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Volume 24, Issue 9 — September 1994


Property Rights and Responsibilities: Nuisance, Land-Use Regulation, and Sustainable Use

by Philip Warburg and James M. McElfish Jr.

Editors' Summary: This Article addresses the effect of the U.S. Constitution's Takings Clause on the government's authority to protect environmental resources. An earlier Article, published in the May 1994 of ELR, analyzed bases for government regulation provided by limitations inherent in the property right itself. In contrast, this Article focuses on an emerging doctrine of sustainable use, rooted in background principles of nuisance law and the government's complementary police power.

This Article first examines how the law of nuisance has restrained many potentially damaging uses of private property. It highlights the impact of nuisance law's doctrine of harm prevention on modern environmental law and the law's ability to adapt to changing circumstances. Next, this Article discusses recent situations in which legislatures and courts have helped crystalize the doctrine of sustainable use by applying "natural-use" principles to ecologically sensitive areas, and by enacting—and upholding—comprehensive land-use planning legislation. In this context, this Article examines the U.S. Supreme Court's recent opinion in
Dolan v. City of Tigard.

Finally, this Article discusses the roots and implications of two central principles of sustainable-use doctrine: (1) prevention of adverse cumulative environmental impacts, and (2) protection of the interests of future generations. This Article concludes by emphasizing the sustainable-use doctrine's roots in background principles of common law, and its power to provide a basis for effective environmental protection in response to changing circumstances.

A Practitioner's Guide to the Federal Insecticide, Fungicide, and Rodenticide Act: Part II

by Linda J. Fisher, Peter L. Winik, Carolyne R. Hathaway, Ann Claassen, and Jeffrey Holmstead

Editors' Summary: This is the second of a three-part series explaining pesticide regulation. This installment discusses requirements for registration of pesticide producers, producer recordkeeping, end user requirements including those related to restricted use pesticides, enforcement authority, and EPA rulemaking and judicial review. The previous installment, which appeared in last month's issue, 24 ELR 10449, examined federal jurisdiction over pesticides, labeling and packaging requirements, pesticide registration, and related regulatory authorities. The third installment will cover storage, transportation, and disposal; import and export; state authority; data reporting; residue tolerances; biotechnology regulation; and emerging issues.


Sackcloth and Ash: City of Chicago v. Environmental Defense Fund

by James V. DeLong

On May 2, 1994, the U.S. Supreme Court joined -- but certainly did not end -- a debate about the disposal of ash produced from burning municipal solid waste in waste-to-energy (WTE) incinerators. In City of Chicago v. Environmental Defense Fund,1 the Court decided that such ash is not automatically exempt from classification as hazardous waste under the Resource Conservation and Recovery Act (RCRA).2 As a result, incinerator operators are responsible for testing their ash and, if it contains hazardous substances at levels in excess of those prescribed by the U.S. Environmental Protection Agency's (EPA's) test for "the characteristic of toxicity," for handling it as hazardous waste.

This Dialogue first provides background on the emergence of WTE incinerators and the controversy surrounding ash from such facilities. It next reviews City of Chicago and, finally, puts the case into perspective by identifying some of its probable consequences, including effects on the incinerator industry, on disposal of municipal solid waste, and on municipalities.