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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — March 2001


Major Endangered Species Act Developments in 2000

by Michael J. Bean

Constitutionality of Endangered Species Act (ESA) Restrictions

Unlikely as it may seem, the constitutionality of certain of the ESA's core restrictions is still being questioned nearly three decades after its enactment. The U.S. Supreme Court's willingness to reexamine the scope of federal authority under the U.S. Constitution's Commerce Clause since United States v. Lopez1 has put the ESA in the cross hairs for the following reasons: (1) most endangered species occur only within a single state, (2) relatively few endangered species have commercial value that make them the object of interstate commerce, and (3) most, if not all, of the activities that the ESA prohibits, especially those that run afoul of its prohibition against "taking" protected animals, could be characterized as essentially local, and many of those activities are not economic in character.

The D.C. Circuit faced the first of the Commerce Clause challenges to the ESA in 1997. In National Ass'n of Home Builders v. Babbitt,2 the D.C. Circuit considered whether the ESA's prohibition against taking the Delhi Sands flower-loving fly, an endangered insect that is found only in California and that has itself never been the object of interstate commerce (apart from a handful of instances involving specialist collectors), exceeded the constitutional authority of the federal government. Although the court upheld the law against this challenge, it split two to one, and the two judges who ruled in support of the law were unable to agree upon a rationale for doing so.

International Environmental Impact Assessment: A Case Study in Implementation

by Julie Teel

This paper aims to facilitate discussion about specific reform proposals for Ukraine by illustrating the basic components of environmental impact assessment (EIA) with comparative analysis and recent developments from other countries' legislation and international law. Section I introduces EIA, provides a general overview of Ukrainian ecological expertiza law, and describes U.S. Environmental Protection Agency (EPA) Region V's EIA pilot project in Ukraine. Section I begins by discussing the stages of the EIA process, from the early "screening" stage to final decision on the activity, while analyzing the current state of Ukrainian law with respect to these stages and comparing it to other approaches. It closes by examining different methods of ensuring post-decision review and enforcement. Sections II and III address recent developments in EIA law, including EIA in a transboundary context; the application of EIA to plans, policies, and programs; the regionalization of EIA laws; and EIA as a condition for project approval by international financial institutions and development aid agencies. Section IV summarizes our findings and illustrates general areas for reform for Ukrainian EIA law.

Global Warming

by Arnold W. Reitze, Jr.

Efficient combustion largely prevents the formation of many criteria pollutants. Carbon monoxide (CO) emissions usually are created by combustion in an oxygen deficient environment.1 Hydrocarbon emissions often result from incomplete combustion caused by such factors as low fuel temperature, too rich or too lean air-fuel ratios during and after combustion, and poor distribution of fuel within the combustion chamber.2 Nitrogen dioxide (NO2) is primarily created from the oxidation of nitrogen in the air during combustion at high temperatures.3 Ozone and other photochemical oxidants are created during atmospheric reactions involving nitrogen oxides (NOx) and hydrocarbons (HCs).4 Thus, conventional air pollution control efforts usually aim to create ideal combustion conditions so that the combustion byproducts are carbon dioxide (CO2) and water vapor. This is expressed as:

HC + O2 + N2 —> CO2 + H2O + N2 + heat 5

However, even ideal combustion that produces only CO2 and water vapor can threaten the global ecosystem if large quantities of CO2 emissions and other global warming gases released from anthropogenic sources disrupt the natural global atmospheric balance that has evolved over time spans associated with geologic processes.6

Controlling Nonpoint Source Water Pollution: Is Help on the Way (from the courts or EPA)?

by Robert W. Adler

Nearly three decades after enactment of the modern Clean Water Act (CWA), efforts to address the largest remaining source of water pollution—runoff and other types of aquatic ecosystem impairment from diffuse activities—remain elusive. Every two years, the U.S. Environmental Protection Agency (EPA) confirms in its biennial National Water Quality Inventory1 that nonpoint source water pollution, or "polluted runoff," causes the majority of water body impairment throughout the country.2 Despite periodic statutory amendments designed to turn this situation around,3 the numbers never seem to change very much. Polluted runoff from row crop agriculture, logging, grazing, development and other sources, along with other activities such as dams, water diversions and the like that significantly alter aquatic and riparian habitat, continue to impair both human and ecological uses of our rivers, lakes, and coastal waters. While significant amounts of money have been spent and substantial programs have been developed to address the problem,4 the nature and magnitude of the problem does not seem to have changed significantly.

