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Volume 36, Issue 9 — September 2006


Reunion in Salem: Updating the MTBE Controversy

by Richard O. Faulk & John S. Gray

Concerned about groundwater contamination and the potential health effects of methyl tertiary butyl ether (MTBE), a gasoline additive used to curtail air pollution, several states have banned its use. Similarly, MTBE has been the subject of a great deal of litigation. And while the Energy Policy Act of 2005 did not ban MTBE outright, it eliminated the federal oxygenate requirement for gasoline, thereby making the additive unnecessary. But according to Richard Faulk and John Gray, the controversy surrounding MTBE is greatly exaggerated. Moreover, MTBE represents only about 11% of the dangerous chemicals in gasoline that leak from USTs into groundwater. Banning MTBE and rushing to the courts does nothing to address the remaining 89% of the chemicals contained in gasoline that are released from USTs when there is a leak. Below, Faulk and Gray argue that instead of subjecting MTBE to a witch hunt, more energy should be spent enforcing the UST program so that past leaks are cleaned up and future ones do not occur.


Foxes Guarding the Henhouse: How to Protect Environmental Standing From a Conservative Supreme Court

by Amy L. Major

Editors' Summary: The U.S. Supreme Court's decisions in Lujan v. National Wildlife Federation and Lujan v. Defenders of Wildlife effectively restricted the liberalized standing that environmental plaintiffs previously enjoyed. Recent appointments of conservative Justices to the Court indicate that environmental standing will continue to narrow in the future. However, modern doctrines like informational standing may offer plaintiffs assistance in asserting environmental claims. In this Article, Amy Major investigates the Court's historical treatment of environmental standing, discusses the evolution of informational regulation and informational standing, analyzes the Court's reaction to informational and statutory standing, and reveals how lawyers can utilize informational injury to circumvent conservative standing principles and bring successful claims under the ESA.

Recognizing the Limits of Water Rights: Rejecting Takings Claims in <i>Klamath Irrigation District v. United States</i>

by Esther L. Westbrook

Editor's Summary: The Klamath Basin of southern Oregon and northern California is the setting of a water rights conflict that is about much more than just water. In this Article, Esther Westbrook examines a recent decision of the Court of Federal Claims, Klamath Irrigation District v. United States, that addresses some of the legal issues implicated when water rights, unsustainable land use, and endangered species collide. The case reminds us that water rights in the West come with legal restraints and limitations and that the government must work toward developing water policies that meet the needs of a changing society.

The Brief and Unexpected Preemption of Hawaii's Humpback Whale Laws: The Authority of the States to Protect Endangered Marine Mammals Under the ESA and the MMPA

by Koalani Laura Kaulukukui

Editors' Summary: Humpback whales are endangered marine mammals, protected by the Marine Mammal Protection Act (MMPA) and the ESA. Hawai'i's seasonal thrill craft ban in humpback habitat provides additional protection. In 2004, a federal court ruled that the state's seasonal ban was preempted by the MMPA and the ESA. Below, Koalani Kaulukukui discusses the interplay of these two statutes, concluding that when a marine mammal is listed under the ESA, the more protective MMPA or ESA provision applies. Humpbacks must be given protections of the more stringent ESA, allowing Hawai'i to protect humpbacks to a greater extent than federal law.