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Volume 33, Issue 8 — August 2003


Improving State Environmental Enforcement Performance Through Enhanced Government Accountability and Other Strategies

by Clifford Rechtschaffen and David L. Markell

Modern federal environmental law has a built-in dynamic of tension that since its inception has led to challenging relations between the U.S. Environmental Protection Agency (EPA) and the states. On the one hand, the U.S. Congress enacted numerous environmental statutes in the early 1970s because of widespread dissatisfaction with state efforts to protect the environment. Congress made EPA ultimately accountable for achieving the mandates of federal law. On the other hand, Congress contemplated that states would actually implement and enforce the requirements of these statutes, subject to federal oversight. To a large extent, its vision has been realized; states now administer over 75% of the major federal delegable environmental programs,1 and conduct the great majority of environmental enforcement in this country. But as Prof. David Hodas notes, "heavy reliance on state enforcement is a double-edged sword. When we 'deputize' the states to implement national environmental laws, we shift the government's discretionary enforcement power to state and local officials, who may not be interested in, or able to carry out, federal goals."2

The tension characterizing the federal/state enforcement relationship has, if anything, intensified in recent years, particularly during the 1990s. Many state programs have grown and become more professional over the past two or three decades. With this maturation, state agencies are increasingly feeling their oats. They have become dissatisfied with a role that they perceive as EPA "dependents" or "subordinates," and increasingly insist on changing the terms of this relationship to one of "partners." With the emergence in the 1990s of the Environmental Council of States (ECOS), the influential lobbying group representing the environmental commissioners of 51 of the 55 states and territories, in particular, state environmental agencies enjoy a new level of influence in Washington, D.C. State calls for devolving more environmental authority have met with sympathetic receptions in both Congress and the executive branch.

When Aliens Invade: Regulating the Release of Exotic Species Through the "Takings Clause" of the Endangered Species Act

by Amy J. McMaster

In May 2002, biologists made a surprising discovery—snakehead fish had proliferated in a small pond in Crofton, Maryland.1 Snakeheads are a native fish of China and Korea, capable of tolerating extreme environmental conditions.2 They are also fierce predators with the ability to disrupt native ecosystems through predation and competition.3 Immediately, concern arose over the presence of the snakeheads in Maryland due to their non-native status and highly invasive tendencies. Most alarming, however, was the possibility that the snakeheads, capable of walking up to four days across land, would leave the self-enclosed pond and find their way to a river or other large water body. Their impact upon local ecosystems would be devastating.4

The possession of snakehead fish was illegal in 13 states, but at the time the snakeheads were discovered in Maryland, neither Maryland, Virginia, nor the District of Columbia had laws prohibiting it.5 New regulations published in the Federal Register have since made it illegal for anyone to be in possession of a snakehead fish, with fines for transporting the fish across state lines being set at $ 5,000.6 Released by a local Maryland resident, the number of snakeheads living in the Crofton pond increased dramatically in the two years that followed.7 Fearful of delay, scientists decided to poison the pond as an extreme, but hopefully thorough, means of eradicating the invasive snakehead fish from U.S. waters.8 The difficult decision to poison the pond seemed justified, however, when over 800 dead snakehead fish were recovered.9 The scientific community breathed a little easier, knowing that the threat of at least one invasive species had been successfully eliminated by their creative and diligent efforts. That was, at least, until a local fisherman caught a three-foot long snakehead in the Baltimore Harbor a few weeks later.10

Interference in Environmental Representation

by Robert R. Kuehn

As members of the legal profession should well know, few legal controversies can be adequately and fairly resolved without the assistance of an attorney. The U.S. Supreme Court has recognized that the right to be heard in agency or court proceedings would be, in many cases, of little use if it did not involve the ability to be heard by counsel: "Even the intelligent and educated layman has small and sometimes no skill in the science of law."1 Likewise, rules of legal ethics and standards of professionalism emphasize that our complex adversarial system can only work if all sides to a legal controversy are well represented.2 As one author observed: "Access to minimal legal services is necessary for access to the legal system, and without access to the legal system, there is no equality before the law. The lawyer becomes the critical medium by which access to that legal system and the concomitant opportunity to secure justice is achieved."3

Access to legal proceedings and legal representation is particularly appropriate in environmental disputes, where the law provides for extensive public participation in executive branch decisionmaking and for a right to judicial review of those decisions.4 Moreover, by authorizing "citizen suits" and attorney's fees to successful environmental plaintiffs, legislatures have embraced the notion that lawyers serve the public good by bringing cases against government agencies or private entities that fail to comply with environmental laws.5

Regulatory Takings After Brown

by John D. Echeverria

This Article attempts to unpack the meaning and significance of the recent decision in Brown v. Legal Foundation of Washington,1 in which the U.S. Supreme Court rejected a takings challenge to Washington State's Interest on Lawyers' Trust Accounts (IOLTA) program.

The decision's greatest significance lies in the fact that it preserves state programs that provide approximately $ 200 million per year in funding for legal services for the poor. In terms of immediate, real-world impact, Brown is one of the Court's most important takings decisions. Brown also is remarkable because it represents the second case in a row in which the Court has rejected a regulatory takings claim after a seemingly relentless string of government defeats spanning more than a decade.2

Water Scarcity and Its Impact on Water Rights: A Real Concern for Multinational Companies?

by Vail T. Thorne

"When the well is dry, we [will] learn the worth of water."

—Ben Franklin, a U.S. Founding Father

Water is vital to most things in life. Business operations are no exception to this rule. Companies across all industrial sectors, from consumer products to energy production to agriculture to high technology, use large quantities of water every day for production and other processes, as an ingredient or raw material, and for other purposes. In fact, without access to sufficient quantities of water, most industrial or commercial concerns could not operate and would have to close up shop. Therefore, business leaders and their attorneys should understand existing and potential risks to their water supply, evaluate those risks relative to a company's specific operations and future plans, and take action to mitigate the risks, or, if possible, to ensure that they never materialize.

Today, such risks are looming on the horizon due to the emerging issue of water scarcity. This Article: (1) examines those risks; (2) provides an overview of legal regimes around the world governing access to and use of water; (3) highlights how a company's water rights may be impacted by water scarcity concerns even under current law, or by future changes in the law; and (4) finally discusses practical measures that a company should take to prepare and protect itself.