TRANSITION GUIDE

FOR THE

7th EDITION

 

Percival, Schroeder, Miller & Leape,

Environmental Regulation: Law, Science & Policy, 7th Edition


Transition Guide from Sixth Edition to Seventh Edition


The Seventh Edition comprehensively updates and revises the Sixth Edition.  Professors who previously used the Sixth Edition will be happy to know that there are no significant structural or organizational changes in the new edition.  Several new cases and Problem Exercises have been added or significantly revised and updated.  Highlighted below is the most significant new material in the Seventh Edition followed by a detailed chapter-by-chapter listing of changes.


The “Problem Exercise: Should ANWR Be Opened to Oil Exploration and Development?” has been replaced with a new Problem Exercise on Arctic Oil Exploration, The Keystone XL Pipeline & Hydraulic Fracturing.

The Supreme Court’s decision in American Electric Power Co. v. Connecticut concerning displacement of the federal common law of nuisance by the Clean Air Act has been added as a new case excerpt along with new notes and questions.

The Case Study on Liability, Regulation, and the Prevention and Remediation of Oil Spills has been updated to incorporate material on the Deepwater Horizon oil spill, and two new notes discussing the causes and consequences of the spill have been added.

The Problem Exercise on Disposal of the Nation’s High-Level Radioactive Waste has been updated to reflect the report of the Blue Ribbon Commission on America’s Nuclear Future.

A new section (5C2) on “EPA’s Endangerment Finding and Regulation of Greenhouse Gases” has been added that includes a new case excerpt from the D.C. Circuit’s decision upholding EPA’s regulation of GHG emissions in Coalition for Responsible Regulation v. EPA with new notes and questions following it.

The case excerpt from D.C. Circuit’s decision striking down the Clean Air Interstate Rule (CAIR) in North Carolina v. EPA has been replaced with text describing the decision and a new case excerpt has been added from the D.C. Circuit’s decision striking down EPA’s Cross-State Air Pollution Rule in EME Homer City Generation, L.P. v. EPA.

The Miccosukee case excerpt is now part of a section relabeled “Can a Water Transfer Qualify as the ‘Discharge of a Pollutant?” Litigation challenging EPA’s Water Transfer Rule is discussed and a case excerpt has been added from the Supreme Court’s 2013 decision in Los Angeles County Flood Control District v. NRDC.

Rising sea levels, beach replenishment projects, and the Supreme Court’s flirtation with the concept of a “judicial taking” are discussed in a new case excerpt from the Court’s decision in Stop v. Beach Renourishment, Inc. v. Florida Department of Environmental Protection.

The Problem Exercise on How to Consider Climate Change in an EIS has been expanded to incorporate CEQ’s 2010 guidance on this issue.

A new case excerpt has been added from Friends of Blackwater v. Salazar, the D.C. Circuit’s decision upholding a delisting despite failure to meet criteria in the species’ Recovery Plan.

A new case excerpt has been added from the Supreme Court’s 2012 decision in Sackett v. EPA holding that pre-enforcement review can be obtained for an EPA administrative compliance order under Section 309 of the Clean Water Act.

The Problem Exercise on Designing a Post-Kyoto Regime of Controls on GHG Emissions has been updated with new data on current emission levels and new questions relating to whether the U.S. should encourage China to use hydraulic fracturing to increase its natural gas supply.  A new question on the EU’s application of its emissions trading scheme to non-EU airlines also has been added.


The following is a detailed chapter-by-chapter listing of the Seventh Edition’s significant additions and deletions of material from the Sixth Edition.


Chapter 1 – Environmental Values and Policies


Data concerning global population and global environmental problems have been updated and reference is now made to the Rio+20 Earth Summit that was held last summer. 

The Ecological Footprint in Figure 1.1 has been updated with data from the World Wildlife Fund’s 2012 Living Planet Report and the Unfinished Business List in Figure 1.2 has been deleted.

