Table of Contents

Chapter 12: Shaping Next Generation Compliance at EPA: Lessons From the Agency's Past and Some Post-Workshop Thoughts

Joel A. Mintz, Nova Southeastern University

Rule 76A: Could Texas Courts Solve the Secrecy-Science Dilemma in Fracking Disputes?

R. Kyle Alagood, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Sue to Adapt?

Jacqueline Peel, Melbourne Law School
Hari M. Osofsky, University of Minnesota - Twin Cities - School of Law

Goal-Oriented Disclosure Design for Shale Oil and Gas Development

Kate Konschnik, Harvard University - Environmental Law Program


ENVIRONMENTAL LAW & POLICY eJOURNAL

"Chapter 12: Shaping Next Generation Compliance at EPA: Lessons From the Agency's Past and Some Post-Workshop Thoughts" Free Download
Chapter 12 in Leroy C. Paddock and Jessica A. Wentz, eds., Next Generation Environmental Compliance and Enforcement, ELI Press, 2014
NSU Shepard Broad Law Center Research Paper No. 14-007

JOEL A. MINTZ, Nova Southeastern University
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This chapter describes some little used — or never tried — approaches to environmental enforcement and compliance assurance that appear worth implementing. The chapter considers some practical lessons from the U.S. Environmental Protection Agency’s (EPA’s) enforcement history that have pertinence to the EPA’s ongoing enforcement resource constraints. In particular, it focuses on three topics: some low budget techniques employed in the past by EPA enforcement and compliance personnel that merit renewed emphasis, an approach to avoiding interoffice rivalries that have plagued the Agency’s enforcement and compliance work in the past, and some resources outside of EPA that the Agency may fruitfully draw upon to maximize the impact of the work of EPA’s Office of Enforcement and Compliance Assurance (OECA). The chapter also includes thoughts and suggestions with respect to other relatively inexpensive techniques that EPA may wish to use to enhance overall compliance with pollution control standards.

"Rule 76A: Could Texas Courts Solve the Secrecy-Science Dilemma in Fracking Disputes?" Free Download
Journal of Energy Law and Resources Currents, September 2014

R. KYLE ALAGOOD, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center
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Settlement confidentiality shrouds U.S. fracking lawsuits from scrutiny and ultimately makes it difficult for later litigants to establish their own claims. This brief article focuses on Texas Rule of Civil Procedure 76A, which regulates court-sanctioned secrecy, and proposes Texas as a litigation battleground for settlement transparency in fracking lawsuits.

"Sue to Adapt?" Free Download
Minnesota Law Review, Forthcoming 2015

JACQUELINE PEEL, Melbourne Law School
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HARI M. OSOFSKY, University of Minnesota - Twin Cities - School of Law
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Climate change litigation has influenced regulation substantially in the United States. Most notably, the Supreme Court’s decision in Massachusetts v. EPA serves as the basis for federal Clean Air Act regulation of greenhouse gas emissions from motor vehicles and power plants. However, most U.S. litigation thus far has focused on mitigation, i.e., how to limit emissions of the greenhouse gases that cause climate change.

This Article is the first to address the significance of an emerging area of U.S. litigation: cases focused on forcing or limiting government action to adapt to climate change. These new lawsuits – on issues such electric grid resiliency, protective sand dunes, coastal sewage system inundation, deterioration of coastal waters, and flood insurance – will help shape local, state, and federal efforts to plan for the impacts of climate change.

Although the United States has just begun to address adaptation in its courts, other common law countries are farther along. In particular, Australia, which faces many early impacts from climate change due to its geography, has more developed adaptation policy and jurisprudence. This Article not only explores the role of the developing U.S. case law, but also considers how the Australian experience might inform U.S. approaches. Drawing from extensive interviews with U.S. and Australian litigants and regulators in addition to doctrinal analysis, the Article argues that the Australian litigation illustrates pathways for U.S. litigation to build on its early cases to: (1) change planning culture, (2) use natural disasters as catalysts for adaptive planning, and (3) navigate more effectively the tensions between public adaptation interests and private property rights.

"Goal-Oriented Disclosure Design for Shale Oil and Gas Development" Free Download
Natural Resources Journal, Vol. 54, No. Fall, 2014

KATE KONSCHNIK, Harvard University - Environmental Law Program
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States have acted quickly to respond to the public’s demand for information on the chemicals used in hydraulic fracturing. Proponents of these disclosure requirements have relied on a number of policy rationales. However, the resulting disclosure systems may not be achieving stated goals. Ineffective disclosure requirements risk undermining public confidence in the disclosure process and waste an important opportunity to put these disclosures to work. This article suggests using a Goal-Oriented Disclosure Design approach to HFC disclosure, built around the goals for disclosure, the information end users need to target in pursuit of each goal, and the feedback loops those end users can trigger. The article then walks through the design steps for a disclosure regime intended to fully inform first responders and medical professionals, so that they may timely treat and diagnose patients who may have been exposed to hydraulic fracturing chemicals.

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