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Volume 30, Issue 12 — December 2000


Returning Separation-of-Powers Analysis to Its Normative Roots: The Constitutionality of Qui Tam Actions and Other Private Suits to Enforce Civil Fines

by Peter M. Shane

In thoughtful dicta uttered 60 years ago, Justice Frankfurter observed that even a legislature clear as to its regulatory objectives faces hard choices in selecting remedies for the implementation of those objectives:

How to effectuate policy—the adaptation of means to legitimately sought ends—is one of the most intractable of legislative problems. Whether proscribed conduct is to be deterred by qui tam action or triple damages or injunction, or by criminal prosecution, or merely by defense to actions in contract, or by some, or all, of these remedies in combination, is a matter within the legislature's range of choice. Judgment on the deterrent effect of the various weapons in the armory of the law can lay little claim to scientific basis. Such judgment as yet is largely a prophecy based on meager and uninterpreted experience.1

Federal Environmental Law in the "New" Federalism Era

by Stephen R. McAllister & Robert L. Glicksman

As we wrote last year, the U.S. Supreme Court has shown considerable interest during the past decade in reconsidering many constitutional doctrines regarding federalism and congressional power.1 In a series of important decisions, always decided with the same five justices in the majority,2 the Court has begun to redefine the federal-state relationship and the scope of federal authority.3 The past term generally continued that trend, with one important commerce power decision,4 one significant Eleventh Amendment/Fourteenth Amendment § 5 decision,5 and a number of decisions that involve or affect federalism and the scope of federal power, although the Court sometimes relied on statutory interpretation to avoid serious constitutional issues.6 Part I of this Article describes the most recent decisions.

This continuing redefinition of the scope of federal power in relation to that of the states is potentially significant for the implementation and enforcement of federal environmental laws, the main focus of this Article. The effectiveness of federal environmental regulation depends not only, however, on the degree to which the federal government is authorized to control activities with potential adverse environmental effects, but also on the manner in which that authority is allocated among the three branches of the federal government. The Court did not immerse itself in the last two years in this second aspect of the two main branches of structural constitutional inquiry to the same degree that it tackled high-profile federalism issues. A couple of decisions handed down during the Court's last term concerning standing to sue and a case the Court has agreed to hear during the October Term 2000 may yet bring these separation-of-powers questions to the fore, however. To round out the analysis of the status of federal power to affect matters environmental, therefore, this Article seeks as a secondary matter to consider briefly the potential impact of the Court's separation-of-powers jurisprudence on federal environmental law.

The Draft Recipient Guidance and the Draft Revised Investigation Guidance: Too Much Discretion for EPA and a More Difficult Standard for Complainants?

by Bradford C. Mank

Title VI of the 1964 Civil Rights Act prohibits federal agencies from providing financial assistance to recipients that commit discrimination. The U.S. Environmental Protection Agency's (EPA's) Title VI regulations prohibit both intentional and unintentional discrimination by state and local agencies receiving Agency funds. However, these regulations were written before the question of environmental inequities became a serious public concern and do not explain how the Agency will define or measure adverse disparate impacts that result from a recipient's permitting decisions. In 1998, EPA released its Interim Guidance on Investigating Title VI Administrative Complaints Challenging Permits (Interim Guidance) to address these issues.1 A wide range of groups criticized the Interim Guidance for using vague definitions, failing to elucidate the crucial term "adverse disparate impact," and not suggesting how recipients might avoid Title VI complaints.

After promising for over two years to revise its policies, finally, on June 27, 2000, EPA published two draft guidances on Title VI in the Federal Register.2 First, prepared at the request of state and local officials seeking to [30 ELR 11145] avoid complaints and violations, the Guidance for EPA Assistance Recipients Administering Environmental Permitting Programs (Recipient Guidance) discusses a range of possible approaches to minimize the likelihood that a complaint will be filed against a recipient.3 Second, the Draft Revised Guidance for Investigating Title VI Administrative Complaints Challenging Permits (Revised Investigation Guidance) clarifies how the Agency's Office of Civil Rights (OCR) will process complaints, conduct its investigations, determine whether a permit decision creates unacceptable adverse impacts, and weigh efforts by the recipient to reduce or eliminate adverse disparate impacts.4 These guidances deal only with permitting decisions. Later guidances will address other issues, including allegedly disproportionate enforcement.5

