Jump to Navigation
Jump to Content


Volume 32, Issue 10 — October 2002


Criminal Negligence Prosecutions Under the Federal Clean Water Act: A Statistical Analysis and an Evaluation of the Impact of Hanousek and Hong

by Steven P. Solow and Ronald A. Sarachan

What can we learn about the use of the criminal negligence provisions of the federal Clean Water Act (CWA) by reviewing prior environmental crimes cases brought by the federal government? In an effort to answer that question, the authors have completed the first ever statistical analysis of all federal criminal negligence prosecutions brought since the CWA Amendments of 1987 created separate felony and negligence provisions. The results of that analysis are described below. It reveals clear patterns to past charging decisions of federal prosecutors, and suggests likely future trends.

Virtually all federal pollution control statutes contain criminal enforcement provisions.1 Generally, the mental state that the government must prove for a conviction is that the defendant acted "knowingly," that is, the violative acts must be voluntary and intentional and not the result of an accident or mistake of fact.2 However, in addition to crimes based on knowing conduct, the CWA also makes certain violations a crime if committed negligently.3 The potential reach of these criminal negligence provisions is extremely broad.4 For example, any violation of a national pollutant discharge elimination system (NPDES) permit, or spill of a pollutant into waters of the United States attributable to negligent operation, training, or supervision, may theoretically meet the elements of the crime. The government has not applied these provisions that broadly, and the question therefore becomes: why are certain negligent violations of the CWA selected for criminal prosecution and others not?

Environmental Takings of Private Water Rights--The Case for Water Privatization

by Roy Whitehead Jr. and Walter Block

This discussion is divided into two parts. The first, which addresses takings of private water rights, makes the following points: government regulation of private property for a public purpose, such as protection of species, raises important constitutional questions concerning whether a compensable "taking" of private property has resulted. This section discusses the property and liberty interests that arise when legislation or regulation is used as a reason for the government to breach a contract to provide water to farmers. It concludes by suggesting that the U.S. Constitution mandates that we should all share in the costs associated with a taking of private water rights for environmental purposes by the government. The second portion makes the more general philosophical point that the public interest and the cause of justice would be enhanced if all bodies of water were transferred from the public to the private sector. Then, among other benefits, there would be no need for all to share in the costs associated with a taking of private water rights for environmental purposes by the government; there would be no need for such takings in the first place.


Shaken, Not Stirred: Has Tahoe-Sierra Settled or Muddied the Regulatory Takings Waters?

by Danaya C. Wright and Nissa Laughner

On April 23, 2002, the U.S. Supreme Court issued its long-awaited decision in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency.1 Commentators and land use planners were dreading the decision, fearing that the Court would continue its 15-year pattern of increasing property protections at the expense of state and local governments engaged in land use planning. But in a surprising moment, the Court ruled 6-3 in favor of the Tahoe Regional Planning Agency's nearly three-year moratorium on all development within the Lake Tahoe basin. In so holding, the Court reaffirmed the potentially moribund Penn Central Transportation Co. v. City of New York2 balancing test for regulatory takings, arguably overruled or at least dramatically limited the per se takings test articulated in Lucas v. South Carolina Coastal Council,3 sidestepped the question of whether a three-year moratorium constituted a temporary taking under,First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,4 and potentially revived the apparent distinction between facial and as-applied challenges.5

Does Tahoe-Sierra truly mark a reversal of the Court's increasingly solicitous analysis of private property rights? Probably not. We must be cautious not to read into this decision certainty and precedent that is not there, for the factual record of the case was narrowly tailored to raise very limited questions, as reflected in the word of the grant of certiorari, and the answers to those questions can be construed very conservatively. Yet the decision may give cause for some celebration by land use planners and environmentalists, as well as lower courts and legal scholars, as it demonstrates the Court's willingness to step back from its seemingly blind rush to protect property rights at all costs—a stampede that has had the unintended consequence of transforming takings jurisprudence into a muddy quagmire.6 Indeed, the decision could prove monumental in its shift away from Draconian per se takings rules and its reaffirmation of Penn Central ad hoc balancing. While some might bemoan this shift for the lack of clarity it produces, others acknowledge that uncertainty is merely a necessary byproduct of the ultimate question to be answered in all takings cases: when has a regulation gone too far? To answer this question, courts must weigh many competing concerns, concerns that are present whether or not categorical tests are used.

