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

Articles

Procedural Implications of Williamson County/First English in Regulatory Takings Litigation: Reservations, Removal, Diversity, Supplemental Jurisdiction, Rooker-Feldman, and Res Judicata

by Thomas E. Roberts

Introduction

Whether Fifth Amendment regulatory takings claims by landowners against local land use authorities can or should be heard in federal court is a topic of sharp debate.1 The law generally tilts in favor of state court resolution, and various rules keep federal district courts from interfering with or reviewing state court judgments. These rules rankle property rights advocates, who assert that it is wrong to close the federal courthouse doors to property owners who wish to assert their Fifth Amendment property rights. Others, however, insist that land use disputes are traditionally and quintessentially matters of local control that should be tried in state courts with review of federal issues limited to direct appeal to the U.S. Supreme Court.

I pursue two questions in this Article. First is whether the prevailing view that takings claims must be filed in state court is correct. This calls for an examination of the nature of the takings cause of action. Whether it is, in its inception, a federal or state claim, or both, matters. The nature of the action affects a federal district court's original, diversity, supplemental, and removal jurisdiction. My conclusion is that the bar to federal court is not as sweeping as I and others have thought it to be.

Chevron, State Farm, and EPA in the Courts of Appeals During the 1990s

by Christopher H. Schroeder and Robert L. Glicksman

I. Introduction

Ten years ago, we analyzed how environmental policy, primarily as formulated by the U.S. Environmental Protection Agency (EPA), had fared in federal courts during the first two decades of the Environmental Era.1 Our primary interest then was to determine how emerging environmental values were being accommodated by federal courts when those courts reviewed administrative actions by EPA and other agencies charged with new environmental responsibilities. This Article updates, extends, and refines our earlier work using a different methodology and with related, but also different, objectives.

In this Article we analyze how EPA and the federal courts interact under two broad aspects of judicial review. First, we study EPA's and the courts' interpretations of the Agency's statutory authority, with special emphasis on how the Agency has fared under the Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., (Chevron)2 doctrine. Second, we study how well EPA's rulemaking satisfies the requirements of "reasoned decisionmaking" as set forth in [31 ELR 10372] Citizens to Preserve Overton Park, Inc. v. Volpe (Overton Park),3 Motor Vehicle Manufacturers Ass'n of the United States v. State Farm Mutual Automobile Insurance Co. (State Farm)4 and other decisions. The Article thus focuses on how EPA has fared under judicial review, rather than on how environmental values have been treated by the federal courts. In subsequent work, we plan to use these same data to return to this latter question, which was the subject of our earlier work, an effort that will include examining the ways in which political preferences of the judges affect their decisions.5

Commerce by Another Name: Lopez, Morrison, SWANCC, and Gibbs

by Christy H. Dral and Jerry J. Phillips

The Constitution of the United States gives Congress the authority to "regulate Commerce . . . among the several States."1 From the beginning of judicial review, the U.S. Supreme Court has struggled over defining how far that power extends.2 Until recently, it seemed established that the Commerce Clause provided an extremely broad and expansive grant of power to Congress.3 However, with the 1995 decision of United States v. Lopez4 and the 2000 decision of United States v. Morrison,5 the extent of Congress' power to regulate pursuant to the Commerce Clause has been called into question. In these two cases, the Court struck down legislation as being outside the limits of Congress' authority under the Commerce Clause.6 While the Court may have had the laudable goal of restraining Congress from enacting legislation outside of its authority, the standards announced in Lopez and Morrison are too imprecise to provide any sort of basis for a credible and predictable limitation on congressional power. Moreover, the clear majority of federal legislation is enacted pursuant to the Commerce Clause, so the potential impact of Lopez and Morrison is far-reaching and disturbing. In this Article, we will attempt to explain the recent cases of Lopez and Morrison and show how the standards announced in these two decisions will prove to be unworkable.

Dialogue

Information as a Policy Instrument in Protecting the Environment: What Have We Learned?

by Mark A. Cohen

Since the introduction of the toxic release inventory (TRI) in 1988, there has been considerable interest in environmental information disclosure as a possible complement or substitute for traditional forms of regulation. Among the most important reasons for this growing interest are the following: (1) the TRI program led to a significant voluntary decrease in the total amount of TRI chemicals released in the United States, beyond any mandated levels; (2) information disclosure programs serve another very important social function—they satisfy the belief that the public has a "right to know" that they might be affected by third-party pollution; (3) new information technologies (both hardware and software) that facilitate the dissemination of environmental information in a meaningful way; (4) the fact that these programs are generally thought to cost the government far less than drafting and implementing industrywide regulations; and (5) these approaches are often politically more feasible to adopt since they are generally framed as "right to know" laws and thus not easily characterized as coercive new regulations.

