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TEXAS ENVIRONMENTAL LAW JOURNAL Volume 49 November 2019 Number 2 TEXAS ENVIRONMENTAL LAW JOURNAL Volume 49 November 2019 Number 2 ARTICLES USING AN EMISSIONS BANKING AND TRADING PROGRAM TO REDUCE DIESEL EMISSIONS: A CASE STUDY IN HOUSTON Kenneth J. Adler, Christina Wolfe, and David E. Adelman 183 ADDRESSING BLURRED LINES: INSTITUTIONAL DESIGN SOLUTIONS TO TRANSGRESSIONS ACROSS THE SCIENCE-POLICY BOUNDARY Jori Reilly-Diakun 199 PFAS: UBIQUITOUS AND PERSISTENT CHEMICALS: ASSESSING LIABILITY AND ALLOCATING RISK; APPLYING LESSONS LEARNED IN INDUSTRY- WIDE LITIGATION Michael Walsh and Patrick Larkin 231 NOTES RESPONSIBILITY IN CATASTROPHE: ARE THE FISCAL REQUIREMENTS FOR OFFSHORE OIL LEASING SUFFICIENT TO COVER THE COSTS OF A MAJOR OIL SPILL? Annie Brethour 269 PROTECTING CAPTIVE ENDANGERED ANIMALS: THE IMPORTANCE OF INTERPRETING THE ENDANGERED SPECIES ACT BROADLY Greer Gaddie 295 LAND USE MANAGEMENT: A GOVERNMENTAL OBLIGATION TO ENSURE ADEQUATE FLOOD PREVENTION Katelyn A. Hammes 323 DEVELOPMENTS AIR QUALITY – John B. Turney, Evan Z. Pearson 339 PUBLICATIONS – Joshua D. Katz, Reid A. Powers 342 SOLID WASTE – Alisha Mehta, Rachel C. Lau 346 STATE CASENOTE – Howard S. Slobodin, Allison Simkins 350 WATER QUALITY – Emily W. Rogers, Meng Yu 354 STATE BAR SECTION NEWS Prepared through The University of Texas School of Law Publications Office ISSN 0163-545X Copyright © 2019 Environmental and Natural Resources Section of the State Bar of Texas and The University of Texas School of Law Texas Environmental Law Journal Please cite as: TEX. ENVTL. L. J. TEXAS ENVIRONMENTAL LAW JOURNAL Volume 49 November 2019 Number 2 S TATE B AR OF T EXAS ENVIRONMENTAL AND NATURAL RESOURCES LAW SECTION P.O. Box 220, Mailstop S-520 Austin, Texas 78767-0220 www.texenrls.org EDITORIAL BOARD Editor-In-Chief Assistant Editor for Production Lyn Clancy Tabetha Jaske P.O. Box 220, Mailstop S-520 P.O. Box 220, Mailstop S-520 Austin, Texas 78767-0220 Austin, Texas 78767-0220 [email protected] [email protected] (512) 578-3378 (512) 578-2359 DEVELOPMENTS ATTORNEY CONTRIBUTORS Air Quality Water Quality & Utilities Casenotes—State John B. Turney Emily Rogers Howard S. Slobodin Richards Rodriguez & Skeith Bickerstaff Heath Delgado Acosta, Trinity River Authority of Texas 816 Congress Ave., Ste. 1200 L.L.P. P.O. Box 60 Austin, Texas 78701-2672 3711 S. Mopac, Bldg. 1, Suite 300 Arlington, Texas 76004-0060 [email protected] Austin, Texas 78746 [email protected] (512) 476-0005 [email protected] (817) 467-4343 (512) 472-8021 Natural Resources Publications Patrick Leahy Water Quantity Joshua D. Katz Baker Botts, L.L.P. Shana L. Horton Bickerstaff Heath Delgado Acosta, 98 San Jacinto Blvd., Ste. 1500 [email protected] L.L.P. Austin, Texas 78701-4078 (512) 573-3670 3711 S. Mopac, Bldg. 1, Suite 300 [email protected] Austin, Texas 78746 (512) 322-2660 [email protected] Casenotes—Federal (512) 472-8021 Solid Waste David J. Klein Ali Abazari Lloyd Gosselink Rochelle & Washington Update Jackson Walker, L.L.P. Townsend, P.C. Jacob Arechiga 100 Congress Ave., Suite 1100 816 Congress Ave., Ste. 1900 Jackson Walker, L.L.P. Austin, Texas 78701-4042 Austin, Texas 78701 100 Congress Ave., Ste. 1100 [email protected] [email protected] Austin, Texas 78701-4042 (512) 236-2239 (512) 322-5818 [email protected] (512) 236-2049 ii TEXAS ENVIRONMENTAL LAW JOURNAL Volume 49 November 2019 Number 2 U NIVERSITY OF T EXAS S CHOOL OF L AW TEXAS ENVIRONMENTAL LAW JOURNAL 727 East Dean Keeton St. Austin, Texas 78705-3224 (512) 471-0299 / [email protected] STUDENT EDITORIAL BOARD 2018-2019 Editor-in-Chief Developments Editor Lead Articles & Notes Editor Katelyn A. Hammes Paige L. Cheung Anna C. Kochut Articles & Notes Editor Managing Editor Marketing Director Lori K. Patrick Kimberly N. Saindon Rachel A. Enav Symposium Director Reid A. Powers STAFF 2018-2019 Senior Staff Editors Victoria L. Chang Meredith G. Luneack Matthew R. Richardson Samantha R. Sandfort Susan K. Stradley Zachary S. Tavlin Staff Editors Joseph M. Capobianco Phillip K. Chang Christopher G. Forester Matthew Y. Frederick Jacob L. Gildan Matthew T. Goldstein Noorulanne H. Jan Katherine E. Jeffress Thomas M. Kagerer Rachel C. Lau Simon Lu Patrick D. Maloney Jensen R. Martinez Nicholas R. Miller Jeffrey S. Neiman Zoe W. Oldham Evan Z. Pearson Garrett W. Peery Caleb E. Ray Drew W. Roberts Corina I. Rodriguez Enzo H. Salamone Allison M. Simkins Kevin K. Taki Stephen T. Weinberger Francis C. Wellin Meng Yu iii TEXAS ENVIRONMENTAL LAW JOURNAL Volume 49 November 2019 Number 2 STATE BAR OF TEXAS ENVIRONMENTAL AND NATURAL RESOURCES LAW SECTION SECTION OFFICERS (2018-2019) Chair Vice Chair Treasurer Stephen McMillen David J. Klein Pete Wahl P.O. Box 655474, MS 3999 816 Congress Ave., Ste. 1900 