Enjoy the donut: A regulatory response to the white paper on preventing invasion of the great lakes by exotic species

Toledo Journal of Great Lakes' Law, Science and Policy

Volumn 2, Issue 2, 2000, Pages 207-242

  Zellmer, Sandra B ^a,b,c,d,e  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

^b UNIVERSITY OF SOUTH DAKOTA   (United States)

^c MORNINGSIDE COLLEGE   (United States)

^d UNIVERSITY OF TOLEDO   (United States)

^e Legal Institute of the Great Lakes   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

BALLAST WATER; INTRODUCED SPECIES; POLLUTION CONTROL; REGULATORY APPROACH; SHIPPING;

UNITED STATES;

EID: 0034043368     PISSN: 10979328     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (288)

1. Oliver A. Houck, Clean Water Act and Related Programs, CA37 ALI-ABA 295, 310 (1996).
2. Eric Reeves, White Paper on Policies for the Prevention of the Invasion of the Great Lakes by Exotic Organisms (July 15, 1999). Where possible, cites are also provided to Eric Reeves' revised document published in this symposium issue, Exotic Politics: An Analysis of The Economics, Law, and Politics of Exotic Invasions of The Great Lakes, 2 TOL. J. GREAT LAKES' L., SCI. & POL'Y 125 (Fall 1999).
3. Eric Reeves, White Paper on Policies for the Prevention of the Invasion of the Great Lakes by Exotic Organisms (July 15, 1999). Where possible, cites are also provided to Eric Reeves' revised document published in this symposium issue, Exotic Politics: An Analysis of The Economics, Law, and Politics of Exotic Invasions of The Great Lakes, 2 TOL. J. GREAT LAKES' L., SCI. & POL'Y 125 (Fall 1999).
4. As aquatic species do not respect political boundaries, introductions through ballast water on the Canadian side of the border can have serious effects in the United States. This article, however, is limited to an assessment of U.S. domestic law, in particular, the Clean Water Act, 33 U.S.C. §§ 1251 et seq., as well as the U.S.-Canada Great Lakes Water Quality Agreement.
5. See Reeves, White Paper, supra note 2, at 6-13. See also Interim Rule, Implementation of the National Invasive Species Act of 1996, 64 Fed. Reg. 26672, 26673 (1999) ("aquatic nuisance species invasions through ballast water are now recognized as a serious problem threatening global biological diversity and human health").
6. John J. Ewel, et al., Deliberate Introductions of Species: Research Needs, 49 BIOSCIENCE 619, 620 (1999). See 64 Fed. Reg. at 26673. See also David S. Wilcove, et al., Quantifying Threats to Imperiled Species in the United States, 48 BIOSCIENCE 607-15 (1998) (stating that exotics pose a serious threat to native species listed as federally endangered or threatened).
7. John J. Ewel, et al., Deliberate Introductions of Species: Research Needs, 49 BIOSCIENCE 619, 620 (1999). See 64 Fed. Reg. at 26673. See also David S. Wilcove, et al., Quantifying Threats to Imperiled Species in the United States, 48 BIOSCIENCE 607-15 (1998) (stating that exotics pose a serious threat to native species listed as federally endangered or threatened).
8. See Proposed Water Quality Guidance for the Great Lakes System, 58 Fed. Reg. 20802, 20807 (1993). Native fisheries have also been adversely affected by over-fishing, pollution, and habitat destruction. See id.
9. See Great Lakes Fishery Commission, Sea Lamprey Control, (visited Dec. 20, 1999) .
10. See Eric Reeves, Analysis of Laws & Policies Concerning Exotic Invasions of the Great Lakes: A Report to the Michigan Department of Environmental Quality at 8-9 (Mar. 15, 1999) (on file with author); Glenn Zorpette, Mussel Mayhem Continued: Apparent Benefits of Zebra Mussel Plague Are Anything But, 275 SCI. AM. 2: 22-23 (August 1996).
