AuthorFarewell, Dashiell

I am pleased to present the 2016-2017 Ninth Circuit Review. This review contains twenty-one summaries of Ninth Circuit Court of Appeals decisions on environmental and natural resource topics issued between January 2016 and January 2017. In addition, the review includes two chapters authored by Ninth Circuit Review members. The chapters explore issues raised in the summarized opinions.

In the first chapter, Sage Ertman argues that the "redefining the source" doctrine under the Clean Air Act's Prevention of Significant Deterioration program allows polluters and regulators significant discretion to avoid implementing the stringent standards envisaged by that program's Best Available Control Technology standard for new and modified pollution sources. That problem is particularly acute, Sage argues, in the electricity sector. He argues that cases like the Ninth Circuit's Helping Hand Tools v. U.S. Environmental Protection Agency demonstrate that the courts have been complicit in allowing broad application of the "redefining the source" doctrine, which in turn exacerbates the adverse impacts of climate change associated with greenhouse gas emissions. Sage ultimately proposes remedying that problem either by restricting application of the "redefining the source" doctrine or, alternatively, by abolishing the doctrine altogether.

In the second chapter Giulia Rogers explores the problem of anthropogenic ocean noise pollution and its adverse impacts on marine mammals through the lens of Natural Resources Defense Council, Inc. v. Pritzker. That case highlights how the National Oceanic Atmospheric Administration (NOAA) has recently acknowledged the extent of the ocean noise pollution problem and has attempted to address that issue using existing statutory authority, such as the Marine Mammal Protection Act (MMPA). Giulia argues that Pritzker highlights how the MMPA can be an effective tool for NOAA to curb ocean noise pollution. But she...

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