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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — December 2003

Articles

Federal Agency Conservation Obligations and Consultation Under Section 7 of the ESA

by Lawrence R. Liebesman and Rafe Petersen

The ESA mandates protection of endangered and threatened species on an individual species and project basis.1 A species is only protected by the ESA when it is listed as endangered or threatened, and its critical habitat is designated.2 Once a species has been listed, a number of provisions providing for its protection are triggered. The primary provisions for species conservation are § 7(a)(1) conservation obligations and § 4(f) recovery plans.

Where the Streets Have No Name: The Collision of Environmental Law and Information Policy in the Age of Terrorism

by Christopher Gozdor et al.

Introduction

Perchlorate, a chemical component of rocket-fuel that is used in explosives, was found in drinking water wells in the city of Aberdeen, Maryland, late last year.1 The chemical interferes with the body's uptake of iodine, disrupting thyroid function. Low thyroid levels interfere with brain development in fetuses, infants, and children.2 Aberdeen's small but vigilant band of environmental activists were alarmed, although no one doubted the source of the contamination. Aberdeen abuts the 72,500-acre U.S. Army Aberdeen Proving Ground (APG), one of the largest weapons proving grounds in the country.3

Given APG's size and prominence, it is surprising that last year's perchlorate discovery was only the second time chemicals from the base had been found in municipal water supplies.4 In the 1990s, trichloroethane was found in water supplies derived from the Perryman well fields.5 The Army agreed almost immediately to erect a $ 2.2 million groundwater treatment plant near Perryman,6 and most citizen activists expected similarly rapid action to clean up the perchlorate. This happy ending was not to be.

Cooperation With Government Agencies Under Environmental Audit Privilege/Immunity Laws, Rules, and Policies

by Bertram C. Frey & Kathryn A. McCollough

This Article examines what the term "cooperation" means in major federal policies, state audit privilege/immunity laws, and state self-disclosure policies and rules in existence as of September 2003. In particular, this Article discusses the role cooperation with a government agency plays when a regulated entity self-discloses violations of environmental laws to that agency.1 As these policies, rules, and statutes have evolved over recent years, this Article also sheds some light on growing trends in how government agencies seek to provide incentives for entities to achieve voluntary compliance.

This Article should prove useful to legal practitioners because it provides, in table form, a synopsis of what constitutes cooperation with government agencies under environmental self-disclosure policies and audit privilege/immunity laws. The Article is divided into four sections: Federal Policies (Table I); State Audit Privilege/Immunity Laws (Table II); State Audit Rules (Table III); and State Self-Disclosure Policies (Table IV). Each of the four tables summarizes how cooperation is treated within each category, thus allowing for easy comparison and elucidation of trends.

Cutting Science, Ecology, and Transparency Out of National Forest Management: How the Bush Administration Uses the Judicial System to Weaken Environmental Laws

by John Carter, William J. Snape, Mike Leahy

The Defenders of Wildlife Judicial Accountability Project—undertaken with the assistance of the Vermont Law School Clinic for Environmental Law and Policy—seeks to fill a data void on the environmental record of President George W. Bush and his Administration by analyzing all reported environmental cases in which the Bush Administration has presented legal arguments regarding an existing environmental law, regulation, or policy before federal judges, magistrates, or administrative tribunals. By examining judicial decisions and legal briefs for federal cases, the aim is to identify quantifiable trends on whether, or to what degree, President Bush and members of his Administration are working to preserve, protect, and defend the U.S. Constitution and laws of the United States as sworn in their oaths of office.1

The focus of this Article is the laws, regulations, and rules that govern the management of national forests. The National Forest System is composed of 155 national forests and 20 national grasslands. These lands cover roughly 8% of the country, 191 million acres in 42 states. They provide a wide range of values and services, including vital wildlife habitats, ecosystem services like clean water and air, irreplaceable recreation opportunities, and timber and nontimber resources. The National Forest System includes a wide range of natural plant and animal communities, including some of the most significant and important examples of native ecosystems. More than 17% of federally threatened and endangered species and over 25% of species not federally listed but recognized by scientists as imperiled reside on national forests, more than on any other category of federal lands.2 In addition to providing necessary habitat for rare species, national forests support populations of many more common species, providing an opportunity to assure their long-term viability through proper forest management. National forests are particularly important for species such as wolves, grizzly bears, elk, lynx, wolverines, and migratory birds that require large and relatively intact blocks of habitat.

"Green Collar Criminals" and Wetlands Uncertainty: The Effect of Criminal Provisions in Public Welfare Statutes on Wetlands

by Sarah Beth Windham and Kristen Fletcher

Under the public welfare doctrine, certain regulatory crimes require no showing of the traditional mens rea, or "guilty mind," as a predicate to criminal liability. The doctrine has been used to relax intent requirements in criminal statutes when the public welfare is at stake and is predicated upon the fact that the defendant had notice that the dangerous activity is regulated. A majority of courts place the criminal provisions of the Clean Water Act (CWA)1 within the public welfare doctrine. In theory, therefore, prosecutors need not prove that a defendant acted with the requisite intent with respect to each element of the underlying statutory offense in order to convict.

The complexity of environmental statutes and the potential consequences of violating these laws have lead criminal defense attorneys to argue that the government should be required to prove that a defendant was aware of the illegality of his conduct. Such "green-collar" criminals would, in essence, claim ignorance of the law as a defense, an option generally denied persons accused of nonregulatory crimes, where "ignorance of the law is no defense." Courts are currently struggling with whether environmental criminal defendants should be segregated from other criminal defendants in such a manner.

The applicability of the public welfare doctrine to the criminal provisions of the CWA has not been clearly established by the courts. Regulatory ambiguity clouds the implementation of § 404 of the CWA, the section permitting the otherwise prohibited discharge of dredge or fill material into a wetlands. The U.S. Army Corps of Engineers' (the Corps') jurisdiction over isolated wetlands was severely curtailed by the U.S. Supreme Court in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers,2 and the Corps' "Tulloch rule" was recently overturned by the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit. Questions of fairness have arisen regarding the application of the public welfare doctrine when great uncertainty surrounds the authority of the Corps to regulate the activity.

The first section of this Article discusses the public welfare doctrine's origins and what it means in environmental regulation. The second addresses how the public welfare doctrine intersects with the CWA. The current state of wetlands regulation is described, including the confusion in the courts surrounding the jurisdiction of the Corps. Finally, the current state of the law is described and options to clarify this area of law are proposed.