State Power Plant Siting: a Sketch of the Main Features of a Possible Approach

Work on various phases of power plant technology and siting has been underway within the Environmental Quality Laboratory (EQL) at the California Institute of Technology for some time. Of particular relevance to this memorandum, a good deal of effort has been devoted to institutional aspects of the siting process. Our purpose in what follows is to draw from our past work -- and from the discussions and work of others -- a sketch of the major outlines of one possible approach to power plant siting for the state. We hope in doing so to give our present views about the issues and how they might rationally be resolved, not so much to convince as to inform, stimulate fruitful ideas, and help provide the basis for constructive debate. We ourselves are not necessarily wedded to any of the discussion that follows; we find our own minds changing from time to time as we study the problem further or confront sound suggestions from others. Part I of this memorandum briefly outlines the major features of what we see as a fruitful approach to the siting problem. Sections A through E of Part I describe some elements of the approach; Section F sketches the actual siting decision process we suggest, and in doing so shows how the elements play into the process. Section G comments briefly on a suggested role for judicial review. In Part II we attempt to reduce our ideas to a fairly precise outline for a state siting statute, and to deal with certain matters of detail not covered in Part I. Section A of Part II introduces the statutory outline by summarizing each of its provisions; Section B sets forth the outline itself. The Appendix to this memorandum depicts our suggested approach in time-line fashion; it should be helpful in reading and understanding the proposal

Capture and Counteraction: Self- Help by Environmental Zealots (Allen Chair Symposium 1996: The Future of Environmental and Land-Use Regulation)

Self-help is a largely neglected topic in American legal studies.1 With the exception of a survey by a group of law students published a dozen years ago,2 there appears to be little, if anything, in our legal literature that confronts the subject in a systematic way.3 This is so, at least, if one defines self-help as I do. To me, the term refers to any act of bypassing the formal legal system in order to get what one wants

Internationale Handelsgessellschaft mbH V.Einfuhrund Vorratsstelle für Getreide und Futtermittel (Favorite Case Symposium)

The idea of a favorite judicial opinion had never occurred to me until the Texas Law Review planted it in my head; the Journal of the American Dental Association could as well have asked me to express some sentiments about my favorite toothache. I was at a loss to think of even a single candidate for what, until the event, I had apparently regarded as a nonexistent office. Why then did I decide to accept the Review\u27s invitation? The answer is, in a word, curiosity: Never mind that the editors of a law review in Texas wanted to know what is my favorite judicial opinion. Suddenly I wanted to know what is my favorite judicial opinion

On the Topology of Uniform Environmental Standards in a Federal System and Why it Matters (Symposium: Environmental Federalism)

Uniform standards are much favored among the makers of federal environmental policy in the United States, which is to say, among the members of Congress. By and large-judging at least from the legislation it has enacted-Congress expects the air and water eventually to meet the same minimum levels of quality in every state in the country, and expects each pollution source in any industrial category or subcategory to be controlled just as much as every other such source, notwithstanding the source\u27s location or other peculiar characteristics. There are exceptions to these generalizations, but they are exceptions and not the rule.1 Since 1970, environmental policy in the United States increasingly has been federal (meaning that standards and controls are, for the most part, imposed by the national government, although they generally are implemented at the state and local levels). And, nominally at least, the federal policy has been one of uniform standards and controls in the sense suggested above. The standards have been set in ways essentially indifferent to territorial and, to some considerable degree, source variation. In thinking about federal uniform environmental standards, I shall focus for the most part on the pollution problem, to the exclusion of other environmental problems having to do with such concerns as vanishing species, land reclamation, or the regulation of toxic waste sites. Air and water pollution controls are my general subject, and air pollution controls my chief case in point. This is partly a matter of convenience, a way to get to the bottom of some fundamental considerations that display themselves in superficially disparate ways across the vast reaches of federal environmental legislation. Mostly, though, my focus reflects the reality that federal pollution policy, and air pollution policy in particular, is especially plagued by the vices of uniformity. In any event, what I have to say about the case of pollution policy can be applied to other environmental policies to the extent (probably considerable) that the arguments in the one case fit the situations in the other cases. I narrow my focus-though again not its bearing-in another way as well. The discussion thus far has alluded to two different kinds of pollution standards: (1) ambient quality standards that limit the amount of pollution permitted in any state\u27s air or water, and (2) emission or effluent standards that in one way or another limit the amount of pollution that can come from sources in any state (cars, factories, power plants, and the like). Both types of standards are aimed at controlling pollution, but there is nevertheless a difference between them that impels me to be concerned, here, primarily with the first category, ambient quality standards. My topic is environmental policy in a federal system, and it is with its ambient controls that the federal government specifies the obligations of the various states with respect to water or air quality. Ambient standards dictate, at a minimum, how clean the environmental media (in this case water, and particularly, air) in a given area must be. Any area may choose to clean up more if it wishes.2 In short, ambient standards directly limit what the states, not pollution sources, are free to do. Hence they are the immediately interesting subject from the standpoint of federalism.

