Beyond the Courts of the Conqueror: Balancing Private and Cultural Property Rights under Hawai\u27i Law.

Abstract Forthcoming

Let the People Speak: Notice-and-Comment Rulemaking (Lessons from the Controversial New Source Review Proposal of the Clean Air Act)

Sections 165 and 173 of the CAA specifically note that any change in pollution levels from an existing source triggers NSR and accompanying technological upgrades. Nothing in the rulemaking\u27s proposed definition based on cost of changes or maintenance address this clear language of Congress.---Victor B. Flatt, A.L. O\u27Quinn Chair in Environmental Law, University of Houston Law Center, written comments submitted to EPA on February 26, 2003. Taken together, the two proposed exclusions from NSR would allow many grandfathered air polluters to operate indefinitely without installing state-of-the-art pollution control equipment. This would contravene the purpose of NSR, which is to ensure that grandfathered facilities eventually do improve their environmental performance.---Michael M. O\u27Hear, Assistant Professor, Marquette University Law School, written comments submitted to EPA on March 2, 2003. The CAA provides that when existing sources change their facilities in ways that increase their emissions they should be treated as new sources. That should be the end of the matter. —Mark Squillace, Professor of Law, University of Toledo College of Law, written comments submitted to EPA in March 2003. The proposed rule undercuts both the plain meaning of the CAA and Congress’s underlying intent. It breaches the plain meaning because “modification” is literally defined as “any physical change” that “increases the amount of any air pollutant.” Courts take this language literally, permitting exceptions only in deminimus situations [citations omitted]. —Robert R.M. Verchick, Ruby M. Hulen Professor of Law and Urban Affairs, and students of the University of Missouri-Kansas City School of Law, written comments submitted to EPA on March 31, 2003

Letting Nature Work in the Pacific Northwest: A Manual for Protecting Ecosystem Services Under Existing Law

In the decades since Congress and state legislatures passed most of the nation\u27s most significant environmental laws, our knowledge about ecosystems has increased dramatically. As ecologists learn more about the complex and dynamic interactions that produce valuable ecosystem services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment. An ecosystem services approach integrates advances in ecology with the law. It fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it depends on public participation to prioritize those services that the public values most, thus ensuring long-term public support for and investment in achieving the identified goals. This white paper defines the approach and identifies both prerequisites and principles for implementing it. For example, policymakers and advocates should consider principles of ecological integrity, fairness, and resilience when selecting legal tools to protect ecosystem services. The paper then applies the ecosystem services approach in the context of floodplain restoration, focusing on flood hazard mitigation and the broad range of services provided by floodplains. It marks the beginning of a long-term discussion on how to adapt environmental, natural resources, and other laws to our dependence on functioning, dynamic ecosystems

Fairness in the Bay: Environmental Justice and Nutrient Trading

Maryland, Virginia, Pennsylvania and other states in the Chesapeake Bay region, with support from the Environmental Protection Agency, are working toward developing water quality trading programs intended to help meet federal pollution limits for the Bay. This white paper from the Center for Progressive Reform warns that even if a trading system succeeds in reducing overall pollution in the Bay, it might still have a dire effect on low-income and minority communities in the Bay region. If trading programs are not carefully designed and monitored, trading can cause localized concentrations of nutrients and accompanying contaminants in local waters, posing a significant threat to human health and aquatic ecosystems. For example, a sewage treatment plant could address its additional pollution by either purchasing reductions elsewhere or by installing control measures onsite. If the plant purchases credits, it will be able to discharge more sewage. These additional discharges may create “hot spots” or high concentrations of pollution in adjacent waterways that could expose residents of nearby communities, especially local fishermen and their families, to pathogens and other harmful co-pollutants. Effective trading programs also rely on ample credit-generating activities. Municipalities may generate credits by implementing stormwater best management practices (BMPs) such as urban revegetation, bioswale construction, and greenspace expansion. These practices have secondary benefits for the communities in which those BMPs are implemented, including flood control, enhanced opportunities for exercise and recreation, increased property values, and aesthetic value. Such benefits should be enjoyed equally, throughout the watershed

Let the People Speak: Notice-and-Comment Rulemaking (Lessons from the Controversial New Source Review Proposal of the Clean Air Act)

Sections 165 and 173 of the CAA specifically note that any change in pollution levels from an existing source triggers NSR and accompanying technological upgrades. Nothing in the rulemaking\u27s proposed definition based on cost of changes or maintenance address this clear language of Congress.---Victor B. Flatt, A.L. O\u27Quinn Chair in Environmental Law, University of Houston Law Center, written comments submitted to EPA on February 26, 2003. Taken together, the two proposed exclusions from NSR would allow many grandfathered air polluters to operate indefinitely without installing state-of-the-art pollution control equipment. This would contravene the purpose of NSR, which is to ensure that grandfathered facilities eventually do improve their environmental performance.---Michael M. O\u27Hear, Assistant Professor, Marquette University Law School, written comments submitted to EPA on March 2, 2003. The CAA provides that when existing sources change their facilities in ways that increase their emissions they should be treated as new sources. That should be the end of the matter. —Mark Squillace, Professor of Law, University of Toledo College of Law, written comments submitted to EPA in March 2003. The proposed rule undercuts both the plain meaning of the CAA and Congress’s underlying intent. It breaches the plain meaning because “modification” is literally defined as “any physical change” that “increases the amount of any air pollutant.” Courts take this language literally, permitting exceptions only in deminimus situations [citations omitted]. —Robert R.M. Verchick, Ruby M. Hulen Professor of Law and Urban Affairs, and students of the University of Missouri-Kansas City School of Law, written comments submitted to EPA on March 31, 2003