New polling data showing a decline in public support for environmental protection after the global recession is presented.  

The Minamata Convention on mercury is now mentioned at the end of the Problem Exercise on Mercury Contamination.

Discussion concerning preservation of samples of the smallpox virus has been deleted.

The “Problem Exercise: Should ANWR Be Opened to Oil Exploration and Development?” has been replaced with a new Problem Exercise on Arctic Oil Exploration, The Keystone XL Pipeline & Hydraulic Fracturing.


Chapter 2 – Environmental Law: A Structural Overview


The discussion of legislative gridlock on environmental issues has been updated.

A new note has been added on the North Carolina v. TVA transboundary nuisance suit and its ultimate settlement.

The Supreme Court’s decision in American Electric Power Co. v. Connecticut concerning displacement of the federal common law of nuisance by the Clean Air Act has been added as a new case excerpt along with new notes and questions.

A note discussing the use of federal common law to address invasive carp threatening the Great Lakes has been added.

A note on the Village of Kivalina climate change litigation being dismissed by the Ninth Circuit in the wake of the AEP v. Connecticut decision has been added.

The notes following the case excerpt from Massachusetts v. EPA have been updated to mention the D.C. Circuit’s decision upholding EPA’s endangerment finding in Coalition for Responsible Regulation v. EPA and Justice Kennedy joining a restrictive standing opinion in Summers v. Earth Island.

The Case Study on Liability, Regulation, and the Prevention and Remediation of Oil Spills has been updated to incorporate material on the Deepwater Horizon oil spill and two new notes discussing the causes and consequences of the spill have been added.

A note on regulatory review by OMB has been updated to reflect President Obama’s executive order requiring agencies to conduct retrospective reviews of their existing regulations.


Chapter 3 – Preventing Harm in the Face of Uncertainty


New information has been added updating the discussion of EPA’s issuance of rules requiring testing of chemicals under the Toxic Substances Control Act (TSCA).

The Case Study on Mercury Emissions from Powerplants has been updated to reflect EPA’s issuance of new regulations to control such emissions.

Data on the number of countries that have banned asbestos have been updated.

A new note has been added on the debate over TSCA reform legislation.

The outline of the provisions of the Safe Drinking Water Act (SDWA) now highlights the exemption of non-diesel fluids used in hydraulic fracturing operations and the discussion of the SDWA describes the circumstances surrounding this amendment.

A new note has been added discussing the defeat by California voters of Proposition 37, which would have required labeling of products containing genetically modified organisms (GMOs).


Chapter 4 – Waste Management and Pollution Prevention


Data on the volumes of various waste streams have been updated.

EPA’s Pollution Prevention Program Strategic Plan is mentioned.

EPA’s latest proposed modification of the definition of solid waste is mentioned and a new note has been added on the long-running regulatory saga of how “solid waste” is defined.

New discussion has been added concerning EPA’s authority to issue unilateral administrative orders (UAOs) under CERCLA and the D.C. Circuit’s rejection of a due process attack on them in General Electric v. Jackson.

A new note has been added on how lower courts are reacting to the Supreme Court’s decision concerning CERCLA “arranger” liability in Burlington Northern & Santa Fe Railway Cos. v. U.S.

Lower court decisions in the wake of the Supreme Court’s CERCLA cost recovery decision in Atlantic Research are discussed.

The Problem Exercise on Disposal of the Nation’s High-Level Radioactive Waste has been updated to reflect the report of the Blue Ribbon Commission on America’s Nuclear Future.


Chapter 5 – Air Pollution Control


Material on air pollution problems has been updated.

The failure of Congress to adopt legislation controlling greenhouse gas emissions is discussed.

A new section (5C2) on “EPA’s Endangerment Finding and Regulation of Greenhouse Gases” has been added that includes a new case excerpt from the D.C. Circuit’s decision upholding EPA’s regulation of GHG emissions in Coalition for Responsible Regulation v. EPA with new notes and questions following it.

