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Volume 34, Issue 1 — January 2004


Environmental Enforcement Developments in 2003

by Kevin A. Gaynor & Benjamin S. Lippard

Despite a change in the presidential administration in 2001, the U.S. Environmental Protection Agency's (EPA's) enforcement activity continues at the pace of the late 1990s. Much has been made of a decline in civil and criminal fines from fiscal year (FY) 2001 to FY 2002. Civil penalties collected by EPA declined from $101.6 million in FY 2001 to $55.6 million in FY 2002; criminal fines have declined from $94.7 million in FY 2001 to $62.2 million in FY 2002. This decline seems to reflect a fluctuation in penalty levels, as opposed to any material change in EPA enforcement policy under the Bush Administration. Indeed, the evidence supports this, with similar fluctuations in fines occurring in the late 1990s. Criminal fines have varied in recent years but remain well above 1980s levels, with a record $169.3 million in FY 1997, a decrease to $61.5 million in FY 1999, and $121.9 million in FY 2000 Similar fluctuations have occurred in civil penalties, with $141 million in FY 1999, a decrease to $54 million in FY 2000, and an increase to $101 million in FY 2001. It would be incorrect to conclude from the declines in penalty assessments from FY 2000 to FY 2001 that environmental enforcement had been rolled back.

Litigating Foreign Environmental Claims in U.S. Courts: The Impact of Flores v. Southern Peru Copper Corporation

by Sarah C. Rispin

I. Introduction


In its recent decision in Flores v. Southern Peru Copper Corp., the U.S. Court of Appeals for the Second Circuit dismissed claims brought under the Alien Tort Claims Act (ATCA) by a group of Peruvian plaintiffs against a U.S. corporation for the environmental fallout of copper smelting operations in Peru. The Flores court dismissed the suit for failure to allege a violation of "clear and unambiguous" international law. Specifically, they ruled that the plaintiffs had "failed to establish the existence of a customary international law 'right to life' or 'right to health'" or "that intranational pollution violates customary international law."


Coming from the circuit that in essence created the modern ATCA suit, this decision carries more weight than an average circuit opinion. The Second Circuit, in Filártiga v. Peña-Irala, was the first circuit to allow foreign plaintiffs to use the ATCA to seek redress in U.S. courts for torts committed abroad in violation of international law. In the absence of a U.S. Supreme Court pronouncement on the issue, the Filártiga opinion remains the main authority for modern ATCA claims. As a result, the Flores decision, which relied upon and applied the Filártiga framework, has dampened hopeful predictions made by members of the environmental community about the utility of the ATCA for attaining redress for environmental torts committed abroad. Looking beyond the environmental context, the Flores decision may limit the growth of progressive theories of international law for ATCA purposes in the federal courts. Filártiga previously held that courts should look to evolving norms of international law. However, the Flores court was willing only to look to very traditional sources of international law. Thus, the ability of courts to accept progressive theories of international law offered by human rights activists may be severely limited.

OMB's Dubious Peer Review Procedures

by Sidney A. Shapiro

The Office of Management and Budget (OMB) has recently proposed a bulletin that would supplement existing procedures under the Information Quality Act by requiring peer review of regulatory information and by specifying the procedures under which that review would take place. OMB has also proposed to become intimately involved in the resolution of information quality complaints. OMB's proposals would continue its previous efforts to build almost out of whole cloth a procedural apparatus that is likely to stifle the government's efforts to provide useful information to the public about their safety and health risks and about risks to the environment.

The Information Quality Act, formerly referred to by OMB as the Data Quality Act, is a two paragraph rider that Rep. Jo Ann Emerson (R-Mo.) slipped into a 2001 appropriations bill without legislative hearings, committee review, or debate. As far as can be determined, few, if any, other members of the U.S. Congress knew of the appropriations rider at the time they voted for it. In February 2002, OMB issued instructions telling agencies how to implement the legislation. After seeking public input, agencies adopted permanent procedures to implement the rider in October 2002.

