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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — July 1988


The New "Takings" Executive Order and Environmental Regulation—Collision or Cooperation?

by Roger J. Marzulla

Editors' Summary: In 1987, the Supreme Court issued two blockbuster regulatory takings decisions. The decisions provide some much-needed guidance for deciding when government regulation constitutes a taking of private property requiring just compensation under the Fifth Amendment. However, the decisions have also raised concern among federal agencies about the takings implications of their actions. In response to these decisions, a presidential task force drafted an Executive Order, signed by President Reagan on March 15, 1988, that requires federal agencies to review their actions to prevent unnecessary takings and to budget for those actions that necessarily involve takings. The author, head of the Land and Natural Resources Division of the U.S. Department of Justice, describes the genesis of the executive order, its requirements, and how it might affect environmental regulation. He concludes that the Order can provide an orderly method to account for the takings implications of government regulation without necessarily hindering the vigorous enforcement of environmental laws.

The Enduring Vitality of the General Mining Law of 1872

by Mark Squillace

Editors' Summary: Perhaps no law in the federal natural resources arsenal has engendered more long-term controversy, while nonetheless maintaining its original structure and premise, than the Mining Law of 1872. Enacted to validate the trespasses of prospectors on the public lands, this "hardrock" mining law truly embodies the spirit of the Old West and the independence of the miner. The era of disposal of the public lands into private hands is ending, however, and the door to such disposal was essentially shut with the enactment of the Federal Land Policy and Management Act in 1976. The mining industry itself has changed over the years, and the age of the individual, independent miner may also have passed. In light of these changes and the public's increased awareness of the environmental degradation that mining causes, the 1872 Mining Law is increasingly attacked as outmoded and obsolete. This Article reviews the Law, summarizing its contents and reviewing the changes that Congress has made to the Law over the century of its existence. The author concludes, however, that these changes are insufficient and calls for further reforms in order to bring the Law fully into the realities of the 20th century.


What Would You Do If You Were Running EPA?

by David R. Andrews, Brent Blackwelder; Arthur H. Bryant, Quentin N. Burdick, Richard T. Dewling, John M. Dingell, William M. Eichbaum, James J. Florio, Frank B. Friedman, Lisa Marie Gibbs, F. Henry Habicht, Khristine L. Hall, Jeffrey G. Miller, . . .

Editors' Summary: The actions of the Environmental Protection Agency (EPA) may well be one of the single most influential factors influencing the quality of the nation's environment. EPA is often the maker of environmental policy as it writes regulations, balances when and how to enforce its laws, distributes grants, approves state programs, and proposes or comments on legislation before Congress. EPA must work effectively as one agency among dozens in the federal government, knowing when to press environmental issues and when to hold back. And EPA must know how to manage itself, making the most of its limited budget and personnel. Throughout it all, EPA must maintain a sense of perspective, keeping short-term emergencies from crowding out long-term priorities.

The November election will bring a new president, and for EPA that can mean new environmental policies and new management concerns. To help set this important new agenda, we asked a number of people one question: "What would you do if you were running EPA?" We invited them to focus on any concerns they chose: finetuning changes in particular programs, broad improvements in management, redirected environmental priorities, changes in dealings with Congress or the public, or whatever.

Here are their answers. The respondents, all respected leaders in the field, represent a strikingly wide set of backgrounds and perspectives. The answers reflect this diversity.