This Article is adapted from Chapter One of Next Generation Environmental Compliance and Enforcement (LeRoy C. Paddock and Jessica A. Wentz eds.) published in 2014 by ELI Press. The book emerged from a two-day EPA workshop covering a broad array of topics, ranging from general comparisons of different compliance approaches to focused case studies of regulatory programs.
When setting water quality standards (WQS) for surface water, every state in the nation is faced with the question of “how clean is clean enough?” The standard set by the state is important to citizens, who rely upon a high level of water quality, as well as municipal and industrial wastewater dischargers who must comply with permit limits that take WQS into account. An issue receiving increasing attention is the health risk to persons who eat relatively large amounts of fish and shellfish that may be contaminated with toxic substances.
Scientific uncertainty is both inevitable and the source of communication challenges: science, law, and journalism each have different views of and uses for uncertainty. When dealing with uncertainty on policy issues such as climate change, these differing perspectives can lead to misunderstanding, controversy, and gridlock. The author offers his reflections on the legal process and legal ethics as applied to issues of scientific uncertainty.
In response to a 2011 solicitation by the Council on Environmental Quality, the National Association of Environmental Professionals developed best practice principles (BPPs) for preparing effective environmental assessments (EAs) under NEPA. After extensive survey research and literature review, the Association’s report identified seven Priority One BPPs as focus areas for improving EAs.
This Article updates a July 2001 ELR News & Analysis article on Strategic Lawsuits Against Public Participation (SLAPPs) and common-law and statutory defenses against them. Since that survey, a dozen additional jurisdictions have enacted statutes providing some degree of protection for SLAPP defendants, and courts have continued to apply these statutes as well as common-law and constitutional (Petition Clause) defenses.
In a recent decision, a federal appeals court for the first time relied on the statutory act of war defense to dismiss a CERCLA claim, one that sought recovery of the costs of remediating asbestos and other hazardous substances that were released by the September 11, 2001, attack on the World Trade Center. This Comment explores CERCLA's three statutory defenses, the difficulties CERCLA defendants have faced in trying to assert them, and whether In re September 11 will result in more successful assertions of these defenses in the future.
A 104-page “Legal Memorandum” accompanying EPA’s proposal of §111(d) Existing Source Performance Standards for Electric Generating Units under the Clean Air Act charts the legal waters the Agency will have to traverse if it adopts rules anything like those it proposed. The need for so comprehensive a map arises because EPA proposes a voyage far away from where §111(d) has ever sailed.
Scientific uncertainty is inevitable in many public policy debates, especially in the environmental and public health arena. Scientists, lawyers, and media professionals develop and communicate the data, information, and analysis that inform public decisionmaking. But each of these professions regards and communicates scientific uncertainty differently, in part due to varying professional norms and ethical standards.
President Barack Obama has launched a little-known effort to improve the permitting process for infrastructure projects. The president’s initiative has identified a number of permitting improvements, but it does not include a serious effort to force multiple agencies to align their permitting processes. A key to forcing multiple agencies to work together on project reviews and approvals is found in an unlikely place: NEPA. The statute is overdue for a makeover that will strengthen how it identifies and analyzes environmental impacts for federal decisionmakers.
Maryland’s version of the National Environmental Policy Act has lain essentially dormant because its environmental assessment requirements only apply to actions required or requested by the legislature. While it is unclear whether the political costs of amending the statute to make it more effective are worth it, there are still aspects of the statute that should be used by Maryland agencies. In particular, agencies should adopt rules to ensure that environmental concerns receive adequate consideration in agency decisions.