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This Month's News & Analysis

Volume 47, Issue 5 — May 2017

Comment(s)

An Empirical Look at Preliminary Injunctions in Challenges Under Environmental Protection Laws

by George P. Sibley III and Jonathan L. Caulder

A preliminary injunction is an “extraordinary” and “drastic” equitable remedy. It should be granted only where the movant carries a heavy burden of persuasion that the requested relief is necessary. Environmental cases tend to involve large projects, such as interstate pipelines, mines, and highways, that have long-term impacts. Halting those impacts for a few months to allow for meaningful judicial review—even if it is not entirely clear that the plaintiff will succeed on the merits, and even if it may cost the company receiving the authorization substantial monies and reduce employment and economic benefits—can be alluring. This type of thinking had become increasingly prevalent in the federal courts before 2008, much to the consternation of regulatory agencies, regulated industries, and some legal scholars. The U.S. Supreme Court’s seminal decision in Winter v. Natural Resources Defense Council, Inc. offered hope for greater certainty and a higher bar for preliminary injunctive relief, especially in environmental litigation. This Comment discusses how the circuits' interpretation of Winter has led to further disagreement and examines the reasons for it.

A Disaster by Any Other Name: Improving Assistance to States and Individuals During Long-Term Disasters

by Rachel E. Phillips

Disasters and emergencies come in all shapes and sizes. Some are man-made while others are a result of natural events. The federal government has a system in place under the Robert T. Stafford Disaster Relief and Emergency Assistance Act that assists states in recovering from disasters and emergencies by providing federal relief in the form of funds and resources. However, this current system fails to appropriately address disasters that occur over a longer period of time. This Comment discusses the inadequacies of the Stafford Act in addressing long-term emergencies such as drought and the rise in sea level. Further, it suggests ways in which the current system can be improved or changed.

Articles

Correlative Rights and Limited Common Property in the Pore Space: A Response to the Challenge of Subsurface Trespass in Carbon Capture and Sequestration

by Tara K. Righetti

Carbon dioxide and other substances injected as part of carbon capture and sequestration (CCS) have the potential to migrate beyond the confines of the injection project, creating the potential for trespass. In order for CCS to be viable, legal clarity on the issue of subsurface trespass is required. This Article argues that the challenge of subsurface trespass associated with CCS can be overcome by conceptualizing pore space rights in the storage complex as limited common property with rights of proportionate use. The traditional oil and gas framework of correlative rights can be a valuable model to promote investment, encourage private ordering, and discourage the underutilization of subsurface property for CCS.

Much Ado About Nothing: Does the Death of the Trans-Pacific Partnership Affect Global Food Safety?

by Carrie A. Scrufari

With continued globalization of the food system and the increasing number of agricultural products traded on the world market, concerns regarding food safety standards in other countries led Congress to pass the Food Safety Modernization Act (FSMA) to better guard against outbreaks of foodborne illnesses. As FDA finalized the FSMA rules just last year, food safety experts began to fear that those new regulations could be undone if Congress ratified the Trans-Pacific Partnership (TPP). This may seem a moot issue now that Pres. Donald J . Trump has withdrawn the United States from the TPP, but the question is still relevant. This Article argues that the controversy has largely been much ado about nothing because the General Agreement on Tariffs and Trade—the trade agreement in effect among all 12 former TPP signatories, which will continue operating in the TPP’s absence—provides adequate protection of the United States’ ability to regulate its food supply through the implementation of domestic laws, such as the new FSMA rules.

Dialogue

The State of Environmental Justice: An Obama Administration Retrospective

by Benjamin Wilson, Barry Hill, Quentin Pair, and Suzi Ruhl

Environmental justice has officially been a federal priority since 1994, when Pres. Bill Clinton signed Executive Order No. 12898 directing federal agencies to include consideration of health and environmental conditions in minority, tribal, and low-income communities into agency decisionmaking. In Pres. Barack Obama’s 2008 campaign, he promised to strengthen the EPA Office of Environmental Justice, expand the environmental justice small grants program, and empower minority communities to respond to health threats. In 2011, the Federal Interagency Working Group on Environmental Justice signed the Memorandum of Understanding on Environmental Justice and Executive Order No. 12898, and in May 2016, EPA released its EJ 2020 Action Agenda. However, significant challenges remain, as shown by high-profile incidents such as the Flint water crisis. On December 1, 2016, ELI hosted a panel of experts to look at the Obama Administration’s legacy on environmental justice and discuss opportunities for the future. In this Dialogue, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.

In the Courts

District court sets three-year schedule for CAA HAPs regulations.

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In the Courts Archive

In the Agencies

EPA delays effective date of CAA accident prevention rule.

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In the Agencies Archive

In the Congress

House and Senate pass NOAA weather research bill.

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In the Congress Archive

In the States

Florida proposes TMDLs for nutrient-impaired river basins.

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In the States Archive