (2011) No. 1Vol. 34 (2010) No. 2Vol. 34 (2010) No. 1Vol. 33 (2009) No. 2Vol. 33 (2009) No. 1Vol. 32 (2008) No. 2Vol. 32 (2008) No. 1Vol. 31 (2007) No. 2Vol. 31 (2007) No. 1Vol. 30 (2006) No. 2Vol. 30 (2006) No. 1Vol. 29 (2005) No. 2Vol. 29 (2005) No. 1Vol. 28 (2004) No. 2Vol. 28 (2004) No. 1Vol. 27 (2003) No. 2Vol. 27 (2003) No. 1
ARTICLES
The Bottom-Up Alternative: The Mitigation Potential of Private Climate Governance After the Paris Agreement
Maria L. Banda
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Disclaiming Property
Michael Pappas
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A Historical Reassessment of Congress's Power to Dispose of the Public Lands
Jeffrey Schmitt
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STUDENT NOTE AND CASE COMMENT
Ecofeminism as Responsible Governance: Analyzing the Mercury Regulations as a Case Study
Joshua Lee
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Bearing the Burden: Environmental Injustice in the Protection of the Polar Bear, Alaska Oil & Gas Ass'n v. Jewell (9th Cir. 2016)
Sarah E. Mackie
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Staff and Front Matter

ARTICLES
Federal Lands and Fossil Fuels: Maximizing Social Welfare in Federal Energy Leasing
Jayni Foley Hein
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Toward a National Conservation Network Act: Transforming Landscape Conservation on the Public Lands into Law
Robert B. Keiter
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Managing the Future of the Electricity Grid: Energy Storage and Greenhouse Gas Emissions
Richard L. Revesz & Burcin Unel
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Allocating Property Interests in Ecosystem Services: From Chaos to Flowing Rivers
Kalyani Robbins
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Changing Climate Change, 2009-2016
Cass R. Sunstein
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CASE COMMENTS
Murr v. Wisconsin: A Victory for “Fairness and Justice” in the Regulatory Takings Denominator Analysis
Elisabeth H. Carter
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Atay v. County of Maui
James Pollack
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Staff and Front Matter

ARTICLES
Foreword
Gina McCarthy & Janet McCabe
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Cite as: Gina McCarthy & Janet McCabe, Foreword, 41 Harv. Envtl. L. Rev. 321 (2017).

The Uncomfortable Convergence of Energy and Environmental Law
Jody Freeman

Environmental law and energy law, two historically disparate fields, seem to be converging. Energy regulation has begun to seriously address environmental concerns for the first time, and environmental law is increasingly becoming a driver of energy policy. This Article describes the legal mechanisms through which greater congruence has been achieved, while acknowledging the still significant and stubborn barriers to true integration, which likely will be difficult to overcome. It shows that federal agencies have taken steps toward greater policy alignment by repurposing existing statutory provisions and relying on previously under-utilized legal authorities for the first time, in a carefully calibrated process of legal innovation. Yet it also shows this process to be meaningfully constrained by the agencies’ adherence to their own distinct missions, and by the constraints of their particular statutory authorities. The Article builds on the work of scholars who have lamented the divide between energy and environmental law, and urged that it be dismantled. Most of the accounts to date suggest that environmental rules and energy sector regulation, which are so obviously interrelated, inevitably will be drawn closer together. The analysis here looks more closely at the drivers of convergence to date, and presents a more nuanced picture of events. The trend toward greater policy alignment, while real, is limited. Energy and environmental regulators have not embraced convergence as an independent goal, but rather have achieved it incrementally and indirectly, as a consequence of pursuing their traditional missions during a time of change. These agencies have reacted to numerous external forces—technological innovation, market shifts, scientific developments, federal and state regulatory measures—which have prompted them to respond with their own initiatives. Yet they remain constrained by the bounds of their governing statutes and the confines of their long established regulatory roles. Tellingly, these agencies have tended to justify their policy innovations as necessary to fulfill their own traditional mandates, not to help other agencies realize theirs. The Article ultimately concludes that claims of convergence between the two fields should be tempered. However desirable greater policy congruence might be, it has not been mandated by Congress, explicitly commanded by the President, or centrally directed by anyone else. And it is not inevitable. The most that can be said is that convenient alignments may arise when the imperatives of these different regulators coincide. Thus, the story of “convergence” between energy and environmental goals is one of gradual steps rather than great leaps—of interestbased compatibility rather than love-struck merger.

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Cite as: Jody Freeman, The Uncomfortable Convergence of Energy and Environmental Law, 41 Harv. Envtl. L. Rev. 339 (2017).

Reconstituting the Federalism Battle in Energy Transportation
Alexandra B. Klass & Jim Rossi

This Article explores the growing federalism tensions arising from efforts to expand the nation’s energy transportation infrastructure—the electric transmission lines, natural gas pipelines, natural gas import and export terminals, and related facilities that power the nation. It examines two controversial energy transport projects for the purpose of evaluating current barriers to more comprehensive energy infrastructure planning and implementation. The first project is the Plains & Eastern Clean Line—an interstate electric transmission line project designed to transport wind energy resources across several south-central states. The second project is the Constitution Pipeline—a natural gas pipeline designed to transport new natural gas resources from the Marcellus Shale region of Pennsylvania to New York. The federal-state tensions associated with these projects highlight how a fixation on establishing clear jurisdictional lines between federal and state authority in energy infrastructure approval processes has failed to provide an adequate framework for addressing today’s energy needs. These projects also show that these federalism battles manifest themselves in similar ways regardless of whether the states are the primary decision-makers—as is the case with interstate electric transmission lines—or whether federal agencies are the primary decision-makers—as is the case with interstate natural gas pipelines. Drawing from these illustrations, we evaluate how reforms to the governmental approval processes for energy transport projects can result in more efficient decision-making that can lead to more rapid integration of diverse energy resources and implementation of new energy technologies. We conclude that federal regulators—historically much more attuned to federal and national energy needs in making project approval decisions—can benefit substantially from taking a more proactive approach towards state interests and concerns associated with multistate energy transport projects in cases where federal authority preempts state authority. Such reforms can in turn prompt state regulators to articulate state and local land use and environmental concerns in the early stages of the project review process, better ensuring that these impacts are more fully vetted and addressed prior to federal approvals. Moreover, a more proactive approach by regulators and project proposers can help to diffuse interest group behavior that tends to limit the ability of regulators to fully consider regional and national needs as well as environmental concerns in energy transportation approval, regardless of whether the primary decision-maker is a state or a federal agency.

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Cite as: Alexandra B. Klass & Jim Rossi, Reconstituting the Federalism Battle in Energy Transportation, 41 Harv. Envtl. L. Rev. 423 (2017).

Contaminated Childhood: How the United States Failed to Prevent the Chronic Lead Poisoning of Low-Income Children and Communities of Color
Emily A. Benfer

Lead poisoning has plagued society for centuries, dating back to the Roman Empire. Children and adults exposed to the neurotoxin regularly experience an elevated risk for permanent brain damage, disability, and, at higher levels, death. Despite scientific evidence of the dangers of lead, the heavy metal was commonly used throughout civilization and quickly integrated into the American home in the form of paint containing up to 70% lead. At the same time, lead smelters and leaded gasoline left a toxic footprint across the United States. Today, over twenty-three million homes contain one or more lead hazards and thirty-eight million have lead-based paint that will eventually become a lead hazard if not closely monitored and maintained; the majority of those homes are located in impoverished and marginalized communities of color. Federal laws and policies have consistently failed to prevent lead poisoning in these areas, depriving low-income, minority children of equal opportunity and trapping generations in poverty. Federally subsidized housing programs are intended to provide safe, decent, and affordable housing for low-income families. These homes are often clustered in areas with high rates of lead poisoning and the U.S. Department of Housing and Urban Development estimated in 2016 that 450,000 federally assisted housing units were built before 1978 and likely contain lead-based paint. Federal law governing these homes takes a “wait and see” approach that delays lead hazard inspections of a home until after a child is lead poisoned. Rather than requiring lead hazard risk assessments that could identify and control sources of lead poisoning before a child resides in the home, according to federal regulations, the child must develop lead poisoning at levels more than four times the Centers for Disease Control and Prevention standards before the government requires any intervention. This policy places millions of children annually at risk of permanent neurological damage. This Article describes how lead poisoning policies governing federally assisted housing perpetuate health inequities, increase socioeconomic and racial inequality among low-income and minority children, and thwart the promise of multiple civil rights laws and policies. It examines the legislative history of federal lead poisoning prevention laws, including compromises that resulted in ineffective laws as well as the civil rights laws violated by the lack of primary prevention. Finally, with the aim of identifying policies that abide by principles of health justice, this Article proposes urgent reform measures to end the lead poisoning epidemic.

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Cite as: Emily A. Benfer, Contaminated Childhood: How the United States Failed to Prevent the Chronic Lead Poisoning of Low-Income Children and Communities of Color, 41 Harv. Envtl. L. Rev. 493 (2017).

STUDENT NOTE
Extraterritoriality and the Electric Grid: North Dakota v. Heydinger, a Case Study for State Energy Regulation
Tessa Gellerson

Under the extraterritoriality doctrine, a branch of the dormant Commerce Clause, state statutes that regulate behavior wholly outside of the regulating state’s borders will be invalidated. In today’s interconnected world, this doctrine is outdated. Many desirable state statutes have out-of-state effects, and per se application of extraterritoriality threatens to invalidate these statutes despite their net benefits. This is particularly true as applied to the electric grid, which is interconnected by nature. This Note joins the chorus of scholars and judges who have argued that extraterritoriality is outmoded and should be folded into the Pike balancing test. Under this balancing framework, statutes’ local benefits would be credited, but courts would remain free to strike down statutes that excessively burdened interstate commerce. This balancing framework is loyal to the Supreme Court’s early articulations of the concerns animating the extraterritoriality doctrine and would allow a path forward for innovative state solutions to climate change.

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Cite as: Tessa Gellerson, Note, Extraterritoriality and the Electric Grid: North Dakota v. Heydinger, a Case Study for State Energy Regulation, 41 Harv. Envtl. L. Rev. 563 (2017).

