Smart Growth admits of no clear definition. It provides a popular label for a growth strategy that addresses current concerns about traffic congestion, disappearing open space, nonpoint source pollution, the high cost of housing, increasing local property taxes, longer commutes, and the diminishing quality of community life. To accomplish smart growth, government must take two related actions. The first is the designation of discrete geographical areas into which private market growth pressures are directed.

In the west Chicago suburb of Sugar Grove—population 4,000, twice what it was 10 years ago—new large-lot developments spread spider-like from the downtown public library, police station, and village hall out into open farmland. The village has no sizeable employers or large shopping centers, and has limited recreational facilities. All those things are available close by in other suburbs and, of course, in the city of Chicago. After elementary school, children travel to neighboring suburbs for high school.

Timothy S. Bishop and Cristina C. Tilley, litigators in the Chicago office of Mayer, Brown, Rowe & Maw, offered up a Dialogue in the July 2002, issue of the Environmental Law Reporter News & Analysis entitled Smart Growth or Dumb Bureaucracy? They didn't cite the Article I wrote with my law partner of 25 years, Gurdon H. (Don) Buck, Smart Growth, Dumb Takings, which was also published in this august periodical. I don't think we own the form of the title beginning with "Smart" and linked to "Dumb," but it would have been nice to have been recognized.

The preservation of open space has captured the public's imagination. Taxpayers are lining up to vote in favor of referenda authorizing their local or state governments to borrow funds to purchase open land or its development rights. Environmental groups are forming coalitions to support public acquisition of open space and the adoption of laws regulating development in and around open lands. Opponents of urban sprawl target the loss of open space as one of the major impacts of runaway development.

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. may prove to be the most important environmental decision since Chevron, U.S.A., Inc. v. Natural Resources Defense Council. Laidlaw's primary significance lies in its discussion of the injury component of the U.S. Supreme Court's now familiar three-part standing test.

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 law students frequently discover during exams, the law of standing is easy to state but hard to apply. The basic rules are simple and well-settled. Under Article III of the U.S. Constitution, in order to invoke federal jurisdiction, the plaintiff must demonstrate the existence of an "injury-in-fact" that is "legally cognizable," "fairly traceable" to the defendant, and capable of being "redressed" by the court. Each of the terms in quotation marks seems clear enough on the surface but has proved remarkably tricky in practice.

adapted from Layla (by Eric Clapton and Jim Gordon)

What do we do when we get sued now

If the Supremes aren't on our side?

If we can't rely on standing constraints

Do they expect us to comply?

For the last several years, federal circuit courts have debated the exact jurisdictional scope of §404 of the Clean Water Act (CWA), which authorizes the Secretary of the U.S. Army (the Army), acting through the U.S. Army Corps of Engineers (the Corps), to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." The circuit courts have based their debates on the assumption, well-supported by earlier CWA decisions, that Congress intended the term "navigable waters" within the CWA to extend to the limits of the U.S. Commerce Clause.

Environmentalists are no strangers to disappointment in the U.S. Supreme Court, but the recent case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) is particularly disappointing. First, it might be said that the impact of the opinion, in circumstances in which legislative amendment is virtually impossible, may be the most devastating judicial opinion affecting the environment ever.