Several prominent academic critics of regulation, most notably Cass Sunstein and Justice Stephen Breyer, claim that our regulatory system does not establish sensible priorities.² Their reform recommendations seek to correct this problem—to get our priorities straight. What, however, precisely does it mean to say that we do not have our priorities straight? This Article develops a theoretical framework to address this question.

In the past 30 years, international environmental law has grown from an obscure field to one of the most dynamic and important areas in contemporary international law. The growth in the significance of international environmental law contrasts with the neglect experts detect in the use of international law to help protect public health.

The U.S. Environmental Protection Agency (EPA) appears to be genuinely interested in promoting the development of environmental management systems (EMSs) for businesses, municipalities, universities and colleges, and other nongovernmental organizations (NGOs). In November 2000, EPA issued an EMS Action Plan that contains strong advocacy and credible new program initiatives to encourage the use of EMSs to reduce environmental impacts and to improve environmental performance.

The Endangered Species Act (ESA or Act)² has been in Congress' gun sights for a number of years. The regulated community has decried the impossibility of balancing strong economic development with species protection. Local governments have been hit with lawsuits and held liable under the ESA for "take" in connection with traditional permitting decisions. In this atmosphere, few gave the ESA very long to live. However, developments in the Pacific Northwest bring to mind Mark Twain's pithy comment: "The reports of my death are greatly exaggerated."

WENDY WAGNER: Welcome to the Panel on Science, Agencies, and the Courts. This panel is sponsored by the Environmental Natural Resources Regulation Committee of the Administrative Law and Regulatory Section of the [American Bar Association (ABA)], and also co-sponsored by the Standing Committee on the Environment of the ABA.

I. Introduction

I. Introduction

Farms and farming are intrinsically linked with human civilization, and have had a dramatic impact on our planet's landscape and environmental systems.¹ Environmental regulation in the United States, though young when compared to other fields of law, is a highly developed body of law. Unfortunately, a wide chasm exists between these two social endeavors—farms are virtually unregulated by the expansive body of environmental law that has developed in the United States in the past 30 years.

In its landmark decision in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,² the U.S. Supreme Court established that temporary regulatory takings must be compensated under the Fifth Amendment's Takings Clause.³ However, neither First English nor the Court's subsequent cases have comprehensively defined what constitutes a "temporary regulatory taking." Recently, the U.S.

Few environmental cases have received as much attention as American Trucking Ass'n v. U.S. Environmental Protection Agency,² recently argued before the U.S. Supreme Court. Even readers of the mainstream press³ are aware that industrial petitioners have urged the Court to inject cost-benefit considerations into the Clean Air Act (CAA) ambient air quality standard-setting process, and in effect overrule the 20-year Lead Industries Ass'n v. U.S. Environmental Protection Agency⁴ precedent of the D.C.