Staff and Front Matter

ARTICLES
Cost-Benefit Analysis and Arbitrariness Review
Cass R. Sunstein

When an agency fails to engage in quantitative cost-benefit analysis, has it acted arbitrarily and hence in violation of the Administrative Procedure Act? At first glance, the question answers itself: Congress sometimes requires that form of analysis, but if it has not done so, then agencies have discretion to proceed as they see fit. But as recent environmental and other decisions suggest, the underlying issues are far more complicated than they seem. The central reason is that for all its limitations, cost-benefit analysis remains the best available method for testing whether regulations increase social welfare. Whenever a statute authorizes an agency to consider costs and benefits, its failure to quantify them, and to weigh them against each other, requires a non-arbitrary justification. Potential justifications include the technical difficulty of quantifying costs and benefits; the relevance of values such as equity, dignity, and fair distribution; and the existence of welfare effects that are not captured by monetized costs and benefits. For the Environmental Protection Agency (“EPA”) and other regulatory agencies, these justifications will often be sufficient. But in some cases, they are not, and agencies, including EPA, should be found to have acted arbitrarily in failing to quantify costs and benefits and to show that the benefits justify the costs.

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Cite as: Cass R. Sunstein, Cost-Benefit Analysis and Arbitrariness Review, 41 Harv. Envtl. L. Rev. 1 (2017).

Managing the Future of the Electricity Grid: Distributed Generation and Net Metering
Richard L. Revesz and Burcin Unel

As distributed energy generation is becoming increasingly common, the debate on how a utility’s customers should be compensated for the energy they sell back to the grid is intensifying. And net metering, the practice of compensating for such energy at the retail rate for electricity, is becoming the subject of intense political disagreement. Utilities argue that net metering fails to compensate them for grid construction and distribution costs and that it gives rise to regressive cost shifting among customers. Conversely, solar energy proponents argue that the compensation should be higher than the retail rate to account for other benefits that distributed generation systems provide, such as greenhouse gas emission reductions, improved air quality, and reduced utility spending on new capacity installations. This ongoing debate is leading to significant changes to net metering policies in many states. This Article provides a thorough analysis of benefits and costs of distributed generation. It also highlights the analytical flaws and missing elements in many of the competing positions and existing state policies. We propose an alternative approach that properly recognizes the respective contributions to the electric grid of utilities on the one hand and of distributed generators on the other. We show, however, that this policy is second-best as a result of certain constraints on how electricity can currently be priced. For the longer run, when these constraints might no longer be present, we discuss the need to consider net metering as part of a more comprehensive energy reform that would ensure the efficient integration of all types of distributed energy resources into the electricity grid. These reforms are needed to secure our Nation’s clean energy future.

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Cite as: Richard L. Revesz & Burcin Unel, Managing the Future of the Electricity Grid: Distributed Generation and Net Metering, 41 Harv. Envtl. L. Rev. 43 (2017).

Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review
Michael Burger & Jessica Wentz

Recently, legal controversies have arisen regarding the scope of greenhouse gas emissions that should be considered in environmental reviews of fossil fuel extraction and transportation proposals under the National Environmental Policy Act (“NEPA”). The key question is whether and how agencies should account for emissions from activities that occur “downstream” from the proposed action, such as the combustion of fossil fuels, and emissions from activities that occur “upstream” of the proposed action, such as the extraction of fossil fuels. This question is important, because consideration of such emissions can alter the balance of costs and benefits for a proposed project and the agency’s ability to justify approving the project in light of that balance. This Article argues that such emissions do typically fall within the scope of indirect and cumulative impacts that must be evaluated under NEPA, and provides recommendations on how agencies should evaluate such emissions in environmental review documents. To support the argument and recommendations, the Article makes several unique contributions to the growing literature on NEPA and climate change. First, we describe how federal approvals of fossil fuel extraction and infrastructure contribute to global climate change, and we explain why federal agencies have ample discretion to account for these impacts when deciding whether to issue such approvals. Second, we conduct an in-depth examination of NEPA’s requirements as they pertain to the analysis of downstream and upstream emissions, focusing in particular on the requirements to evaluate indirect effects, cumulative effects, and effects from related actions. Third, we describe how federal agencies currently account for downstream and upstream greenhouse gas emissions in their NEPA reviews, and we find that there are major inconsistencies in the analytical approaches both within and across agencies, but many agencies are nonetheless beginning to recognize that upstream and downstream emissions fall within the scope of impacts that should be reviewed under NEPA. Fourth, we synthesize all of the existing case law on this subject, and we find that courts have generally treated such emissions as the type of indirect effects that must be evaluated in a NEPA reviews. Finally, we outline an approach for evaluating upstream and downstream emissions that would improve the quality of federal decision-making, improve agencies’ chances in litigation, and provide muchneeded information about the indirect and cumulative effects of fossil fuel development on global climate change.

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Cite as: Michael Burger & Jessica Wentz, Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review, 41 Harv. Envtl. L. Rev. 109 (2017).

Constitutional Challenges and Regulatory Opportunities for State Climate Policy Innovation
Felix Mormann

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power. But renewable portfolio standards, feed-in tariffs, and other state climate policies have increasingly come under attack for alleged violations of the Constitution. How much latitude do states have when they experiment with innovative climate and clean energy policies? And which policy best protects states from the risk of lengthy and costly litigation over its constitutionality? To answer these crucial questions, this Article takes stock of recent litigation challenging the constitutionality of state renewable portfolio standards and feed-in tariffs. Qualitative analysis reveals markedly different constitutional risk profiles for both policies with portfolio standards more prone to Commerce Clause challenges and feed-in tariffs more likely to face Supremacy Clause challenges. These vulnerabilities have prompted widespread scholarly skepticism over both policies’ constitutional viability when implemented at the state level, often accompanied by calls for sweeping legislative or judicial reform. Pushing back against the prevailing scholarly skepticism, this Article draws on recent precedent to make the case for joint implementation of both policies as a way to reduce, rather than exacerbate, a state’s overall exposure to the risk of constitutional attacks on its climate and clean energy policy.

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Cite as: Felix Mormann, Constitutional Challenges and Regulatory Opportunities for State Climate Policy Innovation, 41 Harv. Envtl. L. Rev. 189 (2017).

Preventing Industrial Disasters in a Time of Climate Change: A Call for Financial Assurance Mandates
Zachary C.M. Arnold
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Cite as: Zachary C.M. Arnold, Preventing Industrial Disasters in a Time of Climate Change: A Call for Financial Assurance Mandates, 41 Harv. Envtl. L. Rev. 243 (2017).

COMMENT
Defenders of Wildlife v. Jewell
Claire M. Horan
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Cite as: Claire M. Horan, Case Comment, Defenders of Wildlife v. Jewell, 41 Harv. Envtl. L. Rev. 297 (2017).

Staff and Front Matter

remarks
The Enduring Nature of the Chevron Doctrine
John C. Cruden and Matthew R. Oakes

On November 10, 2015, the D.C. Bar’s Administrative Law and Agency Practice Section held its annual Harold Leventhal Lecture. The address was given by John Cruden, U.S.
Department of Justice’s Assistant Attorney General for the Environment and Natural Resources Division.

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Cite as: 
John C. Cruden, Assistant Attorney Gen. for the Env’t and Nat. Res. Div., U.S. Dep’t of Justice, Harold Leventhal Lecture Before the Admin. Law and Agency Practice Section of the D.C. Bar, in John C. Cruden and Matthew R. Oakes, The Enduring Nature of the Chevron Doctrine, 40 Harv. Envtl. L. Rev. 189 (2016).

Articles
Settling for Natural Resources Damages
Karen Bradshaw

The United States manages natural resources held in the public trust for the collective
benefit of all citizens. When human action injures certain natural resources, the government has statutory authority to pursue monetary damages, which are used to restore the resources to their pre-injury condition. As the only statutory tort remedy in environmental law, natural resource damages provide a valuable opportunity to consider the efficiency of a tort regime as a tool for addressing environmental problems. Moreover, administration of the remedy provides insights into interagency dynamics and valuation of natural resources without a market value. At present, these important inquiries are sharply limited by a lack of comprehensive information about the remedy. Commentators routinely underestimate the frequency and size of claims by failing to account for settlement, which resolves over ninety-five percent of natural resource damages matters, and lesser-known applications of the remedy. This Article begins to fill the void of information surrounding natural resource damages settlements by presenting a novel empirical overview of all settlements by federal trustees between 1989 and 2015, constructed from data gathered by Freedom of Information Act requests to each relevant agency.

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Cite as: 
Karen Bradshaw, Settling for Natural Resource Damages, 40 Harv. Envtl. L. Rev. 211 (2016).

Interstate Water Rights: Take No Drop for Granted
Amelia I.P. Frenkel

During the past 100 years, water rights have been equitably apportioned among states by
the Supreme Court and, increasingly, divvied up by interstate water compacts. But when water flows across state lines individual upstream users may nonetheless draw on waters allocated to downstream users on the other side of the border, satisfying their needs out of the lower state’s water allocation. The Supreme Court—most recently in its decision in Kansas v. Nebraska—has embraced monetary remedies as a means to deter upstream users from seizing more water than the states’ compacts allow. Such deterrence comes at a cost, however: Even when an upstream state is able to use water more efficiently than its downstream neighbor, it is penalized for doing so; furthermore, any recovery in such an action goes to the state, rather than to the individuals who suffered losses as a result of the water shortage. This paper proposes a new framework for resolving interstate water disputes: by applying the law of eminent domain to interstate water takings, the Court could promote more efficient interstate water use during a time of widespread drought, while vindicating the usufructory rights of downstream states’ citizens.

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Cite as:
Amelia I.P. Frenkel, Interstate Water Rights: Take No Drop for Granted, 40 Harv. Envtl. L. Rev. 254 (2016).

Disaggregating Preemption in Energy Law
Hannah J. Wiseman

The question of which level of government—local, state, or federal—is best suited to regulate a particular activity or risk is both important and, often, contentious. Judges, legislatures, and scholars frequently debate, for example, who should regulate education policy or the impacts of booming oil and gas development. The values cited for choosing a particular level of governmental control vary dramatically. Supporters of preemption point to the need for uniform regulation and the risk of races to the bottom, while opponents raise the need for government accountability to local voters and the benefits of state and local experimentation. In weighing these competing values, those on all sides of the debate too often treat preemption as an all-or-nothing, binary proposition—nearly total local, state, or federal control, or nearly none. As argued here, this approach is unfortunate because it obscures what should be obvious: in many cases, some aspects of a particular activity are best regulated at the local or state level even if most of them are best regulated by the federal government (and vice versa).

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Cite as:
Hannah J. Wiseman, Disaggregating Preemption in Energy Law, 40 Harv. Envtl. L. Rev. 293 (2016).

