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


Redefining Federalism

by Douglas T. Kendall

Editors' Summary: Federalism has become a highly politicized term in environmental law, with some parties having adopted the term to signify an ideology of devolving federal authority over environmental protection back to the states. In this Article, the author argues that from the states' perspective, the U.S. Supreme Court is using federalism both too much and too little. Too much, in striking down federal law where even the states recognize that a federal role is necessary to address a national problem. Too little, in inappropriately limiting state experimentation. By listening more carefully to the states, the author argues that the Court could transform its federalism jurisprudence from a source of criticism and polarization to a doctrine that should win broad support from across the political spectrum.

Should Evidence of Environmental Contamination Be Admitted in Eminent Domain Valuation Proceedings?

by Lynda J. Oswald

Editors' Summary: This Article examines whether evidence of environmental contamination should be admitted in eminent domain valuation proceedings. The minority view holds that the evidence is inadmissible and that the condemnee should receive the full value of the property as if clean or remediated. The majority view allows the evidence to be admitted, and bases the property's value either upon its fair market value as contaminated or upon its value as remediated less the remediation costs. The author argues for a third view that addresses the competing interests of the condemnee and condemnor: a trust-escrow technique that would fully compensate the condemnee without providing an inappropriate windfall to either the condemnor or the condemnee because it would account for actual remedial costs.

EPA's Startup, Shutdown, and Malfunction Policy: "The Cart and the Horse Are In the Ditch"

by John C. Evans and Donald R. van der Vaart

Editors' Summary: On December 14, 2004, the U.S. District Court for the Northern District of Georgia ruled that a series of EPA policy memoranda aimed at addressing excess emissions that occur during startup, shutdown, and/or malfunction (SSM) superceded part of Georgia's EPA-approved SIP that allowed, under certain conditions, excess emissions that occur during SSM conditions. The authors argue that this case is notable for two reasons. First, more than one-half of the air regulatory agencies in the country have SIPs that include a provision similar to the Georgia SSM condition. If the court's decision in Sierra Club v. Georgia Power Co. is upheld on appeal, the result will be to throw the entire CAA §110 SIP structure into jeopardy because it effectively renders the entire SIP submittal and approval process superfluous. Second, the decision highlights several common misconceptions about EPA's SSM policy memoranda. This Article provides a critical analysis of the court's decision in Sierra Club v. Georgia Power Co. and in doing so addresses these two important concepts.

Twenty-Five Years Of the Substantial Advancement Doctrine Applied to Regulatory Takings: From Agins To Lingle v. Chevron

by Larry Salzman

Editors' Summary: Beginning with Agins v. City of Tiburon and continuing for 25 years, the U.S. Supreme Court has held that regulation effects a taking when it does not substantially advance legitimate state interests. Throughout this period, many have criticized this standard as "a return to Lochner," opposed to the extreme deference accorded economic and property regulation since the New Deal. According to this author, however, a careful review of cases reveals that the "substantial advancement" doctrine is not simply a means-ends review of the efficacy of economic legislation. Rather, the doctrine was initially conceived, and has been applied, as a cause and effect test to ensure that restrictive land use regulations are designed to mitigate social costs that would be caused by the unregulated use of the property in question. Although no return to Lochner, in some cases (most recently in Lingle v. Chevron) the doctrine confronts the need to set limits to the proper exercise of the police power--a function that has been abdicated by the judiciary since Nebbia v. New York. This deeper conflict explains the vehemence of Agins' critics and, the Article concludes, must be resolved if takings law is to shed its post-New Deal ambiguity and function effectively in the unending struggle of constitutional principle against legislative will.

Unequal Partners: Cost-Benefit Analysis and Executive Review of Regulations

by Stuart Shapiro Ph.D.

Editors' Summary: This Article addresses the potentially conflicting roles played by the Office of Management and Budget in overseeing agencies' rulemaking: analyzing rules using cost-benefit analysis and exercising executive control of rulemaking. The author argues that the Office of Information and Regulatory Affair's role as the eyes and ears of the president in overseeing regulatory agencies has led to its analytical mission playing a secondary role and is, in part, responsible for the lack of visible effects (positive or negative) of cost-benefit analysis. By using a simple model, the Article demonstrates how executive review and analytical requirements interact in presidential decisionmaking. The author offers alternative hypotheses for the negligible impact of cost-benefit analysis on rulemaking and suggests a research agenda that could answer questions about the institutional design of cost-benefit requirements. The Article concludes that the role of cost-benefit analysis in regulatory policy is necessarily limited by its linking with executive review.