Land Use Regulation in Houston Contradicts the City's Free Market Reputation

by Teddy M. Kapur

Throughout the 20th century, government agencies increasingly regulated the use of private land in the United States. In particular, zoning spread across the country as the principal regulatory tool for land use control. Although many citizens and commentators welcomed this trend as a means to protect property interests and the neighborhood environment, zoning has faced increased criticism in recent decades. Among other charges, dissenters contend that zoning intrudes unwarrantedly into the realm of private property, interferes with the optimal market allocation of land uses, and works to segregate communities along racial and economic lines. The debate whether to pursue more regulation or to deregulate land development continues today. New York City Mayor Michael Bloomberg has proposed zoning law reforms to spur new housing construction. Gov. Mitt Romney (R-Mass.) has commissioned zoning reform studies to curb sprawl and encourage more diverse land uses. And Chicago Mayor Richard Daley has embarked on extensive zoning law revisions to update Chicago's 1957 zoning ordinance. In contexts such as these, lawmakers nationwide contemplate the appropriate level of government regulation.

Smart Growth and Innovative Design: An Analysis of the New Community

by Francesca Ortiz

In the early 19th century, most metropolitan areas were compact, with strong downtown areas that provided not only retail, government, and other services, but also a variety of cultural activities. Although some of rich society lived in rural areas to escape the city's crime and health hazards, the demarcation between city and countryside was clear. Most people were forced to live and work in one area because of the lack of reasonable transport between city and country. It was not until the railroad linked the city to the countryside that suburbs began to develop.

The first areas that grew outside the central city were intended for the rich, with large homes built in secluded areas that maintained the quiet beauty of the countryside and excluded industrial use. By the late 19th and early 20th century, suburbs began to develop more rapidly as cities grew from an influx of immigrants and new forms of public transportation. The streetcar, for example, could transport more people and cover more ground, thereby enabling those with a more moderate income to work further from where they lived.

"No Comment" on Deep Ripping: Wetlands and the Clean Water Act After <i>Borden Ranch</i>

by Robin Kundis Craig

In December 16, 2002, the U.S. Supreme Court issued a per curiam opinion in the case of Borden Ranch v. U.S. Army Corps of Engineers, affirming the U.S. Court of Appeals for the Ninth Circuit's decision that "deep ripping" of wetlands requires a permit from the U.S. Army Corps of Engineers (the Corps) pursuant to §404 of the Clean Water Act (CWA). However, the Court's opinion did little to elucidate the parameters of CWA jurisdiction over wetlands activities: the Justices split 4 to 4, and their "opinion" consisted of two sentences:

The judgment is affirmed by an equally divided Court. Justice [Anthony M.] Kennedy took no part in the consideration of decision of this case.

This Article reviews the status of "discharges of dredged material" under §404 of the CWA in light of the Court's "no comment" opinion in Borden Ranch.

Counting the Hands on <i>Borden Ranch</i>

by Timothy S. Bishop, Cristina Tilley and Aditya Bamzai

The federal permitting programs of the Clean Water Act (CWA) may be in for an overhaul, judging from a trio of CWA cases that has reached the U.S. Supreme Court in the past three years. The Court's attention to the CWA is welcome news to American farmers, developers, landowners, and state policymakers. During the lengthy hiatus following the Court's 1985 decision in United States v. Riverside Bayview Homes, Inc. (upholding §404(a) regulation of wetlands "adjacent" to "navigable waters"), the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) expanded federal powers by hazarding ever-broader and less plausible readings of the Act. Environmental activists piled on with aggressive citizen suits in friendly judicial forums. The CWA began to look less like a law protecting the "navigable waters" by requiring permits for specified polluting activities and more like a general law regulating land and water use throughout the nation. Escaping the Court's scrutiny, federal agencies managed to displace a broad array of traditional state and local powers. But the tide appears to have turned. The Court has granted in quick succession three certiorari petitions challenging broad interpretations of the scope of the CWA's permitting programs: Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, Borden Ranch Partnership v. U.S. Army Corps of Engineers, and South Florida Water Management District (SFWMD) v. Miccosukee Tribe of Indians of Florida. It seems the Court has recognized that the CWA implemented by regulators and activist judges is unfaithful to the U.S. Congress' original vision.