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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — October 2011


Power, Politics, and Poison: The Story Behind National Cotton Council of America v. U.S. EPA

by Elisabeth A. Holmes and Charlie M. Tebbutt

For nearly 40 years, EPA allowed application of pesticides directly to or over waters of the United States without an NPDES permit and instead relied on the FIFRA registration process to regulated such pesticide use. Following mixed results from the courts regarding the legality of this practice, the pesticide industry filed a petition for rulemaking and obtained a favorable rulemaking outcome. Nonetheless, the pesticide industry challenged the results of its own rulemaking petition in hopes of obtaining an even more generous rule. The industry’s plan backfired when the Sixth Circuit overturned EPA’s rule, thereby requiring NPDES permitting, and the U.S. Supreme Court refused to hear the industry’s appeal. The pesticide industry is running a full-court press in Congress to pass legislation that would undo the Sixth Circuit decision and return to the old status quo.

Sources of Regulatory Takings Economic Confusion Subsequent to Penn Central

by William W. Wade

The Federal Circuit Cienega X decision imposes insufficient financial analysis of Penn Central’s two economic prongs to satisfy either economic practice or the Penn Central test. The decision’s imposed change in value measurement evaluates only one prong of the Penn Central test. Change in value satisfies the economic impact prong but does not establish severity of the economic impact vis-à-vis frustration of distinct investment-backed expectations (DIBE). Mere diminution is well-known to be inadequate to reveal whether economic viability has been destroyed by the regulatory prohibition. This must be determined with reference to the second economic prong of Penn Central—frustration of DIBE, a simple and definitive financial calculation. Progeny of Cienega X discussed in this Article do not include a complete analysis of the three-pronged Penn Central test.

Treaty-Guaranteed Usufructuary Rights: Minnesota v. Mille Lacs Band of Chippewa Indians Ten Years On

by Peter Erlinder

In Minnesota v. Mille Lacs Band of Chippewa Indians, the U.S. Supreme Court unanimously held that U.S. treaty negotiators severed the perpetual right to use land from formal title to the land in an 1837 (and 1854) Treaty. The Mille Lacs majority and dissent differed only as to whether treaty-guaranteed usufructuary property rights had been abrogated by subsequent events. Two major questions remain after Mille Lacs: (a) did the Anishinabe (Chippewa) have treaty-guaranteed usufructuary rights outside the 1837 and 1854 ceded territory; and (b) if so, are those treaty-guaranteed usufructuary rights also valid today?

Preventing Significant Deterioration Under the Clean Air Act: The BACT Requirement and BACT Definition

by John-Mark Stensvaag

Major emitting facilities are required to comply with BACT standards for each pollutant subject to regulation under the CAA. This requirement—initially thought to be inconsequential—has now become a dominant feature of the PSD program, for the first time subjecting greenhouse gas emissions from stationary sources to federally mandated pollution control standards. This Article is the fifth in a series on the CAA’s complex PSD program. The first four Articles, which appeared in the December 2005, January 2006, January 2008, and January 2011 issues of ELR News & Analysis, focused on baselines, increments and ceilings, on the permit triggers for new facilities, and on area classification and redesignation.


Environmental Tort Litigation in China

by Adam Moser and Tseming Yang

The use of environmental tort claims to compensate pollution victims or to protect the environment and human health is still in an early stage of development in China. Nevertheless, tort cases play an outsized role in China’s environmental law system. From 2004 to 2009, China’s courts heard more environmental pollutionrelated tort cases than pollution-related administrative and criminal cases combined. Since 1998, the number of environmental lawsuits filed with the courts increased at an annual average of 25%.

China’s Environmental Administrative Enforcement System

by Dr. Xuehua Zhang

This Comment presents an overview of China’s environmental administrative enforcement primarily regarding pollution control. It introduces the institutional framework of China’s environmental enforcement at the national and local levels and discusses the role of citizens and courts. The main challenges with China’s environmental enforcement are also presented.

Overview of the Chinese Legal System

by Jingjing Liu

The People’s Republic of China (PRC) was founded in 1949 by the Chinese Communist Party (CCP). For almost three decades after the PRC’s establishment, there was a perception that a formal legal system for many areas of national life was unnecessary since the economy was centrally controlled and conflicts could thus be resolved through mediation or administrative means without reference to legal rights and obligations. However, the “Reform and Open Door” policy in the late 1970s, which began China’s current rapid economic development and initiated the ongoing transition to a market economy, has had enormous implications for the country’s legal development. The 1980s and 1990s saw massive and rapid enactment of laws, including many environmental laws, regulations, and rules.


Key Issues for Reform of TSCA

by Leslie Carothers (moderator), Connie Deford, Andy Igrejas, Mark A. Greenwood, and J. Clarence (Terry) Davies

Several key issues have emerged as pivotal in ongoing efforts to reform the Toxic Substances Control Act (TSCA). Progress on these complex issues is central to the success of TSCA reform. To foster further discussion of these critical topics, the Environmental Law Institute convened a series of issue-specific lunchtime teleconferences during the summer and fall of 2011 to provide a forum for focused dialogue among key players. The first panel of the series, held on June 30, 2011, set the stage for the series by examining the status of TSCA reform in the larger context of the U.S. Environmental Protection Agency’s recent administrative initiatives, state  chemicals laws, technological innovations, and international chemicals programs, such as the European Union’s Registration, Evaluation, and Authorization of Chemicals Program. Panelists also discussed the status of legislative reform efforts.