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This Month's News & Analysis

Volume 44, Issue 7 — July 2014

Comment(s)

Waters Protected by the Clean Water Act: Cutting Through the Rhetoric on the Proposed Rule

by Michael Campbell

On March 25, 2014, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers proposed to revise their rules defining which water bodies are protected by the Clean Water Act. As with so much of our public discourse, the reactions from across the political spectrum have included a lot of overheated rhetoric with little regard for the changes that the proposal would actually make.

Articles

International Climate Action Without Congress: Does §115 of the Clean Air Act Provide Sufficient Authority?

by David R. Baake

The ongoing rancor in Congress over climate change makes it unlikely that the United States will ratify a treaty as a successor to the Kyoto Protocol. Executive agreements are often seen as interchangeable with Article II treaties, and §115 of the Clean Air Act may provide a needed statutory hook for President Barack Obama to conclude executive agreements on climate change. This Article finds that President Obama likely has authority to bind the United States to greenhouse gas emission targets under this legislative provision and that his actions are likely not judicially reviewable.

Core Issues in International Sustainable Development: Analysis of Shifting Priorities at U.N. Environmental Conferences

by Woong Kyu Sung

There is now a 40-year history of declaratory outcomes from international environmental conferences that offers insight into the progression of sustainable development. This Article uses those outcomes to track the relative roles of the environmental, social, and economic pillars of sustainable development. As these roles have changed, the theory of sustainability and the impetus to realize it in practice have changed as well. The Article questions the meaning of these changes and asks whether the end result is what was intended at the beginning.

Inspection and Enforcement in Chinese Carbon Emissions Trading: Progress, Problems, and Prospect

by Huizhen Chen

China is establishing a carbon emissions trading scheme and has initiated a number of pilot projects with robust measurement, reporting, and verification systems and rigorous sanctions for noncompliance. Although the project designs vary, they share a number of features, including favoring self-monitoring, self-reporting, and third-party verification. Policymakers are also considering a program of emissions permits and monitoring, and there are indications that the program will include the authority to impose major financial penalties for noncompliance. Establishing an enforcement system has its challenges, however, particularly around the legality of rules adopted in the pilot projects and the authority of the central and local governmental entities that will be enforcing these requirements. A multi-level enforcement system implemented by central and local authorities that is consistent with the Chinese legal system and a gradual harmonization or centralization of authority may hold promise for developing an effective system.

The Path Not Yet Taken: Bilateral Trade Agreements to Promote Sustainable Biofuels Under the EU Renewable Energy Directive

by C. Johan Westberg and Francis X. Johnson

In order for biofuels to count as renewable energy for transport under the European Union Renewable Energy Directive, most applicants have relied on certification by the European Commission. But bilateral agreements can also be used to meet the sustainability criteria. This Article examines the bilateral agreement option, particularly whether such agreements might provide more flexibility in developing countries that export to the EU, while also addressing more general land use policies and cross-sector linkages in natural resource management.

Being Small in a Supersized World: Tackling the Problem of Low-Level Exposures in Toxic Tort Actions

by Jean Macchiaroli Eggen

Low-level toxic tort claims are challenging traditional tort notions of injury and causation. Low-level exposures form the basis of claims in both environmental contamination cases and toxic product liability actions and may involve exposures below thresholds set in government health and safety standards. Establishing injury-in-fact and causation is especially problematic in low-level toxic tort claims due to latent harms, multiple defendants, and scientific uncertainty. In addition, the courts increasingly are asked to address whether relevant government standards should be accepted as legal thresholds that would bar plaintiffs’ claims when the defendant is in compliance with the standard. Traditionally, tort law has treated compliance with government standards as evidence of proper conduct, but not as a defense to suit. Courts today struggle with these issues and have applied various rules in individual cases. Although tort law and government regulation seem to be at odds, courts should seek a middle ground that values both. This Article explores the doctrinal underpinnings of the problem of low-level toxic tort claims, the various approaches undertaken by the courts, and the goals that should form the basis of a solution.