Law Commons^™

Implementing Rapanos - Will Justice Kennedy's Significant Nexus Test Provide A Workable Standard For Lower Courts, Regulators And Developers?, Bradford Mank

Faculty Articles and Other Publications

In 2001, the Supreme Court in SWANCC v. U.S. Army Corps of Engineers held that the Corps lacked authority under the 1972 Clean Water Act to regulate wetlands isolated from navigable waters. The Court held that the CWA's jurisdiction is limited to non-navigable waters that have a significant nexus to navigable waters. SWANCC did not address the Corps' regulation of wetlands near non-navigable tributaries. The courts of appeals are divided over if the Corps may regulate tributary wetlands. Mank, The Murky Future of the Clean Water Act After SWANCC, 30 ECOLOGY LAW QUARTERLY 811-891 (2003).

In 2006, the Supreme Court …

Protecting Intrastate Threatened Species: Does The Endangered Species Act Encroach On Traditional State Authority And Exceed The Outer Limits Of The Commerce Clause, Bradford Mank

Faculty Articles and Other Publications

After the Supreme Court decided Lopez, a number of commentators speculated about its impact on the Endangered Species Act. This Article reexamines the issue in light of Morrison and SWANCC. Part V demonstrates that, even after Lopez, Morrison, and SWANCC, the Commerce Clause reaches federal regulation of intrastate endangered or threatened species because conservation of such species has traditionally been a shared federal and state function that recognizes the legitimacy of federal regulation whenever the need for preservation is great and states have failed to address important conservation issues. Additionally, Part V shows federal regulation of endangered or threatened species …

American Mining Congress V. Army Corps Of Engineers: Ignoring Chevron And The Clean Water Act's Broad Purpose, Bradford Mank

Faculty Articles and Other Publications

Part I of this article will provide a brief introduction to section 404 of the Clean Water Act. Part II will examine the Tulloch rule. Part III will examine the district court's opinion. Finally, part IV will demonstrate that section 404(a) is ambiguous regarding whether incidental fallback from dredging may in some circumstances constitute disposal under the statute and, accordingly, that under the Chevron doctrine the district court erred in failing to defer to the agencies' Tulloch rule.

Is A Textualist Approach To Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better Than Judicial Literalism, Bradford Mank

Faculty Articles and Other Publications

This Article provides both anecdotal evidence and a more theoretical argument for why textualist statutory interpretation is not the best approach to address environmental. issues.