The clearest explanation for this long-standing state of affairs is that, to succeed, environmental programs must be guided by some mechanism to ensure that whatever tools are chosen are used in ways that are likely to accomplish the task. This is true in particular for programs designed to address aggregate impairment from multiple and diverse sources: "The litany of past failures to plan and implement watershed programs suggests that these renewed efforts must be designed with more rigor and attention to pragmatic concerns such as specificity, accountability, and enforceability."5 This type of precise guiding force has been lacking for nonpoint source programs in particular, and watershed protection efforts in general. Indeed, some remain skeptical that this type of comprehensive control program can work effectively even if all of the necessary tools are in place:


Command Without Control: Why Cap-and-Trade Should Replace Rate Standards for Regional Pollutants

by Byron Swift

I. Introduction

While current environmental laws provide us with an adequate environmental protection system, they must be reformed if we hope to achieve an excellent one. This Dialogue examines regulation of nitrogen oxides (NOx) and sulfur dioxide (SO2) in the power sector over the past years, and provides a direct comparison of the rate-based methods used in both the Title IV and new source review (NSR) programs of the Clean Air Act (CAA)1 with cap-and-trade programs that have been established for both pollutants. This examination reveals the need to move away from the use of end-of-pipe rate standards and the old source/new source distinction in order to create an efficient and effective regulatory system that embraces the principles of pollution prevention and sustainable development.

Regulatory Takings, Methodically

by Eric T. Freyfogle

The regulatory takings jurisprudence of the U.S. Supreme Court has become an ungainly body, awkward for citizens and judges to apply and challenging as well, one might guess, for the Court itself, as it continues to reshape the law to better serve its aims. One cause of this predicament: leading decisions have arisen from peculiar facts and messy procedural contexts, yielding rulings that are hard to apply elsewhere. Another cause: the divergent views of Court members on the deference properly due the work of land use regulators. Yet, the fundamental cause might simply be the deceptive complexity of the takings issue itself. Case-by-case decisionmaking has fragmented the enigma in problematic ways. Decisions sensible on the facts and in isolation fit together poorly. Small parts, broken off for separate treatment, have unexpectedly grown into critical doctrinal elements.1 Guiding principles once deemed central have somehow faded from significance, without plan or reason.2 Decisions now turn on factual considerations that seem unimportant if not arbitrary, while more vital facts go under-weighed.3

One path that might lead to greater coherence is to reconsider the doctrine methodically, from the bottom up, reaffirming fundamental pieces and using those pieces consistently to craft law that responds, not merely to landowner interests and government needs for flexibility, but to the vigor of private property itself, as an evolving, communally constructed institution. To do that, the Court would need to admit openly what is obvious enough to most people: that property norms change over time with the evolution of social values and circumstances. Drawing upon that reality, takings law should aim, not to protect some irreducible core of property—much less to protect economic expectations divorced from law—but instead to distinguish between legitimate and illegitimate changes in ownership law. Takings doctrine, that is, needs a more procedural focus. Indeed, one of its chief functions should be to promote better decisionmaking processes, by regulators everywhere; processes that give due weight to the public interest, to the vital aims of property, and to the fairness concerns of takings law itself.

Antibacksliding: Understanding One of the Most Misunderstood Provisions of the Clean Water Act

by Melissa A. Thorme

Under the Clean Water Act (CWA), point source dischargers are required to obtain federal discharge permits and to comply with permit limits sufficient to make progress toward the achievement of water quality standards or goals. As water quality standards become increasingly stringent, industrial and municipal dischargers are being pressured to accept permit limits that are difficult, if not impossible, to meet. Since a discharge permit is equivalent to a contract between the discharger and the regulatory agency, permit holders must be increasingly wary of the contract terms and must carefully evaluate the effluent limitations agreed to in discharge permits. Such caution is especially warranted in light of the "antibacksliding" provisions contained in the CWA. Unknowingly, dischargers may be agreeing to permit limits that are not reasonably attainable yet may not be relaxed.

The CWA provides that the discharge of any pollutant into the waters of the United States by any person is unlawful except when these discharges are subject to a national pollutant discharge elimination system (NPDES) permit or some other statutory exception.1 In order to make strides toward achieving the Act's goal of eliminating the discharge of all pollutants,2 point source dischargers are issued NPDES permits that contain conditions whereby publicly owned treatment works (POTWs) and industrial dischargers must meet minimum technology-based requirements. The applicable treatment technologies for these dischargers are secondary treatment and best available technology (BAT), respectively.3