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Clean Air Council v. U.S. Steel: Cooperative Federalism or Regulating in the Dark?

Clean Air Council is a victory for both states chafing under federal regulatory oversight and polluters seeking to reduce their compliance burdens. However, the decision creates new hurdles for the federal government’s efforts to mitigate air pollution and climate change. Working with incomplete information about air pollution, federal regulators will have much harder jobs. Ultimately, Clean Air Council invites more questions than it answers, though EPA has tools at its disposal to ensure that it retains access to air pollution data. How will EPA and other circuits react to the Third Circuit’s reinterpretation of CERCLA exemptions? What does the case portend for the Clean Air Act’s “cooperative federalism”? What is certain is that if the federal government wants to effectively control air pollution across the United States, it cannot regulate in the dark without up-to-date knowledge of emissions events.

Mar 10, 2023
Grayson Peters

“Stranded Pesticides”: U.S. Agricultural Worker Vulnerability in the Wake of the 2021 Chlorpyrifos Food Ban

The 2021 chlorpyrifos tolerance revocation is undoubtedly a victory for public health. However, the rule has not eliminated the risks that chlorpyrifos poses to agricultural workers, their families, and their neighbors. Many workers will continue to experience the health risks that the chemical poses, even as policymakers and the public celebrate the 2021 victory and begin to move on. It will be enormously important, then, for all those invested in the notion of environmental justice to remain attentive to the expressed concerns and desires of workers impacted by chlorpyrifos’s stranded uses, among other harmful pesticides.

Mar 10, 2023
Christina Libre

Governing the Grid: Reforming Regional Transmission Organizations on the Heels of Order No. 841

This Note sets out to evaluate the implementation problems surrounding Order No. 841 as they relate to the governance structures of RTOs. It argues that, in RTOs, poor implementation of the order roughly correlates with governance structures that prop up traditional energy interests to the detriment of alternative resources. FERC can and should tackle these problems by directly restructuring RTOs. It should protect boards of directors from undue stakeholder influence, distribute alternative resource interests across a wide variety of sectors, and defer to states so long as they promote fair competition. By doing so, FERC will help the United States realize the gains in efficiency and emissions reduction made possible by a financially competitive electricity market. Doing otherwise would be a missed opportunity with potentially catastrophic consequences. Regardless, the stage is set, and legislatures are taking note of the problem.353 In equal measures, it is a matter of time and action.

Mar 10, 2023
Oleg Kozel

All’s a Fair Share in CERCLA and War: Guam v. United States and Military Responsibility for Superfund Cleanups

The Supreme Court in Guam clarified a minor but important detail of CERCLA to ensure that states and territories, especially those impacted by U.S. military activity, that enter into settlements under environmental laws have clearcut options to recover cleanup costs. Guam’s holding maintains CERCLA’s cooperative federalism and respect for states’ role in hazardous waste cleanup by making it less likely that states and territories will be left as the last-resort source of funding. By closing a legal loophole, the holding also protects communities impacted by military activity and prevents the federal government from evading its financial cleanup duties.

Mar 10, 2023
Sierra Killian