Volume
26, Issue 2
Summer 1996
ESSAY
Toward
a New System of Environmental Regulation: The Case for an Industry Sector
Approach
Daniel
J. Fiorino
Mr. Fiorino is the Director of the Industry
Strategies Division of the U.S. Environmental Protection Agency Office of
Policy Development. He examines the current federal regulatory scheme for
controlling industrial pollution and identifies structural flaws that are
impeding further progress. Mr. Fiorino advances alternative approaches based on
performance across industry sectors or facilities. Recent EPA initiatives and
other models illustrate how a more flexible and integrated system of
environmental regulation may be developed.
ARTICLES
Future
prospects for Mining and Public Land Management: The Federal
"Retention-Disposal" Policy Enters the Twenty-First Century
Philip
F. Schuster, II & Roger F. Dierking
Messrs. Schuster and Dierking, lead plaintiffs'
counsel in the landmark mining access case Clouser v. Espy, engage in a
comprehensive analysis of mining access issues as they relate to federal and
state public land management. The authors establish the history of federal land
retention-disposal policies and the hard rock mining experiences as a useful
"window" for guiding future public land management policy. The
authors offer an innovative cooperative federalism approach for improving
environmental management and eliminating conflict between federal and state
governments within the federal retention-disposal framework.
The
Continuing Nature of Notification Violations Under Environmental Statutes
Roger
M. Klein
Professor Klein addresses the often-conflicting
judicial and administrative interpretations regarding violations of
notification provisions within environmental statutes. He contends that the
proper view of notification provisions is that violations continue indefinitely
until notice is provided to the proper authority.
Coping
With Change: Energy, Fish, and the Bonneville Power Administration
Timothy
A. Johnson
Mr. Johnson, an attorney with the Bonneville Power
Administration (BPA), explores the significant challenges facing BPA in light
of increased industry competition following the Energy Policy Act of 1992 and
uncertain salmon recovery costs following recent court decisions. Mr. Johnson
concludes that BPA's new market-oriented philosophy, in concert with the
Clinton Administration's recent cap on BPA's salmon recovery expenditures, will
enable BPA to effectively compete in the power market and continue to satisfy
its statutory environmental and power obligations.
SALVAGE LOGGING: POINT & COUNTERPOINT
Forest
Health and the Politics of Expediency
Michael
Axline
In the summer of 1995, Congress attached a
now-notorious salvage logging rider to an emergency appropriations bill.
Professor Axline criticizes the salvage logging rider as poor policy and a
violation of proper congressional procedure. Recognizing the dual needs for a
sound Northwest economy and healthy national forests, Professor Axline
concludes that the salvage logging rider fails to achieve either objective and
may instead frustrate both of them.
Legislative
History of the Timber and Salvage Amendments Enacted in the 104th Congress in
the Pacific Northwest
U.S.
Senator Slade Gorton & Julie Kays
U.S. Senator Slade Gorton and his natural resources
legislative assistant, Julie Kays, discuss the purpose and scope of the salvage
logging rider. Responding to Professor Axline's criticisms of the salvage
logging rider, they explain that its purposes are to restore forest health and
jobs in timber communities.
COLLOQUIUM:
THE SECOND ANNUAL "WHO RUNS THE RIVER?" COLLOQUIUM
Sponsored by the Northwest Water Law & Policy Project of Northwestern
School of Law of Lewis & Clark College
On October 27, 1995, the
Northwest Water Law & Policy Project of Northwestern School of Law of Lewis
& Clark College held a second annual colloquium on issues affecting
Columbia River salmon. The focal points for last year's colloquium were two
federal court decisions, Northwest Resource Information Center v. Northwest
Power Planning Council and Idaho Department of Fish & Game v.
National Marine Fisheries Service, which held that the federal agencies
responsible for running the river had violated the Northwest Power Act and the
Endangered Species Act. This year's colloquium focused on the agencies' attempts
to respond to the court decisions and improve conditions for salmon survival.
These Articles are adaptations of remarks delivered at the colloquium.
Salmon
Law and Policy in 1995: A Brief Overview
Michael
C. Blumm, Northwestern School of Law of Lewis & Clark College
Rethinking
the Federal Role in a Competitive Electric Market
Al
Alexanderson, Portland General Electric
Salmon
Recovery Plans: Some Fundamental Choices
Ken
Casavant, Northwest Power Planning Council
Restructuring
the Northwest Power System
Roy
Hemmingway, Salmon Policy Advisor to Oregon Governor John Kitzhaber
1995
River Operations Under the Endangered Species Act: Continuing the Salmon
Slaughter
Charles
Ray, Idaho Rivers United
One
Tribe's Perspective on "Who Runs the Reservoirs"
Don
Sampson, Chairman, Board of Trustees, Confederated Tribes of the Umatilla
Indian Reservation
NOTES
Katie
John v. United States: Redefining Federal Public Lands in Alaska
Joan
M. Nockels
Ns. Nockels analyzes the Ninth Circuit's majority
and dissenting opinions in Alaska v. Babbitt, the official name for what
is referred to in Alaska as the Katie John dispute. She argues that the
majority opinion should have held that waters in which the United States holds
a navigational servitude are "federal public lands" to which the
Alaska National Interest Lands Conservation Act's rural subsistence priority
must attach. Absent that finding, she concludes that an administrative solution
will rectify the court's errors.
Streamlining
EPA's NPDES Permit Program With Administrative Summary Judgment: Puerto Rico
Aqueduct & Sewer Authority v. Environmental Protection Agency
R.
Cammon Turner
Mr. Turner contemplates the EPA's use of
administrative summary judgment within the specific context of requests for
evidentiary hearings to review National Pollutant Discharge Elimination System
permit terms under the Clean Water Act. He approves of the EPA's evidentiary
threshold standard, which is similar to that found in Federal Rule of Civil
Procedure 56, but cautions against continued use of the standard without some
fine-tuning. He suggests improvements for the procedure and concludes that it
is a postive time-saving device.