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In recent decades, climate change events have surged in both frequency and intensity. Paradoxically, the most vulnerable and economically disadvantaged states, despite contributing the least to global emissions, face the gravest consequences. Developed nations, despite their wealth of resources, have consistently failed to act in the face of this crisis. For example, the recent United States Supreme Court Decision, West Virginia v. Environmental Protection Agency, limited the administrative state's rulemaking authority and thus, its ability to enact necessary climate policy. This decision, based in the infamous "major questions doctrine," asserts that administrative agencies must have explicit authority from Congress when deciding questions of vast economic and political significance - even in times of crisis. This Note, in four parts, traces the evolution of the American judiciary's interpretation of administrative rulemaking from Chevron to the present, ultimately urging Congress to enact legislation that requires courts to defer to the expertise of administrative agencies when interpreting the law--ultimately strengthening the administrative state and its ability to fight climate change. This Note aims to contribute to the ongoing discourse surrounding climate policy and administrative law, emphasizing the imperative for coordinated efforts to address the climate crisis at both the national and international levels. [ABSTRACT FROM AUTHOR]

Consent decrees -- the unheralded workhorses of regulatory law -- play a critical role in environmental law. The bulk of major environmental disputes at the federal level are resolved through consent decrees lodged under judicial supervision, and key federal environmental statutes and policies directly require settling parties to use consent decrees to resolve their claims. These proposed decrees, however, typically receive only a restrained judicial review that does not yield a formal judicial opinion on the full merits of the agreement. Parties, in fact, will frequently insist that the decree will not involve an admission of liability or any conclusions of law. As a result, consent decrees operate as the dark matter of environmental law -- an unseen supporting medium that surrounds and supports the statutory and regulatory directives that function within it, but which leaves few marks of its own. These decrees play a similar role in several other legal fields, including antitrust, consumer protection, class actions, labor, and bankruptcy. Most of the public and scholarly scrutiny of consent decrees has focused on concerns about their potential effects on third parties and their constraints on future executive discretion or administrative action without proper democratic accountability or transparency. This Article reverses that perspective. It assumes that consent decrees can appropriately create and foster emerging legal principles, and it suggests strategies to identify these new legal holdings. This Article proposes three ways by which consent decrees substantially influence the development of environmental law and flag new emerging principles. First, consent decrees can serve as a platform to implement nascent regulatory policy prior to the formal promulgation of rules or regulations. In a sense, consent decrees in these circumstances provide a test bed for new environmental practices and expectations that later mature into full-fledged regulatory standards. This function of consent decrees tends to surface most visibly during coordinated enforcement initiatives involving industrial sectors at the federal level. Second, consent decrees can generate new law through deferential review by the courts that lodge them. When courts weigh a proposed consent decree to determine whether to accept it, they use a relaxed review standard that does not require the court to closely assess the merits or legal conclusions of the settlement. Such a review parallels, in many respects, the deferential judicial review of administrative agency action under the federal Administrative Procedure Act. This historical deferential review of agency action nonetheless has sketched the contours of numerous important principles of environmental law; relaxed judicial determinations of the legality and fairness of consent decrees may play a similar role. Last, and most controversial, consent decree judgments arguably can directly embody legal holdings that, at minimum, have persuasive value for subsequent court proceedings. These holdings, in certain circumstances, might even rise to the level of precedential rulings entitled to stare decisis in future actions. This final role of consent decrees in generating environmental law, however, requires careful consideration to avoid the risks of manipulation or erosion of judicial authority. [ABSTRACT FROM AUTHOR]

The article discusses the use of discount rate in calculating damages from climate change, as well as the U.S. federal rulemaking on the issue. Also cited are the contrasting policies of the administrations of former president Barack Obama and incumbent Donald Trump on discount rates, and the approval by federal judges of the use of discount rates in agency rulemakings.

The Trump Administration took office with an environmental agenda focused on rolling back regulations promulgated by the Obama Administration. However, the Administrative Procedure Act (APA) has repeatedly stalled the Administration's rushed deregulatory agenda because the Administration failed to satisfy the APA's requirement to provide a reasoned explanation for its decisions. This is not the first time the APA has served as a roadblock to deregulatory administrations. The Bush Administration suffered its own setbacks due to noncompliance with the APA. This Comment analyzes the APA's requirement for a reasoned explanation and draws parallels between the Trump and Bush Administration's failures. The Comment also provides strategies administrations can use under the APA for resilient environmental rulemaking and effectively reversing the rules of their predecessors, as well as strategies for litigants seeking to challenge an administration's environmental policy reversal. [ABSTRACT FROM AUTHOR]

The article focuses on the challenges associated with environmental legacy of former U.S. President Barack Obama by the administration of U.S. President Donald Trump. It mentions judicial deference of the decision of the U.S. Supreme Court's decision in the case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. on environmental regulation. It also mentions contours of arbitrary and capricious review as applied to regulatory change with Administrative Procedure Act.

