Volume 29, Issue 2
Summer 1999
ARTICLES
The New Electric Powerhouses: Will They Transform Your Life?
Suedeen G. Kelly
Over the last thirty years the price of electricity
has soared. This spurred experimentation with competition in the generation of
electricity. In 1992, Congress promoted wholesale competition in the generation
of electricity with the passage of the Energy Policy Act. The year 1999 finds
seventeen states embarking on retail competition in generation. They are
looking for choice, lower costs, and innovation--typical attributes of a
competitive market--but they do not want to lose the reliability, universal
service, and environmental protection that the regulated generation monopoly
brought us. Trying to achieve all of these goals poses an enormous challenge
for state policy makers. The issues they must resolve are difficult ones, and
some of them are novel to regulatory policy. They include recovery of stranded
costs, criteria for approval of mergers and acquisitions, and cost-shifting
from large to small electricity consumers. So far the states have worked to
solve these uncommon problems with uncommon sense. They are proceeding slowly,
on a state-by-state basis, using consensus-building processes, and showing
willingness to devise creative solutions that will also be politically
acceptable. While this is the very process that foretells a successful
transition to a restructured industry, it is threatened by objections that it
is too slow, lacks uniformity, and results in solutions at odds with our economic
models. These objections have merit. However, they should not be heeded because
their merits are outweighed by their costs.
The Wrong War, with the Wrong Enemy, at the Wrong Time: The Coming Battle
over the Military Land Withdrawal Act and an Experiment in Privatizing the
Regulation of Public Lands
Darrin Hostetler
Environmental groups and the Department of Defense
will soon square off in a legal and political battle over control of seven
million acres of federal lands, much of it pristine wilderness. The lands,
which were withdrawn from general public use and entrusted to the Pentagon for
military training and testing purposes during the Cold War, are governed by the
Military Land Withdrawal Act (MLWA)--a law that must be renewed or amended by
Congress in the year 2001. In this Article, Darrin Hostetler reviews the
history of withdrawn military lands and argues that conflict between
environmentalist and military forces in a legislative forum during the MLWA
renewal debate will result in bad law and incoherent land use policy. Instead,
this Article suggests that the MLWA be amended to allow for direct
"opt-out" negotiations between environmentalists and local land
"stakeholders" on one side, and the military on the other. Mr.
Hostetler concludes that this new legal regime, in addition to providing a
valuable and unique opportunity to experiment with regulatory privatization of
public lands, will result in an equitable and efficient use of military
properties that best facilitates both environmental and national-security
interests.
Aquatic Invasive Species in the Coastal West: An Analysis of State
Regulation Within a Federal Framework
Viki Nadol
Invasive species are a growing problem in the United
States. They are virtually impossible to eradicate once established, and each
year they cause enormous nationwide economic losses measuring in the billions
of dollars. They are also responsible for environmental losses, including
habitat destruction and increased stress on already endangered and threatened
native species. Invasive species include plants, animals, and insects and can
be either terrestrial or aquatic in nature. This Article examines aquatic
invasive species (AIS) in the American coastal West; specifically, this Article
addresses the impacts of AIS in California, Oregon, Washington, and Alaska. It
then examines the legal responses that each of these states has crafted to
reduce AIS introduction and to eradicate already established AIS populations.
Ultimately, this Article concludes that state efforts alone insufficiently
address AIS. To be effective, any state AIS regulation must fall within a
comprehensive federal framework.
COMMENTS
The United States Forest Service's Response to Biodiversity Science
Greg D. Corbin
The National Forest Management Act and its
implementing regulations require the United States Forest Service to manage the
national forests' biodiversity based on a set of science-based management
prescriptions. Over the past two decades the scientific principles underpinning
those prescriptions have evolved, adding new understanding to biodiversity
management. In this Comment, the author argues that while the Forest Service
adopted a regulatory program designed to incorporate that new understanding
into the forest planning process, the agency has not done so in order to
maintain regulatory flexibility. In addition to providing a history of
biodiversity management on the national forests and detailing the evolution of
biodiversity science, the author demonstrates how the agency's litigation posture
and proposed regulatory changes in favor of ecosystem management ignore the
science of biodiversity to preserve broad regulatory discretion and maximum
on-the-ground management flexibility.
The Mythical Giant: Clean Water Act Section 401 and Nonpoint Source
Pollution
Kristi Johnson
Does Section 401 of the Clean Water Act apply to
both point source and nonpoint source pollution? The Ninth Circuit recently
held that Section 401 does not apply to nonpoint source pollution but then
withdrew its opinion pending reconsideration. An examination of the statute and
its legislative history indicates that the original Ninth Circuit decision was
correct: Section 401 only applies to point source pollution. However, even if
courts eventually interpret Section 401 to apply to nonpoint source pollution,
applying Section 401 will accomplish little in the fight to reduce agricultural
nonpoint source pollution, which is the main contributor to the nonpoint source
pollution problem. Existing laws and programs can provide adequate means to
deal with nonpoint source pollution. Applying Section 401 to nonpoint sources
would merely add a needless layer of regulation.
Congress and Charismatic Megafauna: A Legislative History of the
Endangered Species Act
Shannon Petersen
The author explores the Endangered Species Act's
past to provide a thorough analysis of the expectations of the bill upon its
passage in 1973. The Act was sold on the passionate images of large and
breathtaking wildlife. Further, legislative history indicates that many of the
problems that the ESA has encountered were not foreseen. Since 1973 the
scientific understanding of the scale of threatened extinction and the needs of
endangered species has grown, indicating that a much greater effort and cost
than originally thought will be needed to preserve species. Meanwhile, judicial
interpretation of the Act has broadly expanded its power. Though both the
strengths and weaknesses of the ESA trouble many, the experience of the ESA
offers great wisdom for the future of environmental protection.
CLEAR THE AIR
Appellate Study Panel Issues Final Report
Carl Tobias
As an update to his previous Article featured in
Environmental Law, Professor Tobias discusses the recent final report issued by
the Commission on Structural Alternatives for the Federal Courts of Appeals
regarding the potential split in the Ninth Circuit.