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Volume 34, Issue 8 — August 2004

Articles

Landowners Bank on Conservation: The U.S. Fish and Wildlife Service's Guidance on Conservation Banking

by Marybeth Bauer, Jessica Fox and Michael J. Bean

Swept Away: A Cautionary Tale Regarding Endangered Species Mitigation

For many years, fossil enthusiasts have searched for Miocene fossils on a secluded beach south of Chesapeake Beach, Maryland. About a decade ago, without warning or explanation, a formidable chain link fence appeared on the beach, anchored at one end to the nearly vertical cliffs behind the beach, and extending at the other end about 30 feet into the Chesapeake Bay. No sign warned against trespassing, and since the water is shallow there, most fossil hunters simply waded around the fence to get to the more productive areas on the other side. A year later, the fence was even less of an obstacle. Enterprising beachgoers had scraped out a small passage between the cliff face and the landward end of the fence through which a person could squeeze. The bayside end of the fence was sagging, having been battered by storms the previous winter. More storms the next winter pretty much leveled the fence. Soon, not a trace of it remained. Most visitors then never knew why the short-lived fence had been erected. Most visitors today are unaware it ever existed.

The mystery of why the fence suddenly appeared is revealed in--of all places--the U.S. Fish and Wildlife Service's (FWS') endangered species Consultation Handbook. The handbook gives extensive guidance to the FWS staff regarding implementation of §7 of the Endangered Species Act (ESA). Section 7 is the provision of the Act that requires federal agencies to consult with the FWS to ensure that the actions they authorize or carry out do not jeopardize the continued existence of endangered species. The handbook illustrates its detailed guidance with numerous documents showing how to implement various stages of the consultation process. Among those illustrative documents is a letter dated January 11, 1993, that discusses the mysterious fence. The letter addressed plans for a boardwalk along the bayfront from the center of town to a point just short of the fossil hunters' beach. The boardwalk, by facilitating access, was sure to increase public use of the beach. That concerned the FWS, since the beach was not only a good place to find the fossilized remains of long extinct sharks and whales, but

Federal Oversight Vs. State Discretion: EPA's Authority to Reject State Permitting Authorities' BACT Determinations Under the CAA's Prevention of Significant Deterioration Program: <I>Alaska Department of Environmental Conservation v. EPA</I>

by Sean H. Donahue

In Alaska Department of Environmental Conservation (ADEC) v. U.S. Environmental Protection Agency, the U.S. Supreme Court narrowly upheld orders issued by the U.S. Environmental Protection Agency (EPA) pursuant to §§113(a)(5) and 167 of the Clean Air Act (CAA or Act), prohibiting construction of a new power generator unit at a mine in Northwest Alaska. EPA issued the orders because it concluded that the Alaska Department of Environmental Conservation (ADEC), the state agency responsible for administering the CAA's prevention of significant deterioration (PSD) program in Alaska, had arbitrarily failed to require the mine operator to adopt the best available control technology (BACT) to limit emissions of nitrogen oxides (NOx) from the new generator unit. The state agency had argued that it had complied with the CAA's BACT provisions, and that the Act did not give EPA the authority to second-guess a state agency's decision as to what sort of pollution control equipment represents BACT. As it reached the Court, the controversy centered on whether EPA possessed the authority to reject a state agency's designation of BACT under the PSD program. What follows are excerpts of the brief of a group of amicus curiae--Environmental Defense, the National Parks Conservation Association, the Northern Alaska Environmental Center, and Alaska Community Action on Toxics--in support of respondent EPA. After the excerpt are some comments on the Court's opinion in ADEC and its impact.

The Food Quality Protection Act (FQPA)--Implementation and Legal Challenges

by Lynn L. Bergeson and Carla N. Hutton

The U.S. Congress enacted the Food Quality Protection Act (FQPA) in 1996. In so doing, Congress revolutionized the fundamental principles of food safety and ushered in a new regulatory and legal framework for addressing food safety issues. The legal, regulatory, and scientific challenges posed by the U.S. Environmental Protection Agency's (EPA's) and other federal agencies' implementation of the FQPA poses unprecedented opportunities and pitfalls for the legal practitioner and toxicologist.

This Article introduces the FQPA, and describes chemical substances for which testing could be conducted under the FQPA, chemical testing that could be required, persons required to conduct the tests, procedures that have been considered for selecting test chemicals, and associated legal challenges.

The Food Quality Protection Act--Chemical Testing Issues

by John D. Walker

The previous Article described the Food Quality Protection Act (FQPA) and some of the legal challenges that have occurred during implementation. The purpose of this Article is to illustrate three generic chemical testing issues that could be related to the testing required by the FQPA. These issues are based on the author's participation on the Endocrine Disruptor Screening and Testing Advisory Committee's (EDSTAC's) Priority Setting Work Group, development of the endocrine disruption priority setting databases, previous publications on quantitative structure activity relationships (QSARs) for predicting estrogen-receptor binding affinities of chemicals, and experiences gleaned from the Toxic Substances Control Act (TSCA) Interagency Testing Committee's (ITC's) selection of chemicals for testing. These issues include the need to consider: (1) the bioavailability of the chemicals being considered for screening or testing; (2) the physical properties of the chemicals being considered for screening or testing; and (3) the application domain of the chemicals used to develop QSARs to predict relevant endpoints versus the domain of the chemicals being considered for screening or testing.