Student Note
Reviving the Clean Air Act's Requirement that States Adequately Fund and Staff Clean Air Programs
Jessica Ranucci

Section 110(a)(2)(E)(i) of the Clean Air Act requires that each state submit to the U.S. Environmental Protection Agency (“EPA”) “necessary assurances that the State . . . will have adequate personnel [and] funding . . . to carry out” the state’s implementation plan to improve the state’s air quality. Though this provision has been a part of the Clean Air Act since 1970, it has garnered little academic attention and has largely been ignored by states and by EPA. This Note presents legal and policy arguments for a revival of the section 110(a)(2)(E)(i) requirement through a more rigorous approval process for newly submitted state implementation plans and a more robust enforcement regime for states that fail to adequately fund their clean air programs.

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Cite as:
Jessica Ranucci, Reviving the Clean Air Act’s Requirement that States Adequately Fund and Staff Clean Air Programs, 40 Harv. Envtl. L. Rev. 352 (2016).

Comment
Merrick v. Diageo Americas Supply, Inc.
Nate Bishop

The Clean Air Act depends on the cooperation of several actors. The state and federal governments work together to set and enforce emissions standards. The Act strikes this balance by charging the Environmental Protection Agency with setting a national floor for ambient air quality while allowing states to set higher standards. The Act also enlists the help of the local citizenry. Through the citizen suit clause, private individuals can enforce emissions standards and seek “any other relief” from courts. In Merrick v. Diageo Americas Supply, Inc., the Sixth Circuit considered the respective roles of federal, state, and private actors, concluding that state common law tort claims do not interfere with the purpose of the CAA, and thus are not preempted. However, courts should be hesitant to follow the Sixth Circuit’s wholesale allowance of common law remedies. While state common law claims yielding compensatory or punitive damages may not directly conflict with the text of the CAA, “the purpose of Congress is the ultimate touchstone in every pre-emption case.” The legislative history of the CAA demonstrates that the savings clauses were not meant to allow courts to unilaterally set new emissions standards using the common law. A close analysis of that history, considered alongside the decisions of the Third and Fourth Circuits and the Supreme Court of Iowa, reveals that the Sixth Circuit has set itself apart by being the sole court to allow injunctive relief that creates a new emissions standard.

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Cite as:
Nate Bishop, Merrick v. Diageo Americas Supply, Inc., 40 Harv. Envtl. L. Rev. 385 (2016).

Staff and Front Matter

ARTICLES
Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs)
Federico Cheever and Jessica Owley

Land conservation transactions have been the most active component of the conservation movement in the United States for the past three decades. Conservation organizations have acquired property rights—mostly conservation easements—to protect roughly 40 million acres of land nationwide. However, climate change threatens this vast edifice. Climate change means that the resources that land conservation transactions were intended to protect may not persist on the land protected. Options to purchase conservation easements (“OPCEs”) have long played a modest but important role in conservation law practice. In the world climate change is creating, with its substantial uncertainties and shifting windows of opportunity, OPCEs can serve more complicated and strategic purposes. This potential would be significantly increased if state legislatures amended current conservation easement enabling statutes to: (1) specifically recognize OPCEs, (2) immunize OPCEs from a range of potential common law challenges, and (3) integrate OPCEs into the burgeoning body of conservation easement law. These statutory amendments would do for OPCEs what conservation easement statutes have done for conservation easements: transform them into an essential multi-purpose tool for conservation in a changing world.

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Cite as: Federico Cheever & Jessica Owley, Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs), 40 Harv. Envtl. L. Rev. 1 (2016).

How Cheap Is Corporate Talk? Comparing Companies’ Comments on Regulations with Their Securities Disclosures
James W. Coleman

When companies face adverse proposed rules, they may want to convince regulators that the proposed rules are unworkable and should be changed while, at the same time, reassuring investors that the rules will be manageable. These conflicting incentives may lead to inconsistent messages in regulatory comments and securities disclosures, fueling a perception that corporate submissions to regulators are “cheap talk.” Despite this perception, there has been no empirical study comparing statements to these two audiences. This project performs such a study, taking the example of comments submitted on the Environmental Protection Agency’s Renewable Fuel Standard. This standard provides an ideal case study because controversial annual rulemakings have created a rich dataset of company comments that can be compared to contemporaneous securities disclosures from the same companies.

The empirical study demonstrates that oil companies do send inconsistent messages to their two audiences—warning regulators and reassuring investors. The Article suggests that regulators should use this approach to assess the sincerity of industry warnings about the cost of regulation. Private and public enforcers of securities disclosure laws should also use this approach to identify companies that are hiding regulatory risks. Finally, now that a company’s comments can be compared with its securities disclosures, corporate counsel should align company statements to avoid securities litigation and enhance the company’s credibility in each forum.

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Cite as: 
James W. Coleman, How Cheap Is Corporate Talk? Comparing Companies’ Comments on Regulations with Their Securities Disclosures, 40 Harv. Envtl. L. Rev. 47 (2016).

Taking Costs into Account: Mapping the Boundaries of Judicial and Agency Discretion
Daniel A. Farber

The Supreme Court’s recent decision in Michigan v. EPA is only one of a long line of cases struggling with the same problem: when can—or must—a decision-maker consider costs?Agencies face the problem in rulemaking; courts face it in statutory injunctions. The law has developed independently in these two contexts, and cases are marked by heated judicial disagreement. Yet a deeper analysis reveals that, to a surprising extent, the same principles govern the legal relevance of costs in both areas. The areas differ, however, in terms of how to consider legally relevant costs: courts must use a balancing test for injunctions (eBay) while agencies have other choices (Michigan v. EPA). This difference should be resolved in favor of using the Michigan v. EPA approach in both settings.

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Cite as: 
Daniel A. Farber, Taking Costs into Account: Mapping the Boundaries of Judicial and Agency Discretion, 40 Harv. Envtl. L. Rev. 87 (2016).

Legislative Exactions and Progressive Property
Timothy M. Mulvaney

Exactions—a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion—ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, the Article suggests that distinguishing between legislative and administrative measures in this context could produce several second-order consequences that actually undercut the goals of progressive property theory.

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Cite as: 
Timothy M. Mulvaney, Legislative Exactions and Progressive Property, 40 Harv. Envtl. L. Rev. 138 (2016).

COMMENT
Perez v. Mortgage Bankers Association and the Future of Seminole Rock
Robin Alexander Smith

When reviewing the meaning of a regulation, courts generally give an agency’s interpretation of its own regulations “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Though uncontroversial for decades, this grant of deference—known as Seminole Rock or Auer deference—has been subject to increasing judicial critique. The primary concern with Seminole Rock is that, because an agency can promulgate vague rules and later authoritatively interpret them, the agency can impose binding law without either the ex ante hurdles of notice and comment or the ex post check of independent judicial review. In an effort to mitigate this risk, the D.C. Circuit established in Paralyzed Veterans of America v. D.C. Arena L.P. that if an agency wanted to significantly revise its prior interpretation of its own regulations, it must issue the interpretation via a notice-and-comment rulemaking rather than as a mere interpretive rule.

Last term, in Perez v. Mortgage Bankers Association, the Supreme Court unanimously overturned Paralyzed Veterans. Justices Alito, Scalia, and Thomas each filed separate opinions that, though concurring in the Court’s judgment, praised the D.C. Circuit’s efforts as an “understandable” or “practically sound” solution to a set of perceived problems in federal administrative law. In their view, granting deference to agencies’ interpretations of their own regulations violates the motivating principles of the APA, enables the promulgation of regulations without judicial oversight, and raises separation-of-powers concerns. Rather than resolving these concerns by imposing procedural hurdles like the “one-bite rule” of Paralyzed Veterans, the Mortgage Bankers concurrences argue that they should be eliminated at the source—Seminole Rock.

But Seminole Rock need not, and should not, be overturned. First, the risk of agency self-aggrandizement expressed in the Mortgage Bankers concurrences is overblown. Even assuming that an unconditioned grant of controlling deference would permit agencies to bind the public without judicial oversight, critics of Seminole Rock fail to take into account the myriad ways that courts already address this problem. Second, the alternatives to Seminole Rock—de novo review and Skidmore “deference”—would splinter the implementation of comprehensive federal legislation and expose regulated parties to significant uncertainty.

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Robin Alexander Smith, Perez v. Mortgage Bankers Association and the Future of Seminole Rock, 40 Harv. Envtl. L. Rev. 173 (2016).

ARTICLES
Fearful Asymmetry: How the Absence of Public Participation in Section 7 of the ESA Can Make the “Best Available Science” Unavailable for Judicial Review
Travis O. Brandon

Recent empirical studies have shown that public participation is an essential part of the listing process of the Endangered Species Act (“ESA”) because it provides the wildlife agencies with valuable scientific information regarding candidate species and forces agencies to make politically unpopular decisions to protect species standing in the way of development interests. However, the crucial agency-forcing mechanism of public participation is lacking in the interagency consultation process in section 7 of the ESA, one of the most important provisions by which the ESA’s protections for listed species are enforced. This Article explains how the absence of public input through a notice-and-comment procedure in the section 7 consultation process creates a chain of structural asymmetries that predictably skew section 7 decisions in favor of regulated parties and against environmental interests. Because of these structural asymmetries, section 7 is the only provision of the ESA where the “availability” of the “best available science” is an essential evidentiary issue. Examining several recent significant section 7 cases, this Article shows that courts have failed to grapple with the structural differences between section 7 and other parts of the ESA, leading to an inconsistent and improper application of the “best available science” standard in section 7. This Article argues that in order to address the structural asymmetries in the section 7 process, courts should be less deferential toward agency scientific analysis in section 7 decisions, and should be more willing to admit extra-record scientific evidence to challenge the adequacy of agency scientific decisions. Finally, the Article argues in favor of introducing a notice-and-comment procedure in a subset of significant section 7 decisions.

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Travis O. Brandon, Fearful Asymmetry: How the Absence of Public Participation in Section 7 of the ESA Can Make the “Best Available Science” Unavailable for Judicial Review, 39 Harv. Envtl. L. Rev. 311 (2015).

Foreign Impacts and Climate Change
Arden Rowell

U.S. administrative agencies now routinely base domestic regulatory decisions upon the expected global impacts of carbon dioxide emissions. This is a startling divergence from traditional regulatory practice, which had been to entirely exclude foreign impacts from domestic regulatory analysis. Even more strikingly, this significant shift in valuation practice has occurred with virtually no legal analysis as to when or whether agencies have the statutory authority to consider foreign impacts. As a result, a number of recent rules proposed on the basis of a globally scoped Social Cost of Carbon (“SCC”) are now vulnerable to legal challenge. To insulate future rules against such challenges, agencies should adopt the globally scoped SCC only where they have performed individualized, statute-specific analyses of their own authority to incorporate foreign impacts into their decisions.

