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This Month's News & Analysis

Volume 46, Issue 4 — April 2016

Dialogue

The 2015 Paris Agreement on Climate Change: Significance and Implications for the Future

by Hari Osofsky, Lisa Benjamin, Michael Gerrard, Jacqueline Peel, and David Titley

On December 12, 2015, nearly 200 countries created a major new agreement on climate change, accompanied by national commitments to act. The Paris Agreement has rightly been celebrated as a breakthrough, but was unquestionably constrained by the need for compromise, and its details will continue to be developed at the international, national, and local levels. On January 9, 2016, a panel of expert commentators and delegation members from a variety of national jurisdictions convened at the annual American Association of Law Schools meeting to analyze the Paris Agreement; they considered how the agreement evolved from prior efforts, the structure of its commitments, and its implications for the future. This Dialogue presents a transcript of the discussion, which has been edited for style, clarity, and space considerations.

Comment(s)

Integrating Climate Change Resilience Into HUD’s Disaster Recovery Program

by Justin Gundlach and Channing Jones

A changing climate means that storms, floods, wildfires, and even coastlines cannot be expected to adhere to historical patterns. Federal agencies responsible for risk management and disaster recovery have begun giving priority to this fact, and the U.S. Department of Housing and Urban Development (HUD) is among them. But HUD has just one foot in the boat—the other foot is still on the dock. The agency currently only integrates climate change resilience considerations into its approval of projects seeking Community Development Block Grant Disaster Recovery funds insofar as it has sometimes voiced clear support for a “build back better” approach. Yet HUD’s statutory authority enables it to more definitively and systemically support projects aimed at improving resilience and adapting to climate change. This Comment argues for carrying this potential reconciliation forward into future disaster recovery contexts and also into other HUD programs that relate in less obvious ways to disaster recovery and resilience to climate change, and proposes several ways the agency might do so.

Hawkes v. U.S. Army Corps of Engineers: Is a Wetlands Jurisdictional Determination Reviewable Under the Administrative Procedure Act?

by Chris Dow

On March 30, 2016, the U.S. Supreme Court heard oral argument in Hawkes Co. v. U.S. Army Corps of Engineers. This case from the U.S. Court of Appeals for the Eighth Circuit asks whether a wetlands jurisdictional determination (JD)—the U.S. Army Corps of Engineers’ official stance on whether a wetlands areas is subject to Clean Water Act  §404 permitting requirements—constitutes a final agency action that is subject to judicial challenge under the Administrative Procedure Act. Currently, there is a circuit split on this issue: The Eighth Circuit in Hawkes ruled that a JD is immediately reviewable under the APA, while the U.S. Court of Appeals for the Fifth Circuit and the U.S. Court of Appeals for the Ninth Circuit. Notwithstanding the respective merits of the policy arguments on either side, an analysis of case law considering reviewability under the APA of government administrative determinations in the environmental regulatory arena suggests that a JD is not a proper subject of judicial review.

Articles

Plain Meaning, Precedent, and Metaphysics: Lessons in Statutory Interpretation From Analyzing the Elements of the Clean Water Act Offense

by Jeffrey G. Miller

This Article, the fifth in a series of five, completes the author’s detailed analysis of how federal courts have interpreted each element of the Clean Water Act (CWA) offense. Compiling statistics across the four prior articles, it draws conclusions about statutory interpretation in general, finding that the depth of legal analysis increases with the level of court; that environmentally positive results decrease with the level of court; that courts use only a small number of canons and other interpretive devices; that their uses of interpretive devices change over time; and that interpretive devices are not all outcome-neutral. The author also draws other lessons about statutory interpretation that are specific to each element, and to the language and history of the CWA.

Shattered Nerves: Addressing Induced Seismicity Through the Law of Nuisance

by Lucas Satterlee

The number of earthquakes felt in the central and eastern United States has increased dramatically; the scientific consensus is that injection of oil and gas wastewater fluids is the most likely culprit. Regulations and voluntary industry efforts are likely the best mechanisms to mitigate the risks associated with induced seismicity, but the common law remains relevant. This Article explores whether and to what extent a nuisance framework can be applied. Utilizing the law of nuisance to address induced seismicity is a novel concept, but the same basic rules used to assess liability when other human activities cause the earth to vibrate should apply. Proving causation is currently plaintiffs’ most challenging obstacle, but as the science becomes more developed, the chances of establishing the requisite link increase. The Article concludes that if reasonable precautions are not taken in the siting and operation of an injection well, companies can be held liable for creating a nuisance in the form of earthquakes.

In the Courts

Ninth Circuit upholds FIP for Arizona regional haze.

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In the Courts Archive

In the Agencies

FWS and NMFS finalize ESA critical habitat regulations.

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In the Agencies Archive

In the Congress

President signs bill banning slave-fishing imports.

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In the Congress Archive

In the States

Minnesota proposes surface water antidegradation rules.

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In the States Archive