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Articles 1 - 19 of 19
Full-Text Articles in Law
Preservation Is A Flawed Mitigation Strategy, Jessica Owley
Preservation Is A Flawed Mitigation Strategy, Jessica Owley
Jessica Owley
The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it …
Privatizing Regulatory Enforcement: A Preliminary Assessment Of Citizen Suits Under Federal Environmental Laws, Barry Boyer, Errol Meidinger
Privatizing Regulatory Enforcement: A Preliminary Assessment Of Citizen Suits Under Federal Environmental Laws, Barry Boyer, Errol Meidinger
Errol Meidinger
This article provides a preliminary assessment of the potential effects of the privatization of regulatory enforcement and speculates on what such a realignment might portend for the regulatory process. Based primarily on an indepth review of the first wave of citizen suits brought under the federal Clean Water and Clean Air Acts, it identifies four key problems that can undermine the citizen suit as a device for regulatory enforcement: (1) Citizen suits must surmount a series of doctrinal barriers that could make it difficult or impossible to mount an effective private enforcement campaign. Courts have generally been able to control …
Water, Growth And The Endangered Species Act, Holly Doremus
Water, Growth And The Endangered Species Act, Holly Doremus
Water, Growth And The Endangered Species Act, Holly Doremus
Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris
Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris
Mary Jane Angelo
This article will explore a number of legal mechanisms that could play a role in ensuring that discharges from agricultural activities do not cause or contribute to violations of water quality standards. Specifically, this article will evaluate the relative effectiveness of: (1) narrative nutrient criteria as compared with numeric nutrient criteria; (2) Total Maximum Daily Load (TMDL) implementation through regulatory and non-regulatory mechanisms; and (3) the relative efficacy of design-based standards such as Best Management Practices (BMPs) and performance-based standards in reducing water pollution from agriculture. The article will draw on experiences from the State of Florida, including Everglades' restoration …
The Bubble Concept In Water Pollution Control, Emily Sherwin
The Bubble Concept In Water Pollution Control, Emily Sherwin
Emily L Sherwin
No abstract provided.
Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy
Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy
Alyson Flournoy
This article focuses on three controversies that have dominated debate over wetlands -- jurisdiction, delineation, and the scope of activities regulated by section 404 -- and shows how the limitations inherent in section 404 have contributed to endless conflict over these issues, with little long-term benefit to policy development. This article examines why wetlands policy has failed to mature in its first thirty years.
On Integrity: Some Considerations For Water Law, Christine A. Klein
On Integrity: Some Considerations For Water Law, Christine A. Klein
Christine A. Klein
Expanding upon the aspects of integrity protected under the Clean Water Act, this Article will explore the relevance to water law of chemical,physical, ecosystem, social, and ethical integrity. Just as the Clean Water Act intended to prevent unacceptable "perturbations" of ecosystems, so also this Article will consider the extent to which the law itself may work an unacceptable perturbation of fundamental hydrologic and social principles. In many instances, water policy compartmentalizes the law in ways that have little to do with hydrologic reality and in ways that are antithetical to wholeness and integrity. Examples include the legal bifurcation of surface …
Compartmentalized Thinking And The Clean Water Act, Christine A. Klein
Compartmentalized Thinking And The Clean Water Act, Christine A. Klein
Christine A. Klein
Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In …
A Difference Of Significance: How The Supreme Court Clouded Wetlands Jurisdiction., Michael Hasty
A Difference Of Significance: How The Supreme Court Clouded Wetlands Jurisdiction., Michael Hasty
Michael D. Hasty
Recent opinions by the Supreme Court have disrupted the scheme envisioned by Congress to regulate wetlands (see § 404 of the Clean Water Act). This article explores this issue by tracing the development of wetlands law. It then assesses current application of the Court’s tests, through the lens of two recent opinions in the Fourth and Sixth Circuits. The paper then summarizes outcomes in the circuits, with emphasis on their lack of uniformity in application. Further, the paper assesses the agencies response to clarify wetland jurisdiction through rulemaking. Finally, the underlying constitutional issues in the Court’s opinions are explored.
The Viability Of Citizens’ Suits Under The Clean Water Act After Gwaltney Of Smithfield V. Chesapeake Bay Foundation, Bevery Mcqueary Smith
The Viability Of Citizens’ Suits Under The Clean Water Act After Gwaltney Of Smithfield V. Chesapeake Bay Foundation, Bevery Mcqueary Smith
Beverly McQueary Smith
No abstract provided.
