Law Commons^™

Billboards And Big Utilities: Borrowing Land-Use Concepts To Regulate "Nonconforming" Sources Under The Clean Air Act, Deepa Varadarajan

Deepa Varadarajan

Part II of this Note provides an overview of how the regulatory framework has developed with regard to federal control technology requirements governing major stationary sources. It focuses on the statutory language of the 1970 Clean Air Act and the 1977 Clean Air Act Amendments and subsequent administrative and judicial interpretations. Part III examines the development of the land-use doctrine governing the regulation of preexisting nonconforming uses and highlights its theoretical similarities to the air pollution context. Part IV looks specifically at the jurisprudence surrounding the use of amortization provisions in the zoning context. By and large, a court's acceptance …

Environmental Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …

The Paper Tiger Gets Teeth: Developments In Chinese Environmental Law, Erin Ryan

Erin Ryan

This very short essay reports on the 2014 amendments to China’s Environmental Protection Law, following a series of internationally reported air and water pollution crises leading to unprecedented public protests. The changes promise more meaningful oversight of industrial pollution and harsher penalties for violations, targeting not only polluters but officials who fail to enforce applicable regulations against them. The amendments also empower certain non-governmental organizations to bring environmental litigation on behalf of the public. Official news accounts openly acknowledge the government’s hope that increased public access to legal redress will reduce the growing trend of mass environmental protests. These are …

Dc Circuit Says Epa's "Transport Rule" Violates Clean Air Act: Is "Cooperative Federalism On The Rise?", Richard Faulk

Richard Faulk

From a strictly legal perspective, it appears that the term “cooperative federalism” is emerging as a bedrock principle of air pollution policy under the Clean Air Act. Both the DC Circuit and the Fifth Circuit have now recognized that the policy is plainly required – and that this Congressional mandate trumps any less deferential policy that the EPA might wish to pursue. Although the concept cannot be extended further than the language of the Clean Air Act permits, it is a powerful tool for restraining the EPA’s authority.

The Justifications For Nondegradation Programs In U.S. Environmental Law, Robert L. Glicksman

Robert L. Glicksman

The concept of non-regression is not one that is familiar to environmental law in the United States. Nevertheless, Congress and federal agencies have adopted programs to prevent degradation of existing high quality environments and to prevent revisions of individual emissions restrictions by making them more lenient. The first programs are known as nondegradation or anti-degradation programs. The others preclude “backsliding” by prohibiting slippage in performance by regulated entities complying with regulations that are later loosened. The nondegradation and anti-backsliding programs differ from the non-regression principle in that their justifications are not rooted in a commitment to the protection of individual …

Climate Change, The Clean Air Act, And Industrial Pollution, Alice Kaswan

Alice Kaswan

EPA has braved controversy by applying the Clean Air Act (CAA) to greenhouse gas (GHG) emissions from stationary sources, including utilities and industry. Because GHG controls inevitably affect combustion, they will impact traditional pollutants (termed “co-pollutants”). The Article first argues, as a threshold matter, that co-pollutant consequences are relevant to climate policy choices, and that considering those consequences will lead to improved environmental, administrative, and economic outcomes. It then reviews the CAA’s stationary source provisions and EPA’s implementation of them to date, discussing both the CAA’s potential and its limitations.

Moving beyond the CAA on its own terms, the Article …

Decentralizing Cap-And-Trade? State Controls Within A Federal Greenhouse Gas Cap-And-Trade Program, Alice Kaswan

Alice Kaswan

Cap-and-trade programs for greenhouse gases (GHGs) present central political questions with significant economic and environmental ramifications. This paper addresses a critical structural issue: To what extent should states retain the capacity to develop stricter parameters within a federal cap-and-trade program? This Article argues that, within the confines of a federal trading program, states should retain substantial autonomy to establish their own direct regulatory requirements, impose their own offset policies, and adopt differing trading parameters to maximize a GHG trading program’s co-pollutant and other benefits. State autonomy is justified by benefits to the nation as a whole, since states can provide …

An Unattainable Wedge: Four Limiting Effects On The Expansion Of Nuclear Power, Tanya K. Mortensen

Tanya K Mortensen

With a cap and trade system likely imminent, concerns about the costs of generating electricity and how electrical generators can best mitigate the effects of a carbon trade system are resurfacing. As a result, interests in nuclear power are resurging world-wide. Although, the purpose of this paper is aimed at national decision making, the problems and processes that confront decision makers internationally are effectively the same as those confronting decision makers in the United States. This paper examines the feasibility of using nuclear power as a wedge to reduce CO2 emissions, and puts forth four effects that may prevent or …

The Domestic Response To Global Climate Change: What Role For Federal, State, And Litigation Initiatives?, Alice Kaswan

Alice Kaswan

Although the United States is not a party to the Kyoto Protocol, a multitude of alternative domestic approaches to combat climate change have emerged at all levels of government. The article takes as given that climate change is a serious environmental problem that requires a legal response. Building on conference presentations at a USF symposium in March 2007, this article evaluates the most significant existing federal and state measures, including federal voluntary measures, California's vehicle emissions standards and global warming legislation, and the Regional Greenhouse Gas Initiative. The article also addresses three litigation initiatives: Massachusetts v. EPA, Friends of the …

The Real Acid Test Of Title Iv Of The Clean Air Act Amendments Of 1990: External Cost Justifications Not Related To Acid Deposition Control, James R. May

James R. May

One of the principal objectives of the Clean Air Act Amendments Act of 1990, contained in Title IV, is to control acid deposition by reducing the air emissions of sulfur dioxides (SO2) and nitrogen oxides (NOx) released by many fossil fuel-fired steam-electric generating utility units. A report recently issued by the National Acid Precipitation Assessment Program (NAPAP), called the Integrated Assessment (NAPAP IA), casts formidable doubts upon Title IV's efficacy by suggesting that the relationship between Title IV and the mitigation of the adverse effects of acid deposition in environmentally sensitive areas is too attenuated to warrant the nationally pervasive …