This Month's Issue of ELR

Volume 54 Issue 3 —

by Marianne Lavelle, Ken Goodson, Rola Halawanji, and Jake Pollack

Last September, the Biden Administration announced the American Climate Corps, a workforce training and service initiative with the goal of giving young people skills-based training for careers in the clean energy, conservation, and climate resilience sectors. The initiative will offer 20,000 Americans paid training in a variety of environmental fields, specifically prioritize equity and environmental justice, and collaborate with federal agencies, nonprofit organizations, and tribal, state, and local governments. On November 29, 2023, the Environmental Law Institute hosted a panel of experts to discuss the American Climate Corps program and existing climate corps programs across the country. This Dialogue presents a transcript of that discussion, which has been edited for style, clarity, and space considerations.

by Barbara J. Goldsmith and Tara Waikem Flynn

Since passage of the early natural resource protection laws and regulations in the United States decades ago, legal, technical, and economic practitioners have been challenged with understanding the ever-changing and ever-evolving environmental law and policy landscape. Riveting changes have advanced the position of natural resources and related matters of conservation and biodiversity across domestic and international agendas, in corporate, government, and public interest agendas, and in the lives of everyday citizens. The need to prevent further ecosystem degradation, halt biodiversity loss, combat climate impacts, ensure food security, ensure access to clean water and air, and overall ensure a sustainable future seems to have finally hit home with diverse parties working toward like goals. As such, government, industry, nonprofit organizations, local communities, and others must adapt to new perspectives and approaches in navigating the complex paradigm of natural resource management and environmental protection—from broad societal needs to site-specific concerns. This Comment dives deeper into these concepts in order to review how the natural resource practice arena has transitioned from a “liability and enforcement” regime to a “protect and restore natural resources” regime, ever mindful of the related services, both human and ecological, provided by natural resources.

by Carol J. Miller

Climate change and invasive species are jeopardizing already endangered and threatened species, prompting the U.S. Fish and Wildlife Service (FWS) to finalize its 2023 rule allowing experimental populations to be introduced into habitat outside their historical range, as long as the areas are capable of supporting the experimental population. This Comments argues the determination that the ecosystem is already “capable of supporting” the species should satisfy Weyerhaeuser habitat requirements, that FWS' regulatory change is necessary to further the conservation of the species in light of existing and imminent threats to endangered species and their habitats posed by climate change or invasive species, and that judges should defer to the environmental agencies, which base their determinations on “the best scientific and commercial data available.”

by Jessica Owley, Karen Bradshaw, Keith Hirokawa, and Robin Kundis Craig

Many environmental law paradigms focus on fixed points. Sometimes, the fixed points are in the past, and environmental laws call upon us to look at a baseline or previous state of nature and compare our actions against it. Other approaches call for us to consider an ideal state and develop strategies regarding how to reach it. In a 4° Celsius world, both strategies fail. Adhering to baselines is meaningless and striving for goals that are unachievable may lead to paralysis. This Article, excerpted from Adapting to High-Level Warming: Equity, Governance, and Law (ELI Press forthcoming 2024), explores an alternative mode for moving forward with an approach that minimizes suffering.

by Katrina Fischer Kuh

Today's climate impacts and those on the horizon increasingly infuse mitigation and adaptation efforts with urgency, causing policymakers to contemplate or issue formal declarations of a climate emergency and to streamline review processes to aid rapid development of mitigation and adaptation infrastructure and technology. Yet, this urgency and need have the potential to create injustice and sideline or overwhelm efforts to reduce existing injustice. The key question in the climate justice context is whether the commitment to justice today, and the provisions to protect justice that are adopted to advance that commitment, can and will endure as the pressures of high-level warming intensify. This Article, excerpted from Adapting to High-Level Warming: Equity, Governance, and Law (ELI Press forthcoming 2024), proposes a precommitments strategy to help make a present-day commitment to climate justice more enduring.

by Kyle Danish, Adam Stein, and Paul Libus

The Nuclear Regulatory Commission (NRC) and the U.S. Environmental Protection Agency (EPA) both have long-standing risk regulation regimes. To promote deployment of advanced nuclear reactors, Congress directed the NRC to reform its licensing regulations to increase the use of risk-informed, performance-based, and technology-neutral approaches. However, the NRC has doubled down on its traditional risk-management strategies, which require eliminating even the most remote and improbable risks, and which fail to account for the benefits of advanced reactors. This stringency is in sharp contrast to the way EPA regulates facilities that emit hazardous air pollutants under Clean Air Act §112. This Article argues that EPA’s §112 regulations provide a point of comparison and a potential road map for the NRC to use in meeting the mandate for reform. It demonstrates that the NRC has substantial headroom to reform its regulations while preserving an ample margin of safety for the public. In addition, the NRC can draw lessons from EPA in developing technology-inclusive and risk-informed policies.

In the Courts

Eighth Circuit upholds Iowa "ag-gag" statute.

In the Agencies

EPA proposes rule for Methane Emissions Reduction Program.

In the Congress

Senate introduced the Federal Carbon Dioxide Removal Leadership Act of 2024.

In the States

D.C. adopted California's Advanced Clean Cars 2 emissions standard.

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