Publicly listed companies have been required to disclose "material" environmental information to investors for over 30 years. Environmental costs can be material when associated with air, groundwater, and waste site remediation, regulatory fines, and litigation that result in losses of millions of dollars, decreased shareholder value, and diminished corporate reputation. Such factors must be disclosed in a company's annual and quarterly reports that are filed with the U.S. Securities and Exchange Commission (SEC).

This Article analyzes the revised new source review (NSR) rule and argues that it violates the Clean Air Act's (CAA's or the Act's) clean air mandate by changing the preexisting definition of the statutory term "change" and by extending the demand growth exclusion to all sources and creating several NSR-exempt project-based construction activities that are applicable to existing sources, without providing meaningful procedural safeguards.

I. Overview

Editors' Summary: Environmental controversies tend to involve multiple stakeholders with varied interests, which may lead to third-party intervention. This Article analyzes three alternative responses to the issue of whether and under what circumstances an intervenor can appeal a district court decision invalidating a federal agency action: the doctrine of rulemaking in the administrative state, the doctrine of prosecutorial discretion, and the doctrine of government control of litigation.

Editors' Summary: Phytosanitary systems have been used for many years, but it is only recently that they have received careful and detailed international scrutiny to ensure that they are fair, effective, and well documented, with appropriate internationally accepted standards. This Article examines the development of current practices and applications of phytosanitary measures, including the legal systems backing their use and the broader applicability of these systems to the maintenance of the natural environment and the biodiversity of species.

Editors' Summary: This Article examines the enforcement efforts at EPA during the Administration of President William J. Clinton from 1993 to 2001. It covers EPA's reorganization, budget dispute, institutional intragovernmental enforcement relationships, and enforcement programs. The author based the Article on interviews with current and former EPA/DOJ officials and review of numerous articles and EPA policy documents.

Editors' Summary: Federalism has become a highly politicized term in environmental law, with some parties having adopted the term to signify an ideology of devolving federal authority over environmental protection back to the states. In this Article, the author argues that from the states' perspective, the U.S. Supreme Court is using federalism both too much and too little. Too much, in striking down federal law where even the states recognize that a federal role is necessary to address a national problem. Too little, in inappropriately limiting state experimentation.

Editors' Summary: This Article examines whether evidence of environmental contamination should be admitted in eminent domain valuation proceedings. The minority view holds that the evidence is inadmissible and that the condemnee should receive the full value of the property as if clean or remediated. The majority view allows the evidence to be admitted, and bases the property's value either upon its fair market value as contaminated or upon its value as remediated less the remediation costs.

Editors' Summary: On December 14, 2004, the U.S. District Court for the Northern District of Georgia ruled that a series of EPA policy memoranda aimed at addressing excess emissions that occur during startup, shutdown, and/or malfunction (SSM) superceded part of Georgia's EPA-approved SIP that allowed, under certain conditions, excess emissions that occur during SSM conditions. The authors argue that this case is notable for two reasons. First, more than one-half of the air regulatory agencies in the country have SIPs that include a provision similar to the Georgia SSM condition.

Editors' Summary: Beginning with Agins v. City of Tiburon and continuing for 25 years, the U.S. Supreme Court has held that regulation effects a taking when it does not substantially advance legitimate state interests. Throughout this period, many have criticized this standard as "a return to Lochner," opposed to the extreme deference accorded economic and property regulation since the New Deal. According to this author, however, a careful review of cases reveals that the "substantial advancement" doctrine is not simply a means-ends review of the efficacy of economic legislation.