Perpetuating the Cycle: The Failure of APHIS and EPA to Consider the Cumulative Impact of Pairing Herbicides with Herbicide-Resistant Crops

By: Michael Mahoney Under the existing statutory framework, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”) has the authority to regulate certain genetically engineered crops, while the Environmental Protection Agency (“EPA”) regulates all herbicide products sold in the United States.  Although the development of a crop engineered to be resistant to a certain herbicide contemplates the future widespread use of that herbicide, EPA and APHIS fail to account for this cumulative impact.  Specifically, when performing a National Environmental Policy Act (“NEPA”) analysis for the deregulation of crops designed to be herbicide-resistant, APHIS violates NEPA and its implementing regulations by failing to analyze the environmental effects of the increased herbicide use that the deregulation presupposes.  Meanwhile, the courts have determined that EPA need not comply with NEPA when registering herbicides, finding the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) analysis sufficient even though it does not evaluate […]

Beyond Gridlock

By: Michael P. Vandenbergh & Jonathan A. Gilligan Private climate governance can achieve major greenhouse gas (“GHG”) emissions reductions while governments are in gridlock.  Despite the optimism that emerged from the Earth Summit in Rio de Janeiro, Brazil in 1992, almost a quarter century later the federal legislative process and international climate negotiations are years from a comprehensive response.  Yet Microsoft, Google and many other companies have committed to become carbon neutral.  Wal-Mart has partnered with the Environmental Defense Fund to secure 20 million tons of GHG emissions reductions from its suppliers around the world, an amount equal to almost half the emissions from the US iron and steel industry.  Investors holding roughly $90 trillion in assets have pressured large corporations to disclose and reduce their carbon footprints, and participating companies report having reduced emissions by an amount equal to a major emitting nation.  Private forest certification programs have taken […]

Standing to View Other People’s Land: The D.C. Circuit’s Divided Decision in Sierra Club v. Jewell

By: Bradford C. Mank In its divided 2014 decision in Sierra Club v. Jewell, the U.S. Court of Appeals for the District of Columbia Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view.  Two earlier decisions had reached similar conclusions, but have had little impact.  The D.C. Circuit’s decision could significantly enlarge the ability for plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter.  Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it would decide this issue.  If it addresses whether plaintiffs must have a legal interest in any property they seek standing to protect, the Supreme Court might be […]