Environmental Law Commons^™

Protecting Puget Sound: An Experiment In Regional Governance, Katherine Fletcher

Washington Law Review

The 1985 Puget Sound Water Quality Act set in motion an ambitious experiment in regional problem-solving: a comprehensive and coordinated approach to protecting Puget Sound from pollution and degradation. This Article summarizes the challenges of regional governance, reviews the background and implementation of the 1985 Act, and discusses some of the controversies and challenges associated with the effort to protect Puget Sound. Dedication: This Article is dedicated to my father, who raised me with a sense of place.

Nepa At Twenty: Mimicry And Recruitment In Environmental Law, William H. Rodgers, Jr.

Articles

We are gathered here to consider not so much a twenty year-old law but a twenty year-old that has been extraordinarily far-reaching and influential. In its own special way, the National Environmental Polic Act and the environmental assessment that it represents have become the legal equivalent of cultural fads such as Hula Hoops, Rubik's Cubes, and Air Jordans.

A good portion of this conference, I suspect, will be devoted to documenting the many measures of NEPA's significance—the legal business it has generated, the institutional moves it has inspired, the precious places it is credited with saving.

My opening remarks will …

The Clean Water Act: When Dumping Dead Fish Is Not The Discharge Of A Pollutant—National Wildlife Federation V. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988), Cheri Y. Cornell

Washington Law Review

The Clean Water Act defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from a point source." This Note examines National Wildlife Federation v. Consumers Power Co., in which the court held that an addition occurs only when a pollutant is introduced into water from the outside world. The Note argues that legislative history and the structure of the Clean Water Act demand an interpretation of "addition" which includes causing a pollutant to appear in water.

Control Of The Reservation Environment: Tribal Primacy, Federal Delegation, And The Limits Of State Intrusion, Judith V. Royster, Rory Snowarrow Fausett

Washington Law Review

Inter-sovereign disputes over environmental regulation in Indian country are increasingly common. The federal government, individual states, and native nations all assert interests in controlling pollution on Indian reservations; the question of which sovereign should regulate in this area presents complex issues of federal law, native self-determination, and state autonomy. In this Article, the authors trace the roots of federal, state, and tribal authority to control events within reservation boundaries. Applying a three-tiered analysis to the problem, the authors examine: express federal preemption of state pollution control laws; federal program delegation to native governments as a bar to state regulation; and …

The Lesson Of The Owl And The Crows: The Role Of Deception In The Evolution Of The Environmental Statutes, William H. Rodgers, Jr.

Articles

In this world of strategies and counterstrategies, the advantages of the good fake are not to be overlooked. Fakery is an indelible part of the landscape in settings where we readily accept the gaming metaphor—sporting events are the obvious examples. But I wish to emphasize how fakery and deception can play an important role in legal interactions as well, particularly in the writing of the environmental statutes. Environmental lawyers often are fond of borrowing examples from natural history to illustrate propositions of law. There is more to this practice than habit, it seems to me, because the natural laws of …

The Lesson Of The Red Squirrel: Consensus And Betrayal In The Environmental Statutes, William H. Rodgers, Jr.

Articles

The subjects of legislation and legislative change are undergoing a revival of sorts in United States' law schools. The academic community has offered a variety of theoretical visions on the nature of legislation—purposive and rational, irrational and political, the accidental outcome of competing interests, the imperfect product of high philosophy; the legislative process—formal and ritualistic, markets and auctions, plots and cabals, or publicregarding negotiations; and the individual legislators themselves—ritual players, auctioneers, maximizers of political gain, profiteers, and philosopher kings in shiny suits.

This author's personal approach to legal affairs of this sort is to draw on the laws of biology …

The Montreal Protocol: Confronting The Threat To Earth's Ozone Layer, Douglas Hunter Ogden

Washington Law Review

From a deep sleep, I slowly open my eyes and roll off my foam mattress—the foam padding made with chlorofluorocarbons ("CFCs"). My feet touch the carpet-the underlay also made with CFCs. I stumble into the kitchen, to the refrigerator. With the summertime heat, the motor is working overtime. Its coolant, made of CFCs, is keeping my orange juice cold; the foam egg carton, also of CFCs, is keeping my eggs fresh. And there is my breakfast steak: resplendent in its CFC foam package. Time to get to work Jumping into the car, I land in the CFC foam cushion seat, …

The Montreal Protocol: Confronting The Threat To Earth's Ozone Layer, Douglas Hunter Ogden

