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Issue

Volume 30, Issue 11 — November 2000

Articles

Meeting the Environmental Justice Challenge: Evolving Norms in Environmental Decisionmaking

by Sheila R. Foster

The environmental justice movement seems to have come of age. The past two decades have seen increasing empirical evidence documenting racial disparities in sitinghazardous waste facilities and a nascent grass-roots movement bearing witness to the disproportionate effects of numerous environmental and health hazards in low-income communities of color.1 Never have environmental justice claims been taken so seriously in environmental policymaking and adjudication than they have over the past five years. On a policy level, this seriousness is illustrated by two important events. The first is President Clinton's Executive Order on environmental justice, which directs all federal agencies to identify and address "disproportionately high and adverse human health or environmental effects" of its actions on minority and low-income populations, and calls for "early and ongoing public participation in permitting and siting decisions."2 The second is the U.S. Environmental Protection Agency's (EPA's) recent issuance of its Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits, which allows community groups to challenge state permit decisions (including permit modifications and renewals) upon showing that the permit will have a disparate impact on a minority community.3

Following closely behind the issuance of both of these policies are a number of decisions implementing them. Relying on President Clinton's Executive Order No. 12898, EPA's Environmental Appeals Board (EAB) has ruled that environmental decisionmakers have discretionary authority, under three federal environmental statutes, to implement the dictates of the Executive Order in the permitting process.4 Additionally, the first, and only, adjudication of a claim under EPA's Interim Guidance (the predecessor to its recently issued Draft Revised Guidance) was recently handed down in spite of intense opposition to the policy by state and local officials.5

How to Minimize Civil Penalties in Environmental Enforcement

by Bill S. Forcade and Elizabeth D. Anderson

Overview

No one voluntarily chooses to become a defendant in environmental litigation. Unfortunately, sometimes bad things happen to good people. Despite a company's excellent commitment to environmental protection, a government agency may threaten it with litigation and possible civil penalties for noncompliance with pollution control requirements. The conflict may arise because of disagreements with regulatory agencies about what pollution control obligations exist, because of an accident, or it may happen because someone in the company simply did not do their job adequately. Whatever the reason, you face litigation expenses, statutory civil penalties, and other unpleasant consequences. The underlying conflict may be considered a very minor problem, but the potential litigation poses a significant risk. Managing that potential litigation toward a successful conclusion requires an understanding of the relevant enforcement process, the risks involved, and the likely outcome. Each step in this process will present opportunities to minimize adverse consequences, and it is up to the company to use those opportunities wisely.

This Article discusses enforcement and civil penalties as they relate to the traditional environmental regulatory programs controlling air emissions, water discharges and waste disposal.1 In most such conflicts, the substantive pollution control and permitting issues are resolved with the environmental agency reasonably and quickly. New controls are installed, records are kept, or permits sought as required of all other similarly situated sources. Frequently, it is more difficult to decide what to do about claimed past noncompliance. Will the agency file litigation or not, and if so, what civil penalty is appropriate? How can companies minimize the risk of litigation and the amount of any potential civil penalty?

Moving the Climate Change Debate From Models to Proposed Legislation: Lessons From State Experience

by John Dernbach

The United States is a party to the United Nations Framework Convention on Climate Change (Framework Convention),1 which requires parties to implement programs and measures to reduce net greenhouse gas emissions. Greenhouse gases, including carbon dioxide (CO2), trap solar energy in the atmosphere in proportion to their concentration, rather like the way glass windows in a greenhouse or a parked car trap solar heat.2 Their increased atmospheric concentration from human emissions is believed to be affecting the earth's climate. In 1997, in Kyoto, Japan, the parties agreed to a protocol under which developed countries would reduce their net emissions by at least 5% below 1990 levels by 2008-2012, and the United States would reduce its emissions by 7% below 1990 levels.3 Since that time, there has been a vigorous debate in the United States about the Kyoto Protocol.

To a great degree, this public debate is a case study in asking the wrong questions:

Federal Environmental Regulation in a Post-Lopez World: Some Questions and Answers

by Michael J. Gerhardt

In the span of just a few years, the U.S. Supreme Court has brought the venerable constitutional concept of federalism back to life with a vengeance. In the 1999 Term alone, the Rehnquist Court struck down three federal laws for violating basic principles of federalism1 and narrowly construed a fourth to avoid any conflict with those precepts.2 When viewed in conjunction with the Court's other recent defenses of federalism ideals, this activity takes on historic proportions: in the past 5 years, the Rehnquist Court has struck down 23 federal laws, including 11 for exceeding Congress' authority under the U.S. Commerce Clause, § 5 of the Fourteenth Amendment, or both.3 Not since the titanic conflict between Congress and the Court in the 1930s over the fate of the New Deal has the Court been as active as it has in recent years in enforcing federalism-based limitations on congressional power.

