Jump to Navigation
Jump to Content


Volume 29, Issue 10 — October 1999


The Potential and the Pitfalls of Habitat Conservation Planning Under the Endangered Species Act

by Shi-Ling Hsu

Editors' Summary: The ESA is simultaneously the most popular and most hated of environmental statutes. Conservationists fervently support the ESA's mission of preventing the extinction of our country's fish, wildlife, and plants, but private landowners subject to ESA restrictions claim that the Act unfairly and illogically restricts the use of their valuable property. As the agency with primary responsibility for the ESA's administration, the U.S. Fish and Wildlife Service (FWS) is caught between both sides. This Article examines how the FWS uses habitat conservation plans (HCPs) to balance the demands of conservationists and property owners. The Article begins by discussing the divide between conservationists and property owners. It then describes how the Republican majority in Congress, the judicial trend in takings jurisprudence, and the ESA enforcement difficulties faced by the FWS have led to the increased use of HCPs. The Article next examines the appeal, effectiveness, advantages, and disadvantages of HCPs. The Article then explains how the trend in takings jurisprudence jeopardizes the continued legality and use of HCPs. Last, the Article concludes that the FWS should push for an ESA reauthorization bill that includes certain benefits for landowners as incentives for conservation. Without such a bill, the Article argues that the HCP process will be subject to political whimsy and judicial attack.

How to Reduce Lead Exposures With One Simple Statute: The Experience of Proposition 65

by Clifford Rechtschaffen

Editors' Summary: Human exposure to lead is one of the most serious environmental health threats today. Lead causes a variety of adverse health effects and is particularly harmful to children. Unfortunately, the current regulation of lead exposures is fragmented and often unsuccessful. California's Proposition 65, a right-to-know initiative, however, has achieved some noteworthy successes in reducing public exposures to lead. Proposition 65 has spurred faster and more significant lead reductions than federal law by prompting companies to reformulate products and change their manufacturing processes. This Article first discusses the hazards and uses of lead. The author next describes several instances that demonstrate how Proposition 65 has stimulated the development of new technologies and pollution prevention measures to reduce lead exposures. The author then examines why Proposition 65 has been more effective than comparable federal regulations. To conclude, the author notes that a simple, multi-media, self-executing statute like Proposition 65 can be more powerful than a host of complex regulatory programs in achieving actual reductions of pollutants in our environment.


The U.S. Supreme Court's 1998-1999 Term

by Marc A. Yaggi

Editors' Summary: Although there were several distractions for the U.S. Supreme Court to handle this Term, the Court managed to stay focused and perform its role as the highest power of the Judicial Branch. The Court's environmental docket for the 1998-1999 Term was slower than some previous Terms, but the Court still played an integral role in shaping environmental law. This Term, the Court issued opinions in 6 environmental or environmentally related cases, and denied review in over 40 such cases. The opinions issued covered a variety of topics ranging from the admissibility of expert testimony to regulatory takings. This Comment surveys the environmental and environmentally related cases the Court reviewed or chose not to review during its 1998-1999 Term. The Comment then concludes with a look forward to the 1999-2000 Term.


Yes, We Do Need a Clarification of the CERCLA Sovereign Immunity Waiver

by Victoria L. Peters

Editors' Summary: The extent to which the existing version of CERCLA removes the federal government's sovereign immunity has long been a matter of contention between states and several federal agencies. This Dialogue discusses the statutory framework, and describes the manner in which DOD and DOE have contended that the existing CERCLA "waiver" does not remove the government's immunity shield. The author argues that principles of equity and consistency with other environmental statutes, as well as the goal of environmental remediation of contaminated sites, justify prompt action by Congress to elaborate upon and strengthen the CERCLA provision so that it conforms to language in RCRA.