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Volume 31, Issue 10 — October 2001


A Survey of Federal Agency Response to President Clinton's Executive Order No. 12898 on Environmental Justice

by Denis Binder et al.

In an effort to address the well-documented and serious problem of environmental justice in the United States, President William J. Clinton issued Executive Order (EO) No. 128981 on February 11, 1994. The EO represented the culmination of a century of rapid changes in society's attitudes toward the placement of hazardous facilities in poor, disadvantaged, and minority communities, as well as the denial of services to these communities. This survey examines the impact of the EO on federal agencies.2

Environmental justice is not a problem unique to the late 20th century. Majoritarian societies have historically discriminated against minority groups.3 For example, the post-World War II exodus to the suburbs in the United States partially reflected an effort by affluent members of society to insulate themselves from the more unpleasant realities of modern-day living. Through zoning and other land use planning tools, economically deprived persons and sundry undesirable facilities were excluded from the affluent suburbs. Zoning was often an effective tool of exclusion.

The Nondelegation Doctrine: Fledgling Phoenix or Ill-Fated Albatross

by Sandra B. Zellmer

Prior to the New Deal, the American judiciary was highly suspicious of regulatory legislation, which was viewed as upsetting the common law's support for private property interests and freedom of contract. Laissez-faire policies reigned. Regulatory statutes were vulnerable to invalidation under a variety of constitutional theories, including substantive due process, federalism and, for a brief period of time, delegating legislative authority to the executive branch, a constitutional offense under separation-of-powers principles.

Since the advent of the modern administrative state and the Administrative Procedure Act (APA) of 1946,1 the "nondelegation" doctrine has been, for all practical purposes, a dead letter in the federal arena. Even the most broad-sweeping authorizations have barely been questioned. Instead, the delegation of complex regulatory details to executive agencies is generally recognized as promoting efficient and effective government. So long as Congress provides some "intelligible principles" to guide the agency in its implementation of a statute, delegations have not raised constitutional concerns.2 Courts simply review agency interpretations of open-ended delegations as a matter of administrative law under the familiar standard from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,3 upholding the regulation so long as the agency's construction is reasonable.4

When Economics and Conservation Clash: Challenges to Economic Analyses in Fisheries Management

by Kristen M. Fletcher

In recent years, the National Marine Fisheries Service (NMFS) and Secretary of Commerce have accumulated hundreds of lawsuits challenging fisheries management rules made by the agency. Litigation is not new to these parties; controversy has pervaded fisheries management since the 1976 passage of the primary U.S. fisheries statute—the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act).1 However, the magnitude of litigation has reached historic levels in the years since its 1996 Amendments.

One contributing factor for the increase is the requirement to conduct economic analyses of fisheries rules and minimize the economic effects that the rules have on fishing communities. In 1996, the Magnuson Act was amended to require the Secretary of Commerce to conduct economic analyses that balance the obligation to manage fishery resources with the potential adverse effects on fishing communities and (to the extent practicable) minimize those adverse effects. Along with the Magnuson Act, the Regulatory Flexibility Act (RFA)2 was amended the same year, expanding the analysis that federal agencies must complete to determine the effect of proposed regulations on small businesses. While some petitioners choose to challenge regulations under only one of these statutes, the determination of economic effects under each law is intricately linked. Recent lawsuits reveal the tightrope that the Secretary of Commerce and the NMFS walk between science, economics, and conservation. Although the resulting judicial decisions are contradictory and leave certain questions of economic survival of a fishery or a fishing community ripe for high court review, they can also provide a necessary roadmap for the Secretary and the agency in performing effective assessments of economic impacts.

Symbolic Politics and Normative Spins: The Link Between U.S. Domestic Politics and Trade-Environment Protests, Negotiations, and Disputes

by Gregory Shaffer

While scores of western commentators criticize the nontransparency1 of the World Trade Organization (WTO) in their examination of "green" trade-environment issues, they often ignore the linkage between domestic politics in powerful states and international trade measures. Consciously or unconsciously, they blur this crucial linkage that divides WTO members and exacerbates conflicts and scuttles them to the WTO in the first place. Yet it is this underlying domestic-international, two-level game2 that also needs to be made more transparent, since its examination demonstrates that it is this nexus more than the WTO's lack of transparency that results in trade-environment conflicts.3

This Article makes two central points about debates over the WTO's treatment of trade-environment matters. First, the U.S. public is relatively government-averse and foreigner-wary. It is thus far less likely to support financing of domestic and international programs that directly address environmental concerns than to support trade restrictions against foreign imports. Trade restrictions against foreign imports impose costs on domestic constituents, but these costs are less transparent than the costs of positive environmental programs. Domestic politicians and the mass public therefore respond more favorably to critics' calls for trade restrictions against unrepresented foreigners. WTO critics employ the rhetoric of fighting "multinational corporations,"4 but the sanctions that they advocate can harm developing country workers, and these workers are rarely consulted about them. Positive assistance programs, on the other hand, are both more efficient and equitable. Yet whatever political party is in control, domestic political processes prefer to shift costs through trade restrictions onto foreigners who, in a world of asymmetric power, tend to come from poorer, smaller countries.5 The result is North-South, trade-environment policy controversies brought before the WTO on account of U.S. imposition of unilateral trade restrictions against developing country imports, as opposed to negotiated package agreements involving financial and technical assistance.6

Tribal Nations: Environmentally More Sovereign Than States

by Joe W. Stuckey

Sovereignty: a: supreme power especially over a body politic;

b: freedom from external control.1

Jurisdictional issues have been a part of the lives of Native Americans since before the Indian wars and continue to be at the center of all disputes involving both their environment and their natural resources. Modern jurisdictional issues usually concern sovereignty, treaties, and the rights of states and tribal courts. More recently, transboundary issues have become a part of environmental disputes.

