This Month's News & Analysis
On October 1, 2015, after years of delay punctuated by litigation and political maneuvering, the U.S. Environmental Protection Agency issued revised national ambient air quality standards for ground-level ozone. Last set at 75 parts per billion (ppb) in 2008, the new standard of 70 ppb has already elicited promises of legal challenges from industry and environmental advocates. High levels of ozone are linked to respiratory illness, especially among children and the elderly. Environmental and public health advocates had succeeded in obtaining a court order setting the October deadline, but many have expressed disappointment that the new standard does not go far enough to adequately protect public health. Industry groups, on the other hand, have decried the rule as unnecessary and claim it will cripple the economy in any place deemed out of compliance with the new standard. On October 15, 2015, the Environmental Law Institute convened a panel of attorneys who either worked on promulgating the rule or advocated for clients during its development. Here we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.
When the government decides to approve, or not to approve, some activity that has climate change impacts, who has standing to bring a legal challenge? Answers are tricky and, ultimately, unsatisfying. What is clear is that the sheer number of cases presenting this question is increasing, and there is every reason to believe that this trend will accelerate into the future. That substantial litigation resources are devoted to doctrinal debates about who does or does not have standing to bring a climate change challenge represents, in this writer’s opinion, a diversion of scarce legal resources. Climate change is a serious matter, and, amidst an increasingly busy agenda, it is imperative to resolve climate change challenges on the merits.
The increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there is less clarity about how to calculate just compensation for such takings, and when compensation should be offset by the value of benefits conferred to the property owner. While the U.S. Supreme Court has an analytically consistent line of cases on compensation for partial takings, it has repeatedly failed (most recently in Horne v. U.S. Department of Agriculture) to articulate a clear rule. The authors argue the government should compensate property owners based on the free market value of their remaining property, the calculation of which should include all nonspeculative, calculable benefits of the taking.
Many practitioners and scholars view enhanced permit coordination as beneficial due to purported efficiency gains and potentially better conservation outcomes, but scholarship on interagency coordination is still limited. The authors conducted extensive interviews and dialogue sessions to evaluate a range of efforts to coordinate proposed California Habitat Conservation Plans/ Natural Community Conservation Plans with freshwater aquatic resource permits under federal and state laws. In this Article, the authors share their findings, which revealed both benefits and challenges, and make policy recommendations for going forward.
This Article is adapted from Chapter Four of Rethinking Sustainability to Meet the Climate Change Challenge, edited by Jessica Owley and Keith Hirokawa and published by ELI Press. The author argues that climate change adaptation is absolutely necessary because we have passed the point of avoiding climate change impacts. Because adaptation is fundamentally about coping with continual change, we must abandon mainstream notions of sustainability, which assume a relatively stationary world. We instead should adopt three transforming principles: (1) pursue resilience rather than maintenance of particular socioecological states; (2) recognize and emphasize that private interests must yield to community survival; and (3) stop avoiding the subject of human population growth. These principles will help us acquire “climate change sea legs” and face the challenges to come.
This Article is adapted from Chapter Fourteen of Rethinking Sustainability to Meet the Climate Change Challenge, edited by Jessica Owley and Keith Hirokawa and published by ELI Press. The author responds to critics of the concept of sustainability, and argues for its continued relevance by identifying a functional definition of sustainability as a framework for managing change. Contrary to the critics, sustainability programs do not rely on static conceptions of current circumstances or future conditions, but apply economic, environmental, and social considerations to a changing landscape. They utilize pragmatic, flexible ideas such as ecosystem services valuation to identify trade offs in our interactions with ecosystems. Even if adaptation is considered as a candidate governance tool for coping with unpredictable and extreme changes in the environment, it must face the same uncertainty as sustainability programs.