The September 2002 edition of the Environmental Law Reporter's (ELR's) News & Analysis published a truly remarkable Article: Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act, by Virginia S. Albrecht and Stephen M. Nickelsburg. A casual reader of the Article might not understand how revolutionary and far-reaching the conclusions and analysis of that Article are, regarding the geographic jurisdiction of the Clean Water Act (CWA).

In December 16, 2002, the U.S. Supreme Court issued a per curiam opinion in the case of Borden Ranch v. U.S. Army Corps of Engineers, affirming the U.S. Court of Appeals for the Ninth Circuit's decision that "deep ripping" of wetlands requires a permit from the U.S. Army Corps of Engineers (the Corps) pursuant to §404 of the Clean Water Act (CWA). However, the Court's opinion did little to elucidate the parameters of CWA jurisdiction over wetlands activities: the Justices split 4 to 4, and their "opinion" consisted of two sentences:

The federal permitting programs of the Clean Water Act (CWA) may be in for an overhaul, judging from a trio of CWA cases that has reached the U.S. Supreme Court in the past three years. The Court's attention to the CWA is welcome news to American farmers, developers, landowners, and state policymakers. During the lengthy hiatus following the Court's 1985 decision in United States v. Riverside Bayview Homes, Inc. (upholding §404(a) regulation of wetlands "adjacent" to "navigable waters"), the U.S. Army Corps of Engineers (Corps) and the U.S.

Editors' Summary: In 1993, EPA issued its final rules for sulfur dioxide allowance allocations under the acid rain provisions added to the Clean Air Act by the Clean Air Act Amendments of 1990 (1990 Amendments). As part of these rules, EPA interpreted the term "allowable 1985 emissions rate" in CAA § 402(18) to mean that all sulfur dioxide emissions from utility plants must be expressed on an annualized basis. EPA incorporated this interpretation into a regulation known as the "emissions limitation annualization factor."

Editors' Summary: As environmental regulation at the federal level has grown increasingly burdensome on states and industry, nearly half of the states, mainly in the South and intermountain West, have responded by preventing their own environmental agencies from promulgating environmental regulations that are more stringent than federal baselines. The author examines many of these restrictions on state regulation, and discusses their causes and potential effects.

Editors' Summary: The Supreme Court's recent Sweet Home decision validated the U.S. Fish and Wildlife Service's regulation defining "harm" under the ESA to include habitat modification. The decision leaves private landowners facing uncertainty regarding what types of actions they may take on their land without causing "harm" to a listed species and thereby committing a "take" of the species in violation of the Act.

Editors' Summary: ESA § 10(j), the Act's experimental population provision, allows the U.S. Fish and Wildlife Service (FWS) to release populations of threatened and endangered species into their historic range without complying with many of the Act's restrictions. This Article examines the statutory, regulatory, and judicial aspects of the experimental population program. It begins by examining the background for Congress' enactment of § 10(j). It then analyzes § 10(j) and the regulations that the FWS issued for implementing § 10(j).

The relationship between trade and the environment was perhaps the hottest issue in the debate over the North American Free Trade Agreement (NAFTA) in 1993.¹ The North American Agreement on Environmental Cooperation (NAAEC), commonly known as the Environmental Side Agreement, was the Clinton Administration's answer to environmentalists' concerns with NAFTA.² After completion of the NAAEC, most major national environmental groups supported NAFTA's passage.³ A central tenet of this support was that the NAAEC's citiz

Much has been said and written about the impediments to environmental and economic progress that the current regulatory system presents.¹ The overly prescriptive "technology enforcing" schemes that prior Congresses created are quickly becoming anachronistic. Technological innovation has been greatly inhibited by the constraints imposed by the "one size fits all" command-and-control approach that the U.S. Environmental Protection Agency (EPA) has pursued for the past 25 years.

Owners of residential property located near, and at risk from, a source of contamination, like owners of property that has actually been contaminated, often find it difficult, if not impossible, to sell their property and usually cannot sell it at a fair market price. From the point of view of prospective buyers, both kinds of property, whether actually contaminated or at risk of contamination, are undesirable.