A Guide to the Newest Edition of Environmental Regulation

TRANSITION GUIDE

FOR THE

8th EDITION

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Percival, Schroeder, Miller & Leape,

Environmental Regulation: Law, Science & Policy, 8th Edition

Transition Guide from Seventh Edition to Eighth Edition

The Eighth Edition of Environmental Regulation: Law, Science & Policy comprehensively revises and updates the Seventh Edition. Professors who previously used the Seventh 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 and existing material in the casebook has been thoroughly updated. The casebook is being released at a time of significant change in federal environmental policy. Significant deregulatory initiatives launched by the Trump administration during its first year in office are discussed in this edition.

The following

 is a detailed, chapter-by-chapter listing of the revisions and updates contained in the Eighth Edition and a description of how material that was in the Seventh Edition has changed.

Chapter 1 – Environmental Values and Policies

Data concerning global temperatures and global population has been updated.  

Polling data showing a decline in public support for environmental protection is updated.

In the discussion of environmental values, an excerpt is included from Pope Francis’s June 2015 encyclical Laudato Si – On Care for Our Common Home. The Pope describes climate change as an environmental justice issue, expresses his concern over global inequality, and maintains that the current generation has a moral responsibility to preserve the environment for future generations.

In the discussion of environmental justice a candid discussion in the Environmental Law Reporter of the state of environmental justice at the close of the Obama administration is referenced. New paragraphs are added to this section discussing the lead poisoning scandal in Flint, Michigan, the September 2016 report of the U.S. Commission on Civil Rights on environmental justice, and the Trump administration’s approach to environmental justice.

The pathfinder on environmental justice has been updated.

In the discussion of cost-benefit analysis, a paragraph has been added that quotes Larry Summers’ memo advocating that more pollution should be shipped to developing countries and George Will’s statement that the concept that life is priceless is “useful nonsense.”

The Problem Exercise on Arctic Oil Exploration, Pipelines, and Hydraulic Fracturing has been updated. Shell’s withdrawal from efforts to drill for oil off the north coast of Alaska is noted. President Obama’s veto of the Keystone XL pipeline and its reversal by President Trump is discussed, and material has been added on the controversy over the Dakota Access pipeline. EPA’s December 2016 report on environmental problems associated with hydraulic fracturing is discussed.

Chapter 2 – Environmental Law: A Structural Overview

The discussion of the history of environmental regulation has been updated to reflect the election of President Trump and the abrupt shift in regulatory policy occasioned by his administration.

A new note has been added after the Ouellette case to discuss the Sixth Circuit’s decision in Boler v. Early holding that the Safe Drinking Water Act does not preempt a class action lawsuit against government officials over the lead poisoning in Flint, Michigan.

A new note has been added after the Ouellette case to discuss the Third Circuit’s decision in Bell v. Cheswick Generating Station holding that the Clean Air Act does not preempt a state common law nuisance action against a coal-fired power plant.

A new note has been added after Massachusetts v. EPA discussing the Juliana v. U.S. litigation in federal district court in Oregon by children against the federal government for failure to protect future generations from the harms associated with climate change.

In the discussion of environmental federalism the Ninth Circuit’s decision in Rocky Mountain Farmers Union v. Corey rejecting a dormant commerce clause challenge to California’s Low Carbon Fuel Standard is described.

In the notes after New York v. United States a new note has been added discussing the implications of the U.S. Supreme Court’s decision in National Federation of Independent Business v. Sebelius for Tenth Amendment anti-comandeering doctrine.

In the notes after New York v. United States an existing note on how to divide responsibilities between federal and state levels of government has been expanded to include Professor Thomas Merrill’s argument that states are likely to do a better job of regulating hydraulic fracturing because of greater experience with oil and gas regulation.

In the discussion of the commerce clause as a source of constitutional authority to protect the environment, the Tenth Circuit’s decision upholding congressional power to protect endangered species in People for Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service has been added.

The discussion of regulation and its alternatives now discusses federal legislation signed into law in July 2016 to require labeling of products containing genetically  modified organisms (GMOs). 

Material on the Deepwater Horizon oil spill has been updated to include the September 2014 decision by Judge Barbier, the July 2015 nearly $20 billion settlement agreement between BP and the federal government, and the settlement’s approval in April 2016.

In the material on the regulatory process a new section has been added on the Congressional Review Act and its use to veto regulations during the early days of the Trump administration.

After Sierra Club v. Costle a new note has been added discussing President Trump’s Executive Order 13771 that requires agencies to repeal two existing regulations for each new regulation promulgated.

After Chevron U.S.A. v. NRDC an existing note has been expanded to note Justice Neil Gorsuch’s criticism of the Chevron doctrine.

Chapter 3 – Preventing Harm in the Face of Uncertainty

The existing excerpt from the Supreme Court’s Industrial Union Dept (“Benzene”) decision has been edited to eliminate three paragraphs from Justice Stevens’ plurality opinion and one paragraph from Justice Marshall’s dissent.

In the discussion of information about chemical risks the impact of the EU’s REACH program for chemical testing on the enactment of the Frank Lautenberg Chemical Safety for the 21st Century Act and its new testing requirements are discussed.

Data on chemical releases reported on the Toxics Release Inventory are updated.

An excerpt from the Supreme Court’s decision in Michigan v. EPA striking down the mercury and air toxics rule because of EPA’s initial failure to consider its costs has been added followed by five notes and questions.

Material on the Toxic Substances Control Act has been revised to reflect the extensive amendments made to it by the Frank Lautenberg Chemical Safety for the 21st Century Act, which became law in June 2016.

In the excerpt from the Corrosion Proof Fittings decision, three paragraphs have been deleted. In the notes following the decision an important question is asked concerning whether the case would have been decided differently had the current version of TSCA as amended by the Frank Lautenberg Chemical Safety for the 21st Century Act been in effect.

A new section on the Frank Lautenberg Chemical Safety for the 21st Century Act has been added and the Principal Provisions of the Toxic Substances Control Act have been thoroughly revised to reflect the new legislation.

In the discussion of the Safe Drinking Water Act an excerpt is included from American Water Works v. EPA, the D.C. Circuit decision upholding EPA’s refusal to set a maximum contaminant level of lead in drinking water, followed by notes and questions.

An excerpt from the principal author’s The Poison Poor Children Drink: Six Lessons from the Flint Tragedy is included followed by notes and questions.

In the discussion of the Emergency Planning and Community Right-to-Know Act (EPCRA), the website reporting data from the Toxics Release Inventory that EPA launched in 2015 is discussed as well as a report the agency issued on the 30th anniversary of EPCRA.

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