Congressional efforts to control the actions of the U.S. Environmental Protection Agency (EPA or the Agency) have dominated much of the Agency's history. In the 1980s and early 1990s, Congress cast itself in the role of EPA watchdog—acting to ensure that the Agency carried out environmental laws, often in conflict with Administration officials seen as unsympathetic to those laws.

Garden

Strange

Distorted blades of grass,

Strange

Distorted trees,

Strange

Distorted tulips

On their knees.¹

I. The Importance of Methanex v. United States to American States

In 1998, faced with mounting evidence that many eastern and midwestern states could not comply with national air quality standards for ozone (O₃) pollution due, in part, to emissions originating in upwind states,¹ the U.S.

Pollution of the air, water, and land increases the risk that human beings will fall ill and prematurely die. Laws restricting this pollution begin to reduce the risk of illness and death as soon as they are implemented. Often, however, the people who would have died in the absence of regulation would not have done so for many years, and thus laws restricting harmful pollution may not reduce the rate of premature human mortality for a long time.

In two recent decisions styled South Camden Citizens in Action v. New Jersey Department of Environmental Protection,¹ Judge Stephen M. Orlofsky of the U.S. District Court for the District of New Jersey has seemingly put some teeth in the environmental justice movement. The judge not only found that private parties have a cause of action for violation of the U.S.

A Cautionary Tale

Let us begin with a cautionary and, unfortunately, true tale. The Bethlehem Steel facility at Sparrow's Point, Maryland, is among the largest integrated steel mills in the country, with multiple production lines and a new $ 300 million, state-of-the-art cold rolling mill.¹ With a capacity of 3.7 million tons of steel annually, the plant is a classic "Rust Belt" employer, anchoring Maryland's economy with some 4,000 unionized jobs.²

This short Dialogue is a first stab at trying to unravel the meaning and significance of the U.S. Supreme Court's ruling in Palazzolo v. Rhode Island,¹ issued on June 28, 2001, the last day of the Court's Term. One's assessment of major Court rulings—like red wine in a coolcellar, or, if you prefer, milk sitting in the hot sun—tends to ripen over time. Accordingly, these observations are offered with the caveat that I may think somewhat differently about the case weeks, months, or years from now.

The most significant accomplishment for the U.S. Environmental Protection Agency (EPA) during the decade of the 1990s may have been the critical role that it played in the Clinton Administration's successful campaign to deflect the efforts of regulatory reform advocates in the 104th Congress to replace the existing statutory foundation of environmental law with a much less protective regulatory regime.

Introduction and Overview