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Arden Rowell, Foreign Impacts and Climate Change, 39 Harv. Envtl. L. Rev. 371 (2015).

Making Sense of Extraterritoriality: Why California’s Progressive Global Warming and Animal Welfare Legislation Does Not Violate the Dormant Commerce Clause
Jeffrey M. Schmitt

The dormant Commerce Clause’s extraterritoriality doctrine has long baffled courts and legal scholars. Rather than attempt to make sense of the doctrine, most scholars have instead argued that it should be abandoned as unnecessary and unworkable. Such scholarship, however, is of little use to the lower courts struggling with extraterritoriality issues. The federal courts in California, for example, have recently been forced to rule on challenges to California’s landmark carbon emissions and animal welfare legislation. Plaintiffs in these cases argue that California is regulating extraterritorially by telling ethanol producers and farmers in other states how to run their businesses. In these cases, the litigants and federal courts have struggled to formulate a coherent account of the doctrine, thus throwing California’s progressive legislation into doubt.

This Article proposes a new test based on existing lower court precedent to clarify the extraterritoriality doctrine. Under this proposal, a state’s regulation of in-state conduct would violate the extraterritoriality principle only when it: (1) inescapably has the practical effect of regulating conduct beyond the state’s borders; and (2) such regulated extraterritorial conduct lacks a corresponding in-state interest. Not only is this test supported by existing precedent, but it would also best serve the policy justification for the extraterritoriality doctrine by properly allocating state power in our federal system. Applying this proposed test to California’s legislation would provide a clear and coherent way to uphold California’s attempt to reduce the carbon emissions caused by Californians and to eliminate California’s role in cruelty to farm animals.

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 Jeffrey M. Schmitt, Making Sense of Extraterritoriality: Why California’s Progressive Global Warming and Animal Welfare Legislation Does Not Violate the Dormant Commerce Clause, 39 Harv. Envtl. L. Rev. 423 (2015).

Non-Transmission Alternatives
Shelley Welton

This Article examines the reasons that “non-transmission alternatives”—including energy efficiency, energy storage, demand response, and distributed generation—have played a very limited role in meeting electricity grid constraints, despite their great potential. It argues that the predominant reasons for this failure lie in structural flaws in transmission planning in the United States, caused in part by questions over how far the jurisdiction of the Federal Energy Regulatory Commission (“FERC”) extends when it comes to these “non-transmission” resources. FERC has declared achieving “comparable consideration” for non-transmission alternatives to be an Agency goal, but has limited the extent of its reforms to opening up the planning process to stakeholders. It has enacted these limited participatory reforms knowing that transmission planning is carried out by entities with expertise biases and financial incentives to build transmission, such that stakeholder participation is an unlikely remedy for the problem. This Article illustrates why participatory reforms alone are likely to fail non-transmission alternatives, and then explores the jurisdictional limitations holding FERC back from creating transmission planning processes that fully and fairly incorporate non-transmission alternatives. In addition to suggesting ways that FERC can improve planning processes within its jurisdiction, this Article argues that the Commission does a disservice to the regulatory dialogue that occurs among Congress, the Agency, states, and stakeholders when it claims to have accomplished an objective that its reforms will do little to achieve in practice. It closes by suggesting that FERC might be more honest about the shortcomings of its reforms in order to inform inter-branch and state-federal conversations about options for progress on non-transmission alternatives.

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Shelley Welton, Non-Transmission Alternatives, 39 Harv. Envtl. L. Rev. 457 (2015).

The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?
David A. Wirth

The perception of the United States as a laggard or malingerer on climate change is widespread. The current reality, however, is largely underappreciated and considerably more nuanced, both in terms of the substance of U.S. domestic action and its engagement with international processes. Unusual if not unique attributes of the United States’ domestic political, legal, and constitutional structure have come together on the climate issue in a revealing manner—one that thrusts into sharp relief the United States’ difficulties in managing foreign affairs while maintaining the domestic rule of law on heavily regulatory issues such as the environment.

This Article asserts that neither Senate advice and consent nor new congressional legislation are necessarily conditions precedent to the United States becoming a party to an agreement containing binding emission-reduction (mitigation) commitments adopted at the 21st Conference of the Parties to the U.N. Framework Convention on Climate Change, to be held in Paris in December 2015. Depending on the form of such an agreement, which is presently under negotiation, portions of the President’s Climate Action Plan could provide sufficient domestic legal authority for the conclusion of all or part of such a binding international instrument as an executive agreement, as well as for its domestic implementation, overcoming the legal necessity for interaction with Congress either before or after its conclusion.

In making this argument, the Article disaggregates U.S. international and domestic climate policy as it has developed to the present from a structural point of view. Among the subjects analyzed are (1) the extent of the Executive’s powers in foreign relations on climate and related issues; (2) the strengths and limitations of existing federal legislation as domestic legal authority for an international agreement; (3) options available under existing legislation, both those that have already been put in place and those in the process of implementation; (4) the extent, if any, of the need for additional legislation, and the international and domestic implications of the absence of additional legislative authority; and (5) the role of the courts.

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David A. Wirth, The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?, 39 Harv. Envtl. L. Rev. 515 (2015).

COMMENT
CTS Corp. v. Waldburger
Michael Barclay

In CTS Corp. v. Waldburger, several North Carolina landowners brought a state-law nuisance action against electronics manufacturer CTS Corporation (“CTS”) in federal court, alleging damages resulting from well-water contamination caused by CTS’s storage of trichloroethylene and other chemicals on a property that CTS had sold nearly twenty-four years earlier. North Carolina’s statute of repose barred suits brought more than ten years after a defendant’s last culpable act. Unlike a statute of limitations, which requires that plaintiffs bring claims within a certain period of time after the plaintiffs’ exposure to or discovery of harm (subject to equitable tolling), a statute of repose presents an absolute bar to suit after a specified time from a defendant’s last act. Here, because CTS’s last act was the sale of the property, the district court dismissed the landowners’ complaint. The U.S. Court of Appeals for the Fourth Circuit reversed, holding that § 9658 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), which preempts the commencement dates for state statutes of limitations, also preempts state statutes of repose.6 In a 7–2 opinion by Justice Kennedy, the Supreme Court rejected the Fourth Circuit’s reasoning.7 Relying on the text, structure, and legislative history of § 9658, the Court held that CERCLA unambiguously preempted only statutes of limitations, and not statutes of repose. Justice Kennedy, who wrote only for a plurality on this point, further contended that the presumption against preemption also supported this narrow reading. This Comment analyzes the Court’s decision and argues that the decision will have limited practical effect and that industry’s potential constitutional concerns were exaggerated. Part I surveys CERCLA’s legislative history and distinguishes statutes of limitations from statutes of repose. Part II discusses the Fourth Circuit and Supreme Court Waldburger decisions. Part III evaluates the practical implications of the Supreme Court’s decision and potential constitutional ramifications implicit in the Court’s holding.

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Michael Barclay, CTS Corp. v. Waldburger, 39 Harv. Envtl. L. Rev. 567 (2015).


Staff and Front Matter

SYMPOSIUM
Climate Regulation Under the Clean Air Act in the Wake of Utility Air Regulatory Group v. EPA: Introduction
Cecilia Segal

In Utility Air Regulatory Group v. EPA, the Supreme Court largely upheld the U.S. Environmental Protection Agency’s regulation of greenhouse gases under the Clean Air Act’s Prevention of Significant Deterioration program for new or modified major stationary sources of air pollution. Although the Court rejected the Environmental Protection Agency’s claim that it was statutorily compelled to consider a source’s greenhouse gas emissions as triggering the Prevention of Significant Deterioration program’s permitting requirements, it held that sources already subject to the program based on their emissions of other pollutants could then be required to apply Prevention of Significant Deterioration pollution-control technology to their greenhouse gas emissions as well. In this Symposium, eight authors explore the Court’s decision and consider its implications for the Environmental Protection Agency’s authority to regulate greenhouse gases under the Clean Air Act.

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Cecilia Segal, Climate Regulation Under the Clean Air Act in the Wake of Utility Air Regulatory Group v. EPA: Introduction, 39 Harv. Envtl. L. Rev. 1 (2015).

Why I Worry About UARG
Jody Freeman

When the Supreme Court decided Utility Air Regulatory Group v. EPA (“UARG”) in June of 2014, it was both a victory and a loss for the U.S. Environmental Protection Agency (“EPA”). The Court largely upheld EPA’s authority to regulate greenhouse gases (“GHGs”) from stationary sources under the Clean Air Act’s (“CAA”) Prevention of Significant Deterioration (“PSD”) program. The government and environmental groups aggressively spun the decision as a near-total vindication of the Agency’s strategy to implement the CAA to control GHGs, playing down the one legal issue on which the Agency had lost: whether GHG emissions alone could trigger the permitting requirements of the program. This mattered little, Agency supporters said, since the largest emitters would be triggered into the program because of their emissions of conventional pollutants, at which point their GHGs would need to meet control requirements anyway. As the story goes, EPA won what it needed to win to address GHGs under this permitting program, and lost on an issue that, secretly, many in the Agency wanted to lose. The media bought the spin. The result could not have been better.

My reaction to the case was different. While the short-term outcome was favorable to EPA, UARG struck me as a decision laced with the legal equivalent of improvised explosive devices.

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Jody Freeman, Why I Worry About UARG, 39 Harv. Envtl. L. Rev. 9 (2015).

Text in Context: The Fate of Emergent Climate Regulation After UARG and EME Homer
Ann E. Carlson & Megan M. Herzog

The 2013 Term of the U.S. Supreme Court was obviously significant for the U.S. Environmental Protection Agency (“EPA”). EPA achieved a complete victory in one case, EPA v. EME Homer City Generation, L.P. (“EME Homer”), and partial victory in another, Utility Air Regulatory Group v. EPA (“UARG”). In EME Homer, the Court upheld EPA’s reading of the Clean Air Act’s (“CAA”) Good Neighbor Provision to allow for an innovative interstate emission-reduction program. In UARG, although the Court invalidated EPA’s interpretation applying two CAA permitting programs to greenhouse gas (“GHG”) emissions, it nonetheless upheld the majority of EPA’s permitting scheme. UARG thus was, for all practical purposes, a substantive win for EPA. Yet the legality of EPA’s most ambitious rulemaking to date, the proposed Clean Power Plan for regulation of existing power-plant GHG emissions under CAA section 111(d), remains uncertain, and judicial review is inevitable.

