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Vol. 3 No. 1

 

COMPLEXITIES OF URBAN SUSTAINABILITY: USING LOCAL LAND-USE AUTHORITY TO ACHIEVE ENVIRONMENTAL GOALS

By: Kevin C. Foy

This article looks at the intersection between land use and the environment in North Carolina’s larger municipalities, and investigates whether land-use regulations can provide the foundation for local environmental laws that seek to protect, in particular, air and water quality. The second part of the article discusses the link between land-use and the environment, and then looks at how municipal growth is affecting North Carolina’s larger cities, and how that growth affects land-use decisions. The next part of the article looks at the history of federal involvement in land-use decisions, and how federal involvement continues to influence local governments. Part IV examines North Carolina’s land-use efforts, and various actions the North Carolina General Assembly has taken regarding land-use. Part V offers a review of various tools that municipalities can use to formulate environmental policy around land-use, and how the tools could be available to every North Carolina municipality. Part VI concludes by offering suggestions for North Carolina lawmakers that could help growing municipalities make better choices about land-use and the environment.

THE NEXUS REQUIREMENT FOR SUPPLEMENTAL ENVIRONMENTAL PROJECTS–THE EMPEROR’S NEW CLOTHES OF ENVIRONMENTAL ENFORCEMENT

By: Benne C. Hutson, Amanda K. Short

This article discusses supplemental environmental projects (SEPs). SEPs are projects an entity regulated by the EPA can offer to voluntarily perform as part a settlement negotiation with the EPA. In order for an SEP to be acceptable, a relationship must exist between the violations against the entity and the proposed project. The article particularly focuses on the difficulty of achieving this relationship in the context of violating the Toxic Substances Control ACT (TSCA). The article presents information on the policy and requirements behind the SEP policy, the basis for the relationship between the SEP and violation, the difficulty in satisfying the relationship requirement for violations of the TSCA, and how two companies successfully convinced the EPA to approve SEPs as part of settlement agreements for violations of the TSCA.

BURLINGTON NORTHERN & SANTA FE RAILWAY CO., ET AL V. UNITED STATES: DEFINING ENVIRONMENTAL LAW OR CHANGING IT?

By: Peter J. McGrath Jr.

This article discusses the Comprehensive Environmental Response, Compensation and Liability Act’s (CERCLA) application by the United States Supreme Court in 2009. According to the article, CERCLA gave the EPA wide latitude to order private parties to engage in environmental cleanups until the Supreme Court’s decision in Burlington. The article first sets out how CERCLA was interpreted by lower courts, and then how the Supreme Court narrowed CERCLA so that arranger liability only attaches if a person has “the intention that a portion of the product be disposed of during the transfer process.” The author then discusses how joint and several liability is applied to CERCLA, and goes on to discuss the Supreme Court decision to affirm the district court’s apportionment of liability to the railroads. The author concludes by stating his belief that the Supreme Court’s decision in Burlington will result in more aggressive apportionment arguments and more complicated settlement negotiations.

DOWN THE RABBIT-HOLE OF STANDING: INJURY, TRACEABILITY, AND REDRESS IN GREENHOUSE GAS LITIGATION

By: Carrie Scrufari

Despite having a sound ecological purpose, first impression mass tort cases dealing with greenhouse gas litigation face a confusing race down the rabbit hole of standing under Article III of the Constitution to even reach the other side of the litigation landscape. The difficulty for mass tort cases dealing with Greenhouse gasses is that the plaintiffs in those cases have to successfully allege: (1) injury to the plaintiffs, (2) causation between the injury and the conduct, and (3) that it is likely that the injury will be redressed by a favorable decision. In order for the greenhouse gas claims to make it through the rabbit hole of standing, the plaintiffs will have to convince the Supreme Court that standing allows for claims to be filed against defendants that contribute to harm, rather than be the solo cause of the harm. Due to the difficulties involved in navigating standing, and the order in which the line of similar cases are in line to be heard by the Supreme Court, standing will likely be denied to all greenhouse gas tort cases that are popping up as cases of first impression.