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Volume 36, Issue 8 — August 2006


Translating Regulatory Promise Into Environmental Progress: Institutional Capacity and Environmental Regulation in China

by Wanxin Li and Eric Zusman

Editor's Summary: A growing body of research attributes China's environmental problems to weak regulatory enforcement. Few studies, however, have explored the relationship between institutional capacity and regulatory enforcement. In this Article, Wanxin Li and Eric Zusman draw upon the literature on state capacity and institutional analysis to fill this void. The Article reveals that local environmental protection bureaus with greater human capital--though not necessarily greater financial resources--enforce regulations more rigorously. The Article also shows that these efforts do not necessarily lead to cleaner air or water. Regions with industries that have a greater capacity to abate pollution tend to pollute more, offsetting the potentially beneficial effects of stronger regulatory enforcement. The authors therefore conclude that it may take more than just innovative regulations to translate regulatory promise into environmental progress.

No Second-Class States: Why the California Exceptions in the Clean Air Act Are Unconstitutional

by Valerie J.M. Brader

Editor's Summary: The U.S. Department of Transportation's new fuel economy rules for light trucks and sport utility vehicles are under fire, in part because the Bush Administration has taken the position that the new rules preempt the ability of California to set its own stricter rules under the CAA. Yet according to Valerie Brader, there is a weightier reason the new rules should stand: the provisions of the CAA giving California these regulatory powers are unconstitutional. She argues that the equal footing doctrine, a principle of American law that predates the U.S. Constitution and is still in force today, prohibits laws that create a differential in governing power between the states. Congress' attempt to give California powers not given to other states violates that doctrine.

Species Protection Versus State Agency Autonomy: Who Wins Under the California Endangered Species Act?

by Dhananjay Manthripragada

Editor's Summary: States play an important role in protecting endangered and threatened species, particularly those that are listed only under state endangered species acts (ESAs). Much like the federal Endangered Species Act, many state ESAs require agency consultation prior to the permitting of any activities that may result in the take of a listed species. But while this requirement is often clear for private activities, it may be less so for activities taken by state agencies. As such, a state lead agency could conceivably authorize projects that decimate populations of endangered species without seriously considering alternatives or mitigation measures either through consultation or a permitting process. In this Article, Dhananjay Manthripragada argues that agency-toagency communication obligations currently imposed on state lead agencies by the California Endangered Species Act and other state ESAs do not afford species adequate protection. He therefore proposes policy solutions that, if implemented, would address this concern while minimizing unwelcome intrusion upon state lead agency autonomy.

Justice Rehnquist and the Dismantling of Environmental Law

by James R. May and Robert L. Glicksman

Editor's Summary: Chief Justice William H. Rehnquist was uniquely situated to have a profound impact on the development of federal environmental law--both because of the overlap of his tenure with the development of the field of environmental law and because of his four-decade tenure on the U.S. Supreme Court, more than one-half of which was as Chief Justice. Before his death on September 3, 2005, Rehnquist heard the vast majority of the Court's environmental cases during the modern environmental era, penning opinions in 25% of them, and affording him an opportunity to shape environmental law, especially during its formative years, that no Justice is likely to match. This Article discusses how Justice (and then Chief Justice) Rehnquist interpreted federal constitutional and public law in the opinions he wrote in environmental cases. It concludes that Rehnquist's environmental opinions reflect a three-tiered agenda. First, if a case involved a constitutional or statutory property rights question, Justice Rehnquist almost always chose to protect property rights over competing environmental concerns. Second, in the absence of a property rights issue, Rehnquist almost always decided cases so as to protect state sovereignty, sometimes but not invariably with pro-environmental results. Third, in cases lacking a property rights or state sovereignty component, he almost always decided them in a way that curtailed federal power, and with it, the effectiveness of environmental law. The Article, which is part of a larger ongoing study of Justice Rehnquist's environmental law jurisprudence, explores the extent to which Justice Rehnquist's three-tiered approach has already weakened environmental law and whether that approach is likely to contribute to further diminishment of effective environmental protection under the pollution control and natural resource management legislation in the future.

The Golden Hour: The Role of Historic Preservation Law in the Immediate Aftermath of Disaster

by Stephanie J. Talbert

Editor's Summary: Hurricane Hugo damaged approximately 80% of the 3, historic buildings located in Charleston, South Carolina. The terrorist attacks of September 11, 2001, caused considerable damage to landmark property in New York City. And no one can deny that New Orleans, one of America's oldest and most distinctive cities, suffered staggering damage after Hurricane Katrina. While each of these disasters brought about unique problems locally and nationally, all three raise a common question: What is the role of historic preservation law in the immediate aftermath of a large-scale disaster? In this Article, Stephanie Talbert looks at the role historic preservation law played in responding to Hugo, Katrina, and the terrorist attacks. Based on her examination, she concludes that the current framework is flexible enough to immediately respond to a disaster but that a program to support and utilize historic preservation laws immediately after disaster is still necessary. To that end, she proposes a national three-part program that could be used in any of the 50 states.