11. See Eric Reeves, Analysis of Laws & Policies Concerning Exotic Invasions of the Great Lakes: A Report to the Michigan Department of Environmental Quality at 8-9 (Mar. 15, 1999) (on file with author); Glenn Zorpette, Mussel Mayhem Continued: Apparent Benefits of Zebra Mussel Plague Are Anything But, 275 SCI. AM. 2: 22-23 (August 1996).
12. See 16 U.S.C. § 4701(4). The zebra mussel attaches to water pipes, thereby restricting water flow for cooling and increasing sedimentation and corrosion, resulting in significant maintenance, plant redesign, and shut-down expenses. See Zorpette, supra note 8, at 22-23; OFFICE OF TECHNOLOGY ASSESSMENT, HARMFUL NON-INDIGENOUS SPECIES IN THE UNITED STATES 67 (1993).
13. See Sharonne O'Shea & Allegra Cangelosi, Trojan Horses in Our Harbors: Biological Contamination from Ballast Water Discharge, 27 U. Tol. L. Rev. 381, 382-85 (1996); OFFICE OF TECHNOLOGY ASSESSMENT, supra note 9, at 6.
14. NATIONAL RESEARCH COUNCIL MARINE BOARD, STEMMING THE TIDE: CONTROLLING INTRODUCTIONS OF NONINDIGENOUS SPECIES BY SHIP'S BALLAST WATER 11 (1996).
15. See id. at 22.
16. The Eurasian ruffe, which has become one of the most abundant fish of Lake Superior's harbors, eats the forage of native species. See 142 CONG. REC. H10925 (daily ed. Sept. 24, 1996) (Statement of Rep. Oberstar). If the ruffe is not controlled, the Great Lakes Fishery Commission estimates that it could cause annual losses exceeding $90 million. See David Eldridge, Leviathan Lurks: Might The National Invasive Species Act of 1996 Actually Authorize Invasion by Proscribed Species?, 6 S.C. ENVTL. L.J. 47, 47 n.6 (1997).
17. See International Maritime Organization Ballast Water Control Guidelines, 56 Fed. Reg. 64831, 64831 (Dec. 12, 1991); O'Shea & Cangelosi, supra note 10, at 383-84 and n.3, 20-22 (1996) (citing, inter alia, Edward L. Mills et al., Exotic Species in the Great Lakes: A History of Biotic Crises and Anthropogenic Introductions, 19 J. GREAT LAKES RES. 1, 2-4 (1993)).
18. See International Maritime Organization Ballast Water Control Guidelines, 56 Fed. Reg. 64831, 64831 (Dec. 12, 1991); O'Shea & Cangelosi, supra note 10, at 383-84 and n.3, 20-22 (1996) (citing, inter alia, Edward L. Mills et al., Exotic Species in the Great Lakes: A History of Biotic Crises and Anthropogenic Introductions, 19 J. GREAT LAKES RES. 1, 2-4 (1993)).
19. 16 U.S.C. §§ 4701-4751, as amended by NISA of 1996, 16 U.S.C. §§ 4701-4751.
20. 16 U.S.C. §§ 4701-4751. See O'Shea & Cangelosi, supra note 10, at 383.
21. 16 U.S.C. § 4711. Although this article is limited to United States law and policy, the Canadian Shipping Act provides an interesting comparison. Instead of specific prohibitions and exceptions regarding ballast water exchange, that Act, as amended in 1998, simply provides that "[t]he Governor in Council may make regulations respecting the control and management of ballast water." R.S.C., RS-9, § 657.1. Unlike NISA, it appears that this Act allows the adoption of control measures beyond mere ballast exchange. See Reeves, supra note 8, at 67.
22. 33 C.F.R. § 151.1510(a)(1).
