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Volume 31, Issue 2 — February 2001


Reading the Clean Air Act After Brown & Williamson

by Michael Herz

I. Introduction

Smoking is not considered an environmental issue. Congress has kept the U.S. Environmental Protection Agency (EPA) out of the tobacco regulation game by excluding tobacco from coverage under the statute otherwise most appropriate for that use, the Toxic Substances Control Act,2 and EPA's halting steps toward regulation of secondhand smoke have hit a judicial roadblock.3 Nonetheless, tobacco lurks on the fringes of environmental law and policy—not least because, as the single most significant threat to public health, it provides a benchmark against which environmental risks are often measured (usually by those arguing against regulating those risks). Now federal tobacco regulation has led to a judicial decision of potentially great significance for environmental lawyers: Food & Drug Administration v. Brown & Williamson Tobacco Corp.4 Though not an "environmental case" as such, Brown & Williamson holds important lessons for environmental law and litigation.

After a brief description of the opinions in the case, I will comment on two aspects of the decision of particular importance to environmental lawyers: the Court's handling of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.5 and its reliance on post-enactment developments in interpreting a statute.

Environmental Certification Programs and U.S. Environmental Law: Closer Than You May Think

by Errol E. Meidinger

I. Introduction

In rapidly growing numbers, business firms are committing to meet environmental standards set by nongovernmental environmental certification programs. Such programs claim to harness the incentives of the market to promote the public interest. They typically define the environmental standards that firms must meet and establish organizational mechanisms for achieving and "certifying" compliance. Depending on the program, firms are entitled to signal their certification status by displaying labels on their literature, facilities, or products. Examples of important environmental certification programs include the Forest Stewardship Council's (FSC's) well-managed forests program,2 the International Organization for Standardization (ISO) 14001 environmental management program,3 and the chemical industry's Responsible Care(R) program.4

Although environmental certification programs have immense potential to reshape environmental management practices and their affiliated legal rights and duties, American environmental lawyers have largely ignored them. It is difficult to say why. Perhaps they assume from decades of experience that important environmental mandates necessarily come from governments. Perhaps they are constitutionally [31 ELR 10163] different from corporate and securities lawyers, who, over the years, have made much more extensive use of nongovernmental ordering mechanisms. In any event, the nearly exclusive focus of American environmental lawyers on government mandates is increasingly anachronistic, given the apparent incapacity of legislatures to seriously reassess existing laws and the sluggishness of administrative agencies in restructuring regulatory frameworks.

This Article argues that environmental certification programs are likely to become important engines of change in American environmental law, and that they deserve the serious attention of environmental lawyers. Section II describes common features of environmental certification programs to date, and compares them to governmental legal systems. Sections III and IV review areas of law likely to be implicated by certification programs, and describe how they may relate to certification. Section V offers some concluding thoughts about the implications of certification programs.

The Environmental Law of Farms: 30 Years of Making a Mole Hill Out of a Mountain

by J.B. Ruhl

Farms and farming are intrinsically linked with human civilization, and have had a dramatic impact on our planet's landscape and environmental systems.1 Environmental regulation in the United States, though young when compared to other fields of law, is a highly developed body of law. Unfortunately, a wide chasm exists between these two social endeavors—farms are virtually unregulated by the expansive body of environmental law that has developed in the United States in the past 30 years. Yet the absence of an environmental regulation program for farms presents us with the opportunity to create one from scratch. The time for taking advantage of that opportunity is long overdue.

To acknowledge that farms pollute and degrade the environment should neither indict farming as a way of life nor denigrate the ideals farmers hold. Farming in America is a deeply rooted cultural institution with many noble qualities and important economic and social benefits, but it is also an industry having much in common with other industries, their owners, and their workers. Acknowledging that industries cause environmental damage has not generally been regarded as an attack on the people or the institutions involved. Nor should it be so for farms. The plain truth is that farms pollute groundwater, surface water, air, and soils; they destroy open space and wildlife habitat; they erode soils and contribute to sedimentation of lakes and rivers; they deplete water resources; and they often simply smell bad. These effects are and always have been consequences of farming in general.2 What is amazing is that these consequences have escaped serious regulatory attention even through the recent decades of environmental awakening. The organic farming3 and sustainable agriculture4 movements that are gaining [31 ELR 10204] momentum from within the farming community may be steps in the right direction, but they are not panaceas. At best these steps should be taken in addition to, rather than in lieu of, an effort to rein in the environmental impact of farms through a concerted, comprehensive regulatory framework.