Washington Law Review

From a deep sleep, I slowly open my eyes and roll off my foam mattress—the foam padding made with chlorofluorocarbons ("CFCs"). My feet touch the carpet-the underlay also made with CFCs. I stumble into the kitchen, to the refrigerator. With the summertime heat, the motor is working overtime. Its coolant, made of CFCs, is keeping my orange juice cold; the foam egg carton, also of CFCs, is keeping my eggs fresh. And there is my breakfast steak: resplendent in its CFC foam package. Time to get to work Jumping into the car, I land in the CFC foam cushion seat, …

The Ghosts Of Fishing Nets Past: A Proposal For Regulating Derelict Synthetic Fishing Nets, Eric J. Fjelstad

Washington Law Review

This Comment examines the extent of the problem of derelict fishing nets. Derelict netting kills shocking numbers of marine life, including species protected by federal laws. International and domestic laws could be used to redress the problem. Laws as currently enforced each have shortcomings, however, and share common difficulties. To solve the problem these shortcomings create, a comprehensive derelict net control system must be instituted. This program should include a method of tracking nets so that liability for loss can be assessed, and incentive systems to decrease both intentional and unintentional loss of netting. Failure to institute derelict net controls …

The Ghosts Of Fishing Nets Past: A Proposal For Regulating Derelict Synthetic Fishing Nets, Eric J. Fjelstad

Washington Law Review

This Comment examines the extent of the problem of derelict fishing nets. Derelict netting kills shocking numbers of marine life, including species protected by federal laws. International and domestic laws could be used to redress the problem. Laws as currently enforced each have shortcomings, however, and share common difficulties. To solve the problem these shortcomings create, a comprehensive derelict net control system must be instituted. This program should include a method of tracking nets so that liability for loss can be assessed, and incentive systems to decrease both intentional and unintentional loss of netting. Failure to institute derelict net controls …

Guerilla Decisionmaking: Judicial Review Of Risk Assessments, William H. Rodgers, Jr.

Articles

This paper describes four types of uncertainty confronted by decisionmakers undertaking risk assessments. It then discusses individual and institutional responses to uncertainty; these include both formal attempts to acquire more information, and pragmatic efforts to isolate and act upon salient considerations. The tendency of decisionmakers to narrow the agenda and search for a decisive datum or metaphor is called guerilla decisionmaking. Courts oversee agency decisions by techniques known widely in the legal community as the hard-look doctrine. This doctrine is defined, and the case law is used to illustrate how courts insist upon identification of salient risk-assessment factors and the …

The Washington Environmental Policy Act, William H. Rodgers Jr.

Washington Law Review

As the Washington State Environmental Policy Act of 1971 (SEPA) approaches its fourteenth birthday, the time is ripe for an assessment of its recent history and foreseeable future. Several SEPA milestones have come and gone in the last several months, and a period of stability is in order. Reported Washington decisions citing SEPA now number close to one hundred; more than fifty of these are decisions of the Washington Supreme Court. The books are closed on the two-year efforts of the Washington Commission on Environmental Policy (the SEPA Commission), whose work culminated in a report to the 1983 Legislature. There …

Scientific Uncertainty And The National Environmental Policy Act—The Council On Environmental Quality's Regulation 40 C.F.R. Section 1502.22, Mark Reeve

Washington Law Review

The National Environmental Policy Act (NEPA) requires federal agencies to prepare Environmental Impact Statements (EIS's) for all major actions significantly affecting the environment. The EIS must disclose and evaluate alternative actions and their environmental consequences. Congress did not address the problem of scientific uncertainty when it passed NEPA. Ten years later, the Council on Environmental Quality (CEQ) tackled the issue by including section 1502.22 in its new regulations governing EIS production. The section provides that if scientific uncertainty exists but can be cured by further research the agency must do or commission the research. If the necessary research is exorbitantly …

Protection Of Biodiversity Under The Public Trust Doctrine, Ralph W. Johnson, William C. Galloway

Articles

The public trust doctrine is an ancient Roman legal doctrine that has been applied in both England and the Umted States. The doctrine traditionally addressed questions of public access to and use of commercially navigable waters for navigation, fisheries and various other uses of the underlying seabeds, lake bottoms, and riverbeds. In recent years, the public trust doctrine has been invoked to protect birds and other wildlife, water quality, ecological and environmental values, and different types of recreation. Although no public trust case has applied the doctrine to protect biodiversity per se, it seems clear by analogy to existing case …