23. See Reeves, supra note 8, at 57.
24. See id.
25. See id.
26. See 16 U.S.C. § 4711(k)(1).
27. See 16 U.S.C. § 4711(k)(1).
28. See 33 C.F.R. § 151.1510.
29. See 16 U.S.C. § 4711(k)(2)(A),(B); 33 C.F.R. § 151.1514. The exemption sweeps even more broadly for ships traversing U.S. waters other than the Great Lakes. These ships may avoid exchange on safety grounds and proceed to discharge water "in any harbor." Id.
30. See Reeves, supra note 8, at 54-55.
31. See id. at 54.
32. CWA § 301(a), 33 U.S.C. § 1311(a).
33. CWA § 502(12), 33 U.S.C. § 1362(12).
34. CWA § 502(7)-(8), 33 U.S.C. § 1362(7)-(8). See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) (upholding the regulatory definition of navigable waters).
35. 40 C.F.R. § 122.3(a).
36. Letter from Pacific Environmental Advocacy (PEAC) to Carol Browner (Jan. 13, 1999) (on file with author).
37. Letter from Asst. Administrator Charles Fox to Craig N. Johnston, PEAC (Apr. 6, 1999) (on file with author).
38. See CWA § 505(a)(2), 33 U.S.C. § 1365(a)(2) ("any citizen may commence a civil action⋯ against the Administrator [of EPA] where there is alleged a failure ⋯ to perform any act or duty under this chapter which is not discretionary with the Administrator."); Natural Resources Defense Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (requiring EPA to regulate agricultural return flows as point sources). See also Section III.D., infra (discussing citizen suits).
39. See David Whalen, The Control of Aquatic Nuisance Nonindigenous Species, 5 ENVTL. LAW. 65, WL *10-12, 26-27 (1998) (reviewing legislative history of the CWA and determining that the definition of pollutants should include living aquatic invasive species); Reeves, White Paper, supra note 2, at 6 (agreeing that exotic species are pollutants, as a matter of law, economics and common sense). See also David Eldridge, supra note 13, at 49.
40. See David Whalen, The Control of Aquatic Nuisance Nonindigenous Species, 5 ENVTL. LAW. 65, WL *10-12, 26-27 (1998) (reviewing legislative history of the CWA and determining that the definition of pollutants should include living aquatic invasive species); Reeves, White Paper, supra note 2, at 6 (agreeing that exotic species are pollutants, as a matter of law, economics and common sense). See also David Eldridge, supra note 13, at 49.
41. CWA § 502(6), 33 U.S.C. § 1362(6).
42. See Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 175-76 (D.C. Cir. 1982) (finding in dicta that cold, unlike heat, is a water condition; because cold is not specifically listed, while heat is, cold is not necessarily a pollutant).
43. See United States v. Hamel, 551 F.2d 107 (6th Cir. 1977) (affirming the district court's decision that petroleum products are included under the broad term "chemical waste," even though Congress did not list oil and oil products by name within the definition of pollutant). See also Hudson River Fishermen's Ass'n v. City of New York, 751 F. Supp. 1088, 1101 (S.D.N.Y. 1990) (holding that chlorine, when discharged into navigable waters, is regarded as a pollutant, though intended for a beneficial use), affd, 940 F.2d 649 (2d Cir. 1991).
44. See Nat'l Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988). See also United States v. Dubois, 102 F.3d 1273, 1296-97 & n.29 (1st Cir. 1996) (finding that movement of organisms in river water to a pond is an addition of pollutants; although defendant's snowmaking did not itself contribute new pollutants, it was undisputed that the river contained at least some pollutants not found in the pond, including the parasitic giardia lambia); Ass'n of Pacific Fisheries v. EPA, 615 F.2d 794, 807 n.7 & 815 (9th Cir. 1980) (concluding that fish wastes discharged from seafood processors are pollutants).
45. See U.S. v, Frezell, 461 F. Supp. 266, 269-70 (E.D. Pa. 1978) (holding that bacteria in compost runoff is a biological material and therefore a pollutant), aff'd, 602 F.2d 1123 (3d Cir. 1979), cert, denied, 444 U.S. 1074 (1980).
