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Trends In Constitutional Environmental Law, James R. May
Trends In Constitutional Environmental Law, James R. May
James R. May
This article is about the growing field at the intersection of environmental and constitutional law. Thirty years ago, constitutional issues rarely arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are decided on constitutional grounds invoking no fewer than 18 issues. These include the extent to which Congress can regulate activities that are either traditionally intrastate or not inherently economic in nature (the Commerce Clause), preempt state causes of action (Supremacy Clause), and prescribe state functions (10th Amendment) or subject them to federal actions (11th Amendment). Other issues include whether states can burden …
The Methamphetamine Remediation Research Act Of 2005: Just What The Doctor Ordered For Cleaning Up Methfields—Or Sugar Pill Placebo?, Aaron R. Harmon
The Methamphetamine Remediation Research Act Of 2005: Just What The Doctor Ordered For Cleaning Up Methfields—Or Sugar Pill Placebo?, Aaron R. Harmon
Aaron R. Harmon
Methamphetamine labs can be set up anywhere. One batch of methamphetamine produces five to seven pounds of toxic byproduct. These contaminants are often dumped at the production site and, along with airborne contaminants from the cooking process, leave behind a “methfield.” States have developed widely divergent standards for methfield remediation. This Comment examines the solution proposed under the Methamphetamine Remediation Research Act of 2005 (“MRRA”). Part II provides some background on methamphetamine use, production, and cleanup. Part III reviews how methfields have been addressed by state and federal agencies. Part IV evaluates the MRRA and assesses its potential contributions to …
New Orleans, The Chesapeake, And The Future Of Environmental Assessment: Overcoming The Natural Resources Law Of Unintended Consequences, Erin Ryan
Erin Ryan
This piece tells the tale of two disappearing wetlands—those surrounding Louisiana's Gulf Coast and those fringing the Chesapeake Bay—each providing new insight into the old quandary of unintended consequences that lies at the center of natural resource management. Louisiana's losses follow three hundred years of natural resource engineering to accomplish effective flood control along the Mississippi River, while the Chesapeake losses follow implementation of among the most meticulous wetlands-protection programs of its time. And yet, New Orleans suffered a catastrophic flood, and Chesapeake wetlands continue to disappear. How could this happen? Call it the “Natural Resources Law of Unintended Consequences.” …
Vantage Point & Issue Editor, Transboundary Conflicts Issue, David R. Hodas
Vantage Point & Issue Editor, Transboundary Conflicts Issue, David R. Hodas
David R. Hodas
No abstract provided.
Clean Water Act Developments: The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
Clean Water Act Developments: The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
James R. May
This article provides the latest developments about TMDL lawsuits nationally. It concludes that the results of TMDL settlements are mixed, least so where it matters most. The glory is that EPA has reviewed anew, or had the states review, readily existing and available water quality related data and information for 40,000 waters, finding 20,000 more ones impaired, bringing the national total to 60,000. EPA has agreed to "backstop" TMDL development for about 20,000 of these, and set or approved TMDLs for 10,000 impaired waters. EPA has for the first time reviewed and evaluated CPPs in six states. It has conducted …
Clean Water Act Npdes Developments In The Courts, James R. May
Clean Water Act Npdes Developments In The Courts, James R. May
James R. May
Although the Clean Water Act has been in effect for over thirty-three years, many aspects of the Act remain for the Supreme Court to define. In fact, the Court is still called upon to determine certain threshold questions about the Act’s scope and jurisdiction, permits, water quality standards and enforcement. One central question has been the definition of “navigable waters” as it relates to wetlands. The purpose of the Act is to protect the nation’s waters, and a logical question that the Court must address is “to what extent can wetlands be included as navigable waters?” Two cases have been …
Palazzolo, The Public Trust, And The Property Owner’S Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan
Erin Ryan
South Carolina recently promulgated new guidelines regulating the State’s consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina’s formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the …
Constituting Fundamental Environmental Rights Worldwide, James R. May
Constituting Fundamental Environmental Rights Worldwide, James R. May
James R. May
This article discusses the extent to which nations worldwide have constituted such “fundamental environmental rights” (FERs). Constitutions provide a framework for social order. They also reflect a paradox. While constitutions are usually the product of a convulsive event of majoritarian democracy, most contain antimajoritarian features designed to protect so-called fundamental rights against the tyranny of the majority. Traditional fundamental rights, such as those found in the Bill of Rights to the Constitution of the United States, include protecting for its citizens free speech, religious exercise and voting rights. Does a fundamental, enforceable, individual right to a clean and healthy environment …
“Addition,” “Pollutant,” “Point Source”: Recent Case Developments Affecting The Scope Of Activities Covered By The Cwa, James R. May
“Addition,” “Pollutant,” “Point Source”: Recent Case Developments Affecting The Scope Of Activities Covered By The Cwa, James R. May
James R. May
This article examines recent developments in the interpretation of the words “addition,” “pollutant,” and “point source,” as used in the Clean Water Act. These words have been the subject of much controversy and many interpretations as the CWA leaves them undefined. The Supreme Court has concluded most notably that the transfer of polluted water within the same body of water does not constitute “addition,” however the transfer of pollutants from one body of water into another is addition. Similarly, much controversy has surrounded the possibility of pesticides, lead shot and erosion as additions. Most recently courts have found that pesticides …
Runoff And Reality: Externalities, Economics, And Traceability Issues In Urban Runoff Regulation, Donald J. Kochan
Runoff And Reality: Externalities, Economics, And Traceability Issues In Urban Runoff Regulation, Donald J. Kochan
Donald J. Kochan
It has long eluded regulators and private enforcers how to control the imposition of negative externalities. This paper will examine: (1) Whether existing authorities (like the Clean Water Act) are capable of providing regulation of urban runoff; (2) Whether, in light of economic controls, regulation of these activities are necessary; (3) A summary of recent runoff litigation; and (4) What is next; what should be next? Although each of these questions form background, the primary emphasis currently anticipated for this presentation is on traceability, collective action, and free rider problems that motivate regulation in this area. Often runoff is described …