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Issue

Volume 30, Issue 2 — February 2000

Articles

Del Monte Dunes, Good Faith, and Land Use Regulation

by Steven J. Eagle

The U.S. Supreme Court's property rights jurisprudence always has had a Delphic quality. During this century, its seminal expressions have been Justice Holmes' enigmatic "too far" language in Pennsylvania Coal Co. v. Mahon1 and Justice Brennan's reliance on the amorphous conception of "investment-backed expectations" in Penn Central Transportation Co. v. City of New York.2 The Court's 1999 decision in City of Monterey v. Del Monte Dunes at Monterey, Ltd.3 does not depart from this pattern. Furthermore, just as supplicants to the Oracle at Delphi evaluated its pronouncements in light of their own preconceptions, modern commentators tend to view the Court's regulatory takings handiwork in the same manner.4 Once again, Del Monte Dunes is no exception—indeed, it is a veritable Rorschach test. This is due largely to its heavily fact-bound nature, its implication of important constitutional issues aside from property rights, and the proclivity of the opinion writers to sweeping asides.

In particular, Del Monte Dunes creates a powerful temptation to comment on all of the things that the case does not say. But the law of the case did not leave the Court with the necessity of saying much. While there is some dicta and many implications that we should parse, the Court did not overreach by trying to do more than decide the case before it.5

The National Trails System: A Model Partnership Approach to Natural Resources Management

by Thomas C. Downs

Our magnificent 40,000-mile National Trails System was established by Congress under the National Trails System Act (NTSA) of 19681 through the combined efforts of President Lyndon Johnson, Secretary of the Interior Stewart Udall, and Sens. Henry M. Jackson (D-Wash.) and Gaylord Nelson (D-Wis.). Private and nonfederal public lands make up the lion's share of federally recognized long-distance trail corridors. Consequently, to help administer each of the designated trails, Congress has authorized partnerships with nonfederal interests, principally through cooperative agreements with nongovernmental organizations (NGOs) devoted to trails.

Since the NTSA's enactment, 20 national historic and scenic trails have been designated by Congress, and numerous other potential national long-distance trails have been surveyed and catalogued. A major open space land acquisition and protection program has been implemented for the Appalachian Trail. Thousands of miles of abandoned railroad tracks have been converted into trails, and thousands of miles of completed nonfederal scenic and historic trail segments have been certified by federal agencies. The federal government also has recognized over 800 "national recreation trails."

When Are Clean Water Act Citizen Suits Precluded by Government Enforcement Actions?

by Barry S. Neuman, Jeffrey A. Knight

Since the enactment of the Clean Water Act (CWA or Act)1 28 years ago, the federal courts have been called upon to sort out the respective roles of the federal and state governments in connection with numerous aspects of the statute's implementation and enforcement.2 Congress has superimposed an additional layer of complexity on the CWA experiment in creative federalism—the citizen suit provision.3 Through this provision, Congress authorized affected citizens to sue alleged violators, but circumscribed their right to do so when the federal or a state government is taking or has taken enforcement action of its own.

Not surprisingly, courts have had to grapple with numerous issues concerning when citizen suits are precluded by government enforcement. In general, the courts have resolved these issues based upon their underlying views as to the relative importance of citizen suits in the statutory enforcement scheme. Courts emphasizing the primacy of government enforcement discretion and the secondary role of citizen suits construe the preclusion provisions more aggressively. Courts placing a higher value on the role of citizen suits as a check on potentially lax government enforcement construe the preclusion provisions more narrowly. This Article examines the more important and frequently litigated issues concerning the scope of the Act's citizen suit preclusion provision. These are the major issues practitioners should keep in mind when advising clients about the risks of a citizen suit and when evaluating how to manage the defense of a citizen suit to optimize the outcome for the client.