46. See Consumers Power, 693 F.2d at 584-86.
47. See Gorsuch, 693 F.2d at 156.
48. See 40 C.F.R. Part 408; Pacific Fisheries, 615 F.2d at 801. Similarly, the discharge of dredged-up sediments and debris, although indigenous materials at their place of origin, adds pollutants when introduced to another area. See United States v. M.C.C. of Florida, Inc., 772 F.2d 1501, 1506 (11th Cir. 1985), vacated on other grounds, 481 U.S. 1034 (1985), reh'g on other grounds, 863 F.2d 802 (1989); United States v. Banks (S.D. Fla. 1995); United States v. Zaner (N.D. Cal. 1991)
49. Proposed Revisions to the Water Quality Planning and Management Regulation, 64 Fed. Reg. 46012,46017 (1999). See CWA § 303(d), 33 U.S.C. § 1313(d) (requiring the identification of impaired waters and establishment of TMDLs); discussion at Section III.C infra (discussing TMDL program).
50. See 63 Fed. Reg. 59556 (1998); Brent Foster, Pollutants Without Half-lives: The Role of Federal Environmental Laws in Controlling Ballast Water Discharges of Exotic Species, 30 ENVTL. L. at 18 (2000). See also L. Blaney & T. Kemp, WATER RESOURCES CONTROL BOARD, 15-SUM CAL. REG. L. REP. 149, 150 (noting that an objective of California's Plan is to reduce the impacts of introduced species on native species in the San Francisco Bay/Delta Estuary).
51. CWA § 502(14), 33 U.S.C. § 1362(14) (emphasis added).
52. Id. In addition, a limited exemption for stormwater runoff from mining activities is found outside of the definitional section. See CWA § 402(1)(2), 33 U.S.C. § 1342(1)(2).
53. See Natural Resource Defense Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977) (invalidating EPA's exclusion for agricultural return flows as inconsistent with the plain language of section 502(14); Congress later amended that provision to explicitly exclude return flows); Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984) (holding that courts reviewing statutory interpretations by agencies should first determine whether the statute is ambiguous; if it is not, the court may not defer to the agency, but must give effect to the plain meaning of the statute). See also Chevron v. Hammond, 726 F.2d 483, 488 (9th Cir. 1984) (upholding Alaska's application of the permit system to oil-tainted ballast water discharged from vessels, noting that the CWA provided only limited exemptions to the otherwise comprehensive NPDES program).
54. Costle, 568 F.2d at 1379.
55. See Hammond, 726 F.2d at 493 (finding that CWA's objectives support Alaska's application of the NPDES program to ballast water).
56. CWA § 101(a), 33 U.S.C. § 1251(a) (emphasis added).
57. CWA § 101(a)(2), 33 U.S.C. § 1251(a)(2).
58. See 44 Fed. Reg. 32859 (1979) (citing SENATE COMMITTEE ON PUBLIC WORKS, 93d Cong., 1st Sess. (1973) at 1492 (referencing the CWA and the Marine Sanctuaries Act, 16 U.S.C. § 1431, et seq.)). The Ocean Dumping Act (ODA) compliments the CWA with regard to emissions outside of the CWA's jurisdiction, as it prohibits vessels registered in the United States or flying a United States flag from transporting "any material for the purpose of dumping it into ocean waters." 33 U.S.C. § 1411(a)(2). The ODA also prohibits any person from dumping "any material transported from a location outside the United States" into United States territorial seas, or the U.S. contiguous zone if it may affect U.S. territorial seas or territory, unless a permit is obtained. 33 U.S.C. § 1411(b). The United States claims a contiguous zone of twelve miles from its baseline. See, e.g., 33 U.S.C. § 1402(b);19 U.S.C. §1401(j). See also Pres. Proclamation No. 5928 (Dec. 27, 1988); 54 Fed. Reg. 777 (1989). In addition, nations may generally exercise jurisdiction over foreign flag vessels that violate its customs, fiscal, immigration, or sanitary laws if the vessels are traveling within their contiguous zone. See United Nations Convention on the Law of the Sea, art. 33, 21 I.L.M. 1261 (Dec. 10, 1982).