Nature and Property: A Riparian Law Perspective

by Ashley S. Miller

I. Introduction

This Article will characterize how one area of property law, title rules for coastal and riverfront property, represents particular views of nature. In doing so it will examine how the law in this area defines the line between natural and non-natural. What does "natural" mean in riparian law? How do humans fit into that picture? In what ways do differing ideas of "nature" inform property rights? Does property law reflect any coherent notion or ethic of nature, or deliberately invoke a particular notion of nature to justify its institutions?

Property law is a particularly relevant institution to examine in this vein, as it can be said to represent the contact point between humans and nature, acting as the socially endorsed system through which all interaction with the environment occurs. Property law in that sense symbolizes the pervasive control and impact that humans have had on the environment; there is a trend in recent environmental thought toward conceptualizing the entire world as "unnatural," or impacted by human activity, a sort of worldwide garden which humans are cultivating on a global scale. Given this central role that property law plays in the human interaction with nature, it is inherently an environmentally charged area of law. Therefore it is crucial to understand the ethical content inherent in property law.

Nature and Property: A Riparian Law Perspective

by Ashley S. Miller

I. Introduction

This Article will characterize how one area of property law, title rules for coastal and riverfront property, represents particular views of nature. In doing so it will examine how the law in this area defines the line between natural and non-natural. What does "natural" mean in riparian law? How do humans fit into that picture? In what ways do differing ideas of "nature" inform property rights? Does property law reflect any coherent notion or ethic of nature, or deliberately invoke a particular notion of nature to justify its institutions?

Property law is a particularly relevant institution to examine in this vein, as it can be said to represent the contact point between humans and nature, acting as the socially endorsed system through which all interaction with the environment occurs. Property law in that sense symbolizes the pervasive control and impact that humans have had on the environment; there is a trend in recent environmental thought toward conceptualizing the entire world as "unnatural," or impacted by human activity, a sort of worldwide garden which humans are cultivating on a global scale. Given this central role that property law plays in the human interaction with nature, it is inherently an environmentally charged area of law. Therefore it is crucial to understand the ethical content inherent in property law.

Navigating <I>SWANCC</I>: An Examination of the U.S. Army Corps of Engineersâ

by Daniel Simmons

I. Introduction

For the last 25 years, the U.S. Army Corps of Engineers (the Corps), the U.S. Environmental Protection Agency (EPA), and courts have argued that the Clean Water Act (CWA) gave the Corps and EPA the authority to regulate waters in the United States to the full extent of the U.S. Congress' authority under the Commerce Clause. This assumption was rejected in 2001 when the U.S. Supreme Court handed down its decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. The Court held that the presence of migratory birds did not provide the Corps regulatory authority over isolated ponds. In rejecting the Corps' broad assertion of regulatory authority, the Court limited the Corps' regulatory scope to conform with the limits in the CWA.

This Article asks: in light of SWANCC, what are the statutory limitations on the Corps' authority to regulate wetlands property under the CWA? The Article reviews the history of Congress' regulation of navigable waters, the history of the Corps' regulation of "navigable waters," the SWANCC decision, CWA's legislative history, and counterarguments to the holding in SWANCC. The Article concludes that the CWA provides authority for the Corps to regulate navigable waters as they have been traditionally defined and the power to regulate wetlands adjacent to navigable waters. The CWA does not provide authority of the Corps to regulate beyond those statutorily defined boundaries.

The Supreme Court Forces a U-Turn: The Fate of American Trucking

by Craig N. Oren

In American Trucking Ass'n v. U.S. Environmental Protection Agency (ATA I), a panel of the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit shocked the administrative and environmental law worlds. There, the court, in a 2-1 decision, remanded to the U.S. Environmental Protection Agency (EPA) for reconsideration of its new air quality standards under the Clean Air Act (CAA) for ozone and particulate matter. Subsequently, the court, sitting en banc, modified ATA I, but narrowly refused to grant rehearing (ATA II).

 

ATA I's primary rationale, articulated by Judge Stephen Williams, was that the Agency lacked an "intelligible principle" for setting air quality standards. This holding, to some commentators, presaged the revival of the delegation doctrine, which had last been used in the 1930s to invalidate congressional grants of power to administrative agencies. These commentators foresaw a drastic reduction in the U.S. Congress' power to use broad delegations to administrative agencies as a way to regulate private industry.

 

There was another important, although less noted, aspect of ATA I: the court apparently ruled that the CAA did not give EPA authority to require the states to take steps to implement the new air quality standard. Hence, barring an act of Congress, the revision of the standard would do little to clean the air.