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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — September 2002


NAFTA's Investment Protections and the Division of Authority for Land Use and Environmental Controls

by Vicki Been

The North American Free Trade Agreement (NAFTA)1 contains various "investor protections," including a provision requiring signatory governments to compensate property owners if the government either expropriates property or takes "measure[s] tantamount to . . . expropriation."2 That provision, known as Chapter 11, recently was used to force Mexico to pay compensation to Metalclad, an American corporation that owned a hazardous waste facility in the municipality of Guadalcazar, when local and provincial environmental and land use controls prevented the facility from operating.3 Similarly, the expropriation provisions of Chapter 11 are now the centerpiece of a $ 1 billion claim by a Canadian corporation that California regulations requiring the phaseout of the gasoline additive methyl tertiary butyl ether (MTBE) effected a "regulatory taking" by reducing the Canadian company's market for methanol, a substance used to produce MTBE.4

It is too early to judge just how broadly the arbitral panels will interpret the expropriation provisions of Chapter 11, but Metalclad (discussed in detail later) and pending NAFTA regulatory takings claims have the potential to upset many aspects of land use and environmental law. I've explored in another article the ways in which arbitral interpretations of NAFTA's expropriation provisions may pressure the U.S. Congress and state legislatures, as well as state and federal courts, to interpret the Fifth Amendment's Takings Clause more favorably for property owners.5 Several scholars have noted the effect the provisions may have in chilling regulators from adopting environmental and land use measures.6 In this Article, I examine another implication of the provisions—the potential they have to affect the allocation of authority for land use and environmental regulation among the federal, state, and local governments, as well as their potential to shift the boundaries between environmental and land use law.

Toward Sustainable Radioactive Waste Control: Successes and Failures From 1992 to 2002

by James D. Werner

I. Introduction

A. What Does Sustainability Mean for Radioactive Waste?

Using a primitive nuclear reactor, named "Chicago Pile # 1," Enrico Fermi's team achieved a controlled chain reaction inside a squash court under the spectator stands of Stagg Field at the University of Chicago on December 2, 1942.1 In 1992—a half century after the first controlled nuclear reaction [32 ELR 11060] on earth—the Rio Summit found no consensus on the meaning of "sustainability" in nuclear waste control. Ten years later, our technical understanding and regulatory efforts have improved, even as the global situation raises new concerns. But, we are still far from a consensus on what a sustainable approach to nuclear waste might mean.

Sustainability in nuclear waste2 may, in fact, be an oxymoron. Certainly, nuclear power is not "natural" to a greater degree than other human endeavors. Although uranium exists naturally in the earth's crust, the fissioning of uranium in reactors produces an almost wholly man-made element—plutonium—that does not otherwise exist on earth,3 and can produce a variety of unique environmental, health, and security problems. On the other hand, nuclear technology provides one-fifth of U.S. electrical power and a variety of medical and scientific benefits with less evident immediate and direct health impacts than other energy sources, such as coal. If we look for sustainability in the nuclear enterprise, not in its "naturalness," but in the possibility of consequences that are tolerable for the long run, then nuclear power might compare well with other major energy sources. A larger problem arises, however, from certain nuclear technologies that hold the threat of unparalleled destruction and calamity from nuclear explosions. In this way nuclear power—if it involves reprocessing and recovery of fissile material, e.g., plutonium, may present fundamentally different risks of a greater magnitude than other energy alternatives. If reprocessing and recovery of fissile material can be avoided, then the risks are more comparable to other human endeavors that result in long-lived wastes.

Preventing Pollution? U.S. Toxic Chemicals and Pesticides Policies and Sustainable Development

by Lynn R. Goldman

This Article considers the extent to which the United States has made progress in the management of chemicals and pesticides in light of the commitments it made in 1992 to promote sustainable development. While pesticides are types of chemicals, they are managed differently and this Article will employ the legal distinctions between the two. The term "chemicals" refers to substances that are manufactured, processed, or used in commerce, other than those marketed as pesticides, pharmaceuticals, or food additives. Thus, the term includes a wide spectrum of substances, including metals and both organic and inorganic chemicals. "Pesticides," on the other hand, means substances that are marketed as having the ability to kill or repel "pests," chemicals such as insecticides, fungicides (kill molds and fungi), herbicides (weed killers), and rodenticides (rat killers). This Article encompasses environmental management efforts to directly regulate chemicals, promote "right-to-know," encourage pollution prevention, and regulate pesticides. In addition, it examines several cross-cutting issues: persistent organic pollutants (POPs) or, as they are sometimes called in the United States, persistent bioaccumulating toxics (PBTs), and biotechnology (genetically modified organisms (GMOs) that manufacture chemicals or are used as chemicals). It does not, however, address efforts to set standards for chemicals as pollutants in the context of the regulation of air and water pollution and in the case of waste disposal.