The Plaintiff's Burden in CERCLA Contribution Actions: Unscrambling the First Circuit's Acushnet Decision

by John M. Hyson

In Acushnet Co. v. Mohasco Corp.,2 the U.S. Court of Appeals for the First Circuit affirmed a district court's action in granting summary judgment to defendants on their C3100 contribution claims without first conducting a full "equitable allocation" hearing. In its opinion, the First Circuit rejected the "causation" basis for the district court's ruling but nevertheless affirmed the district court's ruling because "the record was insufficient to permit a meaningful equitable allocation of remediation costs against any of these defendants under § 9613(f)."3

The issue in Acushnet is important. Those who undertake the cleanup of hazardous substances (whether voluntarily or involuntarily) often must incur enormous, multimillion dollar response costs. Not surprisingly, those who incur such costs are eager to obtain at least partial reimbursement of their costs by means of contribution claims under CERCLA § 113(f)(1). But the cost of litigating such claims is substantial because a district court may allocate a portion of the plaintiff's response costs to a defendant only if such allocation is justified by "such equitable factors as the court determines are appropriate." A full equitable allocation hearing thus requires: (1) the presentation of arguments as to the equitable factors that are appropriate, (2) the presentation of evidence regarding each of the appropriate factors that are determined to be appropriate, and (3) the evaluation and weighing of these factors by the court.4 All of this is needed in order for a court to determine a defendant's "equitable share" of the plaintiff's response costs. And all of this takes time and money.5


Temporary Regulatory Takings and Development Moratoria: The Murky View From Lake Tahoe

by Steven J. Eagle

In its landmark decision in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,2 the U.S. Supreme Court established that temporary regulatory takings must be compensated under the Fifth Amendment's Takings Clause.3 However, neither First English nor the Court's subsequent cases have comprehensively defined what constitutes a "temporary regulatory taking." Recently, the U.S. Court of Appeals for the Ninth Circuit held that development moratoria cannot result in compensable takings under First English, even when they deprive owners of all economically beneficial use of land for extended periods. The case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,4 was decided in June 2000. The Ninth Circuit voted against en banc review in October,5 although a vehement dissent was filed.6 This Article reviews Tahoe-Sierra and concludes that the court's analysis is inconsistent with First English.

Cost-Benefit Analysis Through the Back Door of "Reasoned Decisionmaking"?

by Richard G. Stoll

Few environmental cases have received as much attention as American Trucking Ass'n v. U.S. Environmental Protection Agency,2 recently argued before the U.S. Supreme Court. Even readers of the mainstream press3 are aware that industrial petitioners have urged the Court to inject cost-benefit considerations into the Clean Air Act (CAA) ambient air quality standard-setting process, and in effect overrule the 20-year Lead Industries Ass'n v. U.S. Environmental Protection Agency4 precedent of the D.C. Circuit.

Two little-noticed D.C. Circuit cases decided in the summer of 2000, however, have imposed at least some form of cost-benefit obligations on the U.S. Environmental Protection Agency (EPA) despite statutory silence on the issue. In both cases, the court vacated EPA rules on "reasoned decisionmaking" grounds, and said that cost-benefit factors should be evaluated by the Agency.

The Proper Role of the Nondelegation Doctrine

by Ernest Gellhorn

The U.S. Environmental Protection Agency (EPA) has argued, in its briefs filed with the U.S. Supreme Court in Browner v. American Trucking Ass'n, that the decision of the D.C. Circuit2 which stated that EPA should interpret the Clean Air Act (CAA) so as to avoid violation of the nondelegation doctrine is "novel," "unprecedented," "contrary to the purpose of the delegation doctrine," and without any "basis in [the Supreme] Court's precedents."3 In fact, however, it is EPA that has radically misread both the Court's application of the nondelegation principle and the lower court's adherence to clear precedent. All that the lower court held is that EPA's interpretations of the CAA cannot disregard the nondelegation doctrine.

EPA has acknowledged, as it must, that the nondelegation doctrine continues to be a viable principle underlying basic constitutional jurisprudence governing congressional grants of authority to administrative agencies. It cannot deny that both the Court and lower courts have adopted narrow readings of agency organic statutes where necessary to avoid constitutional invalidity under the nondelegation doctrine. Constitutional principles are frequently preserved by indirect means,4 but this less confrontational approach does not alter the importance or effect of the constitutional requirement.

Markets, Mechanisms, Institutions, and the Future of Water

by David W. Yoskowitz

Water scarcity is no longer a threat, it is a reality. Increasing populations throughout the country and the world are putting increased pressure on existing supplies of freshwater. Cities, states, and regions are scrambling to find solutions to this burgeoning problem. The impact of drought, which has been felt not only in the typically dry Southwest, but also in the humid Southeast this past summer, compounds the problem. So, what mechanisms evolve to help alleviate the problem?

Advances and uses of technology are one means. Desalinization and reverse osmosis processes are becoming relatively cheaper, making their adoption a reality in the near future. This assumes, however, that the user of the technology is near a source of treatable water. Another use of this technology is to treat used water. But this method would have to overcome the stigma attached to it. A number of other possibilities exist, but this Dialogue will focus on one in particular: Water marketing.