Dialogue

Environmental Data on the Internet: A Wired Public Setting Environmental Policy

by Peter L. Gray

During its first 15 years of existence, the U.S. Environmental Protection Agency (EPA) sought to improve environmental quality through conventional "end-of-pipe" command and control regulation. In the late 1980s, EPA shifted to a new paradigm in environmental protection: to enhance environmental protection by encouraging "voluntary" pollution prevention. EPA believes that if companies are given the appropriate incentive they will identify the best control for the least cost. Emissions trading under the Clean Air Act (CAA)1 is an example of an appropriate incentive.

The focus of this Dialogue is an inappropriate incentive: EPA's attempt to create public pressure on industry to reduce pollution through "right-to-know." Give the public information on the nature and amount of chemicals that industry releases into the environment, the theory goes, and the public will motivate industry to reduce pollution in a way that EPA cannot—by protesting, by boycotting and, most importantly, by shining the media's spotlight on the company. President Clinton articulated this "public pressure paradigm" on October 30, 1999, during his weekly radio address: "By requiring industries to tell communities how much they pollute the air and water, we empower citizens to fight back, and create a powerful incentive for industry to pollute less."2

Project XL: Good for the Environment, Good for Business, Good for Communities

by Lisa C. Lund

In March of 1995, President Clinton and Vice President Gore announced 25 actions that the U.S. Environmental Protection Agency (EPA) would take to reinvent environmental regulation.1 These actions recognized 25 years of success achieved by our current system of environmental protection, yet acknowledged that EPA needed to better align that system with the changing world we regulate. Reinvention serves four timely and important purposes at EPA:

1. The need to better address environmental problems that continue to persist despite our vigorous laws and regulations. These tend to be problems that cross statutory, media, state, regional, and international boundaries.

2. To take advantage of technological advances and to make sure our regulations are not hindering their use or effectiveness.

3. To recognize the growing sophistication and expertise among EPA's stakeholders and to leverage their information, experience, perspectives, and resources. This is especially true concerning our co-regulators, the states.

4. To underscore and cultivate a philosophical shift from pollution control to pollution prevention, and to highlight new awareness of environmental justice concerns.2

Saving the Headwaters Forest: A Jewel That Nearly Slipped Away

by David J. Hayes

On March 1, 1999, at 11:56 p.m. Pacific Coast time, the people of the United States took title to the Headwaters Forest, the largest remaining stand of privately owned, old growth redwoods in the world. Uncertain until the end, the transaction was recorded only minutes before the $ 250 million appropriation of federal funds for the purchase expired.

The clock on the wall did not lie. The Headwaters transaction came within a whisker of failing. Indeed, on Saturday, February 27, newspapers across the country accurately reported that the deal was dead. The story of how the transaction was put back together and pushed across the finish line before the stroke of midnight on Monday, March 1, is an interesting tale of personalities and perseverance. But it is more than that. The difficult history of the Headwaters acquisition is a powerful reminder of the legal and policy challenges that so frequently bedevil our nation's efforts to conserve our natural resources and protect our biodiversity.

Leveling the FIFRA Playing Field: Life Beyond Termilind

by Lynn L. Bergeson and Lisa M. Campbell

The quest by law abiding pesticide registrants for relief from illegally registered pesticides has taken a new turn. Tacitly acknowledging the futility of urging the U.S. Environmental Protection Agency (EPA) to initiate enforcement action against bad actors, registrants are now, in epidemic proportion, taking their case to EPA in the form of filing administrative petitions to revoke and/or cancel Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)1 registrations issued to competitors and alleged to be obtained illegally. EPA's Offices of General Counsel and Pesticide Programs struggle on a good day to keep up with the relentless demands of implementing the Food Quality Protection Act (FQPA)2 and the day-to-day business of FIFRA registration and reregistration. The administrative burden placed on EPA as a result of these petitions is further stressing a system that often appears on the brink of collapse. Nonetheless, the administrative petition process, albeit slow, frustrating, and costly for both EPA and registrants, at the least has the potential to provide the semblance of a level playing field. This Dialogue describes In re Termilind, a landmark EPA decision revoking two FIFRA registrations, its progeny, and the reasons why EPA must streamline its current system or identify a better one to address the problem of illegally registered pesticide products.