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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — April 1983


Public Trust in Appropriated Waters: California Supreme Court Decides Mono Lake Case

by Antonio Rossmann

Editors' Summary: On February 7, 1983, the California Supreme Court issued an eagerly awaited decision on the application of the public trust doctrine to the appropriation of the waters feeding Northern California's Mono Lake by the City of Los Angeles. In a significant victory for environmentalists who seek to stop what they see as the draining of the unique ecological resource to slake the excessive thirst of the Southern California megalopolis, the court held that under California law the public trust must be taken into account in such appropriation decisions. Moreover, the court ruled that the state has a duty to monitor past appropriations, such as those affecting Mono Lake, and to readjust them if necessary to give effect to the public trust. In a secondary ruling the court also held that the state courts have jurisdiction concurrent with that of the state water board to resolve challenges to appropriations. Mr. Rossmann describes the background of this important case, reviews the court's holding, and considers its implications for water use and natural resource protection in California.


Bankruptcy and Environmental Regulation: An Emerging Conflict

by Kenneth L. Rosenbaum

Editors' Summary: Commercial bankruptcy threatens to become a recurring impediment to the enforcement of hazardous waste laws. Last November, a federal district court ruled it had no jurisdiction to hear a RCRA and CERCLA enforcement action against Johns-Manville Sales Corporation, a bankrupt. The Comment reviews and criticizes the decision and suggests an alternative analysis to be applied in environmental bankruptcy cases.

EPA Noncompliance Penalty Regulations Upheld, But Will They Be Applied?

by Phillip D. Reed

Editors' Summary: On January 7, 1983, the D.C. Circuit decided Duquesne Light Co. v. Environmental Protection Agency, turning back sweeping industry challenges to EPA's Clean Air Act §120 noncompliance penalty regulations. The Comment reports that the rules' broad coverage and narrow exemptions, streamlined administrative procedures, and methodology for calculating penalties equal to the economic benefits of delayed compliance all survived the court's scrutiny. The court remanded the rules on only three relatively minor, though not insignificant, points. However, the court victory must be viewed in the context of the Agency's unchallenged assertion of discretion to impose §120 penalties on only a fraction of those facilities that are liable. The Comment concludes that §120 will see expanded use in the aftermath of Duquesne Light, but that it is too early to tell how far the expansion will carry.


Steel Industry Effluent Limitations: Success at the Negotiating Table

by Alan S. Miller

In the midst of the chaos prevailing at the Environmental Protection Agency (EPA), one major environmental accomplishment received too little notice. On March 3, 1983, the Natural Resources Defense Council (NRDC), the American Iron and Steel Institute, and EPA filed a settlement agreement1 with the U.S. Court of Appeals for the Third Circuit resolving all legal challenges to water pollution effluent guidelines for the steel industry. As a result, protracted, resource-intensive litigation was avoided, and Federal Water Pollution Control Act (FWPCA or the Act) permits for iron and steel dischargers will be written without the uncertainty created by pending judicial review. The settlement assures significant progress toward curtailing toxic discharges and improving water quality, but it is less clear whether the agreement furnishes hope for greater reliance on negotiation or represents an aberration from the usual tug of war between industry and environmentalists.

Acid Rain in Europe and North America: U.S. Lags in Commitment to Control

by Gregory Wetstone

Editors' Summary: On March 24, 1983, the Environmental Law Institute held a press conference announcing the release of ACID RAIN IN EUROPE AND NORTH AMERICA: NATIONAL RESPONSES TO AN INTERNATIONAL PROBLEM, authored by Gregory Wetstone and Armin Rosencranz. Mr. Wetstone prepared this summary of the major findings of the book for ELR Dialogue, based on his press conference remarks.

More From the CRS on Nonattainment Area Sanctions

On February 17, 1983, the Congressional Research Service (CRS) issued its second analysis of Clean Air Act sanctions for nonattainment areas. Like the first report, which was reprinted at 12 ELR 30019, the current CRS paper was authored by Robert Meltz and is published in the Administrative Materials section of this month's issue of ELR, 13 ELR 30001. In this paper, Mr. Meltz analyzes whether the Clean Air Act requires imposition of the construction ban on areas that have approved Part D state implementation plans and are implementing them, but nonetheless failed to attain the national ambient air quality standards by the December 31, 1982, deadline. He concludes that while numerous arguments support the view that the ban is mandatory, the better position is that post-deadline nonattainment alone does not mandate imposition of the construction moratorium. Mr. Meltz's new article is a useful addition to the literature on the complex subject of reconciling the need for real pressure to force the cleanup of nonattainment areas and the substantial economic disruption that could result from rigid imposition of all the nonattainment penalties provided in the Clean Air Act.