This Month's Issue of ELR

Volume 53 Issue 10 —

by Peggy Otum, Jonathan Black, Margaret Spring, and Carlton Waterhouse

Plastic pollution is a global environmental problem with a disproportionate impact on marginalized communities and other vulnerable groups. On June 27, 2023, the Environmental Law Institute (ELI), ELI’s Women in Environmental Law & Leadership initiative, the Monterey Bay Aquarium, and WilmerHale co-hosted a panel of experts who explored the environmental justice implications of continued production and disposal of plastics, and addressed key domestic and international policy efforts. Below, we present a transcript of that discussion, which has been edited for style, clarity, and space considerations.

by Cale Jaffe

On May 25, 2023, the U.S. Supreme Court dropped an absolute bombshell with its ruling in Sackett v. Environmental Protection Agency. Early assessments of Sackett underscore two vital points: much has been lost for wetlands protection, and much has changed with respect to the Court’s broader environmental law jurisprudence. This Comment delves into both of these issues, providing some background on the unique and long-running controversy that was at the heart of Sackett, and parsing the four opinions from the case. It then looks at one of the Supreme Court’s landmark decisions on agency expertise and wetlands, United States v. Riverside Bayview Homes, arguing that Riverside Bayview Homes, a unanimous decision that environmentalists, courts, and the regulated community have relied on since 1985, is now a dead letter. Finally, it looks at the road ahead, considering how the decision in Sackett will filter down (pun intended) to affect other environmental values.

by Michael Curley

This Comment argues that what is needed to make sustainability work for business is a National Business Sustainability Council that would develop and promulgate sustainability criteria, be able to evaluate whether specific small businesses are meeting those criteria, and be able to “certify” that a small business is, in fact, meeting these criteria, and is therefore “sustainable.” It asserts the Council’s criteria and evaluation methodology should be both rigorous and transparent, such that when the Council awards a sustainability certification to a business, the federal and state governments will accept that certification.

by Michael Hamersky

The Metals Company (TMC), sponsored by the Republic of Nauru, has made public its intention to be the first company to exploit polymetallic nodules, which contain minerals needed for electric batteries, from the deep ocean’s seabed. Nongovernmental organizations and national governments have objected to these proposed actions, with many calling for an outright ban. This Article offers a case study evaluating the parties’ respective claims in favor of, and in opposition to, permitting the proposed mining activities under the current legal framework. Specifically, it evaluates the validity of the two-year treaty deadline; protection of the marine environment; and sharing of knowledge and resources. It concludes by arguing that mining activities should not proceed unless and until regulations are in place that ensure the protection of the marine environment and benefit humankind as a whole.

by Michael Bennon and Devon Wilson

Despite five decades of experience, there is a considerable gap in legal and empirical study on the impacts of the National Environmental Policy Act (NEPA). Proponents of reform often claim NEPA litigation is a major obstacle for federal actions; others have concluded litigation is not a major contributor of project cost escalation or delays. This Article studies the incidence and conditions of infrastructure project litigation under NEPA, using a data set of 355 major transportation and energy infrastructure projects that completed a federal environmental study between 2010 and 2018. We observe predevelopment litigation on 28% of the projects requiring an environmental impact statement, 89% of which involve a claim of a NEPA violation. The highest litigation rate is in solar energy projects, nearly two-thirds of which are litigated. Other high-litigation sectors include pipelines (50%), transmission lines (31%), and wind energy projects (38%). Energy sectors with greater private financing have shorter permit durations and higher rates of litigation and cancellation, but also higher completion rates relative to transport sectors, which have greater public financing and lower litigation rates but longer permit timelines.

In the Courts

SCOTUS vacates lower court orders staying pipeline construction.

In the Agencies

FWS revises Endangered Species Act rules pertaining to historical range.

In the Congress

Senate passes the Disaster Assistance Simplification Act.

In the States

Colorado proposes graywater control regulation amendments.