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To View the 2014 Issue of ELPAR Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. Environmental Law Institute and Vanderbilt University Law School August 2014 Environmental Law and Policy Volume 44, No. 8 Annual Review www.elr.info Cary Coglianese In the Courts A Truly “Top Task”: Rulemaking and Its Accessibility on Agency Websites Supreme Court’s UARG decision With Response by Andrea Bear Field tailors EPA’s climate rules Cynthia R. Farina, Mary Newhart, and Josiah Heidt In the Congress Rulemaking vs. Democracy: Judging and Nudging Public Participation That Water Resources Reform and Counts Development Act signed into law With Responses by Avi Garbow & Marna McDermott; Michael Halpern; and Michael Walls In the Agencies FWS moves wood storks from endangered to threatened status Jedediah Purdy Our Place in the World: A New Relationship for Environmental Ethics and Law In the States With Responses by E. Donald Elliott; Susan Casey-Lefkowitz; and Maine issues regulations for W. David Bridgers & Chanelle A. Johnson children’s products containing arsenic, cadmium, or mercury John Bronsteen, Christopher Buccafusco, and Jonathan S. Masur Well-Being Analysis vs. Cost-Benefit Analysis Alexandra B. Klass and Elizabeth J. Wilson Interstate Transmission Challenges for Renewable Energy: A Federalism Mismatch Linda K. Breggin, David L. Staab, Emma T. Doineau, and Michael P. Vandenbergh Trends in Environmental Law Scholarship 2008-2013 Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. Environmental Law and Policy Annual Review 2013-2014 Board of Editors Emma Doineau Editor-in-Chief Veronica Gordon Anna Claire Skinner Executive Editor Managing Editor David Staab Merrick Parrott Development Editor Symposium Editor Articles Editors Nina Maja Bergmar Rachel Bevans Caroline Cecot Elise Hofer Emma Stephens Editorial Staff Clarke Agre Lorraine Baer Jordan Banks Jamieson Brock Leland Frost Jonathan Gendzier Kendra Key Philip Lu Kristen Rasnic Sean Ryan Faculty Supervisor Environmental Law Institute Advisor Michael P. Vandenbergh Linda K. Breggin Advisory Board Barry Breen Wm. Robert Irvin Richard Leahy Raymond B. Ludwiszewski Vickie Patton David Rejeski James Salzman Scott Schang LaJuana Wilcher Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. 8-2014 44 ELR 10653 CONTENTS Comment Linda K. Breggin, David L. Staab, Emma T. Doineau, and Michael P. Vandenbergh, Trends in Environmental Law Scholarship 2008-2013 . 10657 Articles and Responses Cary Coglianese, A Truly “Top Task”: Rulemaking and Its Accessibility on Agency Websites . .10660 Andrea Bear Field, Comments on A Truly “Top Task”: Rulemaking and Its Accessibility on Agency Websites . .10667 Cynthia R. Farina, Mary Newhart, and Josiah Heidt, Rulemaking vs . Democracy: Judging and Nudging Public Participation That Counts . 10670 Avi Garbow and Marna McDermott, Comments on Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts . 10678 Michael Halpern, Comments on Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts . .10681 Michael Walls, Comments on Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts . .10684 Jedediah Purdy, Our Place in the World: A New Relationship for Environmental Ethics and Law . .10687 E. Donald Elliott, Comments on Our Place in the World: A New Relationship for Environmental Ethics and Law . .10693 Susan Casey-Lefkowitz, Comments on Our Place in the World: A New Relationship for Environmental Ethics and Law . .10697 W. David Bridgers and Chanelle A. Johnson, Comments on Our Place in the World: A New Relationship for Environmental Ethics and Law . .10699 Honorable Mentions John Bronsteen, Christopher Buccafusco, and Jonathan S. Masur, Well-Being Analysis vs . Cost-Benefit Analysis . .10702 Alexandra B. Klass and Elizabeth J. Wilson, Interstate Transmission Challenges for Renewable Energy: A Federalism Mismatch . .10705 Recent Developments In the Congress . .10709 In the Courts . 10714 In the Federal Agencies . 10716 In the State Agencies . 10719 Recent Journal Literature . .10723 Topical Index . 10725 Copyright © 2014, Environmental Law Institute® All rights reserved . ELR®, Environmental Law Reporter®, and the Environmental Law Institute® are registered trademarks of the Environmental Law Institute . Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. About ELR® . ELR®—The Environmental Law Reporter® is an essential site with access to almost 40 years of ELR analysis, extensive online research tool edited by attorneys that provides the links to statutes, regulations and treaties, a comprehensive most-often cited analysis of environmental, sustainability, subject matter index, and many other tools . natural resources, energy, toxic tort, and land use law and Submissions . policy . ELR has three components: ELR invites readers to submit articles and comments, • News & Analysis, ELR’s highly respected monthly journal, which are shorter features, for publication . Manuscripts provides insightful features relevant to both legal practice may be on any subject of environmental, sustainability, and policy on today’s most pressing environmental topics . natural resources, energy, toxic tort, or land use law or News & Analysis is available in print as well as online . policy . Citations should conform to A Uniform System of • ELR UPDATE provides expert summaries three times Citation (the “Bluebook”) and should include ELR cita- a month of the most important federal and state judicial tions for materials that we have published . and administrative developments as well as federal legisla- Manuscripts should be submitted by e-mail attachment to tive and international news . Subscribers can also receive schang@eli or. g . We prefer that the file be in WordPerfect® ELR Daily Update, our daily summary of federal admin- or Microsoft Word® format . istrative news . Opinions are those of the authors and not necessarily those of • ELR Online, ELR’s subscription-only website at www . the Environmental Law Institute or of funding organizations . elr info,. is a one-stop environmental law and policy research Environmental Law Reporter Advisory Board Jonathan Adler Barry Breen Peter Lehner Bettina Poirier Case Western Reserve American University Natural Resources Defense Washington, D C. University School of Law Washington College of Law Council David Rejeski Vicki Arroyo Marcilynn Burke Alan Leibowitz The Woodrow Wilson Center Georgetown University Law University of Houston Law ITT Exelis Eric V. Schaeffer Center Center Raymond B. Ludwiszewski Environmental Integrity Wayne Balta Wm. Robert Irvin Gibson, Dunn & Crutcher, Project IBM Corporation American Rivers LLP Michael P. Vandenbergh Lynn L. Bergeson Sam Kalen Erin Meezan Vanderbilt University Law Bergeson & Campbell, P C. Van Ness Feldman Interface, Inc . School Judith Blanchard Alan Kanner Vickie Patton LaJuana Wilcher Chevron, Inc . Kanner & Whiteley, L .L C. Environmental Defense Fund English Lucas Priest & Owsley, LLP Subscriptions ELR Staff Postmaster e-Access Subscription $1,995 Publisher John C . Cruden Send address changes to UPDATE $725 Editor-in-Chief Scott Schang Environmental Law Reporter® News & Analyis (online & print) $725 Managing Editor Rachel Jean-Baptiste 2000 L Street NW News & Analysis (print only) $625 Desktop Publisher William J . Straub Ste . 620 Additional print copies $250 Editorial Assistant Rebecca Jolliff Washington, DC 20036 (available only with existing subscription, (202) 939-3800 ELR—The Environmental Law Reporter® excluding UPDATE subscribers) Fax (202) 939-3868 China Update & India Update Bundle $149 (ISSN 0046-2284) is published monthly . (Individually $79) Periodicals postage paid at Washington, DC, and at additional mailing offices Contact Us If you have any questions about using ELR, or about your subscription, please call us at (800) 433-5120 or (202) 939-3844 or e-mail us at orders@eli or. g or fax us at (202 939-3868 . 44 ELR 10654 ENVIRONMENTAL LAW REPORTER 8-2014 Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. The Environmental Law and Policy Annual Review Dear Readers: The Environmental Law and Policy Annual Review (ELPAR) is published by the Environmental Law Institute’s (ELI’s) Environmental Law Reporter (ELR) in partnership with Vanderbilt University Law School . ELPAR provides a forum for the presentation and discussion of the best law and policy-relevant ideas on the environment from the legal academic lit- erature each year . The publication is designed to fill the same important niche asELR by helping to bridge the gap between academic scholarship and environmental policymaking . ELI and Vanderbilt formed ELPAR to accomplish three principal goals . The first is to provide a vehicle for the move- ment of ideas from the academy to the policymaking realm . Academicians in the environmental law and policy arena generate hundreds of articles each year, many of which are written in a dense, footnote-heavy style that is inaccessible to policymakers with strong time constraints . ELPAR selects the leading ideas from this large pool of articles and makes them digestible by reprinting them in a short, readable fashion accompanied
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