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This Month's News & Analysis

Volume 46, Issue 10 — October 2016


The ESA Today: Eco-Pragmatism and State Conservation Efforts

by Kerry L. McGrath, Gary Frazer, Brett Hartl, Matt Haynie

In 2010, FWS found listing the greater sage-grouse under the ESA was “warranted but precluded” by other ESA priorities. In an effort to avoid future listing, one of the largest voluntary conservation efforts was undertaken by state and federal agencies, private landowners, industry, and environmental groups to protect grouse habitat. After a status review, in the fall of 2015 FWS determined listing the grouse was not warranted. While supporters of the decision have applauded the engagement of stakeholders in voluntary pre-listing conservation strategies, critics claim these measures fall short of ESA requirements, arguing that state-based protection plans are more likely to grant exceptions for economic interests. The narrative around the sage-grouse determination raises questions of “eco-pragmatism,” where factors such as climate change and human population growth guide environmental decisionmaking, and protection efforts are balanced with development needs. On May 4, 2016, the Environmental Law Institute convened a panel of experts to discuss the evolving approaches to species protection under the ESA. This Dialogue presents a transcript of that seminar, which has been edited for clarity and readability.


Struggling for Context: An Appraisal of “Struggling for Air”

by Craig N. Oren

Richard Revesz’s and Jack Lienke’s new book, Struggling for Air, has attracted considerable attention: for instance, it was the subject of a symposium in this publication. I want to build on that discussion here, taking a different perspective from any expressed in the symposium. Revesz and Lienke argue that there was a tragic flaw in the CAA Amendments of 1970: the “grandfathering” of existing electricity generating units by exempting them from national emissions standards. This, they argue, encouraged pre-1970 units to continue to run without sufficient pollution controls and to injure health and the environment. The book is incisive and a good read; everyone concerned with environmental issues should study it. But I want to question the authors’ account of why “grandfathering” came to be, as well as their assumption that trying to regulate power plants as they wished would have proven effective.

Climate Change in the Endangered Species Act: A Jurisprudential Enigma

by Barry Kellman

When the ESA was drafted, no one could have foreseen climate change, much less thought seriously about how the ESA should address species loss on a warming earth. Climate change blows up the ESA’s operative mandate for federal agencies to prevent human disturbance of especially vulnerable species. Species loss due to climate change operates on an altogether different paradigm, muddling all causal connections between human actions and harm to a particular species. Unlike traditional problems of preserving endangered species, there is no spatial connection between the cause of the jeopardy and the species’ habitat—most greenhouse gases are emitted far from the areas that endangered species inhabit. In a warming planet, human disturbance has much less to do with physical encroachment into sensitive space than with disrupting ecosystems such that food resources and mating opportunities diminish, leading to eventual extinction. Shorn of any geographic connection between where adverse activity may occur and an endangered species’ habitat, the question of what and how to regulate becomes ephemeral: How does one protect a habitat from activity that is global, with multiple causes and impacts? This question poses unique and intellectually challenging dilemmas for courts.

Brownfields to Green: A Proposal for Redevelopment of Brownfields Property for Natural Resource Value

by Tara Disy Allden, David Goldman, Frank L. Hearne, and Bill Spinner

There are many sites in the United States that are blighted or undeveloped because of actual or perceived environmental contamination. Often, these sites are “orphans,” without existing owners having the wherewithal to undertake responsibility for environmental remediation. Federal and state laws developed since the 1980s placed strict responsibility for remediation costs on many types of parties associated with such sites, including subsequent owners with no involvement in the acts that caused the contamination. Consequently, even where such sites would otherwise be attractive for redevelopment, the fear of becoming responsible for expensive and timeconsuming remediation limited the willingness of buyers, investors, lenders, and end-users of such property to become involved. As explained more fully below, recent legislation has provided some mechanisms for incentives to undertake control of certain types of sites and to accomplish cleanup and redevelopment. One such approach consists of “brownfield” programs designed to facilitate remediation of environmental issues and to encourage redevelopment of the properties.


The Supreme Court’s Stay of the Clean Power Plan: Economic Assessment and Implications for the Future

by Joshua Linn, Dallas Burtraw, and Kristen McCormack

The Clean Power Plan (CPP) is expected to play an important role in reducing U.S. greenhouse gas emissions. In February 2016, responding to appeals from some of the affected industries and states, the U.S. Supreme Court issued a stay suspending implementation of the CPP until after the judicial review process. Industry groups stated the CPP will pose large and “irreparable” costs to the coal sector during the period of judicial review. However, modeling suggests that because of prevailing market, technological, and policy trends, the CPP will result in near-zero costs beyond current trends until 2025, in part because of the plan’s built-in flexibility. These factors and lessons from option theory suggest the stay is economically unjustifiable based on claims of irreparable economic harm to the coal sector. If implementation of the rule proceeds, current trends imply the stay will have little effect on industry’s ability to follow the current compliance schedule.

Throwing Shade: The Case Against Judicial Interference With Solar Net Metering Policies

by Megan McLean

Electric utilities are increasingly invoking the takings clause, general notions of fairness, and fears of a “death spiral” in their attempts to erode the efficacy of net metering policies. This Article considers each of these arguments and concludes they are best addressed through the political process, as courts applying the takings clause are ill-equipped to address the minutiae of the ratemaking process. Threats of takings litigation only serve to push risk-averse regulators to create inefficient outcomes. Moreover, threats of heightened scrutiny under a deregulatory takings theory or the U.S. Supreme Court’s recent Horne decision are unlikely to be successful as a matter of law. Moreover, they are ill-advised and inappropriate as a matter of policy.

The Local Official and Climate Change

by Stephen R. Miller

It is well-known that land use patterns can affect climate change—particularly the relation between land use development and transportation infrastructure. Yet even the most aggressive efforts to address climate change have largely ignored land use. This disconnect was noted in the Intergovernmental Panel on Climate Change’s most recent series of reports, collectively known as the Fifth Assessment Report (AR5). This Article, adapted from Chapter 5 of Contemporary Issues in Climate Change Law & Policy (ELI Press 2016), seeks to make insights into land use development from the AR5 more readily accessible to the U.S. local official, with emphasis on issues facing local officials in fast-growth cities that have yet to establish a concerted response to climate change.

In the Courts

Ninth Circuit finds no CERCLA liability for Canadian smelter.

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In the Courts Archive

In the Agencies

EPA makes GHG endangerment finding for aircraft engines.

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In the Agencies Archive

In the Congress

President signs bill reauthorizing Sea Grant College Programs.

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In the Congress Archive

In the States

CARB proposes amendments to GHG cap-and-trade rules.

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In the States Archive