Law Commons^™

The Supreme Court And The Ppl Montana Case: Examining The Relationship Between Navigability And State Ownership Of Submerged Lands, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court held in PPL Montana v. Montana held that the State of Montana did not own the beds beneath certain rivers and, therefore, rejected the State's claim that the power company owed it millions of dollars in "back rent" for the use of the riverbeds as sites for ten of its hydroelectric power plants. The Montana Supreme Court, which had ruled in favor of the State, declared that even if portions of a river were not navigable for commercial purposes because of physical conditions, the entire river would be treated as navigable if commercial traffic could …

The Sustainable Development Principle In United States Environmental Law, Michael P. Healy

Law Faculty Scholarly Articles

The American public perceives the principle of sustainable development and sustainability, the shorthand nomenclature, through green-tinted lenses. Whether the user of the term is academic, corporate, or governmental, the advocate of sustainability is understood as an advocate of protecting the environment. The international legal understanding of the principle of sustainable development, however, is more ambiguous than this popular American understanding.

Part II of this Article describes the important principle of sustainable development in modern international environmental law. It discusses how the sustainable development principle has evolved from its initial appearance in the 1987 Brundtland Commission Report through its central position …

Law, Policy, And The Clean Water Act: The Courts, The Bush Administration, And The Statute's Uncertain Reach, Michael P. Healy

Law Faculty Scholarly Articles

The development of the jurisdictional reach of the Clean Water Act ("CWA") reflects a hybrid of the judicial determination of the clear legal requirements of the CWA and the exercise of discretionary agency policymaking in the form of legal requirements that are binding on both agency and regulated party. This distinction in the content of administrative law was not altogether clear prior to the Supreme Court's 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council. Today, the distinction is fundamental to administrative law and important to assessing the evolution of the scope of CWA jurisdictional waters because the …

Information Based Regulation And International Trade In Genetically Modified Agricultural Products: An Evaluation Of The Cartagena Protocol On Biosafety, Michael P. Healy

Law Faculty Scholarly Articles

This Article considers the regulation of international trade in genetically modified agricultural products. Specifically, it addresses both products released into the environment as seeds and products intended for consumption as food. The first part of the Article describes the significance of genetically modified organisms (GMOs) in modem agriculture, especially agriculture in the United States. This discussion summarizes the risks and potential benefits associated with the use of agricultural GMOs, especially the risks and benefits related to biodiversity. The Article then briefly describes the approaches to the regulation of these products adopted in the

Cartagena Protocol to the Convention on Biological …

Standing In Environmental Citizen Suits: Laidlaw’S Clarification Of The Injury-In-Fact And Redressability Requirements, Michael P. Healy

Law Faculty Scholarly Articles

In its first week of business during the new millennium, the U.S. Supreme Court decided Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., and provided important clarifications about the law of standing in environmental citizen suits. Specifically, the Court rejected the narrow view of environmental injury-in-fact advocated by Justice Scalia and instead adhered to the broader view of injury-in-fact established in a nonenvironmental context by the Court's decision in Federal Elections Commission v. Akins. As importantly, the Court also addressed the redressability requirement of Article III standing in Laidlaw. Here too, the Court did …

16th Annual Environmental Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, Christopher R. Fitzpatrick, Carl W. Breeding, Timothy J. Hagerty, Marc S. Murphy, Wanda Ballard Repasky, Clinton J. Elliott, Thomas W. Fitzgerald, Dennis J. Conniff, Laura D. Keller, W. Blaine Early, Eric A. Braun, Michael P. Healy, Glenna Jo Curry, James L. Dickinson, W. Patrick Stallard, Richard H. Underwood

Continuing Legal Education Materials

Materials from the 16th Annual Environmental Law Institute held by UK/CLE in May 2000.

15th Annual Environmental Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, W. Blaine Early Iii, Timothy J. Hagerty, E. Allen Kyle, Lee Colten, Tom C. Van Arsdall, John R. Leathers, Clinton J. Elliott, Thomas J. Fitzgerald, Jeffrey M. Sanders, Richard H. Underwood, Bradley E. Diillon, Henry L. Stephens, Lauren Anderson, David A. Smart

Continuing Legal Education Materials

Materials from the 15th Annual Environmental Law Institute held by UK/CLE in March 1999.

