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Issue

Volume 18, Issue 11 — November 1988

Comment(s)

EPA's Evolving Role in Wetlands Protection: Elaboration in Bersani v. U.S. EPA

by Shannon J. Kilgore

Editors' Summary: Wetlands protection is at once one of the most important environmental needs as well as one in which the workings of federal environmental law are most intricate. Wetlands are fragile ecosystems that serve important roles in bringing together water, groundwater, soil, and the life that lives in and depends on this unique combination. The principal federal program to protect wetlands, §404 of the Federal Water Pollution Control Act, is almost Jeffersonian in its elaborate checks and balances, with roles for permit applicants, public commenters, the Corps of Engineers, the Environmental Protection Agency, and ultimately the courts.

This Comment reviews the overall contours of the §404 program, focusing on EPA's role and ways in which it can be improved within the structure Congress has established. The Comment then analyzes key recent litigation,
Bersani v. U.S. EPA, generally. Bersani, together with authority under the statute and regulations, points the way for effective EPA participation to help protect these critical ecosystems.

Dialogue

A Critique of the Takings Executive Order in the Context of Environmental Regulation

by Lyle D. Albaugh and Jerry Jackson

Editors' Summary: On March 15, 1988, President Reagan signed Executive Order 12630 entitled "Governmental Actions and Interference With Constitutionally Protected Property Rights." In the July issue of ELR, Roger Marzulla, head of the Land and Natural Resource Division of the U.S. Department of Justice, described the genesis of the takings Executive Order and how it might affect environmental regulation. Mr. Marzulla characterized the Order as a logical response to two 1987 regulatory takings decisions by the Supreme Court and concluded that the Order provides a systematic method for agencies to account for the takings implications of their actions without necessarily hindering vigorous enforcement of environmental laws. The authors of the two Dialogues that follow take a different view of the Executive Order. They assert that the Order imposes on federal agencies an expanded view of takings law not warranted by Supreme Court decisions, will not achieve its stated purposes, and will make environmental regulation more difficult.

The Takings Executive Order: Constitutional Jurisprudence or Political Philosophy?

by James M. McElfish Jr.

Editors' Summary: On March 15, 1988, President Reagan signed Executive Order 12630 entitled "Governmental Actions and Interference With Constitutionally Protected Property Rights." In the July issue of ELR, Roger Marzulla, head of the Land and Natural Resource Division of the U.S. Department of Justice, described the genesis of the takings Executive Order and how it might affect environmental regulation. Mr. Marzulla characterized the Order as a logical response to two 1987 regulatory takings decisions by the Supreme Court and concluded that the Order provides a systematic method for agencies to account for the takings implications of their actions without necessarily hindering vigorous enforcement of environmental laws. The authors of the two Dialogues that follow take a different view of the Executive Order. They assert that the Order imposes on federal agencies an expanded view of takings law not warranted by Supreme Court decisions, will not achieve its stated purposes, and will make environmental regulation more difficult.