Volume 36, Issue 3

SUMMER 2006

Table of Contents

ARTICLES 

Regulatory Reform: The New Lochnerism?

David M. Driesen

This Article explores the question of whether contemporary regulatory reformers’ attitudes toward government regulation have anything in common with those of the Lochner era Court. The allegiance both groups share to neutral law guided by cost-benefit analysis raises fresh questions about the regulatory reform debate. For allegiance to neutral law seems out of step with post-Lochner recognition of the legitimacy of legislative value choices.

Understanding Citizen Perspectives on Government Decision Making Processes as a Way to Improve the Administrative State

David L. Markell

This Article reviews a framework that the procedural justice literature proposes for assessing citizen satisfaction with the decision making process. It applies this framework to an international decision making process that relies heavily on citizen participation, the Commission for Environmental Cooperation’s (CEC) citizen submissions process. The Article considers the track record of the process in light of the procedural justice literature in an effort to advance thinking about the design of government decision making processes that are intended to promote meaningful public participation.

Practiced at the Art of Deception: The Failure of Columbia Basin Recovery Under the Endangered Species Act

Michael C. Blumm, Erica J. Thorson, and Joshua D. Smith

This Article examines the failures of salmon recovery in the Columbia Basin and the beginnings of a new era of active judical oversight. Detailing the National Oceanic and Atmospheric Administration’s exercise of discretion to preserve status quo operations, the Article chronicles the past, present and possible future of Columbia Basin salmon runs. The Article concludes that deceptive practices have misled both politicians and the public as to salmon recovery.

The Challenges of Dam Removal: The History and Lessons of the Condit Dam and Potential Threats From the 2005 Federal Power Act Amendments

David H. Becker

This history of efforts to decommission the Condit Dam describes the legal hurdles involved in dam removal and the obstacles remaining before this dam comes down. Although provisions of the Federal Power Act allowing federal fish management agencies to prescribe fish passage led to the agreement to remove the dam, recent amendments to the Act give parties who oppose fish passage prescriptions new rights to bring procedural challenges. The Article concludes that the substantive standard in the new amendments will not thwart future fish passage restoration because the standard favors the agencies defending their prescriptions in the new administrative process.

COMMENTS

The Nez Perce Water Rights Settlement and the Revolution in Indian Country

Alexander Hays V. (Ti)

This Comment discusses two judicial decisions that precipitated the Nez Perce water rights settlement of 2005 and analyzes the central terms of the agreement which caused the Tribe to waive treaty-based claims to water in the Snake River Basin in exchange for land, money, and commitments to protect salmon under the Endangered Species Act.

2005 NINTH CIRCUIT REVIEW

Defenders of Wildlife v. EPA: Testing the Boundaries of Federal Agency Power Under the ESA

Sherry L. Bosse

In this Chapter, Ms. Bosse examines the Ninth Circuit’s interpretation of section 7 of the Endangered Species Act in the context of an Environmental Protection Agency decision to delegate to Arizona water pollution permitting authority under the Clean Water Act in Defenders of Wildlife v. EPA. The Chapter criticizes the analytic approach the Ninth Circuit used to conclude that the ESA grants federal agencies additional power, and explores how far this additional authority to protect species may extend.

ARC Ecology v. United States Department of the Air Force: Extending the Extraterritorial Reach of Domestic Environmental Law

Anna D. Stasch

In this Chapter, Ms. Stasch considers the presumption against extraterritorial application of domestic laws as it generally applies in the environmental law realm to prevent the enforcement of U.S. environmental laws against American actors abroad. By examining a 2005 Ninth Circuit Decision, Arc Ecology v. United States Department of Defense, along with several other recent cases from within the Ninth Circuit, this Chapter explores the presumption and potential avenues for overcoming it to hold U.S. actors accountable for environmental harms committed beyond U.S. borders.