Read together, the cases provide somewhat contradictory guidance about the application of Chevron to EPA’s CAA interpretations. Yet we believe that EME Homer and UARG share an important lesson: in reviewing an agency’s interpretation of statutory language, context matters significantly in deciding what a text allows. One could, indeed, go even further. Context matters even when the statutory text arguably points in another direction. This lesson, we suggest, will be extremely important as courts consider whether the Clean Power Plan is a permissible implementation of section 111(d).

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Ann E. Carlson & Megan M. Herzog, Text in Context: The Fate of Emergent Climate Regulation After UARG and EME Homer, 39 Harv. Envtl. L. Rev. 23 (2015).

The Opinion Assignment Power, Justice Scalia’s Un-Becoming, and UARG’s Unanticipated Cloud over the Clean Air Act
Richard J. Lazarus

By the time the Supreme Court handed down its opinion in Utility Air Regulatory Group v. EPA (“UARG”), on June 23, 2014, the conventional wisdom about the most likely outcome was well settled. The Court would issue a split decision. It was also conventional wisdom that even such a “split” ruling would constitute a major win for EPA.

The Court issued just the “split” decision that Court watchers anticipated. And the Court did not question that EPA possesses authority to regulate GHG emissions under section 111. But then the Court’s opinion departed sharply from the expected script, and with very different longer-term implications than those forecasted and more in keeping with industry’s wish list. The celebratory language of Massachusetts v. EPA, in which the Court endorsed a sweeping view of EPA authority and indeed responsibility to address “the most pressing environmental challenge of our lifetime,” was replaced in UARG by some skepticism of future Agency efforts to use its authority in innovative ways, including some of the very ways that the Agency is currently contemplating under section 111.

The end result was a Court opinion that is significant in several unanticipated ways. First, it underscores the importance of which Justice receives the assignment to draft the “opinion of the Court” in any given case. Second, it suggests the emergence in recent years of a far more strategic Justice Scalia than before—willing to hedge his views in order to secure opinion assignments and thereby, as in UARG, promote policy outcomes he favors. Finally, the UARG opinion decreases the precedential force of Massachusetts v. EPA and will require EPA to marshal new arguments and invoke other precedent to sustain the Agency’s most ambitious plans to use the Clean Air Act to control GHG emissions.

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Richard J. Lazarus, The Opinion Assignment Power, Justice Scalia’s Un-Becoming, and UARG’s Unanticipated Cloud over the Clean Air Act, 39 Harv. Envtl. L. Rev. 37 (2015).

UARG—Not a Chef d’Oeuvre of Opinion Writing
Craig N. Oren

In his opinion for the Court in Utility Air Regulatory Group v. EPA (“UARG”), Justice Antonin Scalia remarks that the Clean Air Act is not a “chef d’oeuvre” of statutory drafting. He is correct, as even the most casual reader of the Act will agree.

But the same may be said of Justice Scalia’s opinion as an example of statutory interpretation. The decision mischaracterizes the lower court opinion and includes dicta that disregard the words of the statute. Contrary to Justice Scalia’s assertion that the decision gives the U.S. Environmental Protection Agency (“EPA”) virtually all it wanted, his opinion threatens grave damage to important agency programs. Yet paradoxically, Justice Scalia arrives at the right result. This Essay demonstrates how this can be.

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Craig N. Oren, UARG—Not a Chef d’Oeuvre of Opinion Writing, 39 Harv. Envtl. L. Rev. 51 (2015).

Anti-Regulatory Skewing and Political Choice in UARG
William W. Buzbee

In Utility Air Regulatory Group v. EPA (“UARG”), discerning an authoritative result is a challenge. Nevertheless, the most important opinion that garnered two different Court majorities—the opinion by Justice Scalia—provides a new interpretation of the reach of the Clean Air Act (“CAA”), rejects longstanding regulatory approaches of the U.S. Environmental Protection Agency (“EPA”) to the Prevention of Significant Deterioration (“PSD”) program under the CAA, and castigates EPA for overreaching. Two major precedents that had found broad EPA power to regulate greenhouse gases (“GHGs”) under the CAA—Massachusetts v. EPA and American Electric Power Co. v. Connecticut (“AEP”)—have been undercut. The UARG majority that limits EPA’s power even reaches out to offer unnecessary views on several CAA terms central to upcoming climate regulatory actions.

But any Supreme Court decision’s effects flow from both its methodology and its substantive implications. And when a high-stakes decision is penned by Justice Scalia, the Court’s most outspoken champion of textualism and critic of judicial policymaking, that decision offers a testing ground: when the result really mattered, did the Justices hold true to those interpretive methods and demonstrate their claimed virtues? After briefly reviewing the UARG decision, this Essay offers a concise survey of several interpretive approaches championed by Justice Scalia and sometimes other Justices, also identifying the claimed virtues animating those methodologies. This Essay finds, however, that the UARG majority that limited EPA’s regulatory power over GHGs violates most of these aspirations.

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William W. Buzbee, Anti-Regulatory Skewing and Political Choice in UARG, 39 Harv. Envtl. L. Rev. 51 (2015).

But What About Texas? Climate Disruption Regulation in Recalcitrant States
Thomas O. McGarity

The State of Texas has had a long history of resistance to federal environmental regulation. For most of the past forty years, Texas’s political leadership has been far more concerned about the negative impact that environmental regulation could have on economic growth than with the effects that pollutants could have on human beings and the global environment. The state’s environmental protection agency, the Texas Commission on Environmental Quality (“TCEQ”), has historically taken the position that its highly qualified staff is capable of achieving the Clean Air Act’s environmental goals with little oversight from the U.S. Environmental Protection Agency (“EPA”). The state’s powerful congressional delegation has often persuaded EPA to look the other way when TCEQ failed to meet the state’s obligations under federal law. Despite frequent complaints from environmental groups that TCEQ was a “toothless lapdog” for the industries that it was supposed to be regulating, EPA has historically handled Texas with kid gloves.

That changed rather dramatically during the Obama Administration when a committed EPA Regional Administrator assumed permitting responsibilities for the greenhouse gas (“GHG”) emissions of major stationary sources in Texas after TCEQ’s Chairman and the Attorney General of Texas informed EPA that Texas would have no part of a program that they believed to be wholly unlawful and illegitimate. At the same time that Texas refused to implement EPA’s GHG regulations, it vigorously challenged them in the D.C. Circuit Court of Appeals. Texas ultimately lost all of those appeals, the most recent of which was the Supreme Court’s decision in Utility Air Regulatory Group v. EPA (“UARG”). But by no means is Texas resigned to following EPA’s lead in regulating GHG emissions to avoid climate disruption.

This Essay will recount the history of EPA’s efforts to deal with a recalcitrant state bureaucracy and EPA-bashing political leaders as EPA attempted to reduce GHG emissions in a state that emitted more GHGs than any other state. It will then offer some observations on the impact of UARG on the future of GHG regulation in Texas, a state that views UARG as a victory and remains adamantly opposed to regulating GHGs unless required to do so by federal law.

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Thomas O. McGarity, But What About Texas? Climate Disruption Regulation in Recalcitrant States, 39 Harv. Envtl. L. Rev. 79 (2015).

Toward a More Rational Environmental Policy
Richard L. Revesz

During this past Term, the Supreme Court of the United States decided two significant cases, both interpreting the Clean Air Act, which together should be seen as producing a significant move toward rationality in environmental policy. And it did so with the full support of six members—Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan—and the partial support of Justice Scalia.

As is typical when environmental cases get litigated in federal courts, these two cases involved seemingly narrow questions of statutory interpretation. What is the meaning of “amount which will . . . contribute significantly to nonattainment,” which was central to EPA v. EME Homer City Generation, L.P. (“EME Homer”)? What is the meaning of “air pollutant,” which was central to Utility Air Regulatory Group v. EPA (“UARG”)? Broader questions of policy were dealt with in passing in the briefs but, with one important exception, were not addressed explicitly by the Court. Nonetheless, in deciding these two cases, the Court significantly shifted environmental policy in a positive direction.

This Essay takes as its starting point the idea that, in order to achieve rationality, U.S. environmental policy should operate in accordance with five major components of rationality.Part I describes the aspects of the two cases that are relevant to the subsequent analysis and places them in historical context to better highlight the themes of this Essay. Parts II through IV discuss, respectively, the cases’ implications for three components of rationality—cost minimization, grandfathering, and the allocation of decision-making authority between the federal government and the states—and show how the Court significantly moved the dial in the right direction on these issues. The Conclusion shows that the Court’s approach to these three components is consistent with a rational approach to the remaining two components.

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Richard L. Revesz, Toward a More Rational Environmental Policy, 39 Harv. Envtl. L. Rev. 93 (2015).

ARTICLES
Fracking, Federalism, and Private Governance
Amanda C. Leiter

The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks and propose regulations for drilling on federal land. States have moved faster to address natural gas risks, but with little consistency or transparency.

Numerous private organizations are stepping into the resulting governance gaps with information-gathering and standards-setting efforts. As this Article documents, these private organizations are performing the functions once assigned to states in so-called “laboratory federalism”: developing innovative governance approaches and— perhaps more importantly—catalyzing the horizontal and vertical diffusion of successful governance strategies. In some cases, the likely outcome is a public governance regime with private origins; in others, private entities are likely to continue to play a role even as public entities enter the frame, creating a hybrid regime. Both outcomes highlight the need for process reforms to increase private entities’ openness, balance, and accountability. Familiar administrative procedures followed by public agencies offer one model for such reforms, but at least in the natural gas context, those procedures may be less effective for private entities than for the public agencies for which they were designed.

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Amanda C. Leiter, Fracking, Federalism, and Private Governance, 39 Harv. Envtl. L. Rev. 107 (2015).

Biodiversity on the Brink: The Role of “Assisted Migration” in Managing Endangered Species Threatened with Rising Seas
Jaclyn Lopez

Coastal areas in the United States are already experiencing the effects of sea-level rise, and the best available science predicts significant additional sea-level rise this century. In addition to sea-level rise, storm intensity and storm surge are also increasing. In some coastal areas, continuing population growth is compounding the threats of climate change and sea-level rise.

