Required mitigation of wetlands impacts is a mandatory feature of many Clean Water Act §404 permits. In Koontz v. St. Johns River Water Management District, the U.S. Supreme Court held that government agencies must show a relationship between a proposed permit condition and the adverse environmental effects that the condition proposes to mitigate. The permit condition also must be proportional to the scope of the proposed project regardless of whether the permit condition is a demand for money or property.

The dormant Commerce Clause prohibits state-level regulations that improperly discriminate against out-of-state-interests or unduly burden interstate commerce. As such, this doctrine may present a barrier to state-level greenhouse gas regulations that affect out-of-state energy and other greenhouse gas sources. But there are ways around this doctrine for states that are careful in how they construct their programs.

The past 30 years have seen a slow appearance and evolution of natural resource damage (NRD) related case law. The range of information resulting from the various decisions issued in the past decade may be useful to legal practitioners, particularly relative to defining NRD liability, guiding procedural actions, and resolving liability claims. This Comment focuses on federal judicial opinions that were issued during the period 2004-2014 under CERCLA and OPA, as those are the principal federal statutes under which opinions have been issued.

On April 21, 2014, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers jointly released a proposed rule to clarify protection for streams and wetlands under the Clean Water Act. Determining Clean Water Act jurisdiction over streams and wetlands has been mired in confusion following a series of U.S. Supreme Court decisions. The agencies issued the proposed rule in response to calls from judges, lawmakers, government officials, corporate representatives, environmentalists, and other stakeholders to bring greater clarity.

Preservation of historic religious architecture has been one of the most controversial areas of regulatory preservation activity. Although regulatory options remain constitutionally permissible, efforts to protect historic religious properties have been limited by legislation and lack of political will. One alternative source of preservation intervention, however, has largely escaped notice—a quiet expansion in the use of preservation easements to protect significant historic religious architecture.

The Clean Water Act (CWA) prohibits addition of any pollutant to navigable waters from any point source by any person without a permit. Surprisingly, the first element of this prohibition, “addition,” remains undefined. It has been interpreted broadly by regulators and judges to expand the prohibition to such an extent that it threatens to capture innocent people.

On December 30, 2013, the U.S. Environmental Protection Agency (EPA) published a final rule temporarily recognizing two different “Phase I” environmental site assessment (ESA) standards for commercial real estate and brownfield due diligence investigations.

How best to measure the effectiveness of environmental enforcement is a long-standing question. Recently, EPA stirred renewed interest in how to measure enforcement success. Its Draft FY 2014-2018 Strategic Plan suggested a new set of “Next Generation Compliance” metrics.

The emerging law of climate change is becoming clearer. The U.S. Supreme Court’s series of climate change and other Clean Air Act (CAA) decisions authorize the U.S. Environmental Protection Agency (EPA) to advance its standards-setting process, and provide general deference to EPA’s  implementation of the CAA and other statutory programs. The Court is sending a clear message to the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit, which reviews most of EPA’s final standards, and to other courts, to restrain judicial activism.

As America’s oil and natural gas boom spreads across the country, producers are finding it difficult to get oil from the wells to market. Pipeline capacity is limited, and shipping crude by rail has raised concerns in the media. What are the relative risks and merits of different methods of shipping crude oil long distance? Rail, ship, and pipeline each have pros and cons, risks and benefits. On May 7, 2014, the Environmental Law Institute convened a panel of experts to explore the regulatory realm of each option.