Mobil Oil Exploration, Environmental Protection, and Contract Repudiation: It's Time to Recognize the Public Trust in the Outer Continental Shelf

by Robin Kundis Craig

In a recent article reviewing the U.S. Supreme Court's environmental decisions over the last 30 years (1969-1999), Professor Richard Lazarus argues that "the Justices have never fully appreciated environmental law as a distinct area of law."1

They perceive environmental law instead as merely an incidental factual context, in which environmental protection concerns are at stake, but there is nothing uniquely environmental about the legal issues being raised. The Justices, accordingly, fail to appreciate how the nature of the environmental concerns being addressed can sometimes be relevant to their resolution of those legal issues.2


Mountaintop Mining and U.S. EPA's Proposed Rule Change: A Giant Step Backward for the Clean Water Act

by Daniel L. Rosenberg

Imagine that new neighbors move in next door and begin building an addition on their home that blocks the sun, crowds your property, and obstructs you view of the park down the street. Unpleasant? Now imagine that the rights to mine the property next door—more than 8,000 acres (approximately 12 square miles)—is bought by the Arch Coal Company and that your new neighbor will soon be blasting off the tops of the surrounding mountains, cutting trees, burying the nearby streams with rubble, and killing all the wildlife in the process. Many of your neighbors might quickly move away, particularly if offered some financial compensation by the coal company. Soon, the local stores would not have enough business to stay open, and your little town might not have enough revenue to support basic social services, or enough children to keep the local school open. An ever-descending spiral of flight and deterioration would soon be established. But if you and your family wanted to fight to save your home, your community, and the surrounding streams, trees, and wildlife, you might take your new neighbor to court.

Ten West Virginia citizens did just that two years ago. They joined with the West Virginia Highlands Conservancy, a local environmental group, to file a legal complaint in U.S. District Court for the Southern District of West Virginia. The complaint, brought against the West Virginia Division of Environmental Protection (DEP) and the U.S. Army Corps of Engineers, alleged multiple violations of the Clean Water Act (CWA)1 and the Surface Mining Control and Reclamation Act (SMCRA)2 for failure to prevent or enforce violations caused by a mining practice known as "mountaintop removal." Thus far, they have won nearly every round of their battle.

Byrd v. EPA--A Setback to Openness, Accountability, and Integrity in Federal Policymaking

by Thomas R. Bartman

This Dialogue discusses the recent decision in Byrd v. EPA1 regarding the scope and application of the Federal Advisory Committee Act (FACA).2 According to the court's opinion, the U.S. Environmental Protection Agency (EPA) and other federal agencies that use a contractor to establish a committee to provide an agency advice are essentially exempt from compliance with FACA requirements; they need not make the public aware of advisory committee meetings, tolerate public attendance at those meetings, or allow citizen access to documents considered by the committee. This judicially created exemption has the potential to undercut not only the public openness objective of FACA, but also the independence of peer review committees, which are increasingly used by agencies for advice and approval of science-based agency decisions.

Euphemism as a Political Strategy

by Gerald E. Frug

The standard arguments for smart growth rely on "the substitution of an agreeable or inoffensive expression for one that may offend or suggest something unpleasant"—to quote the dictionary's definition of a euphemism.1 "Smart growth" is, of course, itself a feel-good term. But it is by no means the only one. Almost as pervasive are terms like "sustainability" and "livable communities."2 Who could be for dumb growth or think that unsustainable, unlivable places were desirable? Moreover, it is not just these general catch-phrases that rely on euphemism for their effect. When the goals of smart growth are defined more precisely, they regularly skirt controversy by omitting any hint of conflict or dissonance. Consider, for example, the Sierra Club's one-sentence definition:

Smart growth is intelligent, well-planned development that channels growth into existing areas, provides public transportation options, and preserves farm land and open space.3

Laidlaw (Even Industry Gets the Blues)

by Craig N. Johnston

adapted from Layla (by Eric Clapton and Jim Gordon)

What do we do when we get sued now

If the Supremes aren't on our side?

If we can't rely on standing constraints

Do they expect us to comply?