59. 44 Fed. Reg. 32859, (citing SENATE COMMITTEE ON PUBLIC WORKS, 93d Cong., 1st Sess. (1973) at 1492 (emphasis added).
60. 38 Fed. Reg. 1363-1364 (1973). See Daniel E. O'Toole, Regulation of Navy Ship Discharges Under the Clean Water Act: Have Too Many Chefs Spoiled the Broth?, 19 WM. & MARY ENVTL. L. & POL'Y REV. 1, 12-13 (1994) (discussing history of EPA's ballast water exemption).
61. 40 C.F.R. § 125.4(c), See 38 Fed. Reg. 13528, 13530 (1973). See also 44 Fed. Reg. 32859 (1979) (stating that, although the CWA does not define "vessels or other floating craft, it appears that those terms refer to transportation vessels").
62. 38 Fed. Reg. 13,528 (1973). Similarly, the legislative history of the CWA indicates that Congress believed that permitting for millions of recreational boats would have been an "unreasonable expenditure of administrative effort" as well as an "unreasonable burden on the individual boat owners." See O'Toole, supra note 55, at 12-13 (citing 118 CONG. REC. 16,875-76 (1972)).
63. See Uniform National Discharge Standards for Armed Forces Vessels Act, CWA § 502(6), 33 U.S.C. § 1362(6).
64. S. REP. NO. 113, 104th Cong., 1st Sess. (S. REP. NO. 104-113), at 1.
65. S. REP. NO. 104-113, at 1, 7.
66. CWA § 312(n), 33 U.S.C. § 1322(n); See 40 C.F.R. Part 1700.
67. See CWA § 312 (n)(1),(2), 33 U.S.C. § 1322(n)(1), (2). See also discussion, infra, at IV.B.
68. See Andrus v. Glover Constr. Co., 446 U.S. 608, 618 (1980); League to Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1171 (9th Cir.), cert. denied, 44 U.S. 943 (1979). See also City of Chicago v. Envtl. Defense Fund, 511 U.S. 328, 338 (1994) (in refusing to imply exemption from hazardous waste regulation of the Resource Conservation and Recovery Act (RCRA), Court noted that Congress had provided a complete exemption in a separate section of RCRA by utilizing a comprehensive list of relevant activities, and therefore "knew how to draft a waste stream exemption in RCRA when it wanted to."). See also Hammond, 726 F.2d at 488 (noting that CWA's explicit exclusion for certain types of discharges supported inclusion of ballast water in the NPDES program).
69. "[T]he congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress." Geldermann, Inc. v. Commodity Futures Trading Comm'n, 836 F.2d 310, 316 (7th Cir.1987) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-75 (1974)).
70. See Redlark v. Comm'r of Internal Revenue, 141 F.3d 936, 941 (9th Cir. 1998).
71. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 117-19 (1980) (footnote omitted) (citing United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 348-49 (1963) and United States v. Price, 361 U.S. 304, 313 (1960)); See North Haven Bd. of Educ. v. Bell, 456 U.S. 512 (1982) (post hoc congressional actions may be viewed as instructive as to the reasonableness of an agency's interpretation.); See Apex Hosiery Co. v. Leader, 310 U.S. 469, 487-89 (1940) (once an agency's statutory construction has been "fully brought to the attention of the public and the Congress," and Congress has not sought to alter it although it has amended the statute in other respects, a court may presume that the agency has correctly discerned the legislature's intent.).
72. CWA §§ 301(a), 502(6), (14), 33 U.S.C. §§ 1311(a), 1362(6), (14).
73. See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98-99 (1991) ("Where a statute contains a phrase that is unambiguous - that has a clearly accepted meaning in both legislative and judicial practice - we do not permit it to be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process."); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989) ("[W]here, as here, the statute's language is plain, 'the sole function of the court is to enforce it according to its terms.'") (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)); Chevron, 467 U.S. at 842-43 (if the statute is unambiguous on its ace, the court must simply effectuate its terms instead of deferring to an agency's interpretation).
74. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 386 n.2 (1992). See Chevron, 467 U.S. at 842-83; Harrison v. PPG Industries, Inc., 446 U.S. 578, 591-592 (1980). The statute itself, not committee reports or other legislative statements, provides the "authoritative expression" of the law. See Envtl. Defense Fund, 511 U.S. at 337 (holding that ash generated by resource recovery facility's incineration of municipal solid waste was subject to RCRA regulatory scheme governing hazardous waste pursuant to plain language of Section 3001(i), 42 U.S.C. § 6921(i)).
75. See Gorsuch, 693 F.2d at 167.
76. See Costle, 568 F.2d at 1375.
77. CWA § 502(12), 33 U.S.C. § 1362(12).
78. See CWA § 502(9), 33 U.S.C. § 1362(9); Convention of the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, art. 33, 15 U.S.T. 1607, 1612-13, 516 U.N.T.S. 205, 220-22 (1958); 63 Fed. Reg. 45298, 45300 (1998).
79. See CWA § 502(7), 33 U.S.C. § 1362(7).
80. 16 U.S.C. § 4711(b)(2)(C), (c)(2)(J).
81. The legislative history of NISA indicates that Congress wanted to ensure that the CWA continues to govern the discharge of oily or chemical-laden ballast. See Senate Environment and Public Works Committee, S. REP. 101-523 on S.2244, at 6 (Oct. 11, 1990), 1990 U.S.C.C.A.N. 6455, 6450 (S.2244 was incorporated into H.R. 5390, which was then passed into law as the final act, P.L. 101-646 (Nov. 29, 1990)). However, there is no evidence that Congress intended to limit this provision to ballast contaminated with oil or chemicals. To read such a limitation into the statute would fail to do justice to the plain language of NISA's broadly phrased savings clause, in violation of the principle that the language of the statute itself, not the legislative statements, provides the "authoritative expression" of the law. See Envtl. Defense Fund, 511 U.S. at 337.
82. Exec. Order No. 13112, 64 Fed. Reg. 6183 (1999).
83. 14 U.S.C. § 1.
84. 14 U.S.C. § 2. The Department of Transportation is generally known as a development-oriented department. See Oliver A. Houck, Of Bats, Birds and B-A-T: The Convergent Evolution of Environmental Law, 63 MISS. L.J. 403, 454 (1994).
85. 14 U.S.C. § 2.
86. CWA § 404, 33 U.S.C. § 1344.
87. See 40 C.F.R. § 231.1(a); James City County, Va. v. EPA, 12 F.3d 1330 (4th Cir. 1993), cert. denied, 513 U.S. 823 (1994).
88. See Natural Resources Defense Council v. Calloway, 392 F. Supp. 685 (D.D.C. 1975).
89. See, e.g., Bersani v. Robichaud, 850 F.2d 36 (2d Cir. 1988), cert. denied, 489 U.S. 1089 (1989) (upholding EPA veto of CWA section 404 wetland permit issued by Corps). See generally Comment, Bersani v. EPA: Toward a Plausible Interpretation of the 404(B)(1). 85. See Benjamin H. Grumbles & Kenneth J. Kopocis, The Water Resources Development Act of 1992: Expanding the "Corps of Environmental Engineers," 23 ELR 10379, WL *32-33 (1993) (noting that, in carrying out the CWA's goals, both Congress and the EPA may justifiably rely more on the Corps' expertise "in water management, wetlands protection, and other issues addressing both water quality and quantity").
90. Reeves, White Paper, supra note 2, at 113. See also Reeves, Exotic Politics, supra note 2, at 189-90.
91. Reeves, White Paper, supra note 2, at 113. See also Reeves, Exotic Politics, supra note 2, at 189-90.
92. Reeves, White Paper, supra note 2, at 109 (citing STEVEN E. RHOADES, THE ECONOMISTS' VIEW OF THE WORLD: GOVERNMENT, MARKETS, AND PUBLIC POLICY 40, et seq. (Cambridge Univ. Press) (1985)).
