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Issue

Volume 31, Issue 8 — August 2001

Articles

Environmental Enforcement: The Impact of Cultural Values and Attitudes on Social Regulation

by James A. Lofton

The process of protecting the environment is big business. The U.S. Environmental Protection Agency (EPA) is now the federal government's largest regulatory agency, with 18,000 employees and a budget of $ 7.8 billion for fiscal year (FY) 2001. Complying with the laws and regulations that EPA is charged with upholding is even bigger business. Compliance costs induced by environmental regulations in the United States are estimated to have cost the regulated community $ 180 billion in 1999.1 Thus, there is cause for keen interest among the regulated community, legislators, and commentators about how EPA goes about its business. In recent years, EPA has been under considerable criticism by business leaders, and their supporters in state governments and the Congress, for being too heavy-handed—too aggressive, too quick to sue, and too adversarial with those it regulates.2 As a result, an effort is underway to attempt to reform EPA and how it does the work of protecting the environment and ensuring compliance with environmental laws. Reformers want to make EPA more "user friendly." EPA's critics say that if EPA were to take a more cooperative approach, the regulated community would be more receptive and less hostile to environmental regulation. The argument is that if EPA functioned more as an adviser and less as an environmental policeman, the same goals could be met at less cost. The logic is that an ethic of trust and cooperation would be forged that fosters openness, and a spirit of partnership would emerge that would replace the old command-and-control paradigm.

In contrast to the enforcement program in the United States, the United Kingdom has a long tradition of working cooperatively with British industry in social regulation including environmental compliance. This Article examines how the American and British versions of environmental compliance assurance and enforcement evolved and shows that cultural, social, and historical differences account for both the divergences in the systems and the efficacy of the system in each country.

The Miccosukee Indians and Environmental Law: A Confederacy of Hope

by William H. Rodgers, Jr.

"The Everglades is our mother, she is dying, and she is in the care of others who do not care."

—Billy Cypress, Chairman

Miccosukee Indian Tribe, July 31, 19931

"Their culture has survived because of an ability and will to endure and fight and hide in an inhospitable and trackless reach of swamp and marsh where heat and humidity, deer flies and mosquitos, and the tall, razor-edged sedge called sawgrass all became their formidable allies; it persists because of an unrelenting mistrust of the white man."

—Peter Matthiessen, 19792

Two legal orphans have found each other. The older one is "Indian Law," a confused, embarrassing, and twisted body of legal rules that "explain" the relationships between the United States and its native peoples. The newer one is "Environmental Law," a complex and jumbled stew of cases and statutes that "prescribe" proper behavior between modern Americans and the natural world. Both these children of the law are suspected of subversion—the one is tainted by advocates of separate sovereignties, the other by critics of the American way of life.

For Native Americans and environmentalists, their recent legal merger is a confederacy of hope and of opportunity and of revival—for the tribes themselves and for others in the world who want to save the parts of nature that are left.

The tribes are senior partners in this native-enviro confederacy. This Article examines what they bring to the alliance in the context of the efforts of the Miccosukee Tribe to preserve the Everglades.

EPA and Congress (1994-2000): Who's Been Yanking Whose Chain?

by Jonathan Z. Cannon

Congressional efforts to control the actions of the U.S. Environmental Protection Agency (EPA or the Agency) have dominated much of the Agency's history. In the 1980s and early 1990s, Congress cast itself in the role of EPA watchdog—acting to ensure that the Agency carried out environmental laws, often in conflict with Administration officials seen as unsympathetic to those laws. Six years ago that dynamic was transformed with the arrival of a Republican majority in Congress committed to regulatory reform (with particular attention to reform of environmental regulation), paired with a Democratic administration generally considered pro-environment.

In this Article, I describe the dynamic between EPA and Congress that emerged in the wake of the 1994 congressional elections. My account centers around the crucial showdown between EPA—backed, after some initial hesitation, by the White House—and the 104th Congress over legislative proposals for substantial regulatory reforms affecting the Agency's programs and for deep cuts in the Agency's budget. It differs from other accounts of this confrontation in its attention to the role played by the Agency, as distinct from the roles played by the White House or the Administration generally and by environmental interest groups.1

Textualism's Limits on the Administrative State: Of Isolated Waters, Barking Dogs, and Chevron

by Michael P. Healy

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers,1 the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA)2 to regulate the filling of "other waters."3 This decision demonstrates a major shift in the Court's approach to statutory interpretation, particularly in the context of reviewing an agency's understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc.4 There, the Court, acting just one year after it had famously established its deferential regime for the review of agency legal interpretations in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,5 held unanimously that the Corps had discretion to interpret the CWA contrary to the apparent meaning of the statutory text.6 In returning to the issue of the jurisdictional scope of the CWA 15 years later, the Court's bare conservative majority has now interpreted the Act to have a clear textual meaning and to foreclose an agency interpretation accepted and enforced by several administrations.7

This Article will summarize briefly the factual background to the Court's decisions in SWANCC and Riverside Bayview Homes, and then compare the Court's interpretive approach to resolving the statutory issue in the two cases. This comparison will focus on the Court's shift to a textualist interpretive method and the Court's deviation from the principle of statutory stare decisis.8 The Article will then discuss how the Court's textualist approach in SWANCC yields an interpretation that has no contextual legitimacy and undermines the federal regime of water pollution control.9 The final section of the Article examines the Court's activist use of a clear statement rulein rejecting the Corps' request for deference under Chevron.10 This rule has the effect of ignoring the strong evidence—the metaphorical, insistent barking of dogs11—that Congress intended the broadest scope to the exercise of federal authority over the nation's waters when it enacted and amended the CWA.

A New Generation of Environmental Policy: Government-Business Collaboration in Environmental Management

by Dennis A. Rondinelli

A growing number of business, government, and environmental interest groups have concluded that environmental policy in the United States is inadequate to deal with the complexities of environmental protection in the 21st century. In 1995, the National Science and Technology Council, a cabinet-level committee chaired by the President of the United States, outlined a national environmental technology strategy calling for "a new generation of incentive-based policies and programs that stress performance, flexibility and accountability."1 In a report funded by Congress in 2000, the National Academy of Public Administration (NAPA) argued that "the nation's current environmental protection system cannot deliver the healthy and sustaining world that Americans want."2 Unless the system is changed, NAPA warned, greenhouse gases will accumulate, nonpoint source pollution will increase, and natural resources will be degraded. "The regulatory programs in place in this country simply cannot address those problems at a price Americans can afford," the report emphasized. The Aspen Institute, in the proceedings of a conference of business, government, and environmental organizations, called for the modernization, reform, and improvement of environmental policy.3 Its report contends that although the regulatory approach may have worked well in the past, it is "unable to respond to today's challenges and opportunities as well as it should—it does not deliver and often inhibits continuously improving environmental performance."4 The Business Roundtable, coming to similar conclusions, insisted that 30 years after the U.S. Environmental Protection Agency's (EPA's) creation, "the time has come not only to mark our many accomplishments in improving environmental quality but to look ahead to new challenges in a rapidly changing world."5 The business group points out that traditional regulatory tools are no longer adequate and need to be updated so that our regulatory system can respond effectively.

All of these organizations, and others, note that the federal government's current command-and-control system of regulation requires the private sector to use the "best available" technology to control harmful air, water, and solid waste emissions from industrial and business facilities, but provides few incentives for industry to move beyond regulatory compliance to find new and innovative ways of preventing pollution at the source and of conserving resources through eco-efficiency practices. Few observers inside or outside of government deny that environmental regulations have greatly reduced air, water, and soil pollution in the United States since the early 1970s. Critics contend that the existing regulatory system is focused on media-specific points of environmental pollution, however, and is not effective in controlling nonpoint pollution. They also argue that separate laws for each type of pollution do not address complex environmental problems that involve more than one source, and that regulations often are not cost effective or based on sound scientific analysis or scientific peer review.6 Both business leaders and state and local government officials often point out that national regulations result in a "one-size-fits-all" approach that is relatively inflexible and unresponsive to local conditions and needs or industry differences.

