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Volume 33, Issue 10 — October 2003

Articles

A Tale of Two Theories: The Legal Basis for EPA's Proposed Revision to the Routine Maintenance, Repair, and Replacement Exception, and the Implications for Administrative Law

by Matthew C. Stephenson

How many lawyers, regulators, engineers, and contractors does it take to change a light bulb? Lots, if you happen to be changing the light bulb at a "stationary source" of pollution, and the bulb change counts as a "modification" of the source under the Clean Air Act (CAA).1 According to that statute, any physical or operational change that results in an increase in the source's emission of certain pollutants triggers an exacting and costly set of permitting requirements. Since emissions can increase if a source operates faster or more frequently than it did before, numerous physical or operational changes could potentially trigger an "emissions increase" within the meaning of the statute. Perhaps not changing a light bulb, but replacing old turbine blades, upgrading a computer system, fixing leaky pipes, repairing a broken gauge, or any of a host of other activities might increase total emissions (by causing a source to operate at a higher capacity), and, if these activities count as physical or operational changes, they will all have to undergo the rigors of the CAA's aggressive permitting requirements.

Something seems intuitively wrong with that, even from a committed environmentalist's perspective. Some activities, though technically physical or operational "changes," appear to be so much a part of the routine operation of power plants, incinerators, factories, or other facilities that it seems illogical to subject them to permitting requirements designed to regulate more significant construction or modification programs. And so, the U.S. Environmental Protection Agency (EPA) has quite sensibly chosen to exempt certain types of activities, known as "routine maintenance, repair, and replacement" (RMRR) activities, from the stringent permitting requirements that the CAA would otherwise impose. So, you can change your light bulb or fix your leaky pipe without having to worry, but if you decide to spend a million dollars completely redesigning and renovating your main generator, you'll need to go get your permit.

Regulatory Takings, Public Use, and Just Compensation After Brown

by Steven J. Eagle

This Article analyzes the potential impact on government regulation of private property rights of the U.S. Supreme Court's recent decision in Brown v. Legal Foundation of Washington.1 That case upheld mandatory Interest on Lawyers' Trust Accounts (IOLTA) programs. While Brown ensures continued funding for legal services for low- and moderate-income persons, it is difficult to reconcile with the Court's existing property and takings doctrines. Furthermore, although the decision was a victory for regulators, much of Brown's analysis favors landowners in future regulatory takings cases.

The Article begins with an overview of IOLTA and the Brown case and then discusses why the case is important. It proceeds to analyze, in separate sections, various aspects of the Takings Clause2; whether there was a per se "taking" of property, what we should make of the Court's dicta on the Public Use Clause, and the Court's holding that there was no violation of the Just Compensation Clause. Finally, the Article discusses how Brown is apt to affect regulatory takings law in the future in environmental and other contexts.

The Clean Water Act: What's Commerce Got to Do With It?

by Calvert G. Chipchase

I. Introduction

Few commentators doubt the value of clean, unadulterated waters teeming with varied and colorful aquatic life. The debate centers instead on more pragmatic concerns, that is, how to best accomplish the accepted imperative. Some maintain that the primary responsibility should fall on the federal government because of its insularity from regional economic and political pressures.1 Others suggest that states should take the lead because of their familiarity with and ability to respond to local environmental concerns.2 Both sides have valid points. The fundamental question, however, is not whether the states or Washington is better positioned to protect the environment, but which part of the federalist structure has authority to regulate in this area.

This inquiry is necessary because our republic rests upon purposeful divisions of power.3 "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front."4 For that reason, the federal government was granted a limited number of specific powers and the balance left to the states.5

The Interior Department's Water 2025: Blueprint for Balance, or Just Better Business as Usual?

by Reed D. Benson

The U.S. Bureau of Reclamation (USBR or the Bureau) observed its centennial in 2002, and celebrated 100 years of building dams and supplying water for irrigation and other purposes in the western United States.1 In 2003, the U.S. Department of the Interior (the Interior) and the Bureau shifted their focus to the future of the West and its water supply needs, producing a document called Water 2025: Preventing Crises and Conflict in the West.2

Secretary of the Interior Gale Norton and the Bureau are making a fairly big deal of Water 2025. Secretary Norton personally announced it at a June 6, 2003, conference in Denver, and the Interior (primarily through the USBR) hosted a total of eight public meetings in cities throughout the West.3 For more than two months after it was rolled out, Water 2025 remained the top story on the USBR website, and still appeared prominently on the main Interior home page.4 The Interior has asked for comments on the document,5 but has given no indication that the existing version of Water 2025 is only a draft, or that it will produce a revised version after receiving and considering comments.

The Federal Title V Air Quality Permit Program: A Primer on the Substantive and Procedural Requirements Imposed on Industrial Facilities by the 1990 CAA Amendments, Applicable Regulations, and Key EPA Guidance Documents

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

All companies today, whether large or small, need to be aware of the types and amounts of their air emissions. Based on the types and amounts of emissions, these sources may be required to obtain operating permits under the Clean Air Act's (CAA's) Title V program. This Article provides a detailed discussion of the Title V operating permit program and a review of the contents required in a Title V permit.

Legal Aspects of the Regulatory Use of Environmental Modeling

by Thomas O. McGarity and Wendy E. Wagner

I. Introduction

At the request of the Woodrow Wilson International Center for Scholars, we have analyzed the past 30 years of judicial challenges to U.S. Environmental Protection Agency (EPA) rulemakings to identify the types of constraints the courts impose, primarily under the Administrative Procedure Act (APA),1 on EPA modeling exercises. After outlining the litigation, we distill several major lessons from the courts' review of EPA models. We also consider the extent to which the Data Quality Act (DQA)2 might alter the legal landscape and conclude that with respect to the judicial review of modeling exercises, the DQA is likely to have a limited effect, at most.

A basic description of models, judicial review, and the limits of our study are provided briefly, before we delve into the details of judicial review.