The US notice and comment rulemaking process has often been considered ossified or broken, but recent scholarship has questioned this claim. To address this disagreement, we use McGarity’s (1992) ossification argument as a descriptive framework to structure an examination of interview data from three National Park Service rules: (1) Yellowstone National Park Rule, (2) Areas of the National Park System, Grand Canyon National Park Rule, and (3) the Gateway National Recreation Area, Sandy Hook Unit, Personal Watercraft Use Rule. We offer qualitative insights into what drives the longevity of NPS rulemaking, including analytical, scientific review, and substantive review requirements. [ABSTRACT FROM PUBLISHER]

After over a decade of controversy and litigation, the Ninth Circuit finally shielded the Tongass National Forest from road construction and timber harvest. In Organized Village of Kake v. U.S. Department of Agriculture, the court's en banc panel struck down the Forest Service's decision to exempt the Tongass from the extensive protections granted to all other national forests via the Roadless Rule. Though many welcomed the decision as an environmental victory, the heart of the Ninth Circuit's analysis focused on the court's interpretation of a procedural issue; the opinion sidestepped any discussion of substantive environmental law, despite the fact that the case would decide the fate of the nation 's largest, largely undeveloped, forest. This Note examines the court's analysis, rooting the opinion in the history of the Forest Service as an agency with extensive discretion, and the relationship that agency has had with the Tongass and its timber. Given this history, this Note argues that the Ninth Circuit should have decided the case based on environmental law and not administrative procedure, ideally resulting in a clearer, more environmentally protective holding. [ABSTRACT FROM AUTHOR]

Since the adoption of Washington's Water Resources Act in 1971, legal recognition of instream water uses to preserve fish, wildlife, and other environmental values have become firmly entrenched in Washington water law. By establishing "instream flow rules," rules that require a certain amount of water to be left in streams before water may be withdrawn for any new uses, the Washington State Department of Ecology (Ecology) must protect the environment while also managing water to achieve "maximum net benefits" for the people of Washington State. Ecology may only allow new withdrawals of water that will impair established instream flows if it finds that "overriding considerations of the public interest" will be served. In two recent cases, Swinomish Indian Tribal Community v. Washington State Department of Ecology and Foster v. Washington State Department of Ecology, the Washington State Supreme Court invalidated Ecology's reliance on this statutory exception in authorizing water rights that will impair instream flows, instead, interpreting the language of the exception very narrowly. This Comment analyzes instream flow rulemaking in light of these cases, concluding that the decisions constrain Ecology's ability to adapt existing rules to changing conditions, and that current law is therefore inadequate to address future challenges, including limited water availability and climate change. To better address these challenges, instream flow rules should be both more precise and more responsive to future conditions. To this end, Washington law should require instream flow rules to conform to a "best available science" standard tailored toward achieving healthy fish populations. In addition, investment in infrastructure for Washington's existing Trust Water Rights Program to help expand water banking activities throughout the state, is needed to facilitate market transfers of water to supply unmet instream flows and new out-of-stream uses. [ABSTRACT FROM AUTHOR]

The following work seeks to review some of the criteria for interpretation of the Environmental Enforcement Tribunal of the OEFA- Organismo de Evaluación y Fiscalización Ambiental, with respect to environmental responsibility, environmental damage, testing and others aspects that holders of mining titles face in the sanctioning administrative procedures for which this authority is responsible. The paper also considers that these criteria are not confined to the administrative authority, but are reviewed by the judicial system, and are used to determine legal actions and specialized hearings concerning environmental issues. [ABSTRACT FROM AUTHOR]

Fracking policy is a contentious issue that is increasingly being debated within state administrative agencies. Though scholars have revealed that stakeholders can be influential in federal rulemakings through framing, it is unclear whether groups at the state level are equally influential. This research employs a frame analysis approach to determine whether stakeholders use similar frames to those of federal groups, and whether they are comparably influential on regulatory outputs. I provide original interview data from a range of stakeholder groups and agency staff to unravel how stakeholders tried to influence the Colorado Oil and Gas Conservation Commission’s (COGCC) Statewide Groundwater Baseline Sampling and Monitoring Rule. This research confirms that stakeholder groups use similar frames to their counterparts in federal contexts. However, whether stakeholder framing efforts influenced the agency, was in part a function of their access, resources, and relationships to agency personnel. In this case, industry groups appeared to have an advantage, but this may shift based on the preference of the governor and which groups are invited to debate policy with agency personnel. This article concludes with a discussion of how scholars might consider evaluating stakeholder influence going forward. [ABSTRACT FROM PUBLISHER]

