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Volume 30, Issue 4 — April 2000


American Trucking and the Revival (?) of the Nondelegation Doctrine

by Robert W. Adler

The decisions of the D.C. Circuit Court of Appeals in American Trucking Ass'n v. U.S. Environmental Protection Agency,1 which remanded in part and vacated in part the U.S. Environmental Protection Agency's (EPA's) promulgation of revised national ambient air quality standards (NAAQS) for ozone and particulate matter (PM) under the federal Clean Air Act (CAA),2 might have significant implications for the future of U.S. air quality law and policy. Some of these possible ramifications were explored in two earlier ELR articles by Professor Craig Oren.3 In addition to these direct impacts on CAA rulemakings, however, there has been considerable speculation about whether American Trucking signals a potential revival of the nondelegation doctrine in U.S. constitutional and administrative law.4 That development, in turn, might have far broader implications for the implementation of a panoply of environmental and other regulatory statutes by EPA and other federal agencies.

In his first article, Professor Oren wrote that the holding in American Trucking would be more consistent with a judicial remand under the arbitrary and capricious standard of the Administrative Procedure Act (APA),5 seeking a more precise agency explanation of the reasons underlying its regulatory decision.6 As a result, he appears to argue that fears about the broader implications of the D.C. Circuit's decisions in American Trucking are overstated.7 I agree with Professor Oren that if the court believed that EPA's explanation of the reasons underlying its regulation was inadequate,8 a remand under the APA would have been a far more conservative and preferable judicial approach. I am not so sanguine, however, that fears about the potential revival of the nondelegation doctrine are any less legitimate because of an approach the court could have adopted as opposed to the reasoning it actually endorsed.

Empirical Research on the Deterrent Effect of Environmental Monitoring and Enforcement

by Mark A. Cohen

This Article reviews the empirical research on the effectiveness of monitoring and enforcement of environmental policy in deterring individuals and firms from violating environmental laws or achieving an improved level of environmental performance. It considers both "monitoring" activities (such as government inspections) and "enforcement" activities (such as sanctions, remedial actions, and other mechanisms designed to punish and/or bring a firm into compliance). It also evaluates "informal" monitoring and enforcement pressures, such as the role that public information has on firm compliance. However, it does not consider the role of liability laws (torts, nuisance actions, etc.) in compelling polluters to reduce emissions.1 Likewise, except for a few studies in Canada, it does not address enforcement analyses conducted outside the United States.2

Until recently, there have been surprisingly few empirical studies of environmental enforcement. Comprehensive data on compliance and enforcement are only beginning to become available to researchers. Thus, the few studies that have been published focused either on oil spills (where the U.S. Coast Guard maintains a comprehensive data set), or on specific industries such as the pulp and paper industry, where the U.S. Environmental Protection Agency (EPA) funded and/or assisted researchers in their data collection efforts. Data availability is rapidly changing as EPA has integrated all of its enforcement and monitoring data by facility and is beginning to make facility-level data freely available to the public on their website. Thus, this is an opportune time to take a fresh look at the theory and evidence of environmental deterrence.

Anti-Nuisance Legislation: Can the Derogation of Common-Law Nuisance Be a Taking?

by Terence J. Centner

Common-law nuisance actions have long been a part of our jurisprudence.1 Landowners who are not reasonable in their use of property can be restrained under an action in nuisance. While courts have balanced the utilities and applied various tests of reasonableness, the end result is that an activity or land use that is too offensive to surrounding property owners may be enjoined. Moreover, even in cases where a balancing test shows a close question of whether there is a nuisance, courts have only two major choices.2 The offensive conduct is either a nuisance or not. If there is a nuisance, the plaintiff is entitled to relief; otherwise, the plaintiff receives nothing even though the one-sided result may be unfair.3

While the winners take all approach embedded in nuisance law has its deficiencies, another consideration has involved investments by landowners conducting objectionable activities that constitute a nuisance. Courts have devised resolutions to these problems as exemplified by the celebrated Boomer v. Atlantic Cement Co.4 case. Because of the investments the cement company made to its facility and the economic benefits it provided to the community, the court declined to simply enjoin the disturbing activities.5 Rather, the court found a nuisance, awarded the neighbors permanent damages, and allowed the cement plant to remain.6

The Annihilation of Sea Turtles: World Trade Organization Intransigence and U.S. Equivocation

by Lakshman Guruswamy

In the case of United States-Import Prohibition of Certain Shrimp and Shrimp Products (US-Shrimp),1 the Appellate Body of the General Agreement on Tariffs and Trade's (GATT's) World Trade Organization (WTO)2 declared that actions taken by the United States to protect endangered sea turtles were GATT-illegal. Despite the official U.S. welcome extended to this decision,3 the conclusions of the Appellate Body challenge the freedom of the United States to make significant foreign and domestic policy decisions. By ignoring and effectively overruling decisions made by the U.S. judiciary, on the very same issues of U.S. constitutional and administrative law that the Appellate Body chose to decide, the US-Shrimp case has made unprecedented inroads into the sovereignty of the United States, and the protection of the environment. Not surprisingly, a growing surge of criticism leveled at the outcome of this case contributed to the outrage vividly demonstrated in Seattle in December 1999.

One result of the Seattle meeting is that the question of how the GATT/WTO may be reformed to incorporate environmental, human rights, and other goals is back on the agenda.4 The twisted tale of the US-Shrimp case demonstrates that the GATT/WTO is in urgent need of reform. Unfortunately, the Sysyphian task of reforming the GATT/WTO is a long and arduous undertaking in which the odds are heavily stacked against the reformers. While interstitial changes are tortuously negotiated in protracted sessions, the environment will continue to suffer at the hands of the GATT/WTO. In order to prevent this, it makes eminent sense for trade and environmental cases to be moved out of the GATT/WTO legal regime into more fair, open, and just tribunals.


Genetic Susceptibility and Environmental Risk Assessment: An Emerging Link

by A. Dan Tarlock

Since the 1970s, the federal government has imposed progressively stringent regulations on the discharge of hazardous and toxic substances into the air, water, and soil in order to protect the public from the presumed health risks of exposure to these pollutants.1 The acceptance of the precautionary principle by Congress and the courts in the 1970s has led the U.S. Environmental Protection Agency (EPA) and other agencies to base toxic pollutant standards on risk assessments. The use of risk assessments has been criticized from many perspectives. Opponents of stringent regulation have charged that these assessments represent bad or junk science because the data do not support the need for regulation. More moderate or rational critics question that economic benefits generated by standards compared to the costs of compliance. Environmentalists have argued that risk assessments use science to mask the hard policy and value choices involved in standard setting.2 Until recently, however, all participants in the debate have accepted two common assumptions. First, there is some need to protect the population at large and specific sub-populations of at-risk groups, such as children, from the adverse affects of involuntary exposures to specific pollutants. The regulatory focus has been on the prevention of cancer, neurological disorders, and the impairment of male and female reproductive capacity. Second, it would be unfair and inefficient to shift the burden of protection to individuals for a wide variety of pollution risks.3 These assumptions are open to question in light of advances in genetic research.

Toxic pollution and hazardous substance regulation is not yet based on advances in our understanding of the relationship between human genetics and exposure to a potentially dangerous substance, but this could change in the future. Put differently, pollution regulation is not based on individual susceptibility to risk; it is based on group susceptibility. We do not base environmental and occupational health regulation on the possibility that substantial variability in risk exists among individuals within the protected class. We do base some standards on worst-case scenarios; for example, many risk assessments are based on worst-case individual susceptibility. This practice, however, is different from explicitly assuming that each member of a protected class has a different cellular response to exposure or ingestion. The reason is that society normally assumes that all exposures are involuntary, but this is not always the case. Air pollutants are the clearest example of involuntary exposure, but even in this case, those at risk could move to less polluted areas.

Environmental Law Slogans for the New Millennium

by Michael Allan Wolf

Contrary to the bleakest predictions offered by environmental fatalists during the latter half of the 1900s, humanity and much of the plant and animal kingdom survived New Year's Eve 1999. Similarly, contrary to the dire warnings of industrial organizations and lobbyists that overburdening environmental regulations would spell the end of profitable, American capitalism, the year 2000 dawned in the United States with the world's most extensive array of antipollution and pro-conservation measures regulating the globe's most impressive economic engines.

New times demand new paradigms; it is much more than a calendar change that occasions a reconsideration of the status and meaning of environmental law. The deindustrialization that typified the 1980s has yielded to the high-tech revolution of the 1990s. Indeed, the word "industry" itself—which for two centuries raised in the mind images of soot, grime, excessive noise, and harmful vibrations—today has a connotation that is much cleaner and friendlier to human and nonhuman nature. Moreover, the command-and-control provisions of American environmental law have yielded the battlefield to kinder and gentler, incentive-based regulation.