Harvard Environmental Law Review

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.

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).

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.

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

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.

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

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).

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

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.

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).

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.

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

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.

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).

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.

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).

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.

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

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.

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

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.

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

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.

Cite as: 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).

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.

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

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.

Cite as: 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).

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.

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

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.

Cite as: 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).

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.

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

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.

Cite as: 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).

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.

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

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).

Cite as: 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).

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.

Cite as: 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).

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.

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

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.

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

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.

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

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.

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

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.

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

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.

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).

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.

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

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.

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).

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

Cite as: 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).

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.

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)

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.

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).

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.

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).

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.

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

Cite as: Samantha Caravello, Bell v. Cheswick Generating Station, 38 Harv. Envtl. L. Rev. 465 (2014)

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