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This Month's News & Analysis

Volume 44, Issue 10 — October 2014

Dialogue

Will the New Waters of the United States (WOTUS) Rule Float?

by Bruce Myers, Ken Kopocis, Lance Wood, Deidre Duncan, and Jan Goldman-Carter

On April 21, 2014, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers jointly released a proposed rule to clarify protection for streams and wetlands under the Clean Water Act. Determining Clean Water Act jurisdiction over streams and wetlands has been mired in confusion following a series of U.S. Supreme Court decisions. The agencies issued the proposed rule in response to calls from judges, lawmakers, government officials, corporate representatives, environmentalists, and other stakeholders to bring greater clarity. To address these concerns, the Environmental Law Institute held a seminar, “Will the New Waters of the United States (WOTUS) Rule Float?,” on May 22, 2014, to bring together a range of perspectives on this controversial topic. The transcript to the event has been edited for style, clarity, and space considerations.

Comment(s)

A Decade of Natural Resource Damage Liability: Key Federal Decisions 2004-2014

by Barbara J. Goldsmith, Tara Waikem Flynn, and Tara Franey

The past 30 years have seen a slow appearance and evolution of natural resource damage (NRD) related case law. The range of information resulting from the various decisions issued in the past decade may be useful to legal practitioners, particularly relative to defining NRD liability, guiding procedural actions, and resolving liability claims. This Comment focuses on federal judicial opinions that were issued during the period 2004-2014 under CERCLA and OPA, as those are the principal federal statutes under which opinions have been issued.

Articles

Pike Balancing: Vulnerabilities of State Greenhouse Gas Regulations and Possible Solutions

by Paul T. Stewart

The dormant Commerce Clause prohibits state-level regulations that improperly discriminate against out-of-state-interests or unduly burden interstate commerce. As such, this doctrine may present a barrier to state-level greenhouse gas regulations that affect out-of-state energy and other greenhouse gas sources. But there are ways around this doctrine for states that are careful in how they construct their programs. By arguing that a state-level GHG regulation could impact a much larger portion of global GHG emissions than merely its own state’s contribution, and by arguing in the alternative that the dormant Commerce Clause analysis should not even be applied to a state-level GHG regulation in the first place, states can maximize the chances of their nondiscriminatory GHG regulations surviving dormant Commerce Clause challenges.

Koontz v. St. Johns River Water Management District: Will It Impact Mitigation Conditions in §404 Permits?

by Carys A. Arvidson

Required mitigation of wetlands impacts is a mandatory feature of many Clean Water Act §404 permits. In Koontz v. St. Johns River Water Management District, the U.S. Supreme Court held that government agencies must show a relationship between a proposed permit condition and the adverse environmental effects that the condition proposes to mitigate. The permit condition also must be proportional to the scope of the proposed project regardless of whether the permit condition is a demand for money or property. Current permitting practices tend to identify the nexus between the permit conditions and to be proportional. Still, to be prepared for future lawsuits by property owners asserting their private property rights under the Takings Clause of the Fifth Amendment, existing compensatory mitigation guidelines should be amended to set forth more strict guidelines on how mitigation requirements are quantified and how mitigation is measured against the proposed development’s impact.

Of Constitutions and Cultures: The British Right to Roam and American Property Law

by Jess Kyle

In 2000, England enacted the Countryside and Rights of Way Act, which provides the public the right to roam on certain private lands without compensation to the landowners. There are many constitutional and cultural-historical issues pertinent to importing this right to roam into the United States, in particular the current constitutional barrier of the physical invasion rule in Fifth Amendment Takings Clause. However, significant doctrinal weaknesses persist regarding the “fundamental” right to exclude underpinning this rule. A right to roam agenda might be successfully interwoven into the American environmental justice movement to apply some pressure for change.