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This Month's News & Analysis

Volume 46, Issue 5 — May 2016

Dialogue

Toxic Substances Control Act Reform: What's Happening, and What's Next?

by Lynn L. Bergeson, Dr. Lynn R. Goldman, James V. Aidala, and Lawrence E. Culleen

Betting on Toxic Substances Control Act (TSCA) reform before the 2016 presidential election is anything but a sure thing. While most remain optimistic, with each passing day, the window of opportunity is narrowed. One possibility is that some version of reform will be passed, requiring the U.S. Environmental Protection Agency (EPA) to grapple with the demands of implementation. Another possibility is that TSCA reform is not enacted, and life as we know it goes on. Either scenario poses challenges, opportunities, and risks for EPA, the industrial chemical community, their downstream customers, and all of those impacted by chemical regulation. On November 19, 2015, the Environmental Law Institute convened a panel of TSCA practitioners and experts to discuss these issues. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Comment(s)

Infrastructure Permit Streamlining Under the FAST Act

by Thomas C. Jensen, Sandra A. Snodgrass, and Matthew P. Castelli

In December 2015, the U.S. Congress passed and President Barack Obama signed the Fixing America’s Surface Transportation (FAST) Act, the first multi-year federal transportation bill enacted in a decade. Almost unnoticed among nearly 500 pages of transportation law were 21 pages containing new, highly detailed procedural rules for federal agencies to follow in issuing permits for most major infrastructure and other capital projects, as well as authorization for a large administrative apparatus within the Executive Office of the President. The new rules and administrative structure should, if funded and implemented, prove to be a welcome boost to ongoing efforts by the current administration to improve the federal permitting and siting process. This Comment describes the new law and its implementation challenges and offers thoughts on the FAST Act’s potential value to infrastructure developers.

NEPA Review of Climate Change

by Barry Kellman

The 2014 Draft Guidance issued by the White House Council on Environmental Quality (CEQ) has substantially increased understanding about how NEPA can contribute to informed consideration of the accelerating impacts of climate change. But the magnitude of NEPA’s contribution depends on how thoughtfully courts address questions that are among the most perplexing in environmental jurisprudence. This Comment addresses these questions in light of recent case law that illuminates when and how to consider climate change. Cases from federal appellate and district courts are exposing several conceptual fissures in the application of NEPA obligations to climate change. The author concludes that while substantial progress has been made to optimize NEPA’s contribution to the U.S. climate change response, the first wave of lower court decisions concerning NEPA’s requirements in this context perpetuates ambiguities as to what federal agencies must do—ambiguities that might be dangerous to leave unresolved.

Annual Review of Chinese Environmental Law Developments: 2015

by Mingqing You

The year 2015 was the first year of implementing the revised Environmental Protection Law (EPL) of the People’s Republic of China. The Communist Party of China (CPC) issued several important policies on environmental protection, which have many implications for the implementation of the revised EPL and the future development of environmental law. In addition, 2015 was the last year of the 12th Five-Year Plan and the year immediately preceding the 13th Five- Year Plan. This Comment analyzes major policies adopted by the CPC and discusses the efforts of the legislature, administrative branches of the government, the procuratorate, and the courts, as well as implications for the future.

Articles

The Practice of Sustainability at Colleges and Universities

by William R. Blackburn

Colleges and universities that seek sustainability have a wide range of support organizations to draw upon for advice and tools. Such schools can also learn by studying the best sustainability operating system (SOS) practices adopted by their fellow collegiate institutions. The encouraging news is that some of these institutions are well on the way to establishing comprehensive, well-integrated sustainability programs. This Article, adapted from Chapter 15 of The Sustainability Handbook, 2nd Ed. (ELI Press 2016), reviews the challenges and best SOS practices of collegiate sustainability programs and offers tips on how to sell the goal of sustainability to a school administration.

Mining in Colombia and Environmental Justice: How the “Popular Consultation” Process Works in Practice

by Luisa Ferreira-Peralta

This Article examines how the Latin American procedure of “popular consultation” has been used as a mechanism for resisting the development of an open-pit gold mine in Colombia, and analyzes how Colombian communities are using the procedure to have meaningful involvement in environmental decisionmaking. A close study suggests that communities were able to engage in popular consultation because of certain conditions: First, most of Colombian society was aware of this participatory mechanism being written into the 1991 Constitution. Second, the community knew of the popular consultation’s processes and experiences in other Latin American countries. Third, particular local dynamics took place and alliances were formed. Fourth, the general public agreed on the importance of having meaningful involvement in environmental decisionmaking.

In the Courts

Ninth Circuit reinstates polar bear critical habitat designation.

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In the Courts Archive

In the Agencies

BOEM updates offshore oil & gas leasing requirements.

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In the Agencies Archive

In the Congress

Senate passes enhanced pipeline safety amendments.

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In the Congress Archive

In the States

Washington proposes human health toxics criteria in water quality standards.

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In the States Archive