Book Review Of Policy Making In An Era Of Global Environmental Change (R. E. Munn, J. W. M. La Riviere & N. Van Lookeren Campagne Eds., 1996), Michael P. Healy

Law Faculty Scholarly Articles

In this book review, Michael P. Healy examines Policy Making in an Era of Global Environmental Change (R. E. Munn, J. W. M. la Riviere & N. van Lookeren Campagne eds., 1996).

England's Contaminated Land Act Of 1995: Perspectives On America's Approach To Hazardous Substance Cleanups And Evolving Principles Of International Law, Michael P. Healy

Law Faculty Scholarly Articles

An important contemporary problem in environmental regulation concerns the cleanup of property that is an unfortunate legacy of the modem industrial age—acres of land affected by past inadequate disposals of toxic substances. The United States began to address this problem in 1980 with the enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). CERCLA establishes both a liability regime for assigning the costs of cleaning up lands contaminated by the release of hazardous substances and regulatory requirements defining how those cleanups are to be pursued. In 1995, England enacted the Contaminated Land Act (alternatively referred to as the …

Still Dirty After Twenty-Five Years: Water Quality Standard Enforcement And The Availability Of Citizen Suits, Michael P. Healy

Law Faculty Scholarly Articles

When Congress enacted the Federal Water Pollution Control Act, commonly known as the Clean Water Act, it established a pollution control regime that imposed a baseline level of technology-based pollution control, and was designed to ensure that water quality would not fall below certain standards. Twenty-five years after the enactment of the Clean Water Act, success may be claimed with regard to technology-based controls. Achieving water quality standard (WQS) compliance has proved much more difficult. Indeed, evaluated from a variety of perspectives, the enforcement of the water quality-based system of pollution control must be viewed as a failure.

In light …

Book Review Of Joel A. Mintz, Enforcement At The Epa: High Stakes And Hard Choices (1995), Michael P. Healy

Law Faculty Scholarly Articles

In this book review, Michael P. Healy discusses Enforcement at the EPA: High Stakes and Hard Choices by Joel A. Mintz.

The Effectiveness And Fairness Of Superfund's Judicial Review Preclusion Provision, Michael P. Healy

Law Faculty Scholarly Articles

This article examines the effectiveness and fairness of section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). That broadly-worded provision forecloses judicial review of Superfund cleanups prior to enforcement or cleanup completion by requiring that any review action fall within several narrowly-defined exceptions.

After providing an overview of the statute, its enforcement mechanisms, and a context for considering section 113(h), the article summarizes how courts have applied CERCLA's timing of review provision, focusing principally on recent interpretations of the provision. Finally, the article evaluates the effectiveness and fairness of CERCLA review preclusion and concludes by …

Current Issues In Environmental Law, Office Of Continuing Legal Education At The University Of Kentucky College Of Law, W. Henry Graddy Iv, Jack C. Bender, Thomas W. Fitzgerald, Carl W. Breeding, Marcus P. Mcgraw, Phillip J. Shepherd, David J. Smart, Dennis J. Conniff, Lloyd R. Cress Jr., E. Douglas Stephan, James L. Dickinson, Todd E. Leatherman, Elizabeth U. Natter, W. Patrick Stallard, Rick L. Thomas, Bradley E. Dillon, Vanessa M. Berge, Ronald R. Van Stockum Jr.

Continuing Legal Education Materials

Materials from the Current Issues in Environmental Law seminar held by UK/CLE in April 1995.

Regulatory Takings And Wetland Protection In The Post-Lucas Era, Richard C. Ausness

Law Faculty Scholarly Articles

In June 1992, the United States Supreme Court decided Lucas v. South Carolina Coastal Council. The case involved a claim for compensation against the State of South Carolina by a landowner who was prohibited from placing structures on two of his beachfront lots. The Court declared that the landowners must be compensated when government regulations deprive them of all economically beneficial or productive uses of their property unless the proscribed uses were not permitted as part of their original titles.

Although some legal commentators have praised the Lucas decision, others have strongly condemned it. A common criticism of Lucas …

The Preemption Of State Hazardous And Solid Waste Regulations: The Dormant Commerce Clause Awakens Once More, Michael P. Healy

Law Faculty Scholarly Articles

Last term, for the first time since its watershed decision in Philadelphia v. New Jersey, the Supreme Court considered the extent to which the Commerce Clause of the United States Constitution constrains a state's ability to regulate the disposal of hazardous and solid waste within its borders. In two cases, Chemical Waste Management, Inc. v. Hunt and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources, the Supreme Court acted to limit substantially states’ ability to respond independently to the crisis of solid and hazardous waste disposal. The Article describes the harmful impact of the Court's …

Judicial Review And Cercla Response Actions: Interpretive Strategies In The Face Of Plain Meaning, Michael P. Healy

Law Faculty Scholarly Articles

This Article examines the role courts play under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) in cleaning up releases of hazardous substances. Congress intended the courts to have an important role in implementing the cleanup process-particularly in defining the scope of liability for CERCLA cleanups. But Congress also included a broadly-worded provision that forecloses federal judicial review of CERCLA cleanups unless the review action falls within several narrowly-defined exceptions.