This Article introduces the concept of sovereignty as it applies to Native Americans. It then reviews cases involving the rights of tribes asserted under various theories, including tribal sovereignty, compared to rights asserted by states. My thesis is that tribes have greater rights in environmental matters than do states because of their historical status as sovereign nations, their treaties providing for separate rights, and their treatment as "dependent wards" of the U.S. government.

Taking Land: Compulsory Purchase and Regulation of Land in Asian-Pacific Countries

by Tsuyoshi Kotaka, David Callies, and Heidi Guth

The government use of compulsory purchase and land use control powers appears to be increasing worldwide as competition for useable and livable space increases. The need for large and relatively undeveloped space for agriculture and conservation purposes often competes with the need for shelter and the commercial and industrial development accompanying such development for employment, product production and distribution, and other largely urban uses. The free market does not always—some would say often—result in a logical and equitable distribution of land uses and attendant public facilities necessary to serve the use of land. One function of government is therefore to regulate the use of private land for the health, safety, and welfare of its citizens, and to help provide roads, water, sanitation, and other public facilities, as well as schools, parks, airports, and the like. Accomplishing the former—regulation—is generally done in accordance with some form or level of plan. Accomplishing the latter often requires the exercise of compulsory purchase powers, providing public land or interests in land in order to construct such public facilities or infrastructure.

The Asia-Pacific region and its rapid urbanization has generated a need for both land use control and use of compulsory purchase powers. The same rapid urbanization and the need for accompanying public facilities has generated areawide interest in the mechanics (rather than the theory) of compulsory purchase and related land use control mechanisms. While there are certain commonalities among the 11 countries that form the basis of our comparative study, there are differences as well, some of them (such as the ratio of public and private land ownership) fundamental. The purpose of our study was to summarize the principal compulsory purchase and land use control systems in the 11 countries that make up the basis of our comparative study, and to attempt to draw some parallels and note some differences among them. However, any comparative study of law and administrative practice is bound to be somewhat general if truly comparative. Our study was no exception.


Extrajurisdictional Takings After SWANCC

by Timothy S. Bishop and Kermit Roosevelt

In January 2001, the U.S. Supreme Court, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC),1 held that the U.S. Army Corps of Engineers (the Corps) lacks jurisdiction under the Clean Water Act (CWA) to require landowners and developers to obtain § 404 permits to dredge or fill isolated ponds and wetlands which are not navigable and not connected to navigable waters, but are used by migratory birds that fly across state lines. Since 1996, the Corps had asserted jurisdiction over isolated ponds and wetlands based on their actual or potential use by migratory birds. Thus the result of the SWANCC decision is that for the past 15 years, the Corps has been reviewing projects and issuing and denying permits despite having no jurisdiction to do so. Without having jurisdiction, the Corps has put landowners and developers to the often considerable delay and expense of seeking § 404 permits, has insisted on significant project modifications and costly mitigation, and has denied some permits outright. Furthermore, in some states (reportedly, for example, Indiana and Wisconsin), the jurisdiction of state agencies over isolated waters and wetlands piggybacked on the Corps' CWA jurisdiction; if there was no CWA jurisdiction, there was no state jurisdiction either. In those states, agency demands associated with CWA § 401 water quality certifications or otherwise, with regard to the fill of isolated waters, have similarly been outside the agency's jurisdiction and were improper.

This Dialogue explores whether agency-imposed limitations on land use that are later adjudicated to have been beyond the agency's jurisdiction—such as the Corps' improper assertion of regulatory jurisdiction over isolated waters and wetlands—may be takings under the Fifth Amendment to the U.S. Constitution. We call these "extra-jurisdictional takings." Whether there can be such a thing is a subject of a dispute that, after SWANCC, is no longer "just academic."

Competing Agendas and the Climate Change Negotiations: The United States, the European Union, and Japan

by Miranda A. Schreurs

Human-induced climate change is considered by many scientists to be one of the most pressing international problems facing our planet. Yet, international efforts to address greenhouse gas emissions have been repeatedly stymied by differences in national perspectives.

The Kyoto Protocol1 was dealt a near-death blow by the Bush Administration in March 2001. After President George W. Bush labeled the protocol "fatally flawed" and U.S. Environmental Protection Agency (EPA) Administrator Christine Todd Whitman announced that the Protocol was as good as "dead" in the Administration's eyes, the future of this international agreement looked bleak.2 The European Union (EU) reacted with shock, anger, and dismay.

Development Moratoria, First English Principles, and Regulatory Takings

by Steven J. Eagle

Is an intentional temporary deprivation of the use of land not a "temporary taking"? This proposition was asserted by a panel of the U.S. Court of Appeals for the Ninth Circuit in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. The Ninth Circuit denied en banc review, despite a strong dissent by Judge Alex Kozinski. Perhaps because it had never explicated the meaning of "temporary taking," and perhaps in part because its interest was kindled by the Kozinski dissent, the U.S. Supreme Court recently granted certiorari. The question is limited to:

Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution.