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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — December 1996


Treating Uncertainty as Risk: The Next Step in the Evolution of Environmental Regulation

by Kevin L. Fast

Editors' Summary: This Article presents an argument that EPA's use of reference concentrations (RfCs) in risk assessments, if upheld by the courts, will dramatically change the nature of health-based regulation. In a background section, the Article summarizes RfC methodology and its origins. The Article compares the traditional standard-setting approach, in which the Agency first identifies a level of exposure that presents a significant risk of harm and then sets a standard below that level, with EPA's RfC-based approach, which allows the Agency to avoid identifying an exposure level that poses a significant risk. Next, using EPA's regulatory decisions about manganese as a case study, the Article illustrates EPA's use of the methodology in risk assessment. In a discussion and analysis section, the Article focuses on how RfCs can be used to manipulate risk-assessment results, and reviews the courts' reaction to the methodology to date. The Article then recommends that members of the regulated community oppose RfC-based risk-assessment methodology in judicial and legislative forums. The Article concludes that EPA's use of the methodology reflects a move toward a zero-risk regulatory paradigm and is a questionable attempt to assign to the regulated community the burden of disproving the existence of any theoretically possible risk to public health.


Judicial Application of the Endangered Species Act and the Implications for Takings of Protected Species and Private Property

by Murray D. Feldman and Michael J. Brennan

It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $ 100 million…. We conclude, however, that the explicit provisions of the Endangered Species Act require precisely that result.

Tennessee Valley Authority v. Hill, 437 U.S. 153, 172-73, 8 ELR 20513, 20517 (1978) (TVA v. Hill).

The broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid…. Among its central purposes is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved…."


… As all recognize, the Act encompasses a vast range of economic and social enterprises and endeavors.

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2413, 2418, 25 ELR 21194, 21196, 21199 (1995).

The substantive provisions of the Endangered Species Act (ESA)1 have been construed by the U.S. Supreme Court on only two occasions.2 The range of these decisions, separated by 17 years and quoted above, mirrors the evolution in the application of the ESA. In TVA v. Hill, the Court enjoined the construction of the Tellico Dam to protect the snail darter, based in part on what the Court perceived to be congressional intent to reverse the trend of species extinction, "whatever the cost." This decision demonstrates the initial focus of both ESA litigation and agency application of the statute. In the early years of the program, the agencies implementing the Act, the public, and reviewing courts largely focused on individual species and specific projects. Recently, however, with the growing focus on concepts of conservation biology, biodiversity, and ecosystem management, administration of the ESA has increasingly turned to the conservation and management of multiple species and habitats as a common denominator. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Court upheld the U.S. Fish and Wildlife Service's (FWS') regulatory interpretation of the § 9 prohibition on taking listed species as applying to significant habitat modification activities on nonfederal land.

This shifting focus of judicial application of the ESA has set the foundation for discussions concerning changes to two interrelated yet distinct aspects of ESA implementation: the scope of takings of listed species prohibited by § 9 and the constitutional limits of ESA regulation of private property without just compensation. This Dialogue examines the background of these two components of the ESA's application and reauthorization debate. First, the Dialogue provides a brief outline of the ESA statutory framework to better examine where the species taking provisions come into play, and also to identify potential sources of government regulatory authority that could lead to an uncompensated taking of private property. Second, it surveys the development of the Act's application through the case law to illustrate the growing focus on habitat and ecosystem conservation. Third, it highlights some of the current issues in ascertaining whether habitat-altering activities may constitute a prohibited § 9 taking of protected species. Lastly, it describes the Fifth Amendment's constitutional takings framework and evaluates the Fifth Amendment's potential application to ESA regulatory actions.

CERCLA's New Safe Harbors for Banks, Lenders, and Fiduciaries

by William W. Buzbee

Buried deep within the several thousand page Omnibus Consolidated Appropriations Act signed by President Clinton in the waning days of the 104th Congress are the first significant amendments in a decade to the much-debated Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). CERCLA is the federal law that creates a broad class of parties potentially liable for expenses incurred in cleaning up sites contaminated with hazardous substances. CERCLA also gives the federal government broad authority to undertake, or force liable parties to undertake, cleanups of contaminated sites.

The new amendments to CERCLA, enacted as Subtitle E of the Appropriations Act, are entitled "The Asset Conservation, Lender Liability, and Deposit Insurance Protection Act of 1996." These 1996 lender-liability amendments provide significant new protections from liabilities under CERCLA and portions of the Resource Conservation Recovery Act (RCRA) to banks, other lenders, a broad variety of fiduciaries, and involuntary governmental holders of contaminated property. The amendments were passed with little contemporaneous public debate or discussion and, in fact, were generated out of congressional banking committees, instead of the usual environment committees and subcommittees.