ELI Primary Menu

Skip to main content

Issue

Volume 35, Issue 3 — March 2005

Articles

The Paradox of U.S. Alien Species Law

by Marc L. Miller

Non-indigenous species (NIS) have increasingly come to be recognized in scientific and popular arenas as one of the most significant threats to biodiversity. That recognition has yet to extend to law and policy, which, in the United States, remain fractured and incomplete. This Article surveys the most significant of the many bits and pieces of U.S. federal law that relate to prevention and control of NIS, and argues that a more coherent and powerful legal framework is needed to address the NIS problem.

An Analysis of the Factors That Courts Use to Determine Whether a Regulation Is Voluntary; A Threshold Determination Courts Make Before Granting Judicial Review of an Order

by Jamie Tosches

In 1999, the Federal Energy Regulatory Commission (FERC) issued Order 2000.1 Order 2000 gave public utilities the option to voluntarily participate in a regional transmission organization (RTO). A public utility participating in an RTO must give the RTO the right to manage its transmission system.

Public utilities did not want to comply with Order 2000.4 Refusal to join an RTO, however, would potentially cost the public utilities economic benefits available to RTO participants giving. Caught between a rock and a hard place, the Public Utility District No. 1 (PUD No. 1) of Snohomish County, Washington, challenged FERC's authority to issue Order 2000 in Public Utility District No. 1 of Snohomish County v. Federal Energy Regulatory Commission. The court, however, did not reach the merits of the case holding that PUD No. 1 did not have standing to challenge a voluntary order.

This Article analyzes the Snohomish County decision to provide an understanding to determine whether a rule is involuntary, why it is important to make the determination, and why the decision gives administrative agencies more power to regulate. Part I of this Article provides background information on RTOs, transmission systems, and Order 2000, to facilitate an understanding of the Snohomish County ruling. Part II reviews the Snohomish County decision in detail. Finally, Part III analyzes the Snohomish County decision against selected Tenth Amendment rules of law, to identify factors that determine whether a regulation is involuntary. Finally, the Article explains why the Snohomish County decision gives the administrative agency the incentive to issue voluntary rules to insulate itself from judicial review and why this results in more power to the administrative agency.

An Analysis of the Factors That Courts Use to Determine Whether a Regulation Is Voluntary; A Threshold Determination Courts Make Before Granting Judicial Review of an Order

by Jamie Tosches

In 1999, the Federal Energy Regulatory Commission (FERC) issued Order 2000.1 Order 2000 gave public utilities the option to voluntarily participate in a regional transmission organization (RTO). A public utility participating in an RTO must give the RTO the right to manage its transmission system.

Public utilities did not want to comply with Order 2000.4 Refusal to join an RTO, however, would potentially cost the public utilities economic benefits available to RTO participants giving. Caught between a rock and a hard place, the Public Utility District No. 1 (PUD No. 1) of Snohomish County, Washington, challenged FERC's authority to issue Order 2000 in Public Utility District No. 1 of Snohomish County v. Federal Energy Regulatory Commission. The court, however, did not reach the merits of the case holding that PUD No. 1 did not have standing to challenge a voluntary order.

This Article analyzes the Snohomish County decision to provide an understanding to determine whether a rule is involuntary, why it is important to make the determination, and why the decision gives administrative agencies more power to regulate. Part I of this Article provides background information on RTOs, transmission systems, and Order 2000, to facilitate an understanding of the Snohomish County ruling. Part II reviews the Snohomish County decision in detail. Finally, Part III analyzes the Snohomish County decision against selected Tenth Amendment rules of law, to identify factors that determine whether a regulation is involuntary. Finally, the Article explains why the Snohomish County decision gives the administrative agency the incentive to issue voluntary rules to insulate itself from judicial review and why this results in more power to the administrative agency.

Is Wet Growth Smarter Than Smart Growth?: The Fragmentation and Integration of Land Use and Water

by Craig Anthony (Tony) Arnold

I. Smart Growth and Wet Growth

A. The Environmental Regulation of Land Use

Land use regulation and planning have taken an "environmental turn": a pervasive and inescapable attention to the impact of land use and land development on the natural environment. The literature on the environmental regulation of land use is so vast as to defy summary or citation. Furthermore, specific examples of environmental concerns arising in land use matters--as found in statutes, regulations, cases, local ordinances and codes, planning documents, periodicals, professional publications, websites, and news reports--are even more vast than the scholarly and professional literature. Anyone who is involved in land use law, planning, or regulation is undoubtedly familiar with issues of biodiversity and endangered species, wetlands protections, coastal zone protections, land and open space conservation, brownfields, environmental justice considerations, environmental impact studies, and the impacts of land development on air quality, water quality, ecosystems, and the natural environment generally. Many scholars researching particular aspects of the connections between land use and the environment have contributed to a growing body of knowledge and ideas. More comprehensively, the scope and importance of these issues are illustrated by Prof. Linda Malone's excellent treatise Environmental Regulation of Land Use, and the pathbreaking work of Prof. John Nolon on local environmental regulation, published by the Environmental Law Institute (ELI) in a series of books. In addition, Prof. John Randolph, an environmental planner, recently authored a much-needed multidisciplinary book, Environmental Land Use Planning and Management. This book is a critical resource for any professional involved in land use to understand and integrate environmental considerations into land use.

FIFRA--Chemical Testing Issues

by Lynn L. Bergeson, Carla N. Hutton

This Article introduces the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and describes chemical substances for which testing must be conducted under FIFRA, other chemical testing that could be required, persons required to conduct the tests, data compensation procedures, and associated legal issues.

A Brief History of CWA

by Sara Hilbrich

In 1987, the U.S. Congress amended the Clean Water Act (CWA) to establish a national nonpoint source (NPS) program under §319.1 The statute allows states meeting preliminary criteria to receive federal grant money from the U.S. Environmental Protection Agency (EPA) to address NPS pollution. To be eligible for grants, first, each state must identify and report which of its water bodies have not attained or will not maintain state water quality standards, the sources of nonpoint pollution into those waters, and the potential for remedial action. Second, each state must submit to EPA a management program plan that identifies and implements best management practices and other measures to control NPS pollution. Once EPA approves a state's assessment report and management program plan, the state becomes eligible for federal grants to implement the program. Although §319 specifies a 10% cap on administrative spending, it does not otherwise delineate what types of projects or programs may or may not receive funding. Section 319 emphasizes that priority will be given to "effective" activities.

Under §319, a state may receive grant funds only if EPA determines that the state has made satisfactory progress meeting the goals in its management plan during the previous year. To this end, the statute contains some general reporting provisions. EPA may request information, data, and reports as necessary to assess a state's continuing eligibility. And states must report annually both on their progress in meeting milestones, and, as available, information on reductions of NPS pollutant loadings and/or improvements to water quality.0 Additionally, all grants are subject to EPA's general grant requirements under 40 C.F.R. Parts 31 and 35, Subpart A.1

Instead of implementing the §319 program via static regulations, EPA has published a succession of guidance documents and, more recently, rules published as guidelines, since the program's inception. Thus, the Agency has retained the flexibility to adapt to changing circumstances. While the baseline requirements mandated by the statute have remained the same, implementation and grant priorities have changed over time. This Article reviews the evolution of the §319 grants program with particular attention to EPA funding priorities and state accountability and reporting requirements. It should be of value to environmental policy analysts, lawyers, and environmental historians seeking to understand the development of this modern-era federally funded but state-implemented program to deal with the largest remaining threat to U.S. water quality--NPS pollution.