Pharmaceuticals in the Environment: Regulatory and Nonregulatory Approaches

by Holly V. Campbell

This Dialogue explores the legal and regulatory implications of the discovery, through more precise detection technology, of the presence of pharmaceuticals and personal care products (PPCPs)1 and endocrine disrupting compounds (EDCs) in the environment, particularly in surface water and public water supplies. The effects of drugs and hormones and other PPCPs on aquatic life, and the effects of unintended human exposure, are largely unknown.2

Drugs for treating infection, depression, seizure, and heart disease are being detected in surface waters around the United States. Synthetic estrogens are also being found, as are veterinary antibiotics and growth hormones. Although environmental pathways include point sources and nonpoint sources, researchers hypothesize that the main pathway of human treatment drugs and compounds into the water supply is through municipal sewage.3 This is thought to be because most drugs are not completely metabolized so the excess and metabolites are excreted in urine and feces,4 and because municipal treatment technology, much of it a century old, was not designed to remove these compounds.5

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency:Is There a There There?

by Joel R. Burcat and Julia M. Glencer

On April 23, 2002, the U.S. Supreme Court released its decision in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,1 ruling 6 to 3 that a temporary prohibition of the use of land does not effect a taking for which compensation is due under the Takings Clause of the U.S. Constitution. While it was widely anticipated that the Court would use Tahoe-Sierra to clarify some of the murkier areas of regulatory takings jurisprudence, the decision answers very few questions and obscures many others.

By adding Tahoe-Sierra to its lineup, the Court has only exacerbated the need for it to rule definitively on certain key issues, including the fate of partial takings claims under Penn Central Transportation Co. v. City of New York,2 the true parameters of the total takings analysis under Lucas v. South Carolina Coastal Council,3 and how to define the property interest at issue. With the law of regulatory takings presently lacking any degree of predictability—typically a hallowed legal principle—only a property owner willing to risk substantial amounts on litigation expense can litigate a takings claims to conclusion. The critical nature of the right at stake, i.e., the interest in personal property explicitly protected by the Fifth Amendment, demands that the Court issue clear guidance on these persisting preliminary questions. The ruling, coming less than 10 months after the Court's ruling in Palazzolo v. Rhode Island,4 in which the Court appeared to foreshadow that it would be charting a clear course to finally explain the murkier parameters of regulatory takings law, suggests now that the answer to some of these questions is that "there is no there there."5

Just several months ago, in a recent Dialogue, we suggested that the Court's decision in Palazzolo, "is yet another sign of the general march of the Supreme Court toward stricter accountability for governmental land use decisions that adversely impact private property."6 Now, we cannot be so certain. This Dialogue first examines the decision in Tahoe-Sierra and then explores three of the critical issues left open, and regrettably obscured, in its wake.

Economic Backbone of the Penn Central Test After Florida Rock V, K&K, and Palazzolo

by William W. Wade

Introduction: Too Little Attention to Economic Underpinnings of Penn Central Test

The U.S. Supreme Court remanded Palazzolo v. Rhode Island1 to the Rhode Island Supreme Court to examine the plaintiff's takings claim under the Penn Central Transportation Co. v. City of New York2 test. Arguably, this decision transferred to Rhode Island a question upon which certiorari was granted, but never dealt with: "Whether the remaining permissible uses of regulated property are economically viable merely because the property retains a value greater than zero."3 This question is more a matter of economics than law. Courts have dedicated too little attention to the economic underpinnings of this question.

