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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — April 2005

Articles

NEPA's Uncertainty Principle in the Federal Legal Scheme Controlling Air Pollution From Motor Vehicles

by Robert E. Yuhnke

The need to protect the public from the serious adverse health effects of motor vehicle emissions has been recognized as an important public health goal since the 1960s. Evidence of adverse health effects associated with vehicle emissions of carbon monoxide (CO), benzene, ozone, and lead was the primary driving force behind the enactment of the Air Quality Act of 1967, which set in motion the federal regulation of tailpipe emissions from motor vehicles. The environmental impacts of highways were also cited as a major factor behind the enactment in 1969 of the National Environmental Policy Act (NEPA). The growing pall of pollution that shrouded most large U.S. cities contributed to the groundswell for action that lead President Richard M. Nixon to call for enactment of what became the Clean Air Act (CAA) of 1970, and the leadership of the U.S. Senate Air Pollution subcommittee to add air pollutant control provisions to the 1970 Amendments to the Federal-Aid Highway Act (Highway Act). Together, these three statutes provide the framework for all federal efforts, and most state programs, to protect the public from the health effects of vehicle emissions.

Despite the enactment after NEPA of broad, regulatory statutes aimed at controlling emissions from motor vehicles and mitigating the adverse environmental effects of highways, NEPAcontinues to play an important role in decisions affecting the assessment and mitigation of impacts attributable to air pollution from vehicles and highways. One of NEPA's most important contributions may be the rule that requires agencies to fill major data gaps by obtaining new information needed to provide meaningful consideration of the comparative impacts of alternatives.

First Thing We Do, Let's Kill All the . . . Taxonomists?

by Fred Bosselman

The beleaguered agency officials who administer the endangered species laws have been inundated with litigation challenging everything from the constitutionality of their statute to the soundness of their biological judgments. But recently, they are being challenged for relying on what they must have assumed to be an unimpeachable source of information--the classification of species by the official taxonomic organizations.

In two recent decisions, judges have refused to accept the official classification of animals set down by the international committees of taxonomists who have long been recognized as the authorities who should decide how to assign the various taxa, e.g., genus, species, subspecies, etc., to groups of animals. Instead, the courts have allowed the parties to introduce evidence about the way that they thought animals should be classified for purposes of wildlife legislation. Before this spurt of litigation becomes a flood, it would behoove all sides to consider whether we can't find a more credible solution to such disputes than turning judges into taxonomists.

First Thing We Do, Let's Kill All the . . . Taxonomists?

by Fred Bosselman

The beleaguered agency officials who administer the endangered species laws have been inundated with litigation challenging everything from the constitutionality of their statute to the soundness of their biological judgments. But recently, they are being challenged for relying on what they must have assumed to be an unimpeachable source of information--the classification of species by the official taxonomic organizations.

In two recent decisions, judges have refused to accept the official classification of animals set down by the international committees of taxonomists who have long been recognized as the authorities who should decide how to assign the various taxa, e.g., genus, species, subspecies, etc., to groups of animals. Instead, the courts have allowed the parties to introduce evidence about the way that they thought animals should be classified for purposes of wildlife legislation. Before this spurt of litigation becomes a flood, it would behoove all sides to consider whether we can't find a more credible solution to such disputes than turning judges into taxonomists.

Nuclear Power or Renewable Energy?: Available Options in Today's Energy Market

by Shubh Nigam

The blackout of 2003 and the skyrocketing prices of gasoline have put the topic of energy into the forefront of national debate in the United States. National resources are becoming scarce and foreign countries hold the power in fuel production and distribution. Lingering questions regarding the future of energy have spurred research into the best renewable resources and possible alternatives to fossil fuels. The energy market has a colossal impact on the economy and a profound effect on the environment. The future remains uncertain, but it is imperative that the United States and each individual state thoroughly examine alternative energy sources in order to alleviate the growing demand for energy as the population increases and the climate of the earth changes.

