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Volume 37, Issue 6 — June 2007


Beyond Delegated Authority: The Counterpart Endangered Species Act Consultation

by Cynthia A. Drew

Editors' Summary: Wildlife agencies entrusted by Congress to administer the ESA have in two recent counterpart regulations revised interagency cooperation procedures in ways that appear to fall short of statutory requirements. Two federal district courts have now ruled in a contradictory manner on the validity of these regulations. Meanwhile the regulations held valid continue to be used to allow action agencies to aggrandize their role in determining whether their projects will be "not likely to adversely affect" protected species--thus receiving no further scrutiny. In this Article, Cynthia A. Drew questions the ultimate legality of the wildlife agencies effecting such intraagency delegations of statutorily required interagency cooperation. Through an analysis of both the challenged regulations and the results of judicial review after citizen plaintiffs sued to invalidate them, she argues that such intraagency delegation practices pass neither statutory nor constitutional muster.

Energy and Environmental Tax Changes in the Flood of Recent Federal Revenue Laws and What They Imply

by Richard A. Westin

Editor's Summary: In the United States, the need for independence from foreign oil and gas sources, a desire for more domestic production to meet the growing demand for oil and gas, and an interest in reducing pollution from hydrocarbon usage has influenced many recent developments in federal tax legislation. In this Article, Richard A. Westin summarizes this recent legislation in an attempt to discover what direction Congress seems to be moving with regard to energy and the environment. He describes legislation affecting a number of relevant industries, provides information on predicted revenue effects, and offers brief commentary on each development. s of this writing, oil prices are well above $60 per barrel, discussion of climate change is increasing, and Middle East politics are disturbingly unstable. Yet the United States depends on Middle Eastern oil, and an oil cutoff could deeply imperil the U.S. economy. The past two years have witnessed significant federal tax legislation, a good part of which is directed towards energy independence and the environment. The first piece of major legislation is the American Jobs Creation Act of 2004, and the second is the Energy Tax Incentives Act of 2005 (2005 Energy Tax Act). The third is the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (referred to as the 2005 Transportation Act). The Gulf Opportunity Zone Act of 2005, the Tax Increase Prevention and Reconciliation Act of 2005, and the Tax Relief and Health Care Act of 2006 amended the foregoing Acts in modest ways.

Legal Ramifications of Revisions to Executive Order 12866

by Panel discussion

Editors' Summary: On March 2, 2007, the Environmental Law Institute held a seminar on the legal effects of President George W. Bush's revisions to Executive Order No. 12866. Panelists shared their expertise on a variety of topics surrounding the issue, including: the substance of the revisions; the cumulative impact of executive review; and the current state of Chevron deference. Below is a transcript of the event.

Use of Motive Evidence in Judicial Review of Downzonings

by Michael Allen Dymersky and Jesse J. Richardson Jr.

Editors' Summary: In this Article, Michael Allen Dymersky and Jesse J. Richardson Jr. examine the widespread rule of judicial review that a court should not consider evidence of motive in reviewing legislative actions by local government. They evaluate the rule in the context of a rezoning case in Highland County, Virginia, in which a group of plaintiffs conclusively established that improper motive prompted one supervisor to vote in favor of rezoning the subject property. The Highland County Circuit Court invoked the rule against judicial review of motive evidence to foreclose any consideration of the admitted improper personal motives that had inspired that particular rezoning. The authors conclude that the rule against judicial review of motive evidence has outlived its usefulness in the context of rezonings and urge a legislative intervention.