ABSTRACT In an era of congressional gridlock, innovation and pathways for the future of environmental policymaking are needed. The US Environmental Protection Agency (EPA) has long been an innovator in environmental decisionmaking, reconciling stakeholder differences. Yet, with the decline of negotiated rulemaking ('reg neg'), the purpose of our examination is to offer insights into how a contemporary US EPA creates rules. This exploratory study examines original interview data from actors involved during the creation of EPA rules to suggest that a present-day EPA uses a new approach, shuttle diplomacy, to develop rules. The findings from our research suggest that this new rule development method can help agencies that might operate in an adversarial environment to reconcile stakeholder differences while writing the language of a proposed rule before publishing a Notice of Proposed Rulemaking. We argue that this new rule development model is important for understanding the next generation of environmental rulemaking, not only in the US, but internationally as well. Copyright © 2013 John Wiley & Sons, Ltd and ERP Environment. [ABSTRACT FROM AUTHOR]

This article categorizes the mode of the most important environmental and climate policy instruments adopted in the automotive industry in China and identifies challenges to instrument implementation as well as potential ways to overcome them. The analysis shows that command-and-control standards are the dominant mode of environmental policy in China’s automotive industry and incentive-based instruments, taxes, and other market-based measures that form the backbone of transport policies in Europe and elsewhere are underrepresented. However, exceptions to this rule exist in form of locally applied incentive-based instruments, and in form of subsidies in the policy field of new energy vehicles. At present, command-and-control regulation shows the highest efficacy despite design flaws. Incentive-based instruments will achieve sufficient effectiveness in China only if their design as well as implementation and enforcement infrastructure are reformed substantially. This includes defining clear responsibilities, and powers in enforcement as well as rulemaking. [ABSTRACT FROM PUBLISHER]

Voluntary environmental governance arrangements have focal attention in studies on environmental policy, regulation and governance. The four major debates in the contemporary literature on voluntary environmental governance arrangements are studied. The literature falls short of sufficiently specifying whether or not voluntary environmental governance arrangements are successful in addressing environmental risks. This is due to the narrow focus of many contemporary studies and a tendency to study the form and content of voluntary environmental governance arrangements in isolation from their contextual settings. In order to gain a better understanding of voluntary environmental governance arrangements, scholars are challenged to study differently structured voluntary environmental governance arrangements in different contextual settings, to move beyond single country or single voluntary environmental governance arrangements studies, and to combine quantitative and qualitative data in studying these arrangements. [ABSTRACT FROM AUTHOR]

The article focuses on the application of environmental justice to administrative rulemaking in the United States. Topics include the relationship between environmental justice and social justice, the approach of the U.S. Environmental Protection Agency to distributive and environmental justice, and the capability approach to environmental justice.

Abstract: Cumulative impact assessment (CIA) is the process of systematically assessing a proposed action''s cumulative environmental effects in the context of past, present, and future actions, regardless of who undertakes such actions. Previous studies have examined CIA efforts at the federal level but little is known about how states assess the cumulative impacts of nonfederal projects. By examining state environmental review statutes, administrative rules, agency-prepared materials, and a national survey of the administrators of state environmental review programs, this study identifies the legal and administrative frameworks for CIA. It examines current CIA practice, discusses the relationship between CIA policy and its implementation, and explores the opportunities for improvement. The results of the study show that twenty-nine state environmental review programs across twenty-six states required the assessment of cumulative environmental impacts. More than half of these programs have adopted specific procedures for implementing their policies. Some programs assessed cumulative impacts using a standard review document, and others have created their own documentations incorporated into applications for state permits or funding. The majority of programs have adopted various scales, baselines, significance criteria, and coordination practices in their CIA processes. Mixed methods were generally used for data collection and analysis; qualitative methods were more prevalent than quantitative methods. The results also suggest that a program with comprehensive and consistent environmental review policies and procedures does not always imply extensive CIA requirements and practices. Finally, this study discusses the potential for improving existing CIA processes and promoting CIA efforts in states without established environmental review programs. [Copyright &y& Elsevier]

The article provides information on the case of Massachusetts versus U.S. Environmental Protection Agency (EPA) regulatory interest theory. It states that the private law model views the role of the court as the adjudicator of individual rights. Meanwhile, the opposing public law model favors congressional power to create causes of action that confer standing without showing of differentiated injury. In connection, the author concludes that a positivist approach to standing that predicates state and citizen provides a relatively straightforward.