The basic structure of the domestic laws of the United States with respect to chemicals was established in 1972 for pesticides (Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)) and in 1976 for industrial chemicals (Toxic Substances Control Act (TSCA)). In the face of widespread concern about the proliferation of chemicals and pesticides in commerce, and the unknown risks, the U.S. Congress had given the U.S. Environmental Protection Agency (EPA) authority over testing of chemicals and pesticides, review of new introductions, and assessment and management of risks of existing chemicals. In 1988, Congress had amended and strengthened FIFRA. In 1986, it enacted the Emergency Planning and Community Right-To-Know Act (EPCRA), thereby establishing the toxic release inventory (TRI) for tracking the releases and transfers of chemicals from industry. In 1990, it adopted the Pollution Prevention Act (PPA). Together, these four statutes form the legal framework for regulation of chemicals and pesticides in the United States.

Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act

by Virginia S. Albrecht, Stephen M. Nickelsburg

For over two decades, courts and agencies have assumed that the Clean Water Act (CWA) grants the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jurisdiction over the nation's waters to the full extent of the U.S. Congress' authority under the U.S. Constitution's Commerce Clause. This belief led the Corps and EPA to assert CWA jurisdiction over virtually all waters in the nation, including navigable waters; non-navigable tributaries; adjacent wetlands; and non-navigable, isolated, intrastate waters and wetlands.

In early 2001, however, the U.S. Supreme Court rejected the Corps' assertion of authority over a non-navigable, isolated, intrastate water in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). The Corps had claimed jurisdiction under its "migratory bird rule," which asserted jurisdiction over waters that, among other things, "are or would be used as habitat by . . . migratory birds which cross state lines." Pointing to statements in the Act's legislative history that the term "navigable waters" was to be given "the broadest possible constitutional interpretation, unencumbered by agency determinations which have been made or may be made for administrative purposes," the Corps defended the migratory bird rule as an exercise of federal power over things having a "substantial effect" on commerce—the broadest basis of federal power under the Commerce Clause. Rejecting this argument, the Supreme Court held that Congress did not intend to exercise its power over things "affecting commerce" in passing the CWA. Instead, according to the Court, Congress intended to exercise only its authority over navigation.


A Primer on New Source Review and Strategies for Success

by Rolf R. von Oppenfeld, Eric L. Hiser, Mark E. Freeze

New Source Review for the Prevention of Significant Deterioration

Air pollutants affect both human health and the health of ecosystems. The U.S. Congress enacted the Clean Air Act (CAA) to try to reduce harmful air pollutants and protect health. While enacting the 1977 CAA Amendments, Congress recognized, based on a court case, that something must be done to keep clean air clean, rather than allow it to deteriorate and then attempt to clean it. Hence, the prevention of significant deterioration (PSD) program was developed. The PSD program places stringent limitations and restrictions on sources located in areas designated as "in attainment" with the national ambient air quality standards (NAAQS), which set limits on the amount of certain pollutants that may be emitted in a given area.

"You Just Don't Understand!"--The Right and Left in Conversation

by Rena I. Steinzor

Environmental issues, like much of the nation's domestic agenda, are in equilibrium, a condition unlikely to change until the next presidential election. By "equilibrium," I mean that while the views of stakeholders are polarized, and much time is spent engaging in damaging guerrilla attacks on the other side, little has changed in the big picture. The first generation statutory framework remains on the books, implementation remains erratic in the states, and experiments with such "second generation" approaches as emissions trading have a mixed track record.1 Neither the right nor the left ends of the political spectrum2 has accomplished its stated goal of fundamental, structural reform, and the infamous "pendulum" that William Ruckelshaus described so vividly swings back and forth with a steady rhythm but narrow trajectory.3

To be sure, the Bush Administration has a decidedly right-wing tilt, especially within the White House and among the House and Senate leadership. Yet Christine Todd Whitman and her senior managers at the U.S. Environmental Protection Agency (EPA) are all moderates and unlikely to launch extreme policies with lasting effects at the administrative level. The Governor, as she prefers to be called, has as little in common with the House Republican leadership as her predecessor did, and is unlikely to set EPA on fire in either the positive or the negative sense. This posture means that incremental progress on worsening problems may be possible, although it is also likely that the White House will demand reversal of some of the affirmative changes made in previous Administrations.