2323 Ross Ave., Ste. 600 Dallas, Texas 75265 Austin, Texas 78701-2478 Dallas, Texas 75201 [email protected] [email protected] [email protected] (214) 479-1228 (512) 322-5818 (214) 953-6101 Chair-Elect Secretary Immediate Past Chair Susan M. Maxwell Nathan M. Block Rebecca K. Skiba 3711 S. Mopac, Bldg 1, Ste 300 501 Westlake Park Blvd 5555 San Felipe St, #4100 Austin, Texas 78746-8015 Wl1 - Lr - 3.668B Houston, Texas 77056-2701 [email protected] Houston, TX 77079 [email protected] (512) 472-8021 [email protected] (713) 296-2584 (832) 619-4789 EXECUTIVE COMMITTEE MEMBERS (2019-2021) Term Expires 2019 Term Expires 2020 Term Expires 2021 Caroline Sweeney Mike Dillinger Kristen Fancher [email protected] [email protected] [email protected] (512) 239-0665 (210) 918-2091 (469) 619-0739 Buck Benson Erin Chancellor Lisa Dyar [email protected] [email protected] [email protected] (210) 610-5335 (202) 564-2463 (512) 370-2848 Paulina Williams Kellie Billings-Ray Aaron Vargas [email protected] [email protected] [email protected] (512) 322-2543 (512) 475-4014 (512) 239-0673 COMMITTEE CHAIRS (2019) Education Law School Website & Technology Lisa Dyar Kristen Fancher Rebecca K. Skiba Greg Ellis Walt Shelton Constance “Connie” Westfall Publications Pro Bono Sponsorship Lyn Clancy David J. Klein Caroline Sweeney Aaron Vargas Pete Wahl Mike Dillinger iv TEXAS ENVIRONMENTAL LAW JOURNAL STATEMENT OF PURPOSE The purpose of the Texas Environmental Law Journal is to provide members of the Environmental and Natural Resources Law Section of the State Bar of Texas and the public with legal articles and recent development columns on relevant environmental and natural resources law issues. The Journal also provides new of Section activities and other events pertaining to this area of law. The Journal is the leading source for articles on Texas environmental and natural resources law. JOINT PUBLICATION The Texas Environmental Law Journal is an official publication of the Environmental and Natural Resources Law Section of the State Bar of Texas and is published jointly with the University of Texas School of Law’s Texas Environmental Law Journal. In 1990, the Environmental and Natural Resources Law Section reached an agreement with this student organization at the University of Texas School of Law to co-produce the Journal as the Texas Environmental Law Journal. The students’ involvement began with the summer issue in 1990. OTHER INFORMATION The opinions expressed in the Journal are solely the opinions of the respective authors and are not the opinions of the School of Law, or the University of Texas School of Law’s Texas Environmental Law Journal. To contact the Journal, please use the contract information in the preceding pages. SOLICITATION OF ARTICLES & EDITORIAL POLICIES The Journal solicits articles from authors on environmental and natural resources subjects that will assist Texas environmental and natural resource law practitioners and develop the advancement of environmental and natural resource law. If you are interested in submitting an article, please contact: Editor-in-Chief ([email protected]) The Journal will consider for publication any articles from practitioners, judges, academics, policymakers, and others that are relevant and useful to practitioners in the environmental and natural resources law arena. Manuscripts should be submitted via email to the Solicitations Attorney Editor, Student Lead Articles Editor, or Editor-in-Chief at the addresses shown above. If the Journal accepts a manuscript for publication, the author must provide a copy in electronic format (Microsoft Word) with no pre-defined embedded coding or styles. If a manuscript includes graphics, please provide as separate files, preferably JPEG, PDF, or TIFF files. Graphics should be grayscale and at a resolution of at least 300dpi. The manuscript should be typed and double-spaced, with footnotes. Citations should conform to the most recent editions of The Bluebook: A Uniform System of Citation and the Texas Rules of Form. If you desire the Journal to return any printed manuscript, please provide a postage prepaid, self-addressed envelope with the manuscript. COPYRIGHT & PERMISSION TO USE Unless otherwise provided, the Journal grants permission for use of articles, student notes, and recent developments in classrooms, provided that the user: (1) affixes a proper copyright notice to each copy, (2) identifies the author and the source issue of the Journal, (3) charges not more than at or below the actual cost of the copies, and (4) notifies the Journal of the use. v TEXAS ENVIRONMENTAL LAW JOURNAL REPRINTS The Journal has a contract with William S. Hein & Co., Inc. for Hein to provide back issues. Hein has single issues,
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