Data on emissions from mobile sources have been updated with new Figures on population and economic growth, vehicle miles traveled, and emissions.

Lawsuits concerning MTBE contamination are discussed.

Material on zero emission vehicles (ZEVs) has been updated.

The excerpt from Engine Manufacturers Ass’n v. South Coast Air Quality Management District has been replaced with a short description of the case.

The material on Greenhouse Gases and Mobile Sources: California’s Special Role has been updated and the case excerpt from Central Valley Chrysler Jeep, Inc. v. Goldstene has been deleted.

The Obama administration’s agreement with automakers to increase fuel economy standards significantly is discussed.

The material on Greenhouse Gases and Mobile Sources: EPA’s Response to Massachusetts v. EPA has been deleted because it is now covered in the discussion of the D.C. Circuit’s decision upholding EPA’s endangerment finding in Coalition for Responsible Regulation v. EPA.

Figure 5.7 outlining EPA’s current national ambient air quality standards (NAAQS) has been replaced with an updated version of them.

The discussion of a short-term NAAQS for SO2 has been revised to reflect EPA’s issuance of such a standard.

A new note has been added discussing EPA’s efforts to lower the NAAQS for ozone and President Obama’s rejection of them.

The case excerpt from D.C. Circuit’s decision striking down the Clean Air Interstate Rule (CAIR) in North Carolina v. EPA has been replaced with text describing the decision and a new case excerpt has been added from the D.C. Circuit’s decision striking down EPA’s Cross-State Air Pollution Rule in EME Homer City Generation, L.P. v. EPA.


Chapter 6 – Water Pollution Control


Water quality data have been updated and new Figures containing the updated data replace Figures displaying older data.

The excerpt from Bill Andreen’s article "Has the Clean Water Act Been a Success?" has been replaced with an excerpt from Bill Andreen’s new article "Success and Backlash: The Remarkable (Continuing) Story of the Clean Water Act." 

A few paragraphs have been added to the case excerpt from Rapanos v. U.S. to include Justice Scalia’s harsh criticism of wetlands regulation and the notes following the case have been updated to reflect how the lower courts have responded to the decision.

A Summary of the Key Points in EPA’s Draft Guidance on Identifying Waters Protected by the Clean Water Act has been added.

The Miccosukee case excerpt is now part of a section relabeled “Can a Water Transfer Qualify as the ‘Discharge of a Pollutant?” Litigation challenging EPA’s Water Transfer Rule is discussed and a case excerpt has been added from the Supreme Court’s 2013 decision in Los Angeles County Flood Control District v. NRDC.

EPA’s “Silvicultural Rule” defining point sources from logging operations is discussed along with the Supreme Court’s 2013 decision deferring to EPA’s regulations in Decker v. Northwest Environmental Defense Center.

EPA’s amendments to its confined animal feeding operation (CAFO) regulations in response to the Fifth Circuit’s decision in National Pork Producers Council v. EPA is discussed in a new note.

EPA’s new NPDES general permit for pesticide spraying activities is mentioned.

Updated data on the use of TMDLs is included.

The D.C. Circuit’s 2013 decision in Mingo Logan Coal Co. v. EPA upholding EPA’s authority to veto a Section 404 permit for dumping the residue from mountaintop mining into streams is discussed.

The impact of EPA’s National Water Program’s strategy for responding to climate change is mentioned along with the impact of Superstorm Sandy on sewage discharges.


Chapter 7 – Land Use Regulation and Regulatory Takings


New data on urban sprawl are discussed along with California’s effort to reduce greenhouse gas emissions through land use, housing, and transportation planning.

The Tenth Circuit’s decision upholding the Roadless Rule in Wyoming v. U.S. Dep’t of Agriculture is mentioned.

Florida’s efforts to relax state growth management laws are mentioned.

The case excerpt from Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency has been replaced with a description of the decision rejecting the claim that a lengthy moratorium on development constituted a regulatory taking.

