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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — September 2012


Illegal Fowl: A Survey of Municipal Laws Relating to Backyard Poultry and a Model Ordinance for Regulating City Chickens

by Jaime Bouvier

As the movement toward keeping backyard chickens continues to grow, many cities are facing the decision of whether to allow residents to keep chickens and, if so, how to effectively regulate the practice. A survey of municipal ordinances in the top 100 most populous cities in the United States that concern keeping and raising chickens offers lessons that may be applied to designing a model ordinance. This survey reveals that chickens are, perhaps surprisingly, legal in the vast majority of large cities. The survey also identifies regulatory norms and some effective and less effective ways to regulate the keeping of chickens. A proposed model ordinance, based on the background information and survey results, could be adopted by a city or easily modified to fit a city’s unique needs.

The Role of Philippine Courts in Establishing the Environmental Rule of Law

by Elizabeth Barrett Ristroph

In 2010, the Philippine Supreme Court led the Philippines to become the first nation with rules of procedure specific to environmental cases. While the Philippines has made great strides in adopting environmental laws and providing access to courts, more work is needed to ensure consistent decisions and to build capacity in both lower courts and government agencies. As shown in the case of Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, the Court will need to find a balance between making environmental laws a reality and taking on more than it can (and should) handle.

Carbon Capture and Storage Program’s NEPA Compliance

by Arnold W. Reitze Jr.

NEPA is a legal tool that can be used to slow or prevent the development and use of energy in the United States. It is also a tool that can be used to help a federal agency make wise decisions and help prevent actions that damage the environment. Several NEPA requirements are related to the funding of carbon capture and storage (CCS) projects, and NEPA environmental impact statements for CCS projects may allow NEPA to aid the decisionmaking process. This Article focuses specifically on NEPA compliance by the U.S. Department of Energy and its National Energy Technology Laboratory.

Hybridizing Federal and State Regulation of Clean Taxis Introduction

by Christina Ma

For years, attempts by states and localities to regulate vehicular emissions have been thwarted by the Supreme Court’s environmental preemption doctrine. These preemption cases emphasize textual, plain-meaning interpretations of the Clean Air Act and the Energy Policy and Conservation Act, which facially preempt any state emission standard inconsistent with federal law. Recent developments in preemption doctrine, however, have emphasized both the presumption against preemption and the importance of cooperative federalism, concepts absent from the Court’s contemporary environmental preemption cases. A more proper balance between federal and state regulation can be found. Namely, the Court should align environmental preemption cases with the more recent preemption developments and give greater weight to legislative purpose. Doing so will give states and localities some power to regulate emissions, while protecting federal interests in the uniformity and commercial feasibility of standards.

Unpave a Parking Lot and Put Up a Paradise: Using Green Infrastructure and Ecosystem Services to Achieve Cost-Effective Compliance

by Robert B. McKinstry Jr., H. David Prior, Jennifer E. Drust, Ana C. Montalbán, and Kimberly D. Magrini

Philadelphia has agreed to implement a long-term plan to employ ecosystem services provided by green stormwater control infrastructure to reduce combined sewer overflows and achieve compliance with the CWA. The $2.5 billion Green City, Clean Waters Program, to be implemented over 25 years as a part of the city’s larger “Greenworks” sustainability initiative, will save the city approximately $8 billion over traditional grey infrastructure.


The Water Marketing Solution

by Mark Squillace

This Article suggests concrete solutions to promote the development of robust water markets. It begins with a review of water transfers in the western United States and historical water use patterns that help illuminate the problem. It then considers opportunities for moving agricultural water to urban use by studying successful water transfer systems. To those who know water allocation law, it will come as no surprise that many of these systems have evolved in the context of special purpose water districts and mutual ditch companies. Since special purpose districts and mutual ditch companies provide well over one-half the water to water users in the West, focusing reform efforts on such agencies could be an efficient way to modernize water transfer law. The Article then derives lessons from these examples and concludes with a series of recommendations for reforming western water law in ways that will promote more sensible water management.

Preenforcement Judicial Review After Sackett: Implications Beyond the Clean Water Act

by Julia E. Stein, Tiffany R. Hedgpeth, and Nancy M. Wilms

On March 21, 2012, the U.S. Supreme Court decided the Clean Water Act (CWA) case Sackett v. Environmental Protection Agency. The Sacketts were private property owners in Idaho who had dredged and filled a portion of their property for future construction. As the property was near a navigable lake, the U.S. Environmental Protection Agency (EPA) asserted the Sacketts were in violation of §311 of the CWA, and issued a compliance order (Order) obligating the Sacketts to remove the fill or be subject to penalties of up to $75,000 per day for each day of noncompliance. The Sacketts contended their property was not subject to the CWA and filed suit in district court, claiming the court had jurisdiction to hear the case even though EPA had not commenced enforcement proceedings against them. Although both the district court and the U.S. Court of Appeals for the Ninth Circuit disagreed, the Supreme Court overturned those rulings, holding 9-0 that the district court did in fact have jurisdiction to consider the Sacketts’ claim that their property was not subject to the CWA. Though lower courts had consistently held the CWA to “impliedly” preclude preenforcement judicial review of a compliance order, the Supreme Court here allowed for such review, and the implications of this decision may have a ripple effect far beyond the reaches of the CWA. This Article explores the possible impact of the Sackett decision beyond the CWA to other key environmental statutes.


Setting the Bar for “Injury” in Environmental Exposure Cases: How Low Can It Go?

by John C. Cruden, Carla Burke, John Guttmann, and Robert V. Percival.

On May 16, 2012, ELI convened a panel of experts to provide an overview and analysis of the tension between regulatory and common-law standards for injury in the context of toxic tort litigation. The speakers discussed and debated emerging trends in toxic tort litigation, including claims for property damage or medical monitoring regarding exposure to environmental contamination that never exceeds applicable regulatory standards. The panel also analyzed recent court opinions on the bounds of “injury” in environmental contamination cases and the potential for plaintiffs to recover damages based upon relatively low concentrations of chemicals. Issues explored by the panel included so-called single molecule theories of toxicological harm, the admissibility of expert testimony in support of such theories, and related federal or constitutional law theories, such as preemption, separation of powers and equal protection.