The purpose of this Dialogue is to explore the policy implications of our recent experience with environmental information disclosure programs. First, I examine what we know and what we don't know about environmental information programs. Next, I consider several different types of policy initiatives. In each case, I examine what lessons we have learned to date that should help inform the debate over any future proposed initiatives. Finally, I identify important areas of research that will help policymakers design better programs in the future.

Global Warming: Significant Shortcomings of Computer Climate Models

by Robert C. Barnard, Donald L. Morgan

The 1997 Kyoto Protocol provides for a 5% reduction in 1990 levels of greenhouse gases by 2008-2012 in order to stem global warming. The developed nations have agreed to specific greenhouse gas reduction levels; the U.S. quota reduction is 7%.1 The Kyoto Protocol also provides broad objectives, the details of which are to be worked by the Conference of the Parties.

Computer climate models are used to develop forecasts of future climate changes in order to provide a basis to assess impacts of climate changes and to devise mitigation of, or adjustment to, such changes. Thus, computer climate models must be reliable and accurate if we are to plan intelligently and responsibly for our world's future. Unfortunately, current climate models are inadequate. Two recent major reports, although drafts for external review, provide insight on the shortcomings of existing climate models.

The Changing Economic Role of Natural Landscapes in the West: Moving Beyond an Extractive and Tourist Perspective

by Thomas Michael Power

Economic Confusion and Federal Land Management Policy

In discussions of the economies of the Mountain West,1 natural landscapes tend to be looked upon from either of two perspectives. The first is tied to the history of European settlement of the region. Natural landscapes are looked upon as the source of the natural resource raw materials that supply the region's "basic" industries: mining and metal processing, farming and ranching and the food processing associated with them, and timber harvest and the manufacturing based on it. The second view focuses more on the present and expected future. It notes the rapid expansion of recreation and tourism in the region and points out the role played by those same natural landscapes in supporting that economic activity. The booming Mountain West resort towns are offered as examples of the emergence of a "new West."

This Dialogue argues that neither of these interpretations of the economic role being played by natural landscapes in the Mountain West is complete or correct. Both views are tied to an unreasonably narrow way of conceptualizing the regional economy. The primary economic role currently being played by the region's natural landscapes lies in the provision of high quality environmental services that make this region particularly attractive to new residents and businesses. It is the population growth drawn to the region by these amenities that is primarily driving the economies of the Mountain West region.2 A more complete way of conceptualizing the local economy is needed if this amenity and population driven economic growth is to be understood.

An Agreement Between EPA and Pesticide Manufacturers to Mitigate the Risks of Chlorpyrifos

by Elaine Bueschen

Introduction

On June 7, 2000, the U.S. Environmental Protection Agency (EPA) reached an agreement1 with the basic manufacturers of chlorpyrifos to reduce potential risks from exposure to residues from pesticide products containing chlorpyrifos. More commonly known by the trade names Dursban and Lorsban, chlorpyrifos is the most commonly used pesticide in and around homes in the United States. Prior to this agreement, chlorpyrifos was the active ingredient in more than 800 chlorpyrifos pesticide products registered by EPA for a variety of uses,2 including termite control, home lawn and garden use, pet collars, mosquito and fire ant control, indoor crack and crevice treatment, and as an insecticide on more than 40 agricultural crops.3 In June 2000, EPA estimated that 21 to 24 million pounds of chlorpyrifos are applied on average per year, with one-half of this amount applied in nonagricultural settings such as in and around homes, schools, office buildings, and parks.4

Prior to negotiating the Memorandum of Agreement Between EPA and Signatory Registrants Regarding the Registration of Pesticide Products Containing Chlorpyrifos (Chlorpyrifos Agreement or Agreement), EPA reviewed several hundred studies, conducted several assessments of the potential risks posed by chlorpyrifos, and determined that many registered uses of chlorpyrifos potentially pose unacceptable levels of risk, especially to children.5 The Agreement uses a phaseout approach that ceases production of the riskiest uses first. Ultimately, it will eliminate the following uses of chlorpyrifos: all termite control uses; all residential uses (except for ant and roach baits in child-resistant packaging and certain public health uses); all indoor nonresidential uses (except use on ship holds, industrial plants, manufacturing plants, food processing plants, and containerized baits in child-resistant packaging); all outdoor nonresidential uses (except use on golf courses, road medians, industrial plant sites, nonstructural wood treatments, and fire ant mound drenches and mosquito control for public health purposes); and use on tomatoes and post-bloom apple trees.6 This Dialogue begins with a brief overview of the statutory and regulatory setting that provided the foundation for the Agreement. It then goes on to discuss the negotiations leading up to the Agreement, the Chlorpyrifos Agreement itself, and the resulting aftermath.