The Supreme Court’s review of a takings claim in the context of a regulatory exaction that does not involve real estate in Koontz v. St. Johns River Water Management District is discussed (the decision is expected shortly).

The Supreme Court’s 2012 decision in PPL Montana, LLC v. Montana is discussed for its recognition that the public trust is a matter of state law subject to federal regulatory power.

Rising sea levels, beach replenishment projects, and the Supreme Court’s flirtation with the concept of a “judicial taking” are discussed in a new case excerpt from the Court’s decision in Stop v. Beach Renourishment, Inc. v. Florida Department of Environmental Protection.


Chapter 8 – Environmental Assessment


Remedies for a NEPA violation are discussed in a new note on the Supreme Court’s decision in Monsanto Co. v. Geertson Seed Farms.

Guidance documents from the Council on Environmental Quality (CEQ) on the impact of mitigation commitments on findings of no significant impact and the use of categorical exclusions are discussed.

A new note has been added on the supplemental environmental impact statement (EIS) for the Keystone XL pipeline project.

The Problem Exercise on How to Consider Climate Change in an EIS has been expanded to incorporate CEQ’s 2010 guidance on this issue.

A new note has been added discussing CEQ’s steps to modernize and reinvigorate NEPA.


Chapter 9 – Preservation of Biodiversity


New lower court decisions upholding the constitutionality of the ESA are mentioned.

The saga of the Solicitor of Interior’s memorandum on the meaning of “in danger of extinction throughout all or a significant portion of its range” is discussed, including the adverse court decisions it spawned, its withdrawal, and Congress’s intervention to mandate the delisting of the gray wolf.

A settlement between environmentalists and the Obama administration requiring acceleration of listing decisions is discussed.

Data on the status of ESA listing has been updated and a new figure on the location of endangered species has been added.

The D.C. Circuit’s decision upholding the Section 4(d) rule for the threatened polar bear in In re Polar Bear Endangered Species Act Listing is discussed.  Alaska’s effort to invalidate the critical habitat determination for the polar bear is discussed.

A new case excerpt has been added from Friends of Blackwater v. Salazar, the D.C. Circuit’s decision upholding a delisting despite failure to meet criteria in the species’ Recovery Plan.

A new note has been added discussing the Ninth Circuit’s en banc decision in Karuk Tribe of California v. U.S. Forest Service, which addressed the discretionary acts principle of NAHB v. Defenders of Wildlife.


Chapter 10 – Environmental Enforcement


Data on the use of whistleblower protection laws has been updated.

A new case excerpt has been added from the Supreme Court’s 2012 decision in Sackett v. EPA holding that pre-enforcement review can be obtained for an EPA administrative compliance order under Section 309 of the Clean Water Act. The discussion and notes following the case contrast the result to the D.C. Circuit’s decision holding that a CERCLA unilateral administrative order does not violate due process even in the absence of pre-enforcement review.

EPA enforcement data have been updated.

A new note has been added on the response of other federal courts to the Eight Circuit’s decision in Harmon Industries v. Browner.

EPA’s “most wanted” list is discussed.

A new note is added discussing the Supreme Court’s 2012 decision in Southern Union v. U.S. concerning the need for juries to find facts upon which an enhanced sentence for an environmental crime is premised.

Four new lower court decisions on environmental standing are discussed as well as the Supreme Court’s decision to review a case (Pacific Rivers Council v. U.S. Forest Service) upholding the standing of environmentalists to challenge a forest management decision without specifying parcels of land affected by the activity they challenge.


Chapter 11 – Protection of the Global Environment

Principles 10 and 12 on access to information and public participation and trade policy have been added to the excerpt from the 1992 Rio Declaration.

A discussion of what happened at the June 2012 Rio+20 conference has been added.

Discussion of global CO2 levels passing the 400 ppm mark has been added.

Several notes have been added about the devastation wrought by natural disasters including Superstorm Sandy and the debate over whether they can be linked to climate change.

