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Volume 30, Issue 3 — March 2000


1999-The Year in Review

by Craig N. Johnston

This Article provides a relatively short summary of the most important environmental case law developments of the past year.1 The treatment of cases is divided into two categories: first, extended consideration of the most significant developments; second, a somewhat briefer summary of several other significant decisions, organized by statute or subject matter.

The Conservation and Recovery Act of 1999: Outer Continental Shelf Revenue Sharing

by Edward A. Fitzgerald

There has been a great deal of federal-state conflict, termed the "Seaweed Rebellion," regarding the development of outer continental shelf (OCS) oil and gas resources. The crux of the conflict is that the benefits of OCS energy development are national, while the impacts are regional. One of the main issues of contention is the distribution and control of the revenues derived from OCS energy development. Presently, most of the revenues are deposited into the U.S. Treasury and utilized to pay for federal programs and deficit reduction. OCS revenues fund the Land and Water Conservation Fund Act, which provides grants to state governments for the planning, acquisition, and development of public outdoor recreation areas and activities, and the National Historic Preservation Act, which provides grants for historic preservation. The coastal states share only in the revenues derived from OCS energy development in the §8(g) zone, which extends three to six miles offshore.

There have been numerous unsuccessful efforts to share OCS revenues with the coastal states. In November 1999, the House Resources Committee approved the Conservation and Reinvestment Act of 1999 (CARA), which utilizes OCS revenues to fund numerous natural resource programs, including $1 billion for coastal state impact assistance and coastal conservation. CARA is likely to be passed in the second session of the 106th Congress. The sharing of OCS revenues will rectify the U.S. Supreme Court's tidelands decisions, provide funds to deal with the impacts of OCS energy development, address the inequity between coastal and inland states regarding the revenues derived from mineral development on federal lands, and strengthen the federal-state offshore partnership.


Remand Without Reversal: An Unfortunate Habit

by Frank H. Wu and Denisha S. Williams

In a recent case involving environmental policies, the U.S. Court of Appeals for the D.C. Circuit continued on its course of remanding administrative agency actions while neither reversing nor vacating them, in order to allow bureaucrats to explain decisions that otherwise cannot be sustained. This practice is unfortunate. It contravenes due process requirements that agency choices be evaluated on the actual record generated below instead of post-hoc litigation rationalizations and is based on a dubious extrapolation of precedent.

The D.C. Circuit, which is responsible for most of the judicial review of federal regulations, used the remand-only route in a March 1999 decision, Sierra Club v. EPA.1 The Sierra Club case arose from the 1990 Amendments to the Clean Air Act (CAA).2 The 1990 Amendments had directed the U.S. Environmental Protection Agency (EPA) to set emissions limitations for medical waste incinerators (MWIs).3 EPA was to have balanced the benefits of maximum reduction of air pollutant emissions with the costs of achieving the reduction, along with other health, environmental, and energy factors.4 The statute set minimum stringency (or maximum emissions) levels, but authorized EPA to exceed such levels if they were "achievable."5 The Sierra Club and the Natural Resources Defense Council challenged the ensuing EPA rulemaking.6

Punitive Damages Claims in Environmental Tort Cases: Lessons From Johansen v. Combustion Engineering, Inc.

by Evan M. Tager

Claims for punitive damages in environmental tort cases raise a number of interesting state-law and constitutional issues. Recently, the U.S. Court of Appeals for the Eleventh Circuit had the occasion to address some of these issues in Johansen v. Combustion Engineering, Inc.1 This Dialogue discusses the aspects of the Johansen decision that have particular relevance in environmental cases and seeks to provide practitioners with some guidance as to how to approach these issues in future cases.2

Seeking a Truce in the Environmental Information Wars: Replacing Obsolete Secrecy Conflicts With New Forms of Sharing

by James T. O'Reilly

Military historians observe that the losing armies were the ones that were only prepared to fight the last war, failing to change their tactics and strategies to deal with current warfare. Today, environmental groups and U.S. industries continue to war over the public dissemination of process details and chemical formulations regarding the environmental consequences of industrial facilities. Information confidentiality disputes relating to the environment present a classic political science, economic, and philosophical conflict among competing values. While these "last wars" were based on the industry's fixation on the physical security of their data, the shape of information disputes in 2000 forward is likely to be dramatically different.

The development of corporate technological advancements through commercial research greatly benefits U.S. trade through licensing income and product export sales. For years, protection of that technology has been enhanced by safeguards such as physical security, cryptographic protection, and contractual constraints on employees with access to data. When regulators began to acquire large quantities of industrial secrets, industry applied similar constraints and won the courts' approval.1 But is industry fighting the last war and missing the Internet's effects on the instant transferability of data that is shared with the U.S. Environmental Protection Agency (EPA)?

Eight Basic Rules of Superfund Allocation

by Richard Lane White

Editors' Summary: Can the complex process of allocating cleanup costs at Superfund sites be distilled into a set of practical and common-sense rules? This Dialogue, written by a co-author of an Article on Superfund allocation published in the February 1998 issue of ELR, submits that there are indeed eight fundamental rules to guide potentially responsible parties and regulators in moving from "Superfund soup" to allocations that are rational and equitable. The rules are derived from the statute, judicial interpretations, and EPA policies. By employing these rules, the author submits, what has been a highly controversial and mind-numbing procedure can be simplified, better understood, and consistently applied.