Dialogue

Sustainability and Environmental Justice: Is the Future Clean and Black?

by Robert W. Collin & Robin Morris Collin

Garden

Strange

Distorted blades of grass,

Strange

Distorted trees,

Strange

Distorted tulips

On their knees.1

Paying to Regulate: A Guide to Methanex v. United States & NAFTA Investor Rights

by William T. Waren

I. The Importance of Methanex v. United States to American States

Methanex v. United States1 is one of the first cases brought against the United States under the investment chapter of the North American Free Trade Agreement (NAFTA).2 In three pending NAFTA investment cases based on objections to state law and practice, transnational corporations are seeking $ 1.7 billion in damages from the United States. In effect, they seek to expand property rights beyond U.S. constitutional standards for compensating investors when governments regulate to protect the environment or otherwise exercise their police power.

Methanex illustrates how NAFTA investment cases may raise fundamental issues of state sovereignty and federalism. The Methanex corporation is asking a NAFTA tribunal to accept a very broad interpretation of NAFTA's investment chapter that would allow investors to be compensated when state environmental regulations reduce their expected profits. Arguably, an award of damages to the Methanex Corporation would establish that under NAFTA's investment chapter the United States would have to pay for state governments to regulate.3 Even if the Methanex Corporation loses or has its case thrown out on jurisdictional grounds, the case is but one of several brought under NAFTA's investment chapter, all of which challenge core government functions. The open-ended language of NAFTA's investment chapter practically invites such claims, some of which have proven successful.4

Innovative Solutions to Euclidean Sprawl

by Nicolas M. Kublicki

Improperly planned urban development has resulted in catastrophic sprawl.1 The present land use zeitgeist hails urban and suburban mixed-use zoning as the solution.2 Mixed-use zoning combines—rather than segregates—residential, commercial, and sometimes industrial land uses, and thereby decreases housing costs, decreases commuting periods, decreases vehicle miles traveled and air emissions, increases the efficient use of land and time, and increases consumer convenience.3

Despite the conceptual validity of these arguments, mixed-use zoning does not automatically decrease sprawl and often encourages it. This is because mixed-use zoning presents two different models of development: suburban mixed-use development and urban mixed-use development. Suburban mixed-use development combines residential and commercial land uses in the suburbs. This model often tends to foster sprawl by importing or replicating urban commercial uses in residential suburbs without adding or retaining housing in the city. In contrast, urban mixed-use development combines residential and commercial land uses in the city. This model generally reduces sprawl by increasing the supply of urban housing without exporting urban commercial uses to the suburbs.

Through the Looking Glass: Regional Haze and Visibility Considerations for Industry

by Rolf R. von Oppenfeld and Eric L. Hiser

Regional haze and visibility impairment results from particles and gases in the atmosphere scattering and absorbing light.1 The primary pollutants that affect visibility throughout much of the United States are sulfates and nitrates.2 This Dialogue addresses the statutory commands, regulatory programs, and other forces that are likely to drive future regulation of industry in this evolving, highly complex area.

In looking at the regulatory requirements and the goals of the visibility and regional haze program, it is important to remember that the effect of the same amount of pollution on visibility will differ geographically, depending on the sensitivity and pollution levels in those respective areas.3 A contribution of x-amount of pollutants in a clean area will have a much greater impact than the same amount in a dirtier area.4 The regional haze problem is truly regional, with atmospheric conditions and other factors separating the eastern and western United States. For example, on average, the trend between 1988 and 1997 was that the worst day in the West was only slightly worse than the best day in the East.5 During that same time period, the West realized "steady visibility improvement," with total light extinction decreasing between 11% and 14%.6 Additionally, it is important to note that while sulfate is responsible for almost two-thirds of the visibility problems in the East, the contributors in the West are more varied.7 Sulfate accounts for about one-third of visibility impairment in the West, while organic carbon, crustal materials, and nitrates play a much more significant role in western regional haze than in the East.8