93. Reeves, White Paper, supra note 2, at 109 (citing STEVEN E. RHOADES, THE ECONOMISTS' VIEW OF THE WORLD: GOVERNMENT, MARKETS, AND PUBLIC POLICY 40, et seq. (Cambridge Univ. Press) (1985)).
94. Debra L. Donahue, The Untapped Power of Clean Water Act Section 401, 23 ECOLOGY L.Q. 201, 202-03 (1996).
95. See Brian Weeks, Trends in Regulation of Storm water and Nonpoint Source Pollution, 25 ELR 10300, 10301 (June 1995) (noting that the CWA has "drastically reduced surface water pollution from point sources."); Houck, supra note 79, at 418, 463 (discussing drop in point source discharges due to the CWA).
96. William H. Rodgers, Jr., The Seven Statutory Wonders of U.S. Environmental Law: Origins and Morphology, 27 LOY. L.A. L. REV. 1009, 1011 (1994).
97. See 40 C.F.R. § 122.2 (defining effluent limitations as "any restriction imposed by the Director on quantities, discharge rates, and concentrations of 'pollutants' which are 'discharged' from 'point sources' into 'waters of the United States,' the waters of the 'contiguous zone,' or the ocean.").
98. See CWA § 402(a)-(c), 33 U.S.C. § 1342(a)-(c). The Administrator can also set "other requirements as he deems appropriate." CWA § 402(a)(2), 33 U.S.C. § 1342(a)(2).
99. CWA § 306(a)(1), 33 U.S.C. § 1316(a)(1).
100. CWA § 306(a)(3), 33 U.S.C. § 1316(a)(3). Facilities, in turn, are defined by regulation as "buildings, structures, process or production equipment or machinery which form a permanent part of the new source and which will be used in its operation. ⋯" See 40 C.F.R. § 122.29(5). This term, like the term "building," seems to include only stationary sources. The terms "structure" and "installation," however, could be construed more broadly.
101. 42 U.S.C. § 7411(a)(2), (b)(1)(A).
102. CWA § 306(a)(2), 33 U.S.C. § 1316(a)(2).
103. See CWA § 306(a)(1), 33 U.S.C. § 1316(a)(1).
104. Id.
105. Final Rule for Pharmaceutical Manufacturing Category Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance Standards, 63 Fed. Reg. 50388, 50390 (1998).
106. CWA § 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B). See Sidney A. Shapiro & Thomas O. McGarity, Not So Paradoxical: The Rationale for Technology-Based Regulation, 1991 DUKE L.J. 729, 744 n.80 (1991) (reaching similar conclusion with respect to BAT standard).
107. CWA § 306(d), 33 U.S.C. § 1316(d).
108. See CWA § 306(b)(1)(A), 33 U.S.C. § 1316(b)(1)(A) (including pulp and paper mills, meat product and rendering processing, grain mills, and other types of industrial facilities).
109. Id.
110. See CWA § 301(b)(1), (g)(1), 33 U.S.C. § 1311(b)(1), (g)(1).
111. See CWA § 304(a)(4), 33 U.S.C. § 1314(a)(4). Congress designated the following conventional pollutants in the CWA: biochemical oxygen demanding (BOD) pollutants, like nitrogen and phosphorous; total suspended solids (TSS); fecal coliform; pH; and any additional pollutants defined by the Administrator as conventional. CWA § 304(a)(4), 33 U.S.C. § 1314(a)(4). EPA subsequently designated oil and grease as an additional conventional pollutant on July 30, 1979 (44 Fed. Reg. 44501). Conventional are generally oxygen demanding and eutrophying, or contribute to turbidity. See EPA Policy for the Development of Water Quality-Based Permit Limitations for Toxic Pollutants, 49 Fed. Reg