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Volume 38, Issue 7 — July 2008

Articles

Confusion About "Change in Value" and "Return on Equity" Approaches to the <i>Penn Central</i> Test in Temporary Takings

by William W. Wade

Editors' Summary: In this Article, William W. Wade evaluates the conceptual measurement of economic impact within the Penn Central test for income-producing properties recently adjudicated in the U.S. Court of Federal Claims and U.S. Court of Appeals for the Federal Circuit. The discussion considers measurement of the denominator of the takings fraction related to Penn Central's parcel as a whole and whether it differs between permanent and temporary takings. He concludes that the Federal Circuit's recent decision to rely on change in value appraisal methods upsets a strong line of precedent that relied on the more appropriate return on equity approach.

 

Further Developments in the D.C. Circuit's Article III Standing Analysis: Are Environmental Cases Safe From the Court's Deepening Skepticism of Increased-Risk-of-Harm Claims?

by Cassandra Sturkie and Suzanne Logan

Editor's Summary: Following the issuance of two significant decisions in 2006 addressing whether claims of "probabilistic" injury are cognizable for Article III standing purposes, the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit has continued to develop its jurisprudence on this important constitutional question. In this Article, Cassandra Sturkie and Suzanne Logan examine how the D.C. Circuit has analyzed these "increased-risk-of-harm" claims in four cases decided between November 2006 and January 2008. They consider how the court's analysis has varied depending on the nature of the case, focusing on the court's decision to sidestep claims of increased risk in an environmental case. They give special attention to Chief Judge David B. Sentelle's repeated criticisms of such claims before he became Chief Judge in February 2008, and consider what his leadership might mean for this issue. Finally, they offer new lessons for environmental law practitioners, their clients, and governmental litigants.

From Rip Currents to Flying Umbrellas: Beach Liability Basics and Recent Cases

by Terra Bowling

Editor's Summary: With an array of activities available at the beach and an increasingly litigious society, liability issues are a major concern for beach owners and operators. In this Article, Terra Bowling provides an overview of liability issues that could result from accidents at the beach. After examining the role of common law in determining liability, she looks at statutory protections, with examples of laws in Hawaii and New Jersey. She also examines the role of adequate warning signs in beach liability cases. Finally, she reviews some of the most recent litigation surrounding accidents at the beach caused by rip currents, vehicles on the beach, flying objects, equipment rental, and dog bites.

Recent Developments in the Regulation of Hazardous Air Pollutants

by David P. Novello

Editors' Summary: David P. Novello surveys the significant developments in hazardous air pollutant (HAP) regulation in this Article. Since early 2007, EPA has suffered significant reversals in the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit concerning its HAP regulatory program, including the remand of three national emission standards for hazardous air pollutants. In early 2008, the D.C. Circuit also ruled invalid EPA's decision on how to regulate mercury emissions from electric utilities. In light of these recent reversals, the Agency is reworking standards still in development and needs to go back to the drawing board to redevelop maximum available control technology standards for electric utilities. Courts have also ordered the Agency to promulgate a number of "area source" standards by the middle of next year, and EPA has been busy making "residual risk" determinations. This Article describes these cases and controversies surrounding developments in EPA's air toxics program during the eventful past 18 months.

Last Lake Standing: Clean Water Act Jurisdiction in the Alaskan Frontier After <i>Rapanos v. United States</i>

by Matthew A. Axtell

Editors' Summary: Environmental professionals continue to consider the implications of the 2006 U.S. Supreme Court landmark decision regarding CWA jurisdiction, Rapanos v. United States. In this Article, Matthew A. Axtell uses Justice William O. Douglas'travel description of Alaska's Last Lake as a hypothetical to test the potential impact of the 2001 SWANCC decision as well as Rapanos on the federal government's CWA authority in Alaska. He begins by analyzing the CWA regulatory regime that applied for many years to Alaskan tundra wetlands before SWANCC and Rapanos. He then suggests that the broad assertions of federal authority under the old regime merit reevaluation in light of the Supreme Court's recent decisions. Finally, he applies concepts and guidance derived from SWANCC and Rapanos to the Last Lake hypothetical, studying whether the area may possess the physical, chemical, biological, and hydrological characteristics now necessary to qualify as a water of the United States subject to the CWA.

 

The Float a Boat Test: How to Use It to Advantage in This Post-<i>Rapanos</i> World

by William W. Sapp, Rebekah Robinson, and M. Allison Burdette

Editors' Summary: Since the Supreme Court's decision in Rapanos v. United States, courts, practitioners, and scholars have continued to discuss Justice Anthony M. Kennedy's significant nexus test. Under this test, to protect a wetland one must establish that there is a significant nexus between the wetland and a traditional navigable water. In this Article, authors William W. Sapp, Rebekah Robinson, and M. Allison Burdette suggest that the nearer a traditional navigable water is to the wetland, the better the chance of establishing that there is a significant nexus between the two. The authors then argue that it is in the interests of those protecting the wetland to close the gap between the wetland and the nearest traditional navigable water by showing that canoes and kayaks can navigate any creeks or small rivers close to the wetland.