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


Recent Developments in Federal Wetlands Law: Part II

by Margaret N. Strand

Editors' Summary: This Article is the second in a series intended to supplement Federal Wetlands Law, a primer that ELR published in 1993 and subsequently incorporated into the Wetlands Deskbook. The Article, which refers to the primer but stands on its own, focuses primarily on where wetlands law has changed since the primer's publication. The Article first discusses nationwide and general permits under Clean Water Act §404, including a new nationwide permit that applies to single-family homesites. Next, the Article discusses individual permits under §404, focusing primarily on the permit process, mitigation issues, NEPA issues, and after-the-fact permits. It also covers EPA's authority under §404(c) to veto U.S. Army Corps of Engineers-issued permits. Finally, the Article addresses enforcement issues, including statute of limitations, penalties, injunctive relief, and citizen suits. In discussing criminal enforcement, the Article emphasizes that §404 violators face significant consequences for their illegal acts.


Joint-Implementation Essentials for Lawyers

by Richard J. Blaustein

Joint implementation provides U.S. companies an opportunity to contribute to an officially sanctioned effort to reduce greenhouse-gas1 emissions, the anthropogenic cause of global warming. Joint implementation typically takes place in developing countries, with the financial and technical assistance of sponsors in the developed world. They are part of a sophisticated initiative, the potential social benefits of which include not only mitigating climate change, but also preserving biodiversity in threatened locales in the developing world and making a significant contribution to poorer nations' sustainable development.

The most recent international climate-change agreement2 alludes to the possibility of the emergence of a trading regime for greenhouse-gas emissions, similar to the domestic acid-rain program. If such a regime does emerge, domestic investors can expect accrual of prospective pollution allowances generated by joint-implementation projects to provide them some return on their overseas investments. Other financial incentives for participating in joint implementation include advantageous entry into developing-world markets (in particular, the emerging global energy market); relatively inexpensive research and development for innovative energy and land use processes; and direct short-term returns through biodiversity prospecting, timber sales, and energy revenues.

Land Use and Cleanups: Beyond the Rhetoric

by George Wyeth

There seems to be agreement across a wide spectrum of those involved in Superfund cleanups that such cleanups should take into consideration the kinds of activities that are expected to take place at the site after the remedial work is completed. While cleaning every site to levels suitable for all conceivable uses may be a laudable goal, doing so can impose costs that are out of proportion to the added amount of protection obtained. Not surprisingly, therefore, every significant proposal for reform of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) contains a provision tying the selection of remedies to expected land uses in some way.

The role of land use in remedy selection, however, is more complicated than many appreciate. Discussions of land use-based remedies frequently reflect oversimplified notions of how land use considerations may bear on the remedy selection process and how land use decisions are really made. This Dialogue seeks to provide a clearer understanding ofhow land use should be considered in remedy selection and addresses the long-term implications of tying remedies to anticipated land uses. In addition to highlighting the issues that are often overlooked in discussions of land use as a cleanup consideration, it argues that we should consider an entirely different kind of cleanup regime similar to permitting, under which regulatory oversight would be maintained on a continuing basis and cleanups phased in with an emphasis on addressing known short-term risks.