Like Palazzolo, the Michigan Supreme Court remanded K&K Construction, Inc. v. Department of Natural Resources4 to the trial court to determine: (1) which parcels of the entire property should be included in the denominator parcel; and (2) applying the balancing analysis of the Penn Central test, should compensation be paid for a taking. The K&K trial court ultimately found in favor of the plaintiffs. The case provides a good illustration of how economic calculations fit into the Penn Central test.

A Turning of the Tide: The Tahoe Regulatory Takings Decision

by John D. Echeverria

On April 23, 2002, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,1 the U.S. Supreme Court rejected a regulatory taking claim based on a nearly three-year moratorium on development in the Lake Tahoe Basin. The Court split 6 to 3, with Justice John Paul Stevens writing the decision for the Court, and Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissenting. The decision is the first clear-cut victory for the government side in a land use or environmental takings case before the high court in 15 years.2

Apart from the unusual result, the decision is significant because the Court actually resolved several important legal issues. Many of the Court's recent takings cases have produced fractured majorities,3 or narrow holdings that avoided deciding any fundamental legal question.4 In Tahoe-Sierra, a strong majority issued several clear and important rulings, and in the main these rulings are highly favorable to government defendants.

Earning Deference: Reflections on the Merger of Environmental and Land Use Law

by Michael Allen Wolf

The bedrock notion that courts should, in the overwhelming majority of cases, defer to lawmakers is currently under attack in the nation's courts, commentary, and classrooms. Leading the way are several U.S. Supreme Court Justices who, in cases involving the U.S. Commerce Clause, Takings Clause, and §5 of the Fourteenth Amendment of the U.S. Constitution, are much more willing than their immediate predecessors to second-guess the motives and tactics of elected and appointed officials at all levels of government.

Given this new jurispolitical reality, it is more important than ever that local government officials who are often (though, certainly, not always justifiably) viewed as occupying the bottom rungs of the ladder of governmental competence—take special care when operating beyond the scope of their "traditional" regulatory tasks. Local environmental law is perhaps the most important area in which local officials are stretching beyond their conventional roles. The purpose of this Dialogue is not to urge the prohibition of these regulations, for to do so would run contrary to my commitment to a more healthy environment for humans and other animals and living things. Instead, I wish to offer a caveat to local elected and appointed officials—and to the counsel who advise these important actors in the land development and preservation drama—regarding the "nature and extent" of environmentally flavored local regulatory activities. This caveat can be simply expressed: "Before implementing, applying, or enforcing local environmental law, make sure that you can demonstrate that you have earned deference."

Federal-State Decisionmaking on Water: Applying Lessons Learned

by David J. Hayes

Water policy in the United States has been significantly influenced in recent years by a number of high-profile environmental and water use conflicts, including disputes relating to California's Bay Delta, Florida's Everglades, the management of the Colorado River system, the Columbia/Snake system, and the Klamath and Trinity River Basins. For a variety of legal, institutional, and financial reasons, the federal government has played a major role in all of these matters, typically in partnership with state and local stakeholders. This Dialogue provides a "lessons learned" perspective on the federal/state decisionmaking process in these major water policy disputes. It briefly summarizes key issues involved in the disputes, identifies important drivers in each conflict, and discusses the nature of the decisionmaking process, including the role of federal and state authorities, science, funding, and political support.

The Dialogue then looks across these high-profile disputes and draws a number of conclusions regarding the ingredients for successful resolution of difficult water-related conflicts in which federal and state authorities have a significant role. It notes that success often depends upon a mix of a strong triggering event (often a galvanizing regulatory or environmental development, such as the listing of an endangered species and/or a hard drought); significant public interest in the issue; personal attention by leaders that have the standing and wherewithal to deliver on promises; a close federal/state partnership; a heavy dose of science and money; and an opportunity for meaningful stakeholder involvement in shaping a solution. Typically, all of these requirements are needed to successfully solve large, difficult water-related conflicts, although the strong presence of one or two of the elements, e.g., personal leadership by high-ranking officials, can sometimes compensate for the absence of others, e.g., significant public interest in an issue. Failure is almost assured, however, when at least two of these elements are missing.