Plain Meaning, Precedent, and Metaphysics: Interpreting the “Point Source” Element of the Clean Water Act Offense

This Article, the fourth in a series of five, examines the continuing struggles to define “point source” and “nonpoint source” under the Clean Water Act. State regulation of nonpoint sources is neither pervasive nor robust, and most continuing water pollution problems can be traced primarily to nonpoint sources. EPA should define nonpoint sources by regulation and begin to expand the definition of point source by incorporating established case law and Agency practice to bring more nonpoint sources into the point source definition

Plain Meaning, Precedent, and Metaphysics: Interpreting the “Pollutant” Element of the Federal Water Pollution Offense

This Article, the second in a series of five, examines the meaning of “pollutant” under the Clean Water Act. Congress and EPA have defined “pollutant” to mean a list of specific substances and broad categories of materials and wastes discharged into water, e.g., “biological materials” and “chemical wastes.” The definition is broad enough to encompass virtually all substances associated with human activity that are discharged to water, regardless of whether the substances cause pollution or are produced through human endeavor. Therefore, “pollutant” is rarely a limiting element. Instead, the issues with the definition of “pollutant” primarily address whether it includes material used in common and productive activities, such as adding hatchery-raised fish (“biological material”) to trout streams or spraying pesticides to suppress disease-bearing mosquitoes (“biological material” or “chemical wastes”). EPA can easily fix these and other problems by a better regulatory definition

The Supreme Court\u27s Water Pollution Jurisprudence: Is the Court All Wet?

Part I of this article sets the stage with a brief survey of federal water pollution control, focusing on the CWA. Part II examines statistical conclusions and inferences from a cursory review of the Court\u27s CWA opinions. Part III examines some of the opinions in a more qualitative manner to determine whether the statistical conclusions withstand analysis and whether the Court understands the CWA. The latter determination requires examining the nature and severity of the Court\u27s misinterpretations of the statute. Part IV examines the Court\u27s decisions with anti-environmental results to determine whether they reflect an anti-environmental bias or the other factors suggested. Table A lists the Court\u27s opinions under the statutes administered by the EPA, documenting that the Court\u27s CWA decisions outnumber those under any other EPA administered statute. Table B contains basic information about the Court\u27s CWA opinions, from which the conclusions in Part II are drawn

The Constitutionality of Citizen Suit Provisions in Federal Environmental Statutes

The Supreme Court’s decisions under the pollution control statutes administered by the Environmental Protection Agency (EPA) reach startlingly anti-environmental results, but they are explained more by the Court’s overwhelming hostility toward the private enforcement of statutes, rather than an anti-environmental bias. Adding insult to injury, in one of the rare victories for private environmental plaintiffs in those decisions, Justice Kennedy queried whether citizen suits intrude on the President’s Article II executive power and violate the separation of power principles. While other Justices have raised the same concern, Justice Kennedy’s invitation is particularly significant because he is a swing vote in environmental and other social justice cases. Part II of this article describes citizen suits and their role in the enforcement of environmental law. Part III outlines the background of separation of powers and the dominant theories of analyzing separation of powers issues. Part IV explores the roles of public and private enforcement before and after the framing of the Constitution and the effects of those roles on interpreting the three relevant constitutional clauses. Part V examines Appointments Clause challenges to citizen suits. Part VI examines Vesting Clause and Take Care Clause challenges to citizen suits. This article concludes that citizen suits are constitutional under the Vesting Clause and the Take Care Clause and do not violate the Appointments Clause

A Generational History of Environmental Law and Its Grand Themes: A Near Decade of Garrison Lectures

I have been privileged to hear, enjoy and learn from the talks of each of our Garrison Lecturers during the last eight years, as well as our discussions with them here today. In preparation for my duties as a summarizer, I studied their talks, printed in our Pace Environmental Law Review. I was delighted to find that the body of their commentary is far more than the sum of its parts. Together our lecturers take us on a grand journey through the history of modern environmental law, its heroes and villains, its accomplishments and its weaknesses. Together they sound all the grand themes of environmental law. Together they remind us where we have been and where we must go. It is no surprise their talks have been edifying and provocative, after all, they are preeminent environmental law scholars and environmental law actors of the first order. I suppose it should not have surprised me to see how much more weight their talks carried in the aggregate than separately, for environmental law is not the product of a few individuals, but of many environmental lawyers working in concert across the country and in successive decades. It continues to develop as a product of what is now a small army of environmental lawyers, many of them students of our lecturers and of our program here at Pace Law School

The Foreign Direct Investment Regulations: Constitutional Questions and Operational Aspects Examined

This article examines the constitutionality of the FDIR and similar regulations issued pursuant to section 5 (b), and comments upon the basic propriety and desireability of delegations of broad emergency powers to the President. The development of executive powers under section 5(b) will first be discussed with an eye toward determining, through the legislative history, congressional intent underlying the section. The role of judicial review of the exercise of executive emergency powers will be examined, followed by an analysis of the theory underlying the delegation of such powers to the President. Finally, the constitutional limitations on the emergency powers of the executive will be examined

The Standing of Citizens to Enforce Against Violations of Environmental Statutes in the United States

Judicial actions by private citizens have played a critical role in the development and enforcement of federal environmental law in the United States over several decades. The courts\u27 general receptivity to the standing of private environmental plaintiffs has made that role possible. A troika of Supreme Court decisions on standing in environmental cases authored by Scalia J over the last decade had eroded that general receptivity, casting doubt on the continued vitality of private actions in developing and implementing environmental law. The Court\u27s recent decision in Friends of the Earth Inc v Laidlaw Environmental Services halts this erosion. To explain the significance of the decision, this analysis begins with discussions of the role of citizen litigation in American jurisprudence and the Court\u27s recent opinions regarding standing in such cases

Remedying Our Fragmented Governmental Structures to Deal with Our Nation-on-Edge Problems

The argument against crafting federal regulations for problems stemming from development in disaster-prone areas (nation-on-edge problems) assumes that these types of problems are essentially local problems requiring unique local solutions. In this Article, Jeffrey G. Miller challenges this assumption, reasoning that a flexible framework of federal regulations would indeed be effective at remedying these problems. He suggests that such a framework could be modeled after the Clean Water Act\u27s (CWA\u27s) point source pollution control regime. A permitting system similar to that set out in the CWA would promote best management practices while still allowing local entities the freedom to determine which particular practices are most effective for them. He recommends that we reexamine our conception of federalism before abandoning hope of federal solutions to nation-on-edge problems