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This Month's News & Analysis

Volume 45, Issue 7 — July 2015

Dialogue

Fertilizer or Solid Waste: How Far Does RCRA Spread?

by Bruce Myers, Craig Johnston, Jessica Culpepper, and Dale Mullen

On January 14, 2015, the Eastern District of Washington held that Cow Palace Dairy, LLC, is liable under RCRA for storing, applying, and managing manure in a way that poses a substantial and imminent endangerment to public health in violation of open dumping provisions. This opinion is significant because it defines Cow Palace’s manure as solid waste under RCRA. The court focused on the manner in which Cow Palace stored and used the manure to determine that RCRA exemptions, such as the agricultural waste exemption for fertilizer, did not apply. Given the ruling’s significance, ELI convened a seminar on this topic on February 26, 2015. The panelists held a dynamic discussion: What are the confines, or lack thereof, for the definition of solid waste under RCRA? Why can the same byproduct, in this case manure, be regulated waste in one case and unregulated fertilizer in a separate case? What does this case mean going forward for RCRA practitioners, the regulated industry, nonprofit advocacy, and government regulation? This Dialogue presents a transcript of the event, which has been edited for style, clarity, and space considerations.

Comment(s)

NEPA and Climate Change: Practitioners Should Take Note of CEQ’s New Guidance

by Nicholas C. Yost

The White House Council on Environmental Quality (CEQ) has again offered for public comment draft guidance on how to evaluate the environmental impacts of climate change in analyses prepared under NEPA. This is not the first time CEQ has ventured into the area. In 2010, the Council proposed draft guidance on the same subject but never finalized it, presumably because a substantial number of senators (all Republicans) vigorously opposed the concept that environmental impacts under NEPA might include those associated with climate change. There was no public follow-up. Indeed, nothing appeared from CEQ until December 2014, when CEQ again proposed NEPA climate guidance, and again in draft form. The 2014 draft is the focus of this Comment’s analysis.

The Clean Power Plan and Statutory Interpretation: Is the "Building Block" Approach Permissible Under §111(d)?

by David R. Baake

In June 2014, EPA proposed an emission guideline for emissions of carbon dioxide (CO2) from existing fossil fuel-fired electric generating units (EGUs). This rulemaking--commonly known as the Clean Power Plan (CPP)--identifies as the “best system of emission reduction” a set of four “building blocks” that electric utilities can undertake or purchase credits for to reduce emissions from regulated EGUs. This Comment considers whether the building block approach is permissible under CAA §111(d).

India's First Environmental Referendum: How Tribal People Protected the Environment

by Mahesh Menon

In an unprecedented event in 2013, a group of tribal villagers in the Indian state of Orissa (also known as Odisha) rejected the proposal of Vedanta Aluminium Ltd. to mine for bauxite in their territory. The rejection was made through environmental referendums held pursuant to orders of the Supreme Court of India. The result of the referendums put to rest, at least for now, the plans of Vedanta Resources PLC, a London-based major mining company, to mine for bauxite in the Niyamgiri range, a hill tract that the Dongria Kondh, the local tribal group, considers to be one of their sacred sites. Although the referendums have now forced the government to deny permission to mine at Niyamgiri, closer analysis reveals systemic failures of all government agencies involved in this project to consider the interests of the Kondh tribal people, and it is reasonable to expect that the environmental victory may be short lived.

Food Security: Concept, Challenges, and the Role of Attorneys

by Laurie Ristino

Feeding a growing global population, estimated to reach 9.6 billion by 2050, in a changing climate without destroying our environment is one of humanity’s greatest challenges. Environmental advocates have a central role in addressing this challenge. This Comment provides a brief overview of the concept of food security, starting with its foundation in the internationally recognized right to food. After providing the legal framework, the Comment describes the meta challenges to global food security, with a particular focus on the environment and the role of legal practitioners.

Resilience: The Food Policy Imperative for a Volatile Future

by Nicole M. Civita

To sustain a growing population on a changing planet, food policies at all levels—community, regional, national, and global—must promote judicious resource use, prioritize stewardship, align with ecosystems, advance social and distributive justice, consider national security, and position us to weather long- and short-term disruptions, both climate change-driven and otherwise. This Comment considers the power of a profuse human population, reviews climate consequences of the way we have been satisfying our food needs, and demonstrates the exigencies of new approaches to withstand the mounting pressures and disruptions assailing agriculture. It offers resilience as an essential organizing imperative for agrifood systems, policies, and laws. In so doing, the Comment explores the nature and value of resilience, outlines the characteristics of resilient food systems, identifies benefits of orienting our food future around resilience, and suggests preliminary steps in the direction of reforming agrifood policy for resilience.

Articles

The Renewable Fuel Program at an Inflection Point: Policy Implications of EPA's Proposed 2014-2016 Renewable Fuel Standard

by Michael N. Romita

In May 2015, EPA released its delayed revisions to the Renewable Fuel Standard (RFS) for 2014 and beyond. This standard establishes volumetric requirements for total renewable fuels and several subcategories of advanced biofuels. With the current rulemaking, EPA is attempting to revise its standard-setting process as the practical realities of the transportation fuel market have caught up with many of the program’s more ambitious policy aspirations. Regardless of how the rulemaking plays out, policymakers will need to decide whether EPA is best positioned to take the lead in reinterpreting those aspirations, or whether Congress should step back in.

Reconciling International Investment Law and Climate Change Policy: Potential Liability for Climate Measures Under the Trans-Pacific Partnership

by Meredith Wilensky

The pending Trans-Pacific Partnership (TPP) trade agreement has raised controversy, fueled by leaks of the draft text and congressional debate over fast-track negotiation authority. Like similar agreements, the TPP creates the risk of government liability for enacting regulations, especially new or comprehensive measures to address climate change. This Article analyzes how the TPP’s investor protection provisions and dispute settlement mechanism might be invoked to challenge climate change policy. The author concludes that the negotiators’ efforts to date are insufficient to protect climate measures from the risk of liability and suggests reforms to the draft text.

A Tale of Two Rivers: An Analysis of Different Approaches to Proving Intent for CERCLA Arranger Liability

by Chris Dow

Courts have grappled with the scope of CERCLA arranger liability ever since the U.S. Supreme Court’s 2009 decision in Burlington Northern & Santa Fe Railway Co. v. United States. Two opposite decisions on nearly identical facts illustrate the variety of approaches. In the first, a manufacturer’s actions related to the sale of PCB-laden scrap paper did not show the requisite intent to dispose; in the second, evidence gleaned from documents and expert testimony was the primary basis for holding the same manufacturer liable as an arranger. The latter outcome suggests the importance of circumstantial evidence in these cases, and counsel should seek discovery of such evidence at an early stage.

In the Courts

Army Corps held liable for temporary takings from Hurricane Katrina floods.

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In the Courts Archive

In the Agencies

EPA proposes pesticide restrictions to protect managed bee colonies.

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In the Agencies Archive

In the Congress

House approves FY 2016 energy and water development appropriations.

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In the Congress Archive

In the States

New Mexico proposes underground injection controls for oil refineries.

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In the States Archive