Back To Basics: An Agenda For The Maryland General Assembly To Protect The Environment, Rena I. Steinzor, Lee Huang
Back To Basics: An Agenda For The Maryland General Assembly To Protect The Environment, Rena I. Steinzor, Lee Huang
Rena I. Steinzor
Maryland has a long-held reputation as a regional and national leader in environmental protection. But in some areas, especially enforcement, that reputation warrants scrutiny. For example, Maryland charges less than Pennsylvania and Virginia for some pollutant discharge permits, and the state does not assess permit fees for municipalities despite the resources required to administer those permits. The penalties for violating the Clean Water Act have remained chronically below the level allowed under federal law. Maryland law does not require MDE to penalize polluters for the full amount of the economic gain they achieved by flouting the law, unlike laws in …
Water Quality Trading In The Chesapeake Bay, Rena Steinzor, Nicholas Vidargas, Shana Jones, Yee Huang
Water Quality Trading In The Chesapeake Bay, Rena Steinzor, Nicholas Vidargas, Shana Jones, Yee Huang
Rena I. Steinzor
In May 2009, President Obama issued an Executive Order on Chesapeake Bay Protection and Restoration, declaring the Bay a national treasure and signaling that EPA will play a strong role in leading Bay cleanup. The order marked a dramatic departure, offering the promise of federal leadership on Bay cleanup. The following year, EPA issued a Chesapeake Total Maximum Daily Load (TMDL), a pollution budget for Bay states. Faced with a federal commitment, the states have begun work on complying with the TMDL. One Bay-wide approach under consideration is a market-based initiative, water quality trading, that would allow polluters to trade …
Manure In The Bay: A Report On Industrial Animal Agriculture In Maryland And Pennsylvania, Rena I. Steinzor, Yee Huang
Manure In The Bay: A Report On Industrial Animal Agriculture In Maryland And Pennsylvania, Rena I. Steinzor, Yee Huang
Rena I. Steinzor
This report provides a substantive and detailed look at the concentrated animal feeding operations (CAFO) and other animal feeding operations (AFO) programs in Maryland and Pennsylvania, as well as a general overview of the federal CAFO program. The information in this report was gathered through publicly available resources as well as a series of interviews with agency officials and other individuals who work with the animal agricultural sector. This report identifies concrete and practical recommendations for improving how the waste generated by animal industrial agriculture is managed and controlled by EPA, the Maryland Department of Environment (MDE), and the Pennsylvania …
The "Forest Roads" Case: A Stormy Approach To Judicial Review Of Environmental Regulations, Marie Kyle
The "Forest Roads" Case: A Stormy Approach To Judicial Review Of Environmental Regulations, Marie Kyle
Marie Kyle
No abstract provided.
Science, Politics, Law And The Arc Of The Clean Water Act: The Role Of Assumptions In The Adoption Of A Pollution Control Landmark, Robert L. Glicksman, Matthew R. Batzel
Science, Politics, Law And The Arc Of The Clean Water Act: The Role Of Assumptions In The Adoption Of A Pollution Control Landmark, Robert L. Glicksman, Matthew R. Batzel
Robert L. Glicksman
This article examines the assumptions upon which Congress relied in enacting the 1972 Clean Water Act and the extent to which they have been borne out or belied as the federal and state governments have implemented their statutory responsibilities in the quest to achieve acceptably clean water. It traces the development of federal water pollution control legislation before 1972, highlighting the deficiencies that contributed to the need for a new approach in 1972. It then examines the scientific and technical, political, and legal assumptions that helped shape the 1972 Clean Water Act in an effort to determine whether the failure …
Leviathan Menacing The Gulf Coast: Catastrophic Consequences May Imperil The Rule Of Law, Beau James Brock
Leviathan Menacing The Gulf Coast: Catastrophic Consequences May Imperil The Rule Of Law, Beau James Brock
Beau James Brock
The criminal negligence standard under the Clean Water Act should be one of gross negligence and not merely ordinary negligence and the United States Fifth Circuit Court of Appeals should not be tested on this point of law as it will disagree with the previous findings of the Ninth and Tenth Circuits.
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow
Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow
Donald J. Kochan
Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …