Editors' Summary: Property rights advocates implicitly complained in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon that a Fish and Wildlife Service regulation that aimed to protect endangered and threatened species by defining "harm" to include habitat modification impinged on their rights as private landowners by asking them to share with the government responsibility for protecting such species. The U.S. Supreme Court upheld the regulation as reasonable given the relevant language of the Endangered Species Act.

The bedrock notion that courts should, in the overwhelming majority of cases, defer to lawmakers is currently under attack in the nation's courts, commentary, and classrooms. Leading the way are several U.S. Supreme Court Justices who, in cases involving the U.S. Commerce Clause, Takings Clause, and §5 of the Fourteenth Amendment of the U.S. Constitution, are much more willing than their immediate predecessors to second-guess the motives and tactics of elected and appointed officials at all levels of government.

Editors' Summary: Although most talk in terms of wildlife protection seems to focus on the operation of the ESA, there are a host of other federal and state laws designed to protect wildlife from the impacts of resource-development projects—before the species become threatened or endangered.

 In November 1995, five federal agencies—the U.S. Army Corps of Engineers (the Corps), the U.S. Environmental Protection Agency (EPA), the Natural Resources Conservation Service, the U.S. Fish and Wildlife Service (FWS), and the National Oceanic and Atmospheric Administration—issued joint guidance concerning wetland mitigation banking. The guidance's chief virtue is its detailed explanation of the approval process for the establishment and operation of mitigation banks. Its chief flaw, however, flows from the complexity of this approval process.

Earlier this year in KFC Western, Inc. v. Meghrig, the U.S. Court of Appeals for the Ninth Circuit ruled that private parties may obtain restitution of the costs of cleaning up contaminated property under §7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA). The Ninth Circuit's ruling in KFC Western opened the way for private parties to use the RCRA citizen suit provision to recover their costs of investigating, studying, and cleaning up contaminated property from responsible parties.

[Editors' Summary: This Article is adapted from The Law of Green Buildings: Regulatory and Legal Issues in Design, Construction, Operations, and Financing ch. 2 (J. Cullen Howe & Michael B. Gerrard eds., 2010). Copyright © 2010 by the American Bar Association and co-published with ELI Press. Reprinted by permission. This book provides an overview of green building law from a variety of well-known attorneys and other professionals in the green building field. These legal issues are likely to evolve quickly—and perhaps radically—in the coming years.

Offshore areas are under pressure to industrialize for renewable energy. To plan for offshore wind development, Rhode Island engaged in a marine spatial planning process that resulted in the Ocean Special Area Management Plan (O-SAMP), a regulatory invention of the Coastal Zone Management Act. Notably, the Rhode Island O-SAMP maps and plans for uses in federal waters beyond the three-mile line dividing state and fedeal jurisdiction, as well as within the state's territorial sea, posing a challenge to the boundaries of offshore federalism.