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Volume 35, Issue 9 — September 2005


Environmental Justice Index III

by Denis Binder

Editors' Summary: This index has been updated to include environmental justice case law since 1999. Following a brief narrative describing the expansion in scope of environmental justice claims, the author categorizes the case law as follows: Part I, Types of Disputes, describes the types of grievances that form the basis of these claims, such as the siting of facilities or housing in environmentally hazardous areas. Part II, Causes of Action, lists the federal statutes and constitutional amendments under which the claims arise. Part III, Cases, is an alphabetical listing of the cases and citations.

After <i>Tennessee Valley Authority v. Whitman</i>: Should Courts Be More Receptive to Preenforcement Review of EPA Administrative Orders?

by Mark Latham

Editors' Summary: Administrative orders are one of the most potent enforcement mechanisms that EPA has at its disposal. Yet the vast majority of courts, under a variety of federal environmental statutes, has held that there is no preenforcement judicial review of such orders. According to the author, EPA has therefore been free to allege serious violations of environmental regulatory programs, threaten the imposition of costly penalties, require recipients to incur significant costs to achieve compliance with an order, and threaten criminal prosecution--all without an adjudication of the alleged factual and legal basis underlying the order. After looking at the reasoning behind this lack of judicial review, the author examines a recent case in which a court found that there were fundamental, constitutional questions raised by the broad powers granted to EPA through the administrative order process. In that case, the court ruled that EPA must first establish the existence of a violation in district court before imposing any penalties. The author then provides some alternatives to the administrative order process, concluding that EPA's ability to promptly challenge instances of noncompliance with federal environmental statutes and regulations would not end were courts to find that the administrative order process failed to pass constitutional muster.

Treating the Wireless Spectrum as a Natural Resource

by Patrick S. Ryan

Editors' Summary: As this Article demonstrates, most experts agree that the electromagnetic spectrum is a vital natural resource. Yet European and U.S. governments fail to treat it as such. The author looks at contributions made by two scholars, Ronald Coase's public trust doctrine and Garrett Hardin's tragedy of the commons, and examines their influence on the debate surrounding the electromagnetic spectrum's classification as a natural resource. The author then addresses sustainability concerns and argues that as is the case with all natural resources, a balance between overexploitation and underexploitation is needed in the management of the spectrum.

What Happens When a Wetland Mitigation Bank Goes Bankrupt?

by Royal C. Gardner and Theresa J. Pulley Radwan

Editors' Summary: The wetland mitigation banking business has grown dramatically in the last decade. But as is true with any business, mitigation banks are subject to risk, including the risk of going bankrupt. This Article looks at how bankruptcy law can affect the rights and obligations of the mitigation banker and government agencies. After providing an overview of wetland mitigation banking and a primer on bankruptcy law, the Article examines two ongoing bankruptcy actions that involve mitigation banks. It then offers suggestions that regulatory agencies can adopt to protect against the consequences of a bankrupt mitigation bank.

<i>Lingle</i>, Etc.: The U.S. Supreme Court's 2005 Takings Trilogy

by John D. Echeverria

Editors' Summary: The U.S. Supreme Court ruled on three takings cases in its 2004 term: Lingle v. Chevron U.S.A., Inc.; Kelo v. City of New London; and San Remo Hotel, Ltd. Partnership v. City & County of San Francisco. In Lingle, the Court struck down the "substantially advance" test set forth in Agins v. City of Tiburon. Kelo, which gained attention from the media and public, upheld the use of eminent domain for economic development purposes. And San Remo involved a relatively straightforward procedural issue. After describing and analyzing each of these cases, the author of this Article concludes that these cases reinforce the Court's takings jurisprudence that the Takings Clause imposes only modest constraints on government action.