On May 18, the DC Circuit vacated a decision by EPA to place an Indianapolis site on the National Priorities List because the agency had ignored evidence contradicting facts underlying its listing decision. Although it is rare for a court to overturn an NPL listing, the case is a reminder that an administrative rulemaking must be based on substantial evidence, even when the agency has substantial discretion to evaluate the factual record.
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EPA’s draft strategic plan for 2018-2022 represents a dramatic shift in focus to supporting states and tribes as the locus of environmental law implementation and streamlining agency processes to accelerate decisions and increase efficiency. The plan identifies three overarching goals: re-focus EPA on its core mission, restore cooperative federalism and adhere to the “rule of law.” If implemented, the strategic plan should give states latitude to exercise primacy in both policy-setting and implementation of environmental laws.
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The application of economic principles to environmental law decisions has come a long way. Today’s conflicts over cost-benefit analysis and the value of mitigation projects and trading markets are more a sign of the important and well-accepted role that economics has come to play in environmental decision-making than a fight over the threshold question of whether economics matters at all. The battle lines have shifted. Economic concepts must be taken into account. The turf on which we now fight concerns to what extent economics should drive environmental decisions.
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