At the same time, one in six of the federally listed endangered and threatened species in the United States is threatened by sea-level rise. Coastal species face displacement, extirpation, and even extinction due to loss of habitat. They are at risk of being trapped between rising sea levels and human development. This threat is exacerbated by unyielding human-made coastal fortifications. This coalescence of factors leads to the phenomenon known as “coastal squeeze”—the loss of transitional habitat between land and sea.

For coastal areas this means that some of the most imperiled species will be pushed closer to the brink of extinction. “Assisted migration” refers to one policy prescription to address this problem. The federal government, through the U.S. Fish and Wildlife Service, has the authority—and responsibility—to consider active and passive assisted migration under the Endangered Species Act in managing species threatened with habitat loss due to sea-level rise. The federally protected Florida panther, loggerhead sea turtle, Key tree-cactus, and Lower Keys marsh rabbit inhabit critically imperiled habitat in south Florida and are analyzed to examine this issue from the perspective of species from differing taxa, habitat types, and natural histories. This Article concludes that assisted migration, coupled with preserve and corridor protection and dramatic reductions in greenhouse gas emissions, are necessary for the conservation of imperiled species threatened with sea-level rise.

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Cite as: Jaclyn Lopez, Biodiversity on the Brink: The Role of “Assisted Migration” in Managing Endangered Species Threatened with Rising Seas, 39 Harv. Envtl. L. Rev. 157 (2015).

Environmental Settlements and Administrative Law
Courtney R. McVean & Justin R. Pidot

The Obama Administration has come under increasing fire for its decisions to settle lawsuits brought by environmental organizations. Industry groups and Republican politicians claim that such settlements, negotiated behind “closed doors,” unfairly exclude regulated entities from regulatory decisionmaking that tangibly affects economic interests. Environmental organizations and their political allies made similar complaints during the Administration of George W. Bush, arguing that the federal government at that time settled lawsuits on terms overly favorable to economic interests and without the participation of environmentalists or the public.

Objections to environmental settlements are often expressed as process concerns. Opponents of an administration’s political direction argue that settlements allow agencies to make policy choices from the shadows while evading, or perhaps even violating, the process established by the Administrative Procedure Act, including the Act’s public participation requirement. This Article is the first to objectively assess those concerns, and it reveals that environmental settlements rarely circumvent norms of administrative law, and that when they do so, courts can—and do—intervene.

To establish that environmental settlements are consonant with administrative law, this Article develops a novel typology of settlements based on the types of obligations they impose on federal agencies. Settlements can involve agency commitment to resource allocation, procedural obligation, or substantive rule. The Article then considers unique aspects of those categories of commitment and explains why none are generally problematic from the perspective of administrative law. Many decisions made in settlements are of a type excluded from notice-and-comment rulemaking. Others involve preliminary matters that are subject to subsequent judicial challenge once the agency has reached a final decision. And others still involve opportunities for public notice and comment. In the rare circumstance where a settlement violates otherwise-applicable notice-and-comment requirements, courts already possess ample authority to either decline to enter the settlement beforehand or to vacate the settlement afterward. Administrative law demands no more.

Environmental settlements have distinct advantages because they provide federal agencies with the opportunity to control litigation risk and overcome bureaucratic inertia. In the absence of a compelling justification for limiting the discretion of agencies to enter into settlements, Congress and the public should allow environmental settlement practices to persist.

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Courtney R. McVean & Justin R. Pidot, Environmental Settlements and Administrative Law, 39 Harv. Envtl. L. Rev. 191 (2015).

Student note
Castles Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law
Daniel Carpenter-Gold

It has long been a truism that China’s environmental legislation is plentiful and powerful, but only unevenly enforced. Given China’s reputation as an authoritarian state with immense capacity to regulate its citizens, this is counter-intuitive. To understand the latest environmental legislation in China, we must make sense of this seeming paradox. The lack of enforcement is a product of a governance structure that entrusts local governments with substantial power over the local environmental protection organs and local courts, incentivizing short-term economic development at the cost of environmental protection. Public-interest litigation can help to mitigate this problem because China’s new Environmental Protection Law encourages action by citizens, who are directly affected by pollution and therefore difficult to coopt. However, litigation cannot guarantee regulation without a stronger judiciary. This reality suggests that the national government might instead intend environmental suits to serve as a monitoring, rather than a regulatory, mechanism.

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Cite as: Daniel Carpenter-Gold, Castles Made of Sand: Public-Interest Litigation and China’s New Environmental Protection Law, 39 Harv. Envtl. L. Rev. 241 (2015).

COMMENTS
Scialabba v. Cuellar de Osorio
Brenden Cline
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Brenden Cline, Scialabba v. Cuellar de Osorio, 39 Harv. Envtl. L. Rev. 275 (2015).

EPA v. EME Homer City Generation, L.P.: Agencies Can Consider Costs in the Face of Statutory Silence
Ryland Li
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Ryland Li, EPA v. EME Homer City Generation, L.P.: Agencies Can Consider Costs in the Face of Statutory Silence, 39 Harv. Envtl. L. Rev. 293 (2015).


Staff and Front Matter

ARTICLES
Toward Greener FERC Regulation of the Power Industry
Christopher J. Bateman & James T.B. Tripp

America’s electricity industry is at the heart of some of the nation’s and world’s biggest environmental challenges, including climate change. Yet the Federal Energy Regulatory Commission (“FERC”), which has regulatory jurisdiction over wholesale sales and transmission of electricity in interstate commerce and is charged with ensuring that rates and other aspects of the industry are “just and reasonable,” has an official policy of excluding environmental considerations from its regulation of the industry. This Article traces the evolution of this policy and argues that it is time for a new and better approach—one that integrates economic and environmental regulation of the industry, helps the United States achieve a clean energy future, and reduces excessive environmental impacts.

This Article explores the possibility of such an approach under the Federal Power Act (“FPA”), which provides FERC’s mandate. In doing so, it addresses FERC’s reasoning for its current policy and finds these reasons unpersuasive as a matter of law and policy. Contrary to FERC’s position, it is plausible to view the FPA alongside other federal laws as being silent or ambiguous about FERC’s environmental authority, thus permitting an environmentally inclusive approach within reasonable constraints. This reading of the FPA is reinforced by a host of policy considerations: the urgent need to address the U.S. electricity industry’s significant contribution to climate change; the inadequacy of and continuing uncertainty surrounding existing regulatory efforts on this front; FERC’s expertise in aspects of the electricity industry important to effective design and implementation of regulatory solutions; the unique nature of greenhouse gas emissions as pollutants and the feasibility of FERC regulation of carbon emissions in particular; and the glaring problems with our schizophrenic approach to energy regulation, in which environmental regulation and traditional utility regulation often undermine each other, creating inefficiencies.

This Article offers a number of concrete examples of the types of progressive industry reforms that would be possible if FERC adopted an environmentally inclusive approach, while also acknowledging and exploring the limits and challenges of this approach. On balance, the rewards seem to far outweigh the risks. Incorporating environmental considerations would allow FERC to make better informed decisions about how to maximize social welfare in areas such as transmission planning and organized electricity markets, and could create possibilities for productive collaborations with other regulatory authorities, including the Environmental Protection Agency, to guide the nation toward smarter energy policy.

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Cite as:
Christopher J. Bateman and James T.B. Tripp, Toward Greener FERC Regulation of the Power Industry, 38 Harv. Envtl. L. Rev. 275 (2014)

Solving the CSO Conundrum: Green Infrastructure and the Unfulfilled Promise of Federal-Municipal Cooperation
Caswell F. Holloway, Carter H. Strickland, Jr., Michael B. Gerrard & Daniel M. Firger

Faced with mounting infrastructure construction costs and more frequent and severe weather events due to climate change, cities across the country are managing the water pollution challenges of stormwater runoff and combined sewer overflows through new and innovative “green infrastructure” mechanisms that mimic, maintain, or restore natural hydrological features in the urban landscape. When utilized properly, such mechanisms can obviate the need for more expensive pipes, storage facilities, and other traditional “grey infrastructure” features, so named to acknowledge the vast amounts of concrete and other materials with high embedded energy necessary in their construction. Green infrastructure can also provide substantial co-benefits to city dwellers, such as cleaner air, reduced urban temperatures, and quality of life improvements associated with recreation areas and wildlife habitats.

This Article examines the opportunities and challenges presented by municipal green infrastructure programs in the context of Clean Water Act (“CWA”) enforcement by the U.S. Environmental Protection Agency (“EPA”). First, it explores new thinking in urban sustainability and identifies opportunities for greater federal-municipal cooperation in the management of environmental problems, including stormwater runoff. Second, it unpacks the challenges presented by the relative inflexibility of federal environmental enforcement in the context of urban stormwater management under the CWA, and compares the differences between traditional federal approaches and newer local initiatives in terms of adaptability, responsiveness to community needs, preferences and trade-offs, cost effectiveness, and innovation. Third, it describes a recent consent agreement between New York State and New York City, identifying key features and best practices that can be readily replicated in other jurisdictions. In recent years, EPA has taken big steps forward to encourage and support municipal green infrastructure initiatives, including the release of its Integrated Municipal Stormwater and Wastewater Planning Approach Framework. The Article concludes with a specific proposal for further regulatory and policy reform that would build upon this framework to develop truly comprehensive, municipally-led plans to prioritize infrastructure investments that improve public health and the environment.

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Cite as:
Caswell F. Holloway et al., Solving the CSO Conundrum: Green Infrastructure and the Unfulfilled Promise of Federal-Municipal Cooperation, 38 Harv. Envtl. L. Rev. 335 (2014).

Teaching an Old Dog New Tricks: Adapting Public Utility Commissions to Meet Twenty-First Century Climate Challenges
Inara Scott

Climate change and efforts to address it have put the electric utility system under increasing pressure to adapt and evolve. Key to the success of these efforts will be the support of public utility commissions, the state agencies that oversee retail electric utilities. In an effort to determine how these commissions will make decisions, this Article explores the history, enabling legislation, and jurisdiction of commissions. It concludes that the authority and purpose of commissions has been narrowly defined to focus almost exclusively on short-term rate impacts to current utility customers. As a result, efforts to reduce greenhouse gas emissions, modernize or transform the electric grid, or expand the path for new technologies such as electric vehicles, will not come from commissions and in fact may be blocked by the same. Accordingly, this Article offers options for modernization, ultimately recommending a melding of economic and environmental goals through a long-term planning process that balances cost and risk, yet remains squarely within the jurisdiction and historical purpose of the regulatory commission.

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Cite as:
Inara Scott, Teaching an Old Dog New Tricks: Adapting Public Utility Commissions to Meet Twenty-First Century Climate Challenges, 38 Harv. Envtl. L. Rev. 371 (2014).