Notwithstanding the terms of the provision foreclosing review, litigants have turned to the courts, asserting that immediate review should be available in cases beyond those exceptional proceedings. Those asserting …

Direct Liability For Hazardous Substance Cleanups Under Cercla: A Comprehensive Approach, Michael P. Healy

Law Faculty Scholarly Articles

In enacting the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), Congress intended to impose liability for hazardous substance cleanups on all parties responsible for a site's use and contamination. However, in implementing the CERCLA liability scheme, courts have issued opinions offering unclear and misguided explanations of their decisions. The author suggests that, to properly assure CERCLA's proper operation, the basis for the imposition of liability must be clarified. To this end, the author examines the prescribed liability for individuals, parent corporations and secured creditors and explains the appropriate grounds for the responsibility of each.

Water Rights, The Public Trust Doctrine, And The Protection Of Instream Uses, Richard C. Ausness

Law Faculty Scholarly Articles

Our society uses water for a variety of productive purposes, including domestic, agricultural, mining, manufacturing, and energy development. Most of these uses require physical removal of water from watercourses or ground water aquifers. Water can also serve useful purposes, however, when it remains a lake or stream. Flowing water helps to maintain water quality and furthers other uses such as recreation, aesthetic values, and ecological interests—referred to as “instream uses.”

Large quantities of water must remain in place to safeguard instream uses. At the same time, the increasing demands of consumptive water users are significantly reducing streamflows and lake levels …

Reclaiming Coal Surface Mines In Central Appalachia: A Case Study Of The Benefits And Costs, Richard C. Ausness, Alan Randall, Oren Grunewald, Sue Johnson, Angelos Pagoulatos

Law Faculty Scholarly Articles

Regulatory alternatives for the surface mining industry have come under intense public and political scrutiny in recent years. Recent studies have found that the impacts of federal surface mine reclamation regulations' will be noticeable, but perhaps not as substantial as some had expected. Nationwide, coal production from surface mines would be reduced by about five percent, with a similar increase in underground coal production. The federal reclamation legislation, depending on the regulations eventually adopted for its implementation, is unlikely to be a major disruptive influence in the coal industry or a substantial impediment to the long-run national goal of increased …

Water Use Permits In A Riparian State: Problems And Proposals, Richard C. Ausness

Law Faculty Scholarly Articles

Although adequate supplies of water are generally available in Kentucky, the law governing its use and allocation is much less satisfactory. At present, Kentucky water law is a complex mixture of common law and statutory water rights. The purpose of this article is to evaluate these water rights and suggest a number of improvements. Part I will examine the common law rules as they relate to both surface water and ground water. Part II will focus upon Kentucky's present system of statutory water use regulation and will identify some of its more serious deficiencies. Part III will recommend some short-range …

Land Use Controls In Coastal Areas, Richard C. Ausness

Law Faculty Scholarly Articles

Prolonged exploitation of coastal resources has caused extensive ecological harm. The alarming decline in the condition of the marine environment has become a matter of serious public concern. This Article will examine some of the environmental problems of the coastal zone and the resulting institutional responses. The first part will delineate a number of problems in the nation's coastal areas. The second part will review the doctrines of property law associated with the ownership of littoral land and their relation to land-use control measures. The third part will evaluate recent coastal management legislation. The fourth part will consider constitutional restraints …

International Environmental Damage Control: Some Proposals For The Second Best Of All Possible Worlds, Stephen J. Vasek Jr.

Law Faculty Scholarly Articles

Recent meetings of international law experts have produced considerable debate over the type of international regime necessary to effectively control pollution. Divergent views expressed range from the "survival approach" of Professor Falk to the "grocery-list approach" of Christian Herter Jr., Special Assistant to the Secretary of State for Environment. The "grocery-list approach" is an operational approach which involves doing what can be done by the use of available means including discussion to define common interests, international agreements based on those shared interests, unilateral action where appropriate and increased use of the UN for a variety of purposes such as environment …