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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 1993

Articles

Drafting Standing Affidavits After Defenders: In the Court's Own Words

by James M. McElfish

Editors' Summary: The U.S. Supreme Court's recent decision in Lujan v. Defenders of Wildlife, raises the threshold requirements that an environmental plaintiff must meet to establish its standing to sue. Although the decision will not fundamentally alter who brings environmental issues before the courts, the decision may herald an era in which pleading formalism and proof of each standing element are required. Proof offered to support standing will have to satisfy the Court's interpretation in Defenders of the standing requirements. In this Article, the author asserts that despite the heightened scrutiny of standing in Defenders, the Supreme Court's own language provides instruction for the drafter of standing affidavits. The author examines the Court's language in Defenders as it applies to the standing requirements, and provides a sample standing affidavit that complies with this language.

Lujan v. Defenders of Wildlife: The Supreme Court's Slash and Burn Approach to Environmental Standing

by Karin P. Sheldon

Editors' Summary: Lujan v. Defenders of Wildlife (Defenders), the Supreme Court's June 1992, decision limiting environmentalists' standing to challenge agency programs, envisions judges' roles in environmental law strikingly different than the roles judges have often played before. Justice Scalia's plurality opinion articulates a limited role for the judiciary, anchored in the belief that government's programmatic decisions and rules of general application are normally inappropriate for judicial review. Justice Scalia had previewed this doctrine in his majority opinion in a 1990 landmark decision, Lujan v. National Wildlife Federation (NWF). However, Justice Scalia's 1992 opinion moves beyond his opinion in NWF, focussing not only on the standing requirement of injury in fact, but the redressability requirement as well. Moreover, his opinion limits the applicability of the citizen suit provision of the Endangered Species Act, and by association comparable provisions in a number of other environmental statutes. In this Article, the author builds on her prior work, NWF v. Lujan: Justice Scalia Restricts Environmental Standing to Constrain the Courts, 20 ELR 10557 (1990), examining Justice Scalia's 1992 opinion and the direction he appears to be leading the Supreme Court in environmental standing cases. The author reviews the essential principles of standing, provides a summary of the Defenders litigation and its significance, and considers some tactical options for environmental practitioners.

Comment(s)

A Tale of Sound and Fury: The Environmental Record of the 102d Congress

by James E. Satterfield

Editors' Summary: The 102d Congress adjourned on October 9, 1992, leaving a mixed record of environmental successes and failures. The three principal environmental statutes before it — RCRA, the FWPCA, and the ESA — all failed to win reauthorization. Much heralded proposals to elevate EPA to cabinet-level status got nowhere. Bills to protect banks and municipalities from CERCLA liability and reform federal mining law stalled and died. However, Congress did pass a landmark national energy policy bill, and extensive hearings were held on the bills that were not enacted.

In this Comment, the author examines the battles fought in the 102d Congress over each of the principal items on its environmental agenda. He explores the reasons why enacted bills acquired the form they did and why unenacted bills failed to pass. Finally, he concludes that, despite its failures, the 102d Congress may have laid the groundwork for the next Congress, when Democrats will control both houses of Congress and the White House.

Dialogue

Lucas v. South Carolina Coastal Council: The Takings Test Turns a Corner

by Barry M. Hartman

Editors' Summary: Lucas v. South Carolina Coastal Council evoked great interest during the U.S. Supreme Court's 1991-92 Term, attracting dozens of amicus briefs and producing speculation about whether the case would be a referendum on the entire environmental movement. In Lucas, the Court reversed the South Carolina Supreme Court's ruling that no compensation is due under the Fifth Amendment of the U.S. Constitution when a landowner's private use threatens serious public harm. Writing for the five-member majority, Justice Scalia set forth a new two-part takings standard. First, compensation is due under the Fifth Amendment when regulations enacted for public purposes deprive landowners of all economically beneficial use of their property. Second, under the nuisance exception to compensable takings, regulation may do no more than duplicate the result that the courts would reach under traditional principles of nuisance and property law. Before Lucas, courts used the nuisance exception to excuse the payment of compensation if the state action was within the broad scope of its police power. Now, the takings inquiry is limited to an assessment of the property's value before and after the alleged taking occurs, and the government may avoid compensation for a regulation that deprives landowners of all economic value of their property only when the government acts to prevent a traditional nuisance.

The two Dialogues below evaluate
Lucas' impact on takings law. In the first, Barry M. Hartman argues that the Court's decision in Lucas represents a necessary departure from a policy-based takings jurisprudence to an objective approach more consonant with the courts' proper constitutional role. In the second, Barry I. Pershkow and Robert F. Housman contend that the decision's impact will be minimal, assuming that courts will correctly apply Lucas only when a total loss of economically viable use occurs. Ultimately, Lucas' impact on challenges to land use regulations will hinge on two questions: what constitutes a total loss of economically viable use, and when does a regulation go beyond traditional principles of nuisance and property law? Finding the answers will test the relationship of public and private interests in land use and environmental protection into the next century.

In the Wake of Lucas v. South Carolina Coastal Council: A Critical Look at Six Questions Practitioners Should Be Asking

by Robert F. Housman and Barry I. Pershkow

Editors' Summary: Lucas v. South Carolina Coastal Council evoked great interest during the U.S. Supreme Court's 1991-92 Term, attracting dozens of amicus briefs and producing speculation about whether the case would be a referendum on the entire environmental movement. In Lucas, the Court reversed the South Carolina Supreme Court's ruling that no compensation is due under the Fifth Amendment of the U.S. Constitution when a landowner's private use threatens serious public harm. Writing for the five-member majority, Justice Scalia set forth a new two-part takings standard. First, compensation is due under the Fifth Amendment when regulations enacted for public purposes deprive landowners of all economically beneficial use of their property. Second, under the nuisance exception to compensable takings, regulation may do no more than duplicate the result that the courts would reach under traditional principles of nuisance and property law. Before Lucas, courts used the nuisance exception to excuse the payment of compensation if the state action was within the broad scope of its police power. Now, the takings inquiry is limited to an assessment of the property's value before and after the alleged taking occurs, and the government may avoid compensation for a regulation that deprives landowners of all economic value of their property only when the government acts to prevent a traditional nuisance.

The two Dialogues below evaluate
Lucas' impact on takings law. In the first, Barry M. Hartman argues that the Court's decision in Lucas represents a necessary departure from a policy-based takings jurisprudence to an objective approach more consonant with the courts' proper constitutional role. In the second, Barry I. Pershkow and Robert F. Housman contend that the decision's impact will be minimal, assuming that courts will correctly apply Lucas only when a total loss of economically viableuse occurs. Ultimately, Lucas' impact on challenges to land use regulations will hinge on two questions: what constitutes a total loss of economically viable use, and when does a regulation go beyond traditional principles of nuisance and property law? Finding the answers will test the relationship of public and private interests in land use and environmental protection into the next century.