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Volume 24, Issue 12 — December 1994


Transforming Economic Incentives From Theory to Reality: The Marketable Permit Program of the South Coast Air Quality Management District

by Daniel P. Selmi

Editors' Summary: Modern environmental law has relied almost exclusively on either mandating or forbidding certain conduct in order to reduce pollution. In addressing pollution that causes acid rain, the 1990 Amendments to the Clean Air Act adopted a new approach: Encouraging pollution reduction through market-based incentives. The South Coast Air Quality Management District (SCAQMD or the District), which is responsible for regulating air pollution in the Los Angeles metropolitan area, adopted this approach in its Regional Clean Air Incentives Program (RECLAIM). The program creates a system of marketable permits for emitting nitrogen oxide and sulfur oxide.

This Article begins with a review of the theory behind marketable permit programs. It then examines the history of pollution control in the District. Next, the Article analyzes the development, structure, and operation of RECLAIM. The author notes that any conclusions about RECLAIM are preliminary at this point, because the emission reductions that RECLAIM calls for extend until at least 2003. Nevertheless, the Article suggests aspects of the program that observers should watch, especially the interaction between economic incentives and "command-and-control" regulations, the use of District resources, and the regulated community's confidence in the program.


EPA's Mixture Rule: Why the Fuss?

by James E. Satterfield

For over a decade, the U.S. Environmental Protection Agency's (EPA's) "mixture rule" clarified the status under the Resource Conservation and Recovery Act1 (RCRA) of mixtures containing listed hazardous waste and nonhazardous solid waste.2 But the rule's recent vacatur and repromulgation have created a significant gap in the rule's coverage. Because the U.S. Court of Appeals for the D.C. Circuit vacated it ab initio, the rule does not cover conduct that occurred before EPA's 1992 repromulgation. To resolve disputes over the management of mixed solid and hazardous waste that occurred before the repromulgation,lawyers must determine the status of such mixtures in the absence of a mixture rule.

The D.C. Circuit did not address this issue when it vacated the rule because it based its decision on purely procedural grounds. But since then, EPA and the courts have addressed this issue several times. Even before the vacatur, EPA and the U.S. Department of Energy (DOE) addressed the status of hazardous waste mixtures to which the rule does not apply.

The U.S. Supreme Court's 1993-1994 Term

by Edward B. Sears

The U.S. Supreme Court handled an all-time high of over 7,700 cases in the 1993-1994 Term.1 The number and variety of environmental law cases on which the Court acted reflects this achievement. General numbers-counting analyses that estimate each Justice's political position as conservative, centrist, or liberal based on the Justices' voting patterns have concluded that the Court maintained a generally conservative stance.2 The outcomes in some of the Court's significant environmental decisions, however, belie such appraisals.3

States and environmentalists won a case allowing a state agency to consider instream flow in addressing a state water quality certification application under § 401 of the Federal Water Pollution Control Act (FWPCA),4 and an environmental group won a case requiring that municipal solid waste incinerator combustion ash be treated as hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA).5 In other cases, the Court frustrated an industry attempt to recover attorneys fees incurred in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action,6 a state's efforts to control or limit the amount of waste imported into the state,7 and municipalities' efforts to maintain flow control over garbage generated within their boundaries.8 In another case, the Court established a new two-step test to be applied in certain takings analyses.9 The federal government, industry, and citizen groups all faced setbacks when the Court denied petitions for certiorari in particular cases.