A discussion of the World Bank’s report “Turning Down the Heat: Why a 4 Degree Warmer World Must Be Avoided” has been added.

A discussion of “short-lived climate pollutants” has been added.

A new section on the International Carbon Market Post-2012 has been added along with an excerpt from the World Bank report “State and Trends in the Carbon Market 2012.”  This replaces the Cappor and Ambrosi excerpt from the 2008 State and Trends report.

A new discussion has been added of the Copenhagen Conference (COP-15), the Cancun Conference (COP-16), and the Durban Conference (COP-17) and a new excerpt from Dan Bodansky’s “The Durban Platform: Issues and Options for a 2015 Agreement” has been added.

A new section on the Doha Conference (COP-18) has been added entitled
“International Action on Climate Change Post-Doha: Bad News and Good News.”

A new discussion of falling CO2 emissions in the U.S. has been added along with a new Figure on Changes in Projections of U.S. CO2 Emissions 2009-2013.

The Problem Exercise on Designing a Post-Kyoto Regime of Controls on GHG Emissions has been updated with new data on current emission levels and new questions relating to whether the U.S. should encourage China to use hydraulic fracturing to increase their natural gas supply.  A new question on the EU’s application of its emissions trading scheme to non-EU airlines also has been added.

Discussion of climate change litigation including Kivalina and Comer has been added.

The agreement at COP-18 to establish an international mechanism to address “loss and damage associated with the impacts of climate change in developing countries” is discussed.

New notes on state and local initiatives to adapt to climate change and sea level rise have been added.

A new section discussing the pros and cons of geo-engineering as a response to climate change has been added.

Global trade statistics have been updated and the number of countries who have banned asbestos has been updated.

The Ecuador litigation against Chevron for polluting the Amazon has been updated with discussion of the large judgment rendered against Chevron by the court in Ecuador, the plaintiff’s efforts to collect the judgment in the courts of Canada, Brazil and Argentina, and Chevron’s RICO suit against the plaintiffs and their lawyers.

A lengthy note has been added discussing the Supreme Court’s April 2013 decision in Kiobel v. Royal Dutch Petroleum Co. that has made it virtually impossible to sue foreign defendants in U.S. courts for harm caused outside the U.S. under the Alien Tort Statute.

Statistics on the Global Environmental Facility’s funding of green energy projects have been updated.

Data concerning the number of financial institutions that have adopted the Equator Principles have been updated.


Chapter 12 – Environmental Progress and Prospects


Gregg Easterbrook’s conversion from “skeptic to convert” on climate change is discussed in a new note.

Paul and Anne Ehrlich’s more optimistic contemporary views concerning global population are discussed in a new note.

Bjorn Lomborg’s concession that global warming has become a serious problem is discussed in a new note.

The 2007 excerpt from Percival, “Environmental Law in the Twenty-First Century” has been replaced by a 2013 excerpt from Percival “Looking Backward, Looking Forward: The Next 40 Years of Environmental Law.”

A new note has been added discussing Allison Flournoy’s proposal for a National Environmental Legacy Act.

A new note has been added on Gus Speth’s views concerning the need to mobilize a social movement to protect the environment, as outlined in his 2012 book “America the Possible: A Manifesto.”  This replaces the Sixth Edition’s note on Speth’s 2004 book “Red Sky at Morning.”

Data on the Carbon Disclosure Project have been updated. 

New discussion has been added of the SEC’s 2010 Guidance Regarding Disclosure Related to Climate Change.

New discussion of lawsuits against BP for making misleading statements concerning its preparedness for an oil spill has been added.

A new note has been added on the UK retailer Marks and Spencer’s experience with carbon footprint disclosure.


Appendix A - Glossary


Nineteen new entries have been made to the Glossary (e.g. “hydraulic fracturing”) and four old entries have been dropped.


Appendix B – Acronym List


Twelve new acronyms have been added and six old ones have been dropped.