We hypothesize that recent uses of the Internet as a public-participation mechanism in the United States fail to overcome the adversarial culture that characterizes the American regulatory process. Although the Internet has the potential to facilitate deliberative processes that could result in more widespread public involvement, greater transparency in government processes, and a more satisfied citizenry, we argue that efforts to implement Internet-based public participation have overlaid existing problematic government processes without fully harnessing the transformative power of information technologies. Public comments submitted in two United States Department of Agriculture (USDA) rulemaking processes—the National Organic Program's organic standard and the Forest Service's Roadless Area Conservation Rule—compose our data. We conclude that the Internet provides an arena for playing out three types of conflicts that have long plagued environmental decision-making processes: conflicts over trust of federal agencies, the use of science, and the role of public values. [ABSTRACT FROM AUTHOR]

In Sweden, environmental organizations (EOs) have, in co-operation with forest companies and social interest groups, introduced a voluntary certification scheme in accordance with the Forest Stewardship Council's (FSC) principles for sustainable forestry. Sweden was one of the first countries in which a nationally based FSC standard was introduced successfully. It is interesting to examine why a non-state-driven rule-making project has been comparatively successful in Sweden, where the state is often regarded as strong, pragmatic and open for big interest organizations and, therefore, could be expected to be the natural arena for forest regulation initiatives. This article asks: (1) why the certification project was initiated and driven from outside of the state; and (2) to what extent the Swedish state had an impact none the less. The case presented here reveals that the initiatives of EOs were partly motivated by their view that state regulatory processes and frameworks have failed to take care of environmental problems. However, the case also shows indications of state dependency/embeddedness and the article analyses the following factors: (1) regulatory framework; (2) political culture; (3) policy discourse and policy networks; and (4) state legitimacy. These findings suggest that non-state-driven rule-making can receive strength through a positive relationship with the state. [ABSTRACT FROM AUTHOR]

Provides information on the Palazzolo versus Rhode Island Supreme Court case, which focuses on the revival of Penn Central and its implications for environmental regulation in the U.S. Details of the case; Ruling made on the case; Overview of key regulatory takings cases.

Examines the implications of the calculation debate for Pigouvian, Coasean, and common-law liability approaches to environmental policy. Increase reliance on competitive market processes; Link between the type of institutional arrangement and the magnitude of the calculation problem; Evaluation on the administrative processes of Environmental Protection Agency.

Though there are comparatively complete environmental protection policies in present China, the environment is increasingly polluted and the ecology is increasingly destroyed, mainly because the macro-managerial system of environmental protection is not perfect, policies fail to be complemented, the concerned departments lack coordination in environmental protection, the environmental policies are not appropriate, and the wrong value orientation is adopted. So, the environmental policy must be adjusted, some administrative devices should be exerted, to improve the environment. [ABSTRACT FROM AUTHOR]

This article discusses environmental regulations promulgated by U.S. President George W. Bush during the last months of his term in 2008 and 2009. Political debates regarding the propriety of changes to environmental regulations such as the Clean Air Act and the regulation of mountaintop removal coal mining are assessed. The authors describe the increasing incidence of non-concurrence memos, where staff members at agencies such as the U.S. Environmental Protection Agency express their disagreement with proposed regulations. The efforts of the Bush administration to ensure that these regulations were in force by the time that U.S. President Barack Obama took office are explained.

This article reports on a legal rule-making petition that was filed by the Northwest Coalition for Alternatives to Pesticides, together with a coalition of health, hazardous waste, worker safety and environmental organizations, to challenge the secrecy policy of the U.S. Environmental Protection Agency about the inert components in pesticides. The aim of a rule-making petition is to ask a government agency to change its regulations and policies. Some of the health risks associated with chemicals used as inert ingredients include cancer, genetic damage and reduced fertility.

The article reports that the number of administrative compliance orders issued by the U.S. Environmental Protection Agency for Safe Drinking Water Act (SDWA) purposes increased for the fourth straight year. Summary charts from the agency's fiscal year (FY) 2005 annual enforcement report indicates that SDWA administrative compliance orders comprised a third of the 1,916 orders issued in FY 2005 for all agency programs. The charts also indicate that the number of SDWA administrative penalty orders and civil judicial referrals declined slightly over the previous year.