The U.S. Supreme Court’s relatively brief, unanimous decision issued on June 10, 2013, in Horne v. Department of Agriculture, has received little notice in comparison with the two other takings cases of the Court’s 2012-2013 term, Arkansas Game & Fish Commission v. United States, and (especially) Koontz v. St. Johns Water Management District. This instant obscurity is not wholly undeserved given the narrowness of the Court’s ruling: the federal courts, in the context of reviewing a U.S.

Fossil fuel-fired electric generating units (EGUs) account for 40% of the U.S. annual greenhouse gas (GHG) emissions. No federal regulations currently limit those releases. Two months ago, President Barack Obama ordered the U.S. Environmental Protection Agency (EPA) to fill this gap by setting GHG emission limits for new EGUs under §111(b) of the Clean Air Act (CAA) and for existing EGUs under §111(d).

President Barack Obama’s climate agenda announced in June represents the latest of many Democratic Party efforts to address climate change. Although it includes no new legislation, the president’s plan makes unprecedented use of executive branch powers and offers a great many things that appeal to core Democratic constituencies.

This Dialogue combines two releases from the White House dated June 25, 2013: A fact sheet on President Obama’s Climate Action Plan and a presidential memorandum to the U.S. Environmental Protection Agency regarding power-sector carbon pollution standards.

Environmental law depends on the regular collection of accurate information about the state of the natural environment (“ambient monitoring”) in order to assess the effectiveness of current regulatory and management policies and to develop new reforms. Despite the central role that ambient monitoring plays in environmental law and policy, the scholarly literature has almost ignored the question of whether and how effective ambient monitoring will take place—even though there is ample evidence that our current ambient monitoring data has significant flaws.

The designation of critical habitat under the Endangered Species Act (ESA) can result in significant and costly consequences for landowners, industry, government, and other entities—often with little if any evidence of a commensurate benefit to the species involved. In Critical Habitat and the Challenge of Regulating Small Harms, Professor Dave Owen provides a valuable contribution to assessing the role of critical habitat during consultation on federal agency actions under ESA section 7.

Professor Dave Owen’s insightful empirical analysis of the Endangered Species Act’s (“ESA”) prohibition on destruction of critical habitat should be useful in improving the Act’s effectiveness. The title of his paper, Critical Habitat and the Challenge of Regulating Small Harms, however, is misleading in its characterization of impacts addressed in U.S. Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (collectively “the Services”) “biological opinions.” A biological opinion is the culmination of “formal” consultation.

Each year the Interior Department’s Fish & Wildlife Service (FWS) and its sister agency, the National Marine Fisheries Service (NMFS), spend a significant portion of their limited resources—and engender substantial controversy—in identifying critical habitat for various species as required by the Endangered Species Act, 16 U.S.C. §§1531-1544 (ESA). Professor Owen has done a great service in developing and analyzing empirical evidence suggesting that both the expense and controversy may be out of proportion to the actual effect of critical habitat designations.

The ESA is the most important U.S. law protecting biodiversity. The Act is designed to prevent the extinction of imperiled animal and plant species and to promote those species’ recovery. To those ends, it requires the services to list species that are in danger of extinction and to designate critical habitat for those species. That critical habitat should include both occupied and unoccupied habitat with “physical or biological features . . . essential to the conservation of the species.”

David Adelman and Ian Duncan propose to combine liability with regulation of geologic sequestration of CO2, providing a useful discussion of the relative advantages and disadvantages of each policy instrument as applied to carbon capture and sequestration (CCS). Further details of how their proposal would be implemented are essential to fully evaluating its merits and likelihood of success.