Vibrant Environment

Interested in learning from leading scholars, policymakers, and practitioners about innovative policy proposals related to federal energy leasing, state preemption of local environmental initiatives, or free trade and enforcement of environmental laws? If so, you’ll want to attend the 12th annual Environmental Law and Policy Annual Review (ELPAR) conference on March 29, 2019, in Washington, D.C. The conference is free, and for those of you outside the D.C. area, it will also be available via webinar.

On January 29, 2019, PG&E, the largest utility company in California, filed for Chapter 11 bankruptcy. The announcement comes after a spate of wildfires in California have been linked to the company’s equipment and hardware—including a PG&E-operated transmission tower that investigators suggest may have sparked the deadly Camp Fire in Northern California. While the corporation struggles to maintain its public integrity amidst financial reorganization and internal reshuffling, energy consumers and producers alike have been left with an uncertain future.

“We’re a long way off, to tell you the honest truth.” A candid statement from New Zealand Climate Change Minister James Shaw, made days out from the 2018 United Nations Climate Change Conference—COP24 Katowice—on the possibility of New Zealand meeting its emission reduction commitment under the Paris Agreement.

In the international system, there are over 3,500 environmental agreements governing thousands of distinct ecosystems across hundreds of different nations. This complex spider-web of treaties, protocols, and commitments often lacks coherence, obscuring the role of environmental law in the international community. Despite efforts to consolidate international environmental governance with the inception of the United Nations Environment Programme (UNEP) in 1972 and the Paris Climate Accords in 2015, barriers to a consolidated system of environmental law still remain. While UNEP has certainly filled an important role in moving toward such a system, it has historically been unable to act as a unifying central authority in the way that U.N. bodies like WHO, FAO and UNESCO have.

Nanotechnology (nanotech) has been described by some as the next Industrial Revolution. After more than 20 years of focused research and development, its application is growing and providing benefits and challenges. It already has footing in diverse commercial industries that span from cosmetics to aerospace with expectations of exponential growth. Its extraordinary properties make the unimaginable possible, but in that magic come concerns around environment, health, safety, and ethics that sometimes make nanotech seem more like the Wild West. Here are some takeaways from my years of wrestling with the nanotech genie.

In 2017, former EPA Administrator Scott Pruitt outlined a series of environmental priorities in his “Back-to-Basics Agenda.” Among them was delegating more responsibility to state governments—a call that evoked over 40 years of “tug of war” between state and federal authority over environmental regulation. This question of the proper distribution of power in environmental policy—referred to as federalism—first became salient in the early 1970s with the creation of the U.S. Environmental Protection Agency (EPA) and the crystallization of the federal government’s role in environmental issues.

My long professional experience as an environmental enforcer and corporate compliance officer persuades me that strong enforcement of environmental laws, including sanctions for noncompliance, is essential to deliver their benefits to the public. To borrow from ELI’s slogan, enforcement “makes environmental law work” by reinforcing the accountability of both government agencies and the organizations they regulate for achieving compliance.

Just weeks after the widespread Gilets Jaunes (Yellow Vest) protests swept across France for the better part of December, a petition commonly known as the L’Affaire du Siècle—the Case of the Century—has garnered over 2 million supporters.

Brought by four nongovernmental organizations (NGOs)—Greenpeace, Notre Affaire à Tous, OXFAM, and the Fondation Pour la Nature et l’Homme—the December 18 petition contains over 40 pages alleging the French government’s inaction on climate change, claiming that the government has “defaulted its environmental obligations” by failing to take crucial steps to halt rising global temperatures.

On February 14, 2019, EPA and the U.S. Army Corps of Engineers published a proposed rule revising the definition of “waters of the United States” (WOTUS) to redefine “federal authority under the Clean Water Act.” The proposed rule is the second part of the Trump Administration’s two-step process to repeal and revise the Clean Water Rule adopted in June 2015. The 2015 rule is currently in effect in 22 states as the courts sort out numerous challenges.

In litigation involving public lands, the first response from today's U.S. Department of Justice is almost always to contest plaintiffs’ standing.

U.S. Supreme Court decisions and numerous federal court decisions over the last several decades have effectively resulted in two evidentiary phases in most of these cases—first, proof of standing as a constitutional threshold, and second, only if standing is maintained, consideration of the evidence supporting the case on the merits. The standing phase is particularly relevant for public interest plaintiffs in public lands cases; it can require a more exacting showing from those seeking to vindicate public interests than from those asserting private economic interests.