Subsidiarity in European Environmental Law: A Competence Allocation Approach
Josephine van Zeben

Since the 1970s, the influence of the European Union in the area of environmental law and policy has steadily expanded, even though environmental policy continues to be a shared competence between the European Union and its Member States. As such, the allocation of competences between the European and national levels is governed by the principle of subsidiarity, which is aimed at maintaining a high level of decentralization. As it stands, subsidiarity is tested primarily, if not exclusively, against the presence of, or potential for, economic or environmental externalities of the regulated activity. Notwithstanding recent changes in the Lisbon Treaty to strengthen ex ante political control over the application of the subsidiarity principle, a rebuttable presumption in favor of an ever-increasing European role in environmental policy has developed.

This Article aims to move beyond this rebuttable presumption by introducing additional criteria for competence allocation: heterogeneity of preferences and conditions between regulated jurisdictions and activities, and the potential for economies of scale and scope. In addition, a distinction is made between the different phases of the regulatory process—specifically, norm setting, implementation, and enforcement—also referred to as regulatory competences. By distinguishing between these stages of regulation, the relative importance of externalities, and the additional criteria mentioned above, each stage of regulation is explicated. Finally, this Article discusses the extent to which instrument choice can act as an alternative for the centralization or decentralization of competences. The potential of this complementary “competence allocation” approach to the interpretation of subsidiarity in European environmental law is illustrated by a case study of the European Union Emissions Trading Scheme.

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Josephine van Zeben, Subsidiarity in European Environmental Law: A Competence Allocation Approach, 38 Harv. Envtl. L. Rev. 415 (2014)

case comments
Bell v. Cheswick Generating Station
Samantha Caravello
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Samantha Caravello, Bell v. Cheswick Generating Station, 38 Harv. Envtl. L. Rev. 465 (2014)

Chevron Deference and Interpretive Authority After City of Arlington v. FCC
Laura Myron
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Cite as:
Laura Myron, Chevron Deference and Interpretive Authority After City of Arlington v. FCC, 38 Harv. Envtl. L. Rev. 479 (2014)

Staff and Front Matter 

ARTICLES
1 Performance Track’s Postmortem: Lessons from the Rise and Fall of EPA’s “Flagship” Voluntary Program  
Cary Coglianese & Jennifer Nash
87 Unilateral Climate Regulation
James W. Coleman
127 Automatically Green: Behavioral Economics and Environmental Protection
Cass R. Sunstein & Lucia A. Reisch
159 Prosecutorial Discretion and Environmental Crime
David M. Uhlmann
217 Mapping Fracking: An Analysis of Law, Power, and Regional Distribution in the United States
Benjamin E. Apple
CASE COMMENTS
245 Revolutionary or Routine? Koontz v. St. Johns River Water Management District
Molly Cohen & Rachel Proctor May
259 Becoming Good Neighbors After EME Homer City Generation, L.P. v. EPA
Jeremy Feigenbaum
Staff
ARTICLES
313 Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out
Online Appendix

Emily Hammond & David L. Markell
365 The Search for Sustainable Legitimacy: Environmental Law and Bureaucracy in China
Alex L. Wang
441 “A Blunt Withdrawal”? Bars on Citizen Suits for Toxic Site Cleanup
Margot J. Pollans
487 Subsidies with Responsibilities: Placing Stewardship and Disclosure Conditions on Government Payments to Large Scale Commodity Crop Operations
Online Appendix
Linda Breggin & D. Bruce Myers Jr.
539 Internal Agency Review and Mead
Brendan C. Selby

CASE COMMENTS
577 Arkansas Game & Fish Commission v. United States
David Baake
589 New York v. Nuclear Regulatory Commission
Hillary H. Harnett
Staff
ARTICLES

1

Smart Regulation and Federalism for the Smart Grid
Joel B. Eisen

57

Ten Ways States Can Combat Ocean Acidification (and Why They Should)
Ryan P. Kelly & Margaret R. Caldwell

105

Legal Neighborhoods
Stephen R. Miller

167

Responses to Climate Migration
Katrina M. Wyman

217

Perpetuity Is Forever, Almost Always: Why It Is Wrong to Promote Amendment and Termination of Perpetual Conservation Easements
Ann T. Schwing
 247 Understanding When Perpetual Is Not Forever: An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing
Jessica E. Jay
CASE COMMENTS

267

Changing Climate, Unchanging Act, Improvising Agency, Enabling Court: The Story of Coalition for Responsible Regulation v. EPA
Laura King

