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Volume 30, Issue 8 — August 2000


Envirocare v. NRC Increases Agency Discretion to Deny Administrative Intervention: Right Result--Wrong Reason

by William S. Jordan III

The law of standing to intervene in administrative proceedings has long been something of a stepchild of the law of standing to be heard in court. The recent decision of the D.C. Circuit Court of Appeals in Envirocare of Utah, Inc. v. NRC1 may, however, have brought administrative standing out of the shadow of its more prominent relation.

Envirocare makes the following contributions to the law governing standing to intervene in agency proceedings. First, the court upheld the agency's denial of intervention standing to a company whose economic interests would be adversely affected by the agency's decision to issue a license to a competitor. Second, the court upheld the agency's position that it may deny standing to intervene even if the party in question would later qualify for standing on judicial review of the agency's decision. Third, in reaching its decision, the court deferred to the agency's view of the scope of the hearing provision in its organic statute. The net result of Envirocare is a substantial expansion of agency authority to control intervention in agency proceedings.

Environmental Federalism Part I: The History of Overfiling Under RCRA, the CWA, and the CAA Prior to Harmon, Smithfield, and CLEAN

by Jerry Organ

The Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Clean Air Act (CAA) represent federal regulatory regimes for protecting the environment. Although each statute initially places administrative responsibility in the hands of the U.S. Environmental Protection Agency (EPA), each encourages states, to varying degrees, to take primary responsibility for implementing the statutory regime. States have responded to this opportunity by seeking and obtaining approval of state programs under RCRA, the CWA, and the CAA—over 80% of the states have fully or partially approved programs under each of these statutes.

State interests, however, are not always coincident with the federal interests reflected in EPA's policies—states may be more interested in attracting business or in promoting compliance rather than in assuring tough enforcement of environmental laws. States, therefore, can and do exercise prosecutorial discretion in ways different than EPA may desire (e.g., the state may elect not to take enforcement action, or not to impose penalties, or not to impose significant penalties) when EPA may believe significant penalties are appropriate.

Peer Review and Regulatory Reform

by Lars Noah

In recent years, lawmakers of all sorts have become interested in scientific peer review, and have the hope that scrutiny by independent experts can improve the quality of their own decisionmaking. As the phrase implies, peer review refers to the process of having work scrutinized by fellow experts, and it has long served as a quality control mechanism for the scientific community. Traditionally relegated to research funding and publication decisions, peer review recently has become of interest to regulatory agencies making decisions in the face of scientific uncertainty as well as to judges struggling to make sense of conflicting claims by expert witnesses. Although noteworthy, these applications remain fairly ad hoc to date.

More significantly, Congress has come to view expert peer review as a method for improving agency decisionmaking.1 In the last several years, for example, regulatory reform proposals have included requirements that agencies call on independent scientists to check their work. The latest incarnation, the Regulatory Improvement Act of 1999 (S. 746), was reported out of the Senate Committee on Governmental Affairs last summer.2 Like predecessor bills, S. 746 would mandate that agencies prepare risk assessments in many cases, and it would require some form of independent expert scrutiny of these and similar analyses.3


Scrutinizing Environmental Enforcement: A Comment on a Recent Discussion at the AALS

by Joel A. Mintz

For much of the last century, the Association of American Law Schools (AALS) has had a quiet yet significant role in the development of American law. Founded in 1900, the Association is composed of 162 U.S. law schools, each of whose faculty members are AALS members. The Association sponsors a number of events annually, the most significant of which is its annual meeting, at the beginning of January, which typically attracts between 3,500 and 4,000 participants.1

Over a span of four days, this meeting features exhibits, breakfasts, luncheons, receptions sponsored by various law schools and organizations, field trips, half- or full-day "workshops" on particular topics, a plenary session (regarding a broad topic or theme), and numerous sessions sponsored by one or more of the AALS's sections (i.e. groups focused on particular fields of law or topic areas).2

Is Environmental Alternative Dispute Resolution Working in America?

by Robert F. Blomquist

Alternative dispute resolution (ADR), in general, is a hot topic. None other than Attorney General Janet Reno observed that:

[An important] component of problem-solving requires us to place an even greater emphasis on negotiation, dispute resolution and collaborative working relationships. Students need to learn in negotiation courses about the obstacles to negotiated agreement and the means for overcoming them.1

Superfund in the 106th Congress

by Charles Openchowski

By the beginning of the 106th Congress, comprehensive legislative reform of the Superfund statute had consumed six fruitless years of effort. Adopting a new approach, the Administration decided to seek narrow, targeted legislation. In testimony that would be repeated several times in 1999, the U.S. Environmental Protection Agency (EPA) expressed support for specific legislative authority to continue its ongoing brownfields program, provide a limited number of liability clarifications that would further enhance remediation of brownfields sites, and reinstate the industry taxes designed to underwrite in large part the federal cleanup program.

This shift in position was prompted by a number of events. Administrative reforms initiated by EPA in the mid-1990s were responsible for significant improvements in the pace of cleanup and had tempered criticism of the program's fairness and performance. Also, with the passage of time, the cleanup program had advanced to a point where the vast majority of priority sites were already being addressed under the existing statutory and regulatory framework, so that significant legislative changes had the potential to cause serious implementation delays and a new round of high transaction costs. Finally, broader efforts to reauthorize the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) had failed repeatedly due to deep-rooted differences of opinion in Congress and among private-party stakeholders over the correct direction the program should take. In the tense, polarized political climate of early 1999, it seemed unlikely that there could be a bipartisan consensus that would bring Capitol Hill and the White House together on a wide-ranging reauthorization bill containing complex issues that had been so controversial for so long.

One for the Birds: The Corps of Engineers' "Migratory Bird Rule"

by Timothy S. Bishop, Kyle F. Waldinger, and Elizabeth A. Clark

Does the use by migratory birds of isolated, intrastate waters establish enough of a connection to "navigable waters" and interstate commerce to permit federal regulation under the Clean Water Act (CWA) and the U.S. Commerce Clause? The U.S. Army Corps of Engineers thinks so, but courts and commentators have not been entirely sympathetic to the Corps' so-called migratory bird rule. The Fourth Circuit and U.S. Supreme Court Justice Thomas (in a dissent from denial of certiorari) have rejected such a broad jurisdictional reach in no uncertain terms. Even the Ninth Circuit, one of two federal courts of appeal to approve the migratory bird rule, has recognized that it "certainly tests the limits of Congress's commerce powers and, some would argue, the bounds of reason." And many academic commentators question whether the rule is constitutional after United States v. Lopez, which arguably ushered in an era of more demanding review of federal action under the Commerce Clause.

On May 22, 2000, the Supreme Court agreed to hear a challenge to the rule presented in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC). In that case, the U.S. Court of Appeals for the Seventh Circuit held that the CWA gives the Corps jurisdiction over isolated waters that are neither navigable nor connected or adjacent to navigable waters, but that provide habitat for birds that cross state lines or are protected by Migratory Bird Treaties. The Seventh Circuit also held that this vast extension of the Corps' jurisdiction does not exceed the federal commerce power.