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Volume 20, Issue 10 — October 1990


EPA and Indian Reservations: Justice Stevens' Factual Approach

by Peter W. Sly

Editors' Summary: Of cultural and environmental significance, Indian reservations present unique jurisdictional problems. This Article explores the implications of two Supreme Court cases—one on zoning authority and one on criminal jurisdiction—for EPA's implementation of environmental statutes on reservations. After discussing two doctrines of Indian law and the two cases, the author focuses on Justice Stevens' opinion in Brendale v. Yakima Indian Nation and proposes that EPA should modify its Indian policy by applying Stevens' approach to resolving jurisdictional issues on reservations. The result, he argues, will be better environmental management of tribal lands.

Environmental Protection Through Federal Preemption of State Water Laws

by Peter J. Kirsch and J. Barton Seitz

Editors' Summary: On May 21, 1990, the U.S. Supreme Court ruled in California v. Federal Energy Regulatory Commission that the Federal Power Act provides FERC with the exclusive authority to determine minimum instream flow rates for hydroelectric power projects. In so doing, the Court refused to upset the longstanding line of cases, beginning with First Iowa Hydro-Electric Cooperative v. Federal Power Commission, which established the tenuous balance in favor of federal authority over hydropower regulation. With more than 2,000 hydroelectric projects operating under FERC licenses, and many eligible for relicensing between now and the year 2000, the Court's recent decision will directly impact how FERC addresses the legal and environmental standards applicable to relicensing hydropower projects. The authors review the historical application of federal preemption of state water laws under the Federal Power Act and attendant case law. Using a case study of irrigation and power-generation projects on the Platte River in Nebraska, the authors explore implications of California v. FERC for the future of state regulation of water. Although the case law prior to California v. FERC provided for the perpetuation of a constructive tension between state and federal regulation of hydropower projects, the new decision has the potential to tilt the scales in favor of exclusive federal regulation, absent congressional interdiction.


How Efficient Are EPA's Regulations?

by Lyman H. Clark and Ralph A. Luken

In the 1970s, the newly created U.S. Environmental Protection Agency (EPA) embarked on three different regulatory approaches for reducing pollution. First, the Clean Air Act1 mandated that EPA set ambient-based standards that protect human health and welfare. These standards require existing industrial sources of air pollution to install pollution control equipment only to the extent necessary to meet ambient standards. Second, the Clean Air Act mandated that EPA in some circumstances set benefits-based2 standards that trade off risks to society with the costs of risk reduction. These standards require existing industrial sources to install pollution control equipment only to the extent that there would be a reasonable balance between the benefits of pollution reduction and the costs of pollution control technology. Third, the Clean Water Act3 mandated that EPA set technology-based standards that reflect the availability and affordability of pollution control technology. These standards require existing industrial and municipal sources to meet uniform discharge limitations, even if the pollutants discharged did not result in violations of ambient standards.

In the debate over how best to regulate the environment, each of the three approaches is championed by its own school of thought. The utilitarian school, which reflects the concern of the public health profession, supports the use of ambient-based standards as a scientific and reasonable way to protect health and welfare.4 The absolutist school, which reflects the interests of the environmental rights-oriented movement, supports the use of technology-based standards as a necessary and practical approach.5 The rationalist school, which reflects the economist's view of environmental management, supports the use of benefits-based standards.6

Media Tips for Environmental Lawyers

by Frank M. Corrado

Environmental news, like most news today, is enmeshed in the scare-of-the-week syndrome: "If it bleeds, it leads."1 Reporters, seeking facts instead of truths, usually leave little room for in-depth coverage of scientific or environmental issues. At the same time, environmental stories have grown to be among the stories most widely reported on.2

As an environmental attorney, chances are that sometime during your career you will be involved with the media — in print, on radio, or before a camera. Watching how pollution enforcement has developed over the last two decades has convinced me that environmental attorneys would benefit by learning a few important communication techniques.