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Issue

Volume 31, Issue 9 — September 2001

Articles

Looking to Upwind States to Reduce Interstate Ozone Pollution

by Patricia Ross McCubbin

In 1998, faced with mounting evidence that many eastern and midwestern states could not comply with national air quality standards for ozone (O3) pollution due, in part, to emissions originating in upwind states,1 the U.S. Environmental Protection Agency (EPA) issued a highly controversial rule, the "NOx SIP [State Implementation Plan] Call," requiring 23 states to reduce their emissions.2 For the first time, EPA had initiated an attempt under the federal Clean Air Act (CAA)3 to reduce long-range interstate O3 pollution.

Unprecedented in nature and affecting nearly half the nation, the NOx SIP Call was challenged by 8 of the 23 upwind states along with dozens of industries.4 They made two key arguments: first, that EPA had improperly identified which upwind states' emissions were responsible for interstate O3 pollution; and, second, that EPA had violated states' rights under the cooperative federalism mandated by the CAA.5 On March 3, 2000, however, in Michigan v. U.S. Environmental Protection Agency,6 a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the rule in all major respects. To explain the importance of this complex case, which affirmed EPA's authority to regulate interstate air pollution, this Article provides an overview of the NOx SIP Call and discusses the two most important issues addressed by the Michigan court.7

The Temporal Dimension in Environmental Law

by Lisa Heinzerling

Pollution of the air, water, and land increases the risk that human beings will fall ill and prematurely die. Laws restricting this pollution begin to reduce the risk of illness and death as soon as they are implemented. Often, however, the people who would have died in the absence of regulation would not have done so for many years, and thus laws restricting harmful pollution may not reduce the rate of premature human mortality for a long time. This may be because the disease that would have killed people has a long latency period, or because it would have taken many years to amass sufficient exposures to cause death, or because the people exposed to a persistent chemical did not even exist at the time the regulation was imposed. Whatever the reason, it is often the case that the deaths prevented by regulation are deaths that would have otherwise occurred in the remote future. For this reason, it has become commonplace to assume that the benefits of life-saving environmental regulation occur, for the most part, at a large temporal distance from the regulatory activities that reduce risk.

For many, this focus on the future is one of the great triumphs of environmental law. The fact that we have constructed a vast regulatory apparatus aimed at preventing harms in the distant future, harms even to people who do not yet exist, provides a heavy counterweight to claims that individual and collective actions are dominated by shortsightedness, selfishness, and parochialism. Attention to the future also encourages, perhaps even necessitates, the kind of mindset and lifestyle that many environmentalists embrace: frugal and simple, and humble in the face of uncertainty about what the future holds—"conservative" in the old-fashioned sense of the term.

South Camden and Environmental Justice: Substance, Procedure, and Politics

by Jeffrey M. Gaba

In two recent decisions styled South Camden Citizens in Action v. New Jersey Department of Environmental Protection,1 Judge Stephen M. Orlofsky of the U.S. District Court for the District of New Jersey has seemingly put some teeth in the environmental justice movement. The judge not only found that private parties have a cause of action for violation of the U.S. Environmental Protection Agency's (EPA's) Title VI environmental justice regulations,2 but, based on the failure of the New Jersey Department of Environmental Protection (NJDEP) to properly consider environmental justice issues, he vacated air quality permits issued by the NJDEP and enjoined operation of a cement plant in Camden, New Jersey.3

Although the finding of a private cause ofaction is the most striking aspect of the opinions, there are a number of other fascinating implications of these decisions. First, in applying Title VI civil rights legislation to environmental permitting, the judge apparently applied a new, general environmental standard of "no significant adverse affect" for permit decisions that disproportionately affect minority communities. Thus, a new standard may have been added to the roster of environmental standards and acronyms.