283

Mingo Logan Coal Co. v. EPA
Joshua Purtle
 301 Sackett v. EPA
Turner Smith & Margaret Holden
Staff
ARTICLES
305 Ocean Governance for the 21st Century: Making Marine Zoning Climate Change Adaptable
Robin Kundis Craig
351 Toward an International Aviation Emissions Agreement
Brian Havel & Gabriel Sanchez
387 Carbon Offsets: A Bridge Too Far in the Tradable Property Rights Revolution?
Tyler McNish
445 New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations
Jonathan Rosenbloom
487 The Endangered Species Act’s Fall from Grace in the Supreme Court
J.B. Ruhl
CASE COMMENTS
553 In re: Oil Spill by the Oil Rig “Deepwater Horizon”
Brendan Selby
567 Minard Run Oil Co. v. United States Forest Service
Jonathan Thrope
Staff
ARTICLES
1 When Perpetual is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements
Jessica E. Jay
79 Debt, Nature, and Indigenous Rights: Twenty-five Years of Debt-for-Nature Evolution
Jared E. Knicley
123 Expediting Innovation
Sarah Tran
169 American Natures: The Shape of Conflict in Environmental Law
Jedediah Purdy
229 The Geography of Trading Ecosystem Services: A Case Study of Wetland and Stream Compensatory Mitigation Markets
Philip Womble & Martin Doyle
CASE COMMENT
297 American Electric Power Co. v Connecticut
David R. Brody
Staff
REMARKS
263 New Directions in Environmental Law: A Climate of Possibility
Lisa Heinzerling
ARTICLES
275 Wilderness, the Courts, and the Effect of Politics on Judicial Decisionmaking
Peter A. Appel
313 Two Cheers for Feasible Regulation: A Modest Response to Masur and Posner
David M. Driesen
343 The Obama Administration’s National Auto Policy: Lessons from the “Car Deal”
Jody Freeman
375 Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause
Blake Hudson
433 Can the ESA Address the Threats of Atmospheric Nitrogen Deposition? Insights from the Case of the Bay Checkerspot Butterfly
Zdravka Tzankova, Dena Vallano & Erika Zavaleta
477 Expanding Regional Renewable Governance
Hannah Wiseman
CASE COMMENTS
541 Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection
Jared Policicchio
555 Howmet Corp. v. EPA
Nathan Kilbert
Staff
ARTICLES
1 Eyes on a Climate Prize: Rewarding Energy Innovation to Achieve Climate Stabilization
Jonathan H. Adler
47 Notional Generosity: Explaining Charitable Donors’ High Willingness to Part With Conservation Easements
Josh Eagle
91 Transition Policy in Environmental Law
Bruce R. Huber
131 The Dormant Commerce Clause and Water Export: Toward a New Analytical Paradigm
Christine A. Klein
155 Capturing Individual Harms
Katrina Fischer Kuh
205 Rules Without Reasons: The Diminishing Role of Statutory Policy and Equitable Discretion in the Law of NEPA Remedies
Daniel Mach
CASE COMMENTS
247 North Carolina v. Tennessee Valley Authority
Nigel Barrella
Staff
ARTICLES
335 State Standards for Nationwide Products Revisited: Federalism, Green Building Codes, and Appliance Efficiency Standards
Alexandra B. Klass
369 The More We Know, the Less Intelligent We Are? — How Genomic Information Should, and Should Not, Change Toxic Tort Causation Doctrine
Steve C. Gold
425 The Sounds of Silence: Cost-Benefit Canons in Entergy Corp. v. Riverkeeper, Inc.
Jonathan Cannon
461 Disposal of Spent Nuclear Fuel in the United States and Europe: A Persistent Environmental Problem
Charles de Saillan
521 Voices from the Desecrated Places: A Journey To End Mountaintop Removal Mining
Sam Evans
*Winner of the Reed Environmental Writing Award for the Journalism Category, presented by the Southern Environmental Law Center
CASE COMMENTS
577 Connecticut v. American Electric Power Co.
Nikhil V. Gore & Jennifer E. Tarr
593 Piedmont Environmental Council v. FERC
Michael S. Dorsi
Staff
REMARKS
1 The Administrative Process and the Rule of Environmental Law
The Honorable David S. Tatel
ARTICLES
9 “Stationarity is Dead” — Long Live Transformation: Five Principles for Climate Change Adaptation Law
Robin Kundis Craig
75 Property and Liberty
Eric T. Freyfogle
119 Reconciling Development and Natural Beauty: The Promise and Dilemma of Conservation Easements
Zachary Bray
179 Private Management of Public Spaces: Nonprofit Organizations and Urban Parks
Michael Murray
257 Saying What the Law Isn’t: Legislative Delegations of Waiver Authority in Environmental Laws
Kate R. Bowers
*Winner of the Stephen E. Herrmann Environmental Writing Award, presented by the American College of Environmental Lawyers
CASE COMMENTS
311 Burlington Northern & Santa Fe Railway Co. v. United States
Rachel K. Evans
321 Summers v. Earth Island Institute
Maria Banda
Staff
SYMPOSIUM
297 Climate Change and Global Justice: Crafting Fair Solutions for Nations and Peoples
Seth Johnson
303 Micro-Offsets and Macro-Transformation: An Inconvenient View of Climate Change Justice
Michael P. Vandenbergh, Brooke A. Ackerly & Fred E. Forster
349 Confronting a Rising Tide: A Proposal for a Convention on Climate Change Refugees
Bonnie Docherty & Tyler Giannini
405 Problems of Equity and Efficiency in the Design of International Greenhouse Gas Cap-and-Trade Schemes
Jason Scott Johnston
431 Climate Change and Human Rights: An Introduction to Legal Issues
Siobhan McInerney-Lankford
439 Human Rights and Climate Change: Constructing a Case for Political Action
Marc Limon
477 Linking Human Rights and Climate Change at the United Nations
John H. Knox
ARTICLES
499 The Design of a Carbon Tax
Gilbert E. Metcalf & David Weisbach
557 Climate Policy: Separating Fact from Fantasy
Robert W. Hahn
CASE COMMENT
593 Winter v. Natural Resources Defense Council, Inc.
Lisa Lightbody
Staff
ARTICLES
1 Too Many Things To Do: How to Deal With the Dysfunctions of Multiple-Goal Agencies
Eric Biber
65 The Missing Instrument: Dirty Input Limits
David M. Driesen & Amy Sinden
117 Assuming Personal Responsibility for Improving the Environment: Moving Toward a New Environmental Norm
Hope M. Babcock
177 Unmasking Chinese Business Enterprises: Using Information Disclosure Laws to Enhance Public Participation in Corporate Environmental Decision Making
Timothy Riley & Cai Huiyan
225 Expanding Ecotourism: Embedding Environmental Sustainability in Panama’s Burgeoning Tourist Industry
Katharine Mapes
CASE COMMENTS
263 New Jersey v. Environmental Protection Agency
Nicholas Morales
283 North Carolina v. Environmental Protection Agency
Elizabeth Kruse
Staff
ARTICLES
293 A Meaningful U.S. Cap-and-Trade System to Address Climate Change
Robert N. Stavins
373 Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement
Mary Christina Wood & Zachary Welcker
433 Beyond Cost-Benefit Analysis: A Pragmatic Reorientation
Sidney A. Shapiro & Christopher H. Schroeder
503 The Problem With Wilderness
Jan G. Laitos & Rachael B. Gamble
NOTE
571 Carbon: Commodity or Currency? The Case for an International Carbon Market Based on the Currency Model
Jillian Button
BOOK NOTE
597 Possessing the Pacific: Land, Settlers, and Indigenous People from
Australia to Alaska, by Stuart Banner
Eamon Lorincz
ARTICLES
1 Risk Equity: A New Proposal
Matthew D. Adler
49 Political Externalities, Federalism, and a Proposal for an Interstate Environmental Impact Assessment Policy
Noah D. Hall
95 The Killing Fields: Reducing the Casualties in the Battle Between U.S. Species Protection Law and U.S. Pesticide Law
Mary Jane Angelo
149 Digging Out of the Holes We’ve Made: Hardrock Mining, Good Samaritans, and the Need for Comprehensive Action
Bart Lounsbury
217 Rebuilding Our Power Without Procedural Safeguards: A Federal Response to the 2005 Hurricanes That Outlasted the “Emergency”
Sarah McQuillen Tran
CASE COMMENTS
263 National Association of Home Builders v. Defenders of Wildlife
Katharine Mapes
279 United States v. Atlantic Research
Mark Yeboah
ARTICLES
349 Size Matters: Regulating Nanotechnology
Albert C. Lin
409 Generally Illegal: NPDES General Permits Under the Clean Water Act
Jeffrey M. Gaba
475 Co-Management or Contracting? Agreements Between Native American Tribes and the U.S. National Park Service Pursuant to the 1994 Tribal Self-Governance Act
Mary Ann King
CASE COMMENTS
531 Massachusetts v. Environmental Protection Agency
Michael Sugar
545 Pakootas v. Teck Cominco Metals, Ltd.
Libin Zhang
ARTICLES
1 Of Montreal and Kyoto: A Tale of Two Protocols
Cass R. Sunstein
67 When Is Two a Crowd? The Impact of Federal Action on State Environmental Regulation
Jonathan H. Adler
115 Trading Grandfathered Air – A New, Simpler Approach
Brian H. Potts
163 Bringing “Top-Down” to “Bottom-Up”: A New Role for Environmental Legislation in Combating Desertification
Alon Tal & Jessica A. Cohen
NOTES
219 Working With Mixed Commons/Anticommons Property: Mobilizing Customary Land in Papua New Guinea the Melanesian Way
Kathrine Dixon
279 Much Ado About Decoupling: Evaluating the Environmental Impact of Recent European Union Agricultural Reform
Jess Phelps
CASE COMMENTS
321 Rapanos v. United States and Carabell v. United States Army Corps of Engineers
Matthew A. MacDonald
333 Environmental Defense v. Duke Energy Corporation
Thomas Gremillion
ARTICLES
309 The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations
Joseph William Singer
339 The Penn Central Test and Tensions in Liberal Property Theory
Eric R. Claeys
371 Lingle’s Legacy: Untangling Substantive Due Process From Takings Doctrine
Robert G. Dreher
407 You Can’t Pay Them Enough: Subsidies, Environmental Law, and Social Norms
Andrew Green
441 NEPA Compliance in Fisheries Management: The Programmatic Supplemental Environmental Impact Statement on Alaskan Groundfish Fisheries and Implications for NEPA Reform
Beth C. Bryant
481 Reversing the Flow: The Interconnectivity of Environmental Law in Addressing External Threats to Protected Lands and Waters
James M. Auslander
CASE COMMENT
551 S.D. Warren Co. v. Maine Board of Environmental Protection
Madeline Fleisher
BOOK NOTE
565 Toxic Torts: Science, Law, and the Possibility of Justice, by Carl F. Cranor
Devin Brennan
ARTICLES
1 Champions of Change: Reinventing Democracy Through Land Law Reform
John R. Nolon
51 Planning the Funeral at the Birth: Extended Producer Responsibility in the European Union and the United States
Noah Sachs
99 Defending Overstatement: The Symbolic Clean Air Act and Carbon Dioxide
Christopher T. Giovinazzo
165 Bridging the Divide: The Role of Science in Species Conservation Law
Kristin Carden
CASE COMMENTS
261 Kelo v. City of New London
Eric Rutkow
281 Lingle v. Chevron USA, Inc.
Sarah B. Nelson
296 City of Rancho Palos Verdes, California v. Abrams
Benjamin M. Gerber
ESSAY
Legal Mythmaking in a Time of Mass Extinctions: Reconciling Stories of Origins with Human Destiny
Jim Chen
View Full Article (PDF)
ARTICLES
Lucas's Unlikely Legacy: The Rise of Background Principles as Categorical Takings Defenses
Michael C. Blumm & Lucas Ritchie
View Full Article (PDF)
Permit Me Another Drink: A Proposal for Safeguarding the Water Rights of Federal Lands in the Regulated Riparian East
Jeremy Nathan Jungreis
View Full Article (PDF)
Rethinking the Perpetual Nature of Conservation Easements
Nancy A. McLaughlin
View Full Article (PDF)
Ua Koe ke Kuleana o na Kdnaka (Reserving the Rights of Native Tenants): Integrating Kuleana Rights and Land Trust Priorities in Hawaii
Jocelyn B. Garovoy
View Full Article (PDF)
ARTICLES
1 Theme and Variations in Statutory Preclusions Against Successive Environmental Enforcement Actions by EPA and Citizens
Part Two: Statutory Bars on EPA Enforcement
Jeffrey G. Miller
117 The False Promise of the Genomics Revolution for Environmental Law
David E. Aldeman
179 Choosing How to Regulate
Andrew P. Morriss, Bruce Yandle & Andrew Dorchak
NOTE
251 Liquidation Timber Harvesting in Maine: Potential Policy Approaches
Charles R. Scott

Staff

ARTICLES
281 MTBE: A Precautionary Tale
Thomas O. McGarity
343 Existence Value and Federal Preservation Regulation
David A. Dana
401 Theme and Variations in Statutory Preclusions Against Successive Environmental Enforcement Actions by EPA and Citizens
Part One: Statutory Bars in Citizen Suit Provisions
Jeffrey G. Miller
RECENT DEVELOPMENT
495 Getting our Feet Wet: An Introduction to Water Trusts
Mary Ann King
CASE COMMENTS:
U.S. Supreme Court Environmental Cases, October 2003 Term
535 Introduction
Christopher T. Giovinazzo
537 Alaska Department of Environmental Conservation v. E.P.A.
Carrie Gombos
549 South Florida Water Management District v. Miccosukee Tribe of Indians
Kristin Carden
561 BedRoc Ltd. v. United States
Stott Dasovich
571 Engine Manufacturers Association, et al. v. South Coast Air Quality Management District, et al.
Rebecca Noblin
581 Norton v. Southern Utah Wilderness Alliance
William Gerard
593 United States Department of Transportation v. Public Citizen
Joseph Miller
605 Cheney v. United States District Court for the District of Columbia
Brian Fletcher
ARTICLES
1 The Judicial Resolution of Conflicts Between Trade and the Environment
John H. Knox
79 The Law of Words: Standing, Environment, and Other Contested Terms
David N. Cassuto
129 The Economics of Endangered Species: Why Less Is More in the Economic Analysis of Critical Habitat Designations
Amy Sinden
NOTES
215 What Regional Agenda? Reconciling Massachusetts’ Affordable Housing Law and Environmental Protection
Christophe Courchesne
249 The Perils of the Property Rights Initiative: Taking Stock of Nevada County’s Measure D
Mark E. Sabath
ARTICLES
295 Givings Recapture: Funding Public Acquisition of Private Property Interests on the Coasts
Daniel Barnhizer
377 Environmental Regulation During the 1990s: A Retrospective Analysis
Robert Hahn, Sheila Olmstead &Robert Stavins
417 Mountains Without Handrails … Wilderness Without Cell Phones
Sarah Krakoff
471 No More Parking Lots: How the Tax Code Keeps Trees Out of a Tree Museum and Paradise Unpaved
Francine Lipman
519 Proposed Rule Changes to Federal Civil Procedure May Introduce New Challenges in Environmental Class Action Litigation
Ken Rivlin & Jamaica Potts
ARTICLES
The Environmental Commerce Clause
Christine A. Klein
View Full Article (PDF)
Fair Weather Federalism and America's Waste Disposal Crisis
Paula C. Murray & David B. Spence
View Full Article (PDF)
Enforcement of Pollution Laws and Regulations: An Analysis of Forum Choice
Jeremy Firestone
View Full Article (PDF)
NOTES
Of Farmers' Takes and Fishes' Takings: Fifth Amendment Compensation Claims When the Endangered Species Act and Western Water Rights Collide
Cori S. Parobek
View Full Article (PDF)
Does Sovereign Immunity Bar Administrative Proceedings Pursuant to Federal Environmental Statutes?
Kathryn J. Gainey
View Full Article (PDF)
CASE COMMENTS
American Trucking Associations v. EPA: The D.C. Circuit's Missed Opportunity To Unambiguously Discard the Hard Look Doctrine
Heath A. Brooks
View Full Article (PDF)
Temporary Moratoria and Regulatory Takings Jurisprudence After TahoeSierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
Laurel A. Firestone
View Full Article (PDF)

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