Pollution Control By Effluent Charges: It Works In The Federal Republic Of Germany, Why Not In The U.S., Gardner M. Brown Jr., Ralph W. Johnson

Articles

This article describes the recent Federal Republic of Germany effluent charge law and the political and legal background that permitted this law to be enacted. The impact of that law is assessed, although the assessment is necessarily tentative in view of the short experience with the law to date. The economic and legal implications of enacting an effluent charge law in the United States also are analyzed. Included in this discussion are the advantages and disadvantages of state vs. federal enactment, the constitutional objections that might be raised to such a law, and how it might be coordinated with existing …

Federalism And The Wild And Scenic Rivers Act: Now You See It, Now You Don't, Sally K. Fairfax, Barbara T. Andrews, Andrew P. Buchsbaum

Washington Law Review

This article investigates the proposed designation of the North Coast rivers under WSRA. It chronicles developments in the legal controversy and relates them to the larger issues of land and water management. The shifting legal framework and changing economic and political interests in the North Coast controversy are particularly enlightening to students of federalism. Lawyers are among those who may be tempted to view the North Coast controversy in terms of federal-state conflict or intergovernmental cooperation run amuck, and to view the courts as an umpire in a dispute over authority.

Awards Of Attorneys' Fees To Nonprevailing Parties Under The Clean Air Act—Ruckelshaus V. Sierra Club, 103 S. Ct. 3274 (1983), Ingrid Holmlund

Washington Law Review

The Clean Air Act (the Act) provides that in a suit for judicial review of an agency action under the Act, "the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such [an] award is appropriate." In Ruckelshaus v. Sierra Club, the United States Supreme Court held that this language permits an award of attorneys' fees only to parties who prevail on the merits. In a footnote, the Court extended its holding to sixteen other statutes with identical provisions. This Note will evaluate the soundness of the Supreme Court's holding in Ruckelshaus. …

The Washington Environmental Policy Act, William H. Rodgers, Jr.

Articles

As the Washington State Environmental Policy Act of 1971 (SEPA)'approaches its fourteenth birthday, the time is ripe for an assessment of its recent history and foreseeable future. Several SEPA milestones have come and gone in the last several months, and a period of stability is in order. Reported Washington decisions citing SEPA now number close to one hundred; more than fifty of these are decisions of the Washington Supreme Court.

The books are closed on the two-year efforts of the Washington Commission on Environmental Policy (the SEPA Commission), whose work culminated in a report to the 1983 Legislature. There was …

Environmental Regulation And Regulatory Reform, Douglas M. Costle

Washington Law Review

Regulatory relief asks the wrong question when it asks whether a regulation's benefits justify its costs. True regulatory reform asks how to make regulation fair, reasonable, and effective-that is, both efficient in spending social resources and successful in achieving compliance. Instead of simply devising new procedural burdens to impede the regulator, we ought to focus our regulatory reform efforts on finding effective ways to regulate by stimulating and rewarding industry's efficient compliance with regulation.

Environmental Law—Threshold Determination Of The State Environmental Policy Act: Washington Adopts A More Flexible Approach—Equitable Remedies: Laches Defense Restricted—Hayden V. City Of Port Townsend, 93 Wn. 2d 870, 614 P.2d 1164 (1980), Deane W. Minor

Washington Law Review

The court's rulings on the laches defense and the negative threshold determination represent significant departures from the court's previous decisions. This note will examine the changes in the court's positions and discuss the effect of these changes on future environmental litigation.

A Standard For Judicial Review Of Administrative Decisionmaking Under Sepa—Polygon Corp. V. City Of Seattle, 90 Wn. 2d 59, 578 P.2d 1309 (1978), Michael W. Elsass

Washington Law Review

This note will discuss the necessity of judicial review of administrative decisions which are made after the evaluation of an EIS. The note concludes that the relatively broad standard chosen by the court is appropriate for the review of administrative decisions made under SEPA.