This Article will introduce the intricacies of nuclear power as well as some renewable energy resources: hydroelectric, wind, and solar power. Part I of the Article gives an in-depth analysis of the role of the federal government concerning nuclear power plants and the intricacies associated with the plants. Part II deals with the four nuclear power plants in New Jersey and evaluates their effectiveness as an energy source. Finally, Part III provides a breakdown of hydroelectric, wind, and solar power. It further discusses legislation created by the federal government and the state government of New Jersey in regards to renewable energy resources. Although New Jersey is the target of this analysis, it could be beneficial to many states that face an uncertain future in the energy market.

Emissions Trading: Lessons From SO2 and NOx Emissions Allowance and Credit Systems Legal Nature, Title, Transfer, and Taxation of Emission Allowances and Credits

by Markus W. Gehring, Charlotte Streck

I. Introduction

Emissions trading is increasingly recognized as a cost-effective policy instrument to reduce the concentration of greenhouse gases (GHGs) in our atmosphere. The concept, which until recently was treated with suspicion by many countries, has seen in the last 12 months unprecedented proliferation and success.

In October 2003, Directive 2003/87/EC "establishing a scheme for greenhouse gas emission allowance trading within the Community" became law in the European Union (EU). The objective of the newly established EU Emissions Trading Scheme (ETS) is to reduce the emissions of GHGs in an efficient and cost-effective manner. The initially adopted scheme was limited to emissions allowance trading within the EU and did not link the EU ETS to emission reduction credits (ERCs) generated under the Kyoto Protocol. Therefore, such credits, namely emission reduction units (ERUs) and certified emission reductions (CERs), could not be used by operators of covered installations to meet compliance obligations under the EU ETS. To remedy this, the EU has recently adopted a directive to amend the EU ETS to link the scheme to emission credits that comply with the Kyoto Protocol.

The EU trading scheme will encompass not only the 15 previous EU Member States but will also apply to all its newly acceded Members. Denmark and the United Kingdom (U.K.) have traded with emission allowances since July 2000, and March 2002, respectively. Canada, Japan, Norway, and several U.S. states have expressed their intent to establish similar GHG trading systems, to name only a few incentives that have been announced over the last months. Finally, Chile, the only developing country engaging in emissions trading so far, has recently adopted a bill which establishes a trade in pollution permits.

Dusting Off the Blueprint for a Dryland Democracy: Incorporating Watershed Integrity and Water Availability Into Land Use Decisions

by Janet C. Neuman

I. John Wesley Powell's Blueprint for a Dryland Democracy

In 1878, Maj. John Wesley Powell delivered to the Secretary of the Interior his Report on the Lands of the Arid Region of the United States in which he outlined his recommendations for surveying and settling the western lands. In his biography of Powell, Wallace Stegner characterized the suggestions as the "blueprint for a dryland democracy." The plan was grounded in the "single compelling unity" of the western lands--the overall lack of precipitation. Powell's recommendations were designed to adapt settlement patterns to the region's aridity, thus assuring the settlers' survival and success.

Powell's suggestions included recognizing not only the fundamental unity of western aridity but also the incredible diversity of western topography, climate, and soil, which affected the ability to take advantage of any available water. In order to accommodate these equally crucial but divergent facts, and to accommodate the needs of settlers, farmers, and ranchers, Powell made several key recommendations. He began by categorizing lands according to the uses they would be most suited for, including irrigated farming, pasturage, or timber or mineral production. He suggested basing the government surveys prior to land disposal on topography rather than on the traditional rectangular grid system. Instead of marching lines straight up and down mountains and valleys, a topographic survey would recognize decidedly nonrectangular watersheds and drainage basins. Such a survey would prevent the monopoly of water sources (and by extension, land) by those lucky enough to have water in their quarter section. The result would be to carve out the maximum number of viable settlement parcels, all with some access to water.