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Volume 34, Issue 2 — February 2004


Let the People Speak: Notice-and-Comment Rulemaking (Lessons From the Controversial New Source Review Proposal of the Clean Air Act)

by Victor B. Flatt et al.

Sections 165 and 173 of the CAA specifically note that any change in pollution levels from an existing source triggers NSR and accompanying technological upgrades. Nothing in the rulemaking's proposed definition based on cost of changes or maintenance address this clear language of Congress. --Victor B. Flatt, A.L. O'Quinn Chair in Environmental Law, University of Houston Law Center, written comments submitted to EPA on February 26, 2003.

Taken together, the two proposed exclusions from NSR would allow many grandfathered air polluters to operate indefinitely without installing state-of-the-art pollution control equipment. This would contravene the purpose of NSR, which is to ensure that grandfathered facilities eventually do improve their environmental performance. --Michael M. O'Hear, Assistant Professor, Marquette University Law School, written comments submitted to EPA on March 2, 2003.

The North American Commission for Environmental Cooperation and Transboundary Pollution

by John H. Knox

Transboundary pollution in North America has received international attention for over 90 years. Famous, or infamous, examples from the past include the sulfur dioxide emitted by a smelter near Trail, British Columbia in the 1920s; the salinization of the Colorado River in the 1960s; and the contribution of U.S. power plants to Canadian acid rain in the 1980s. Despite a series of bilateral agreements and institutions addressing particular concerns and some notable successes, transboundary pollution continues. Indeed, every section of both borders seems to have its own notorious problem. San Diegans complain that sewage from Tijuana befouls their beaches; Texans accuse power plants in Coahuila of clouding the skies over Big Bend National Park; Mexicans protest against proposals to site waste disposal facilities in South Texas; Ontario argues that U.S. power plants cause most of its air pollution; and Alaskans worry about the downstream effects of mining in British Columbia. Moreover, thousands of sources, on both sides of the border, pollute shared bodies of water such as the Great Lakes and the Rio Grande and shared airsheds such as that over El Paso, Texas, and Ciudad Juárez, Mexico.

What, if anything, should the North American Commission for Environmental Cooperation (CEC) do about transboundary pollution? In particular, should it coordinate the work of the bilateral institutions and fill gaps in their coverage? After evaluating how the CEC has handled issues of transboundary environmental harm, this Article concludes that the answer to this question is a qualified: "No." The CEC should not try to oversee the work of the bilateral institutions, and it should address only one important type of transboundary pollution outside their jurisdiction: pollution that directly affects all three countries.

Harmonizing Methods of Scientific Inference With the Precautionary Principle: Opportunities and Constraints

by David E. Adelman

Virtually anyone with an interest in environmental policy is familiar with the allegations that traditional methods of statistical inference are biased against preventative environmental standards. They surely also know of the Precautionary Principle as the broad theory often cited by environmentalists to support this critique and to argue that regulated industries should bear the burden of proving that their products and activities are safe. This collision between scientific method and environmental principle has had great salience in environmental law and policy for many years. However, the debate loses much of its force and momentum because it is premised on a relatively superficial understanding of the underlying statistical methods. This Article seeks to move beyond the heuristics of the current discourse.

Green Business: Should We Revoke Corporate Charters for Environmental Violations?

by Mitchell F. Crusto

Recent corporate financial scandals involving Enron, Worldcom, Arthur Andersen, and others have led to the passage of significant legislation effecting, inter alia, corporate financial disclosure. These recent financial reporting scandals raise red flags concerning corporate accountability generally. This is an appropriate time to reconsider corporate accountability for environmental protection. Additionally, environmental challenges continue in the form of climate change. Industry and government continue to fail to achieve corporate self-regulation. One radical proposal recently surfacing is to revoke corporate charters for environmental violations.

The environment, particularly climate changes, is still a major global concern. At the World Economic Forum, both business and government leaders voted climate change the greatest challenge facing the world at the beginning of the century. Indeed, recent statistics show that pollution of air, water and land has been increasing in many areas.

When It Rains It Pours: Past, Present, and Future Regulation of Wet Weather Discharges

by Thomas G. Echikson and Gregory P. Lauro

Managing and controlling stormwater and other "wet weather" discharges presents unique challenges, far different from the management and control of industrial and municipal wastewater streams. Wet weather discharges are periodic and unpredictable. They can contain varying concentrations and types of pollutants. The wet weather discharger can rarely know with any certainty when or how much water will need to be managed. The source of pollutants in these weather-related discharges is often difficult to discern, and sampling wet weather discharges is a challenge. In contrast, process and sanitary waste streams tend to be more consistent and predictable. The types and concentrations of pollutants generally remain the same, and when changes do occur, they are typically knowable in advance; the source of those pollutants is easily discernable; the timing and quantity of flows is foreseeable; and it is a relatively simple task to develop a sampling program. In light of these distinctions, it is appropriate that the requirements for managing, treating, and controlling wet weather discharges are different from those applicable to process and sanitary waste streams.

Don't Be Misled: CWA Jurisdiction Extends to All Non-Navigable Tributaries of the Traditional Navigable Waters and to Their Adjacent Wetlands

by Lance D. Wood

The September 2002 edition of the Environmental Law Reporter's (ELR's) News & Analysis published a truly remarkable Article: Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act, by Virginia S. Albrecht and Stephen M. Nickelsburg. A casual reader of the Article might not understand how revolutionary and far-reaching the conclusions and analysis of that Article are, regarding the geographic jurisdiction of the Clean Water Act (CWA). In fact, the authors seem to go to some lengths to conceal the radical implications of their own conclusions while admitting that their Article does seek to overturn "long-entrenched assumptions" that the federal courts and agencies that implement the CWA have had for more than three decades regarding the extent of the CWA's geographic jurisdiction.

Read carefully and with an understanding of the subject matter, the Albrecht/Nickelsburg Article asserts the following: based on Albrecht's and Nickelsburg's interpretation of the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, plus those authors' highly innovative reading of the legislative history of the Federal Water Pollution Control Act (FWPCA) of 1972, i.e., the first effective federal CWA, the geographic jurisdiction of the CWA at present is actually only a tiny fraction (my estimate is less than 1%) of what the U.S. Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (the Corps), and other federal agencies, plus most of the federal courts, had previously believed.