The implications of the Court's recent federalism decisions have been the subject of considerable speculation, particularly with respect to their likely impact on areas in which the Congress frequently or routinely uses its powers under the Commerce Clause and § 5 of the Fourteenth Amendment. Perhaps no area has been the focus of more concern than environmental law, the field in which Congress arguably moit frequently resorts to its Commerce Clause power. Though none of the Court's federalism decisions over the past five years involved challenges to federal environmental regulations, the opinions gave no indication of any field exempted from the application of their reasoning. Indeed, if there were any doubt about the Court's willingness to confront the implications of its recent federalism decisions for environmental law, it resolved them in one of its last decisions of the 1999 Term. Just before the end of the Term, the Court, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC),4 agreed to hear a constitutional challenge to the U.S. Environmental Protection Agency's (EPA's) and the U.S. Army Corps of Engineers' migratory bird rule, which prohibits the destruction of any wetlands,5 including isolated ones,6 that are likely to be or actually are frequented by migratory birds.7 Together with these agencies' broad assertion of federal jurisdiction of any waters that "could affect" interstate commerce,8 the rule has generated considerable controversy as impediments to commercial and other development on private property with no apparent or direct connection to interstate waterways.9 [30 ELR 10981] Thus, in agreeing to hear a constitutional challenge to this rule, the Court will have a critical opportunity to clarify the implications of its recent federalism decisions for what is commonly perceived as the federal government's most aggressive effort to protect the quality of the nation's waters.

The Regulatory Reach of Living Marine Resource Statutes: A Moving Target in Unchartered Waters

by Andrew J. Turner

Roll on, thou deep and dark blue ocean . . . ten thousand fleets

sweep over thee in vain . . . but [man's] control stops with the shore.1

The ocean holds 97% of the water on earth2 and 80% of the world's biodiversity.3 The ocean also provides the setting for a significant portion of the world's economic activities. Over 95% of U.S. foreign trade moves by sea,4 25% of world petroleum production is supplied by offshore oil and gas wells,5 world fish exports represent 11% of total global agricultural exports,6 and coastal tourism represents 85% of all U.S. tourism.7 Not surprisingly, two-thirds of the world's population lives within 50 miles of a coastline.8 In contrast to Lord Byron's early 19th century view, man has demonstrated that his activities can have profound effects on the ocean and its living marine resources.9 This thesis addresses the reach of federal regulatory authority over living marine resources.

The vitality of the ocean to economies as well as ecosystems, and the interrelation of both, has been recognized in numerous statutes and other federal actions.10 Major federal statutes concerned with the protection of living marine resources include the Marine Mammal Protection Act (MMPA),11 the Endangered Species Act (ESA),12 the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA),13 the Marine Protection, Research, and Sanctuaries Act (MPRSA),14 and the Coastal Zone Management Act (CZMA).15 Living marine resource statutes typically provide either specific or general regulatory authority [30 ELR 11007] to implementing federal agencies, or both.16 The exercise of this authority can have sweeping implications for affected activities, such as shipping, fishing, aquaculture, mineral extraction, military operations, research, and tourism, and often requires accounting for a unique blend of competing environmental, commercial, tribal, maritime, state, national, and international policies and requirements. Within the contours of these policies and requirements, the precise limits of federal agency authority to regulative activities affecting living marine resources are not always clear.

Dialogue

A Framework for Achieving Environmental Integrity and the Economic Benefits of Emissions Trading Under the Kyoto Protocol

by Robert Nordhaus, Kyle W. Danish, Richard H. Rosenzweig and Britt Speyer Fleming

Introduction

In a previous Article in ELR,1 the authors examined issues related to international greenhouse gas emissions trading under the as-yet unratified Kyoto Protocol to the United Nations Framework Convention on Climate Change.2 This Dialogue builds upon, and assumes the reader's knowledge of, the previous Article.

As explained in that Article, the Kyoto Protocol provides that the countries listed in the Kyoto Protocol's Annex B—and possibly private companies in those countries—may meet emission reduction commitments through the buying and selling of emission allowances called assigned amount units (AAUs).3 Many governments and firms are planning on using emissions trading as a compliance tool for the Kyoto Protocol's first "commitment period," which will run from 2008 to 2012. Because emissions trading can reduce the costs associated with implementing commitments under the Kyoto Protocol, it also can promote long-term participation in international efforts to address climate change.

Judicial Deference to Local Land Use Decisions and the Emergence of Single Class Equal Protection Claims

by John C. Cooke and Christine Carlisle Odom

To the extent the city argues that, as a matter of law, its landuse decisions are immune from judicial scrutiny under all circumstances, its position is contrary to settled regulatory takings principles. We reject this claim of error.1

When a property owner challenges a land use decision in court, local governments urge the courts to defer to their local control and land planning expertise. In making such pleas, they generally contend that their decisions are local policy decisions over which they should have exclusive control. While the courts afford broad deference to local government land use decisions,2 the experienced land use lawyer recognizes that, in many ways, the strong statement of the U.S. Supreme Court quoted above merely affirms a work in progress. Over the past 20 years, the courts have articulated through various decisions how settled federal constitutional limitations on governmental action apply in the land use law context.3 Even though this work progresses, from most clients' perspectives, the local government still seems to possess the unfettered right to do whatever it wants—no matter what the courts say. This Dialogue focuses on several recent decisions involving governmental bad faith in the administration and application of land use regulations and the emergence of the single-class equal protection claim as a legal theory to address governmental bad faith.

Can't Get No Satisfaction: Securing Water for Federal and Tribal Lands in the West

by Reed D. Benson

In recent years, the western states have often struggled with the federal government over control and management of natural resources, particularly water. For its part, federal law defers to states in many matters of water resource allocation.1

Reserved water rights are a major exception to this general policy of federal deference to state water law. The reserved rights doctrine provides that when the United States designates land for a particular use, it also claims enough water to fulfill the primary purposes of that designation.2 The reserved rights doctrine evolved in the federal courts through the 20th century, beginning with Indian reservations3 and later extending to other federal areas such as national forests and national monuments.4 By ensuring an adequate long-term water supply for these public lands, reserved water rights provide vitally important protection for ecological values and other national interests.