The Evolution of Property Rights: A Synthetic Overview

In this paper I review, extend, and critique two contrasting approaches to the evolution of property rights. The legal literature on the subject is dominated by a conventional approach, which holds a virtual monopoly despite its many shortcomings, and the literature neglects an alternative approach, despite its many virtues (including, but not limited to, the virtue of responding to many of the conventional approach’s deficiencies). The paper provides an overview of both approaches, including a brief intellectual history of each – and should thus inform readers without specialized knowledge of the subject but nevertheless interested in it – and aims among other things to make the alternative approach salient, in particular because an integrated treatment that draws on a combination of the two approaches does more explanatory work than can either approach on its own

The Political Economy of Barry Commoner

The centerpiece of what follows is an article by Barry Commoner that appeared in The New Yorker magazine in 1987.\u27 The article, although an essentially popular work, is for several reasons worth the attention of a community professionally interested in law and the environment. First, it distills and supplements views that Commoner has advanced with much prominence throughout the life-twenty years to date-of the environmental movement in the United States. Thus it provides an opportunity for the present generation\u27s students of environmental law, many of whom seem to know nothing of Commoner and his ideas, to become familiar with a significant voice in the intellectual history of the field. Second, the article endorses, as does some of Commoner\u27s earlier work, a message of fundamental importance for anyone interested in the quality of the environment, and for lawyers in particular: to understand environmental problems, one has to understand economics and politics. This is a point I have urged upon students throughout my own twenty years of academic concern with environmental law and policy, against substantial resistance. Perhaps I can do better by enlisting Commoner, an ardent environmentalist of high standing, in behalf of the cause. That said, though, I should make clear a third reason to consider Commoner\u27s article. It is one thing to see the relevance of political and economic theories and another to use them cogently. Commoner\u27s critique of our present environmental situation is troublesome, and the program he proposes only more so

The Environment, the Constitution, and the Coupling of Fallacy

This article is based on a paper entitled Environmental Quality as a Political Question that was delivered at the University of Tennessee\u27s October 1987 Bicentennial Conference on The Constitution and the Environment. Shortly after the environmental movement first got underway, alp:1.ost 20 years ago now, there appeared a little parade of articles urging a constitutional right to a clean environment. While a few of the articles campaigned for an amendment to this effect, most of them reasoned that an amendment was unnecessary. They argued that the right in question is already in the Constitution, however inconspicuously - in the Ninth Amendment, say, or in the concept of ordered liberty protected by the Due Process Clause, or in the so-called penumbra of the Bills of Rights. They asked the courts simply to acknowledge this reading, but the courts did not. The United States Supreme Court has not subscribed to any of the theories advanced by the articles, and neither have the lower federal courts nor the state courts, with a couple of inconsequential exceptions