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.
Does the use by migratory birds of isolated, intrastate waters establish enough of a connection to "navigable waters" and interstate commerce to permit federal regulation under the Clean Water Act (CWA) and the U.S. Commerce Clause? The U.S. Army Corps of Engineers thinks so, but courts and commentators have not been entirely sympathetic to the Corps' so-called migratory bird rule. The Fourth Circuit and U.S. Supreme Court Justice Thomas (in a dissent from denial of certiorari) have rejected such a broad jurisdictional reach in no uncertain terms.
The court holds that the New York Air Pollution Mitigation Law is preempted by the Clean Air Act (CAA) and violates the U.S. Commerce Clause. Under Air Pollution Mitigation Law §66-k, an electric generator is assessed an offset penalty when it sells a sulfur dioxide (SO2) allowance to a generator i...
The court affirmed a lower court's grant of summary judgment in favor of a power company charged with modifying its power plants without first obtaining permits in violation of the Clean Air Act's (CAA's) prevention of significant deterioration (PSD) provisions. The company updated its coal-fired ge...
The court vacates the U.S. Environmental Protection Agency's equipment replacement provision (ERP) rule, which expanded the routine maintenance, repair, and replacement exclusion from new source review (NSR) requirements by allowing sources to avoid NSR when replacing equipment that does not exceed ...
The D.C. Circuit granted in part environmental groups' petition for review of a final rule promulgated by the U.S. Environmental Protection Agency (EPA) to regulate "hot spot" analyses undertaken as part of the State Implementation Plan for National Ambient Air Quality Standards transportation proje...
The court dismisses a property owner's Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Resource Conservation and Recovery Act (RCRA), Federal Water Pollution Control Act (FWPCA), and state common-law claims against prior owners of the property and a state agency for r...
New rules are emerging to change the way the government makes decisions about cleanup of hazardous waste sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). These changes have altered Superfund decisionmaking fundamentally and irrevocably, requiring the government to reach for new levels of accountability, rationality, and consistency. Central to the government's ability to meet this challenge is the way in which it makes and explains decisions about acceptable risks and required levels of cleanup.
Editors' Summary: Until recently, the regulation of chemical carcinogens and the regulation of radiological carcinogens developed independently. Different governmental agencies operating under different statutory directives were responsible for addressing the dangers from these carcinogens. As a result, different policies and practices were developed. This Article explores these differences and the record on resolving them. It first examines the history of federal regulation of chemical and radiological carcinogens and summarizes EPA's approach to risk assessments for them.
Editors' Summary: Since 1910, the federal government has played a role in regulating pesticides. At first, the motive was to fight fraud, but as pesticides became more sophisticated and as environmental concerns grew, the government's regulatory efforts became more comprehensive. Now, near the dawn of bioengineered pesticides, with society confronting and reevaluating environmental risks, and with agencies facing fiscal challenges, pesticide regulation continues to evolve. It is a field of concern to the pesticide industry, of course, but in U.S.