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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — December 2004


Mercury, Risk, and Justice

by Catherine A. O'Neill


In December 2003, the U.S. Environmental Protection Agency (EPA) announced its long-awaited proposal for regulating mercury emissions from coal-fired utilities. This regulation was widely expected to require a 90% reduction in mercury emissions from these facilities--from approximately 48 tons to 5 tons--to be achieved by 2007. Instead, EPA proposed a rule that would permit coal-fired utilities to continue to emit more mercury for a longer time. In fact, EPA offers two potential approaches, neither of which would require sources to do much to reduce their mercury emissions until well into the next decade. EPA clearly favors a cap-and-trade approach, so expends some effort to locate a statutory home for this approach within the federal Clean Air Act's (CAA's) provisions for toxic air emissions. Perhaps unsure of its success, EPA also produces a technology-based standard, following the ordinary process for regulating air toxics under §112 of the Act. However, the maximum achievable control technology (MACT) standard EPA fashions is so far off the mark that it can only have been intended to serve as a foil for EPA's preferred approach.

EPA's attempt to avoid the steep emissions reductions required by MACT and apply the tool of cap-and-trade to the problem of mercury has met with a raft of criticism. The clamor over the proposed rule is not surprising, given the procedural irregularities that have come to light, given the creative interpretations of the CAA on which EPA's proposal rests, and given, importantly, what is at stake from mercury contamination. This critical attention is warranted as well because cap-and-trade, like other regulatory tools, has strengths and weaknesses that make it well suited for some environmental problems but ill suited for others. For a variety of reasons, cap-and-trade--at least as fashioned by EPA--may simply be the wrong tool to address the problem of mercury.

Environmental Law Update 2004: The Practical Impacts of This Year's Legal Struggles

by Panel discussion

1. Do Endangered Species Act Challenges Still Have Teeth?

William Robert Irvin, M. Reed Hopper, Mark C. Rutzick, David J. Hayes (moderator)

2. What Roles Should Federal and State Governments Play in Fighting Air Pollution?

Jeffrey R. Holmstead, Peter Lehner, Howard A. Learner, Leslie Sue Ritts (moderator)

3. Who Should Pay for Food Safety? Bob Hibbert, Richard Samp, Wenonah Hauter, Douglas T. Kendall (moderator)

This panel is sponsored by the Environmental Law Institute.

Should There Be a Constitutional Right to a Clean/Healthy Environment?

by Robin Kundis Craig

As was noted in the Introduction to my recently published book The Clean Water Act and the Constitution: Legal Structure and the Public's Right to a Clean and Healthy Environment, as a result of a fairly comprehensive array of federal environmental legislation, including the Clean Water Act (CWA), the United States, for all of its remaining environmental issues, enjoys some of the best environmental quality of the industrialized nations. That environmental quality, in turn, has direct implications for the health and welfare of U.S. residents, with the result that the benefits of environmental regulation--in terms both of monetary benefits and quality of life--have repeatedly been shown to outweigh its costs, as the Introduction to this book discussed. For example, water quality regulation has significantly reduced waterborne diseases by encouraging construction of sewage treatment plants and has resulted in cleaner rivers throughout the country.

Nevertheless, the effectiveness of that environmental regulation has depended, and will continue to depend, on how well environmental statutes are enforced. As the history of the Federal Water Pollution Control Act (FWPCA) from 1948 to 1972 demonstrated, lack of enforcement is a major stumbling block to improved environmental quality. To emphasize this point, several recent reviews of the CWA have stressed the need for its improved enforcement. Most extensively, Prof. Victor Flatt has argued that "[f]or all the great language in the CWA, a law is only as good as its enforcement, and there have been across-the-board difficulties in the enforcement of the CWA." Moreover, "without enforcement, the true goal of the CWA, that is, clean water, will not occur."

Best Practices as Regulatory Regime: The Case of Agricultural Nonpoint Source Pollution

by David Zaring

In traditional administrative law, agencies pass rules and courts review them. But what if agencies stopped acting by rule and started leading by example? The federal response to agricultural water pollution offers a case study in how this increasingly popular form of administration can work, by regulating not through rule, but through suggestion--specifically suggestion via best practices.

As most environmental observers know, runoff remains the most serious and least regulated form of water pollution in the United States. Of the principle sources of runoff pollutants, agricultural runoff is the most notable. The U.S. Environmental Protection Agency (EPA or Agency) has concluded that "[a]griculture is the leading source of pollutants in assessed rivers and streams, contributing to 59[%] of the reported water quality problems and affecting about 170, river miles."

But runoff, be it agricultural or any other kind, is treated differently than the other forms of water pollution addressed by the Clean Water Act (CWA). The CWA only imposes specific federal limitations on pollution from point sources, which are defined as "any discernible, confined[,] and discrete conveyance." Nonpoint source pollution includes everything else and, to the consternation of many observers, it has never been subject to federal prohibition.

The 10th U.S. Supreme Court Justice (Crazy Horse, J.) and Dissents Note Written—The Environmental Term of 2003-04

by William H. Rodgers, Jr.

I. Introduction


My nomination and appointment to the U.S. Supreme Court were not widely publicized. My collegiality was never held in high regard. My experience is limited but I think I understand the ways of nature and the use of language in treaty writings. I have listened for a sympathetic voice on this Court but I have not heard one. I will limit my dissents to seven. I will include one case from the 2002-2003 Term but will hold my tongue on many others. --Crazy Horse, J.