Avoiding Absurdity? A New Canon in Regulatory Law

by Cass R. Sunstein

A New Principle

In the last two decades, federal courts have been developing a new and thus far unacknowledged canon of regulatory law: As a general rule, administrative agencies will be taken to have the authority to interpret statutes so as to avoid absurd or patently unreasonable results, even if the interpretation is hard to square with the literal language of the statute. This canon authorizes agencies, and in particular agencies that regulate the environment, far more flexibility in the interpretation of literal language than courts are now permitted to have. My narrow goal in this Dialogue is to describe and to defend this canon. My broader goal is to use the canon as a basis for urging that contemporary theories about interpretation go wrong by emphasizing large claims about democracy and legitimacy at the expense of an inquiry into the real-world capacities of our various institutions, including the U.S. Environmental Protection Agency (EPA) and the federal courts.

The new canon has old roots in the time-honored idea that courts will not construe statutes to produce absurdity.1 But that notion remains highly controversial, at least in some applications,2 in part because of a belief that much mischief might follow if courts attempt to avoid what they consider to be absurdity. For reasons to be elaborated, the canon that I am defending should be endorsed even by those who believe that courts have no business departing from statutory language.3 Compared to courts, regulatory agencies have a high degree of specialized competence and a large measure of political accountability. They are in a good position to know if a departure from literal language will unsettle the regulatory scheme. Because of these characteristics, courts should allow agencies to avoid absurdity, in the face of literal text, even in cases in which courts should not themselves exercise this power—and to allow agencies more freedom to assume this canon than courts.

Looking a Gift Horse in the Mouth: Federal Agency Opposition to State Institutional Control Laws

by Daniel S. Miller

On July 1, 2001, Colorado Senate Bill 01-145 (SB 145) took effect. The statute creates an "environmental covenant" as a mechanism for enforcing use restrictions imposed in connection with the remediation of contaminated sites. The environmental covenants contain use restrictions that were relied upon in the remedial decision. Such restrictions are commonly known as "institutional controls." Colorado enacted this law because it was not clear whether existing mechanisms (such as common-law covenants and easements) would be legally enforceable in relevant circumstances. During the drafting of SB 145, the Colorado Attorney General's Office and the Colorado Department of Public Health and Environment (DPHE) solicited input from a variety of interested parties on the scope, content, and wording of the proposed bill. Representatives from a number of federal agencies participated in discussions on various drafts of the legislation. In the course of these discussions, the federal agency representatives argued that the state does not have the authority to require a federal agency to grant an environmental covenant, at least in cases where the federal agency is not otherwise transferring the land out of federal ownership. This Dialogue contends that the agencies are mistaken.

The federal agencies' position may be summarized as follows. They contend that the waiver of federal sovereign immunity in §6001 of the Resource Conservation and Recovery Act (RCRA) does not encompass state laws that mandate disposal of federal property rights. It appears that this argument rests on alternate theories. The first is that the requirement to grant an environmental covenant (which they characterize as a property interest) is not a "requirement respecting control and abatement of . . . solid waste or hazardous waste disposal and management." The second theory is based on the fact that RCRA waives the federal government's immunity from state law only to the extent that the state law treats federal agencies the same as private parties. The federal agencies contend that Colorado's law discriminates against federal agencies. Colorado's law requires environmental covenants for cleanups that do not allow unrestricted use, or that do incorporate engineered structures, such as a cap. Typically, such cleanups are less expensive than those that allow unrestricted use of the property, at least in the short run. Because federal agencies believe that they cannot grant covenants due to the Property Act, they contend that the statute essentially precludes them from taking advantage of these less expensive cleanup options.

The Myths and Truths That Threaten the TMDL Program

by Linda A. Malone

Thirty years in the making, the total maximum daily load (TMDL) program of §303(d) of the Clean Water Act (CWA) has never seemed farther from implementation. As state governments increasingly have flexed their regulatory muscles with respect to the environment, ironically they have shied away—to put it mildly—from their environmental responsibilities under the TMDL program. Their reticence and outright opposition to improving water quality are that much more striking given their adamant insistence in 1972 that this obligation be reserved to and exercised by them.

After reviewing the checkered history of the program since 1972, this Dialogue will examine state criticisms of the program for validity. Below the shallow surface of these criticisms, some unpleasant truths emerge regarding the very purpose of the TMDL program, a purpose necessary to improving the water quality of impaired waters within the United States. In light of these truths, and the Bush Administration's recent withdrawal of the final regulatory program, the dim prospects for the program will be projected. Finally, one inevitable truth emerges—the only insurmountable problem with the TMDL program is the lack of political will, at both the state and federal levels, to implement it.