Environmental Law: Progress Toward A Coherent Standard For The "Threshold Determination", John C. Hammar

Washington Law Review

Washington enacted the State Environmental Policy Act (SEPA) in 1971, which required that consideration be given to environmental factors for all developments proposed by either private or public entities. The legislature delegated authority to promulgate rules for SEPA's interpretation and implementation to a specially created state agency, the Council on Environmental Policy (CEP).9 The CEP was specifically directed to detail the procedures for completion of the "threshold determination," the test to determine whether an environmental impact statement (EIS) must be prepared. Responding to this task, it issued the SEPA Guidelines in December 1975, the culmination of two years of extensive …

Environmental Law—The Requirement For An Impact Statement: A Suggested Framework For Analysis—Loveless V. Yantis, 82 Wn. 2d 754, 513 P.2d 1023 (1973); Eastlake Community Council V. Roanoke Associates, Inc., 82 Wn. 2d 475, 513 P.2d 36 (1973); Stempel V. Department Of Water Resources, 82 Wn. 2d 109, 508 P.2d 166 (1973); Juanita Bay Valley Community Association V. City Of Kirkland, 9 Wn. App. 59, 510 P.2d 1140 (1973), John D. Alkire

Washington Law Review

The EIS requirement is the most precise of SEPA's procedural commands. The EIS itself must be a formal, tangible document. Its contents should reflect intelligent, plenary environmental analysis on the part of responsible government officials. The EIS serves as both the showpiece of the developer and as a target for those opposing the project. It is, in final form, no less than an environmental transcript, providing a critical portion of the record for administrative decisionmaking and judicial review. Hence, because of its visibility and required specificity, and the importance of its role in decision-making, the EIS requirement has come to …

The Washington Shoreline Management Act Of 1971, Geoffrey Crooks

Washington Law Review

With approval of the Shoreline Management Act of 1971 (SMA), Washington has joined the increasing ranks of states which are attempting to influence legislatively the course of development of their coastal resources. The Washington Act, unusually broad in scope, concerns not merely "coastal" areas but also shorelines of bodies of water of virtually every description, including lakes and streams so small or so obscure as to be nameless. This article, after briefly describing the circumstances of the SMA's enactment and the prior law, examines and evaluates (to the extent possible based on two years of operation) the resource management program …

The Environmental Coordination Procedures Act Of 1973, Or Ecpa! Ecpa! Rah, Rah, Rah!!, Charles E. Corker, Richard W. Elliott

Washington Law Review

The Washington Legislature in 1973 created procedures, optional with a project developer, for centralized, coordinated processing of the permit applications which state and local government now require for a developer's use of air, water and land. The Act is entitled the Environmental Coordination Procedures Act of 1973 (ECPA), which does not become operative until January 1, 1974. Since its procedures are optional with a project's developer, there is no absolute certainty at the date this article is released for publication that ECPA's coordination will ever be utilized.

The State Environmental Policy Act Of 1971 And Its 1973 Amendments, Charles B. Roe, Jr., Charles W. Lean

Washington Law Review

The intent of this article is to provide an overview of SEPA for the general practitioner. It will discuss generally the Act itself and the rapidly developing federal and state case law, and more specifically the 1973 amendments to SEPA. The article will then suggest both SEPA's shortcomings and possibilities for its improvement.

Clearcutting: Can You See The Forest For The Trees?, James E. Bernstein, Penny Hazelton, Dennis J. Hubel

Articles

The Organic Act of 1897 provided for the establishment and ,management of the national forest and park lands. In West Virginia Division of the Izaak Walton League v. Butz the United States District Court, applying the "plain meaning" of the Organic Act, permanently enjoined clearcutting on the Monongahela National Forest of West Virginia. The meaning of isolated words, however, is rarely determinative of Congressional intent. This article will demonstrate the shortcomings of the court's decision through an examination of the doctrines of statutory construction and analysis of the legislative history and administrative interpretation of the Act and by addressing the …

Siting Power Plants In Washington State, William H. Rodgers, Jr.

Articles

No abstract provided.

Warning: Environmental Law May Be Hazardous To The Environment, Charles B. Roe

Washington Law Review

A book review essay considering Cases and Materials on Environmental Law, by Oscar S. Gray (1970).

Industrial Water Pollution And The Refuse Act: A Second Chance For Water Quality, William H. Rodgers, Jr.

Articles

The primary purpose of this Article is to encourage a forceful implementation of the Refuse Act as a second chance to achieve water quality. The presentation commences in Section I with a brief outline of the dimensions of industrial water pollution and the legal and scientific barriers to effective control. Against this background, Section II summarizes the central features of the Refuse Act, presents a narrative history of its recent renovation, and analyzes the major issues arising under the statute.

Section III discusses the traditional industrial and governmental view of water pollution and how a change in regulatory attitude invites …