Editor's Summary: The largest portion of global mercury emissions comes from Asia, in particular China. Because mercury and its compounds are highly mobile and move with prevailing wind currents, China's failure to regulate mercury emissions provides ample reason for worry in the United States. In March 2005, the United States promulgated the Clean Air Mercury Rule (CAMR) to regulate mercury emissions from coal activities. Yet any reductions achieved under the CAMR program may be offset by China's economic plans and energy needs.

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.

Editors' Summary

Editors' Summary: The recent U.S. Supreme Court decision in Rapanos v. United States failed to clarify the murky area of federal jurisdiction under the CWA. Justice Scalia's plurality opinion, requiring a restrictive approach, and Justice Kennedy's concurrence, setting forth a "significant nexus" standard, created two different routes of jurisdictional analysis. In this Article, Jim Farrell and Marie Quintin first discuss how to interpret a plurality opinion.

Editors' Summary: Since the Supreme Court's decision in Rapanos v. United States, courts, practitioners, and scholars have continued to discuss the socalled Kennedy test and its significant nexus criterion. In this Article, authors William W. Sapp, Mina Makarious, and M. Allison Burdette explore the historic navigability test, one tool that can be used to establish a significant nexus to a traditional navigable water. The authors begin by providing a history of traditional navigable waters.

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.

I. Introduction

The September 2002 edition of the Environmental Law Reporter's (ELR's) News & Analysis published a truly remarkable Article: Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act, by Virginia S. Albrecht and Stephen M. Nickelsburg. A casual reader of the Article might not understand how revolutionary and far-reaching the conclusions and analysis of that Article are, regarding the geographic jurisdiction of the Clean Water Act (CWA).

In December 16, 2002, the U.S. Supreme Court issued a per curiam opinion in the case of Borden Ranch v. U.S. Army Corps of Engineers, affirming the U.S. Court of Appeals for the Ninth Circuit's decision that "deep ripping" of wetlands requires a permit from the U.S. Army Corps of Engineers (the Corps) pursuant to §404 of the Clean Water Act (CWA). However, the Court's opinion did little to elucidate the parameters of CWA jurisdiction over wetlands activities: the Justices split 4 to 4, and their "opinion" consisted of two sentences:

The federal permitting programs of the Clean Water Act (CWA) may be in for an overhaul, judging from a trio of CWA cases that has reached the U.S. Supreme Court in the past three years. The Court's attention to the CWA is welcome news to American farmers, developers, landowners, and state policymakers. During the lengthy hiatus following the Court's 1985 decision in United States v. Riverside Bayview Homes, Inc. (upholding §404(a) regulation of wetlands "adjacent" to "navigable waters"), the U.S. Army Corps of Engineers (Corps) and the U.S.