EPA and Its Sisters at 30: Devolution, Revolution, or Reform?

by Rena I. Steinzor

A Cautionary Tale

Let us begin with a cautionary and, unfortunately, true tale. The Bethlehem Steel facility at Sparrow's Point, Maryland, is among the largest integrated steel mills in the country, with multiple production lines and a new $ 300 million, state-of-the-art cold rolling mill.1 With a capacity of 3.7 million tons of steel annually, the plant is a classic "Rust Belt" employer, anchoring Maryland's economy with some 4,000 unionized jobs.2

The plant is also the 48th largest discharger of toxic metals to surface waters in the nation, and the second largest discharger of persistent toxic metals to the Chesapeake Bay, with 43,150 pounds reported in the 1997 toxic release inventory (TRI).3 Its effluent travels from the Patapsco River to the Baltimore Harbor and from there to the Chesapeake Bay. The Baltimore Harbor is one of three "toxic hot spots" afflicting the Chesapeake Bay.4 The Baltimore Harbor is considered a sufficiently serious threat to the Chesapeake Bay that the Maryland Department of the Environment (MDE) has announced plans to issue new, more stringent, water quality-based standards, or total maximum daily loads (TMDLs), for toxic substances.5

Moratoria as Categorical Regulatory Takings: What First English and Lucas Say and Don't Say

by Thomas E. Roberts

Introduction

On June 29, 2001, the last day of the October 2000 term, the U.S. Supreme Court granted certiorari to consider "whether the [Ninth Circuit] 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 [U.S.] Constitution?"1 The case, Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,2 provides the Court with an opportunity to clarify its opinions in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles3 and Lucas v. South Carolina Coastal Council.4 Several property rights advocates5 claim that the Ninth Circuit misapplied these cases in Tahoe-Sierra, but I do not believe these cases support the argument that a moratorium is necessarily a taking.

While the First English opinion has some confusing and arguably contradictory statements about temporary takings, the holding of the case did not find or suggest that a moratorium was a per se taking. Neither did the Lucas opinion. Beyond that, the dicta and spirit of those decisions are contrary to the idea that moratoria should be treated as categorical or facial takings. The lower courts agree. With one exception, now reversed, courts have rejected this interpretation of First English, and found that moratoria are not categorical takings.6 The courts do suggest that a moratorium may be a taking if the delay is unreasonable. If, for example, an enacting agency does not follow a moratorium with timely, corrective action to address the concern that necessitated the moratorium in the first place, compensation may be due under the Fifth Amendment.7

In Tahoe-Sierra the Court will have at least two choices in dealing with the confusing language of First English. It can read the case, as have the lower federal and state courts, to confirm the prevailing view that a moratorium is not a categorical taking. Or, the Court can make new law and issue a ruling that a moratorium is a categorical taking.

Local Land Use Controls That Achieve Smart Growth

by John R. Nolon

Smart Growth admits of no clear definition. It provides a popular label for a growth strategy that addresses current concerns about traffic congestion, disappearing open space, nonpoint source pollution, the high cost of housing, increasing local property taxes, longer commutes, and the diminishing quality of community life. To accomplish smart growth, government must take two related actions. The first is the designation of discrete geographical areas into which private market growth pressures are directed. The second is the designation of other areas for recreation, conservation, and environmental protection. This reduces a complicated subject to its two most essential features and leaves much for further discussion. This focus, however, permits a precise description of how smart growth can be implemented, if a consensus for it is developed.

The purpose of this Article is to illustrate the practical side of smart growth—the tools and techniques used by local governments in New York State to carry out smart growth strategies and, by example, to illustrate how communities in other states can do the same. New York is a particularly appropriate jurisdiction to use for such an exercise since its municipalities have been delegated ample authority to adopt creative land use strategies.1 The Article first discusses how local governments can encourage private sector development to occur in appropriate places. It then turns to an examination of how they can ensure the conservation of critical landscapes. If both are done effectively, smart growthobjectives are realized, at least at the local level.2

The Curious Flight of the Migratory Bird Rule

by Michael J. Gerhardt

Few, if any, issues have divided environmental lawyers more than the legitimacy of the Migratory Bird Rule (Rule).1 Ever since its adoption in 1986 by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) as an assertion of federal authority over isolated wetlands,2 ostensibly for the sake of protecting migratory birds, the Rule had come to symbolize for some all that was wrong with either modern U.S. Commerce Clause jurisprudence or federal regulators' efforts to expand their environmental authority3 and for others the inevitable but natural recognition of the complexity of our ecosystem.4 When the U.S. Supreme Court last year agreed to grant certiorari in a case challenging the Rule,5 both sides were anxious about whether the occasion had finally arrived to resolve their long-standing division.6 When earlier this year the Court overturned the Rule on statutory grounds, both sides greeted the outcome with uncertainty. Since the majority avoided deciding any constitutional issue, overturned no cases, announced (at least explicitly) no new rules or standards, and arguably left some room open for federal protection of migratory birds, the opponents of the Rule could not be sure of the extent of their victory, while the proponents of the Rule were unsure of the magnitude of their loss. A close reading of the decision and federal and state responses to it suggest both sides are right to be ambivalent about the decision: it is neither a complete victory for the opponents of the Rule, nor a complete loss for the Rule's proponents.

In this Article, I examine the implications of the Supreme Court's decision overturning the Rule for wetlands regulation. After reviewing the majority and dissenting opinions in SWANCC, I turn to a closer examination of the decision's implications for constitutional and administrative law, particularly wetlands regulation. In the final part, I examine the significance of federal and state responses to the Court's overturning of the controversial Rule.7 I conclude that the efforts of federal and state authorities to fill the void left as a result of invalidating the Rule reflect the decision's broader significance, especially as a catalyst to spur federal and state authorities to re-commit themselves to the protection of migratory birds.

Dialogue

A Preliminary Assessment of Palazzolo v. Rhode Island

by John D. Echeverria

This short Dialogue is a first stab at trying to unravel the meaning and significance of the U.S. Supreme Court's ruling in Palazzolo v. Rhode Island,1 issued on June 28, 2001, the last day of the Court's Term. One's assessment of major Court rulings—like red wine in a coolcellar, or, if you prefer, milk sitting in the hot sun—tends to ripen over time. Accordingly, these observations are offered with the caveat that I may think somewhat differently about the case weeks, months, or years from now.

This Dialogue begins with a brief summary. It then lays out the essential facts, the issues, and the legal rulings in the case. This is followed by my basic observations about the meaning and significance of the Court's decision. Finally, I conclude with a more detailed discussion of the two central aspects of takings doctrine affected by the case: the "notice issue" and the so-called partial taking theory.

Making Sense of Superfund Allocation Decisions: The Rough Justice of Negotiated and Litigated Allocations

by Robert P. Dahlquist

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) allows parties who are liable for environmental cleanup costs to seek contribution from other responsible parties. The statutory right of contribution, codified at 42 U.S.C. § 9213(f)(1), serves as the basis for allocating liability among responsible parties both in private cost recovery actions and in cost recovery actions commenced by governmental entities. The statute empowers a court to "allocate response costs among liable parties using such equitable factors as the court determines are appropriate."1

Aside from suggesting that Superfund allocations should be performed in "an equitable manner,"2 CERCLA provides no real guidance to parties who become embroiled in allocation disputes. Moreover, the relative lack of statutory guidance is not the only challenge facing parties in these disputes. "Allocation is a highly fact-intensive process that depends upon the particular circumstances of each case."3 Hence, in the early history of the Superfund program, most practitioners and parties found it "difficult to predict how costs might be allocated in particular cases."4 However, as time has passed, a body of case law and practical experience has emerged to enable parties and their counsel to more accurately predict the range of likely outcomes in allocation disputes, even in the most factually complex cases.