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Volume 30, Issue 6 — June 2000


Land Use Regulation and Environmental Justice

by Craig Anthony (Tony) Arnold

Environmental justice has emerged as a major environmental law issue with almost no corresponding attention to the role that land use law can play in addressing environmental injustice or to the role that environmental justice will play in shaping land use law.1 This Article explores the relationship between environmental justice and land use regulation and planning—a relationship that lawyers, scholars, judges, and policymakers must increasingly understand.

Environmental justice is about the growing awareness of, and response to, the distributional inequities of environmental hazards and locally unwanted land uses (LULUs) by race and class.2 In the 1980s and 1990s, grass-roots community organizers and civil rights activists, civil rights lawyers, government agencies, legal scholars, and other academics began to study and demonstrate that low-income people and people of color bear a disproportionately high burden of exposure to environmental hazards or LULUs, particularly in the neighborhoods in which they live and the environments in which they work.3 There have been five primary responses to this phenomenon, each with corresponding conceptions of, or ways of thinking about, the environmental justice problem4: (1) to study the evidence and causes of the distribution of environmental hazards and LULUs (evidentiary conceptions)5; (2) to organize politically against proposed [30 ELR 10396] or existing LULUs (power conceptions)6; (3) to vindicate the constitutional, statutory, or common-law rights of those affected disproportionately by environmental hazards or LULUs (legal conceptions)7; (4) to heighten enforcement of environmental laws (environmental conceptions)8; and (5) to seek or rely on market mechanisms to address the distribution problem (economic conceptions).9

Delisting Endangered Species: An Aspirational Goal, Not a Realistic Expectation

by Holly Doremus

On March 11, 1967, the U.S. Fish and Wildlife Service (FWS) promulgated the first formal list of U.S. endangered species.1 Since then, the protection afforded listed species by federal law has increased dramatically. In light of those expanded protections, one might have expected both the number of protected species and the length of time those species spend on the list to gradually decline. But that has not been the case. Instead, the list has grown explosively over the past 30 years; today it includes more than 1,200 U.S. and 550 foreign species.2

Coincident with the growth of the endangered and threatened species list, the Endangered Species Act (ESA)3 has become increasingly controversial. The Clinton administration took office in 1993 determined to soften that controversy by proving that the ESA is compatible with economic development.4 Since then, under the leadership of Bruce Babbitt, the U.S. Department of the Interior (DOI) has undertaken a series of administrative reforms designed to make the ESA easier to live with.5

Standing in Environmental Citizen Suits: Laidlaw's Clarification of the Injury-in-Fact and Redressability Requirements

by Michael P. Healy

In its first week of business during the new millennium, the U.S. Supreme Court decided Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., and provided important clarifications about the law of standing in environmental citizen suits. Specifically, the Court rejected the narrow view of environmental injury-in-fact advocated by Justice Scalia and instead adhered to the broader view of injury-in-fact established in a nonenvironmental context by the Court's decision in Federal Elections Commission v. Akins. As importantly, the Court also addressed the redressability requirement of Article III standing in Laidlaw. Here too, the Court did not apply the narrow view of redressability that Justice Scalia had defined for the Court in Steel Co. v. Citizens for a Better Environment, and instead found that the deterrence afforded by civil penalties was sufficient redress for environmental injury-in-fact.

This Article will analyze the Court's quite generous view of citizen suit standing in Laidlaw. After presenting the legal background to the Laidlaw decision in the first part of this Article, I will turn to an analysis of the Court's holdings in Laidlaw. To be sure, the Court's decision was adumbrated in important ways by the Court's broader conception of standing articulated in Akins. Nevertheless, the decision will be welcomed by environmentalists who had been concerned, viewing the apparent "slash and burn" assault on environmental standing in Steel Co. and Defenders of Wildlife v. Lujan, that the Court was ready to foreclose citizen suits when the defendant was unable to demonstrate that the statutory violations giving rise to the suit would recur causing measurable harm.

Wetlands Regulation and the Law of Regulatory Takings

by Robert Meltz

Talk about wetlands preservation today and you may soon be talking about private property and takings. The reason is simple enough: while the need for wetlands preservation is widely conceded, many are privately owned—in the case of the federal wetlands permitting program, almost 75% of the covered acreage in the lower 48 states. When a wetland owner is denied a permit to develop property (or offered a permit with very burdensome conditions), its value may drop substantially. Even when a permit is granted, permit processing time or agency errors may on occasion impose costly development delays. Accounts of landowners aggrieved by wetlands regulation have been widely circulated by the property rights movement, and challenged by environmentalists.

The conflict, as viewed by some, is straightforward. The benefits of wetlands preservation, they argue—water filtration, wildlife habitat, protection against flooding and erosion—inure to the public. By contrast, the burdens of wetlands preservation, in terms of development denied, fall on the wetland owner. (The burden is enhanced because coastal regions, lake fronts, and riversides are especially coveted areas in which to build.) The public receives the benefits of wetlands without having to compensate the wetland owner.


OSHA's Proposed Ergonomics Standard: An Exercise in Cost and Ambiguity

by Jerome K. Bowman

In late 1999, the U.S. Occupational Safety and Health Administration (OSHA) proposed an expansive ergonomics standard. Its genesis, however, goes back to 1979, when OSHA hired its first ergonomist. Now, more than 20 years later, OSHA is moving forward with a proposed standard that is both extremely far-reaching and, in many ways, unique among health and safety requirements. The proposal, however, suffers from a number of serious deficiencies, including inherent ambiguities within the regulatory language itself. This Dialogue reviews the major elements of the proposed standard, the requirements the standard would place upon employers, and the problem areas associated with the standard as it is currently drafted.

OSHA defines ergonomics as the science of fitting jobs to people. It is, in other words, a study of how work conditions and processes stress workers and cause injuries such as carpal tunnel syndrome, lower back pain, tendinitis and similar maladies. Two primary questions arise in analyzing any attempt by OSHA to regulate the problem of ergonomics. The first is whether there is adequate scientific support for the regulation itself or, more specifically, for the purported connection between workplace conditions and practices and ergonomic injuries. The second is the extent to which any regulatory agency can comprehensively, reasonably, and understandably regulate the problem of ergonomics. This Dialogue will not address the first question regarding the presence or lack of scientific support for the standard. The question of scientific support has been addressed exhaustably both by OSHA in the preamble to the proposed standard and in comments submitted to OSHA regarding the proposed standard, as well as in a number of published studies. Rather, this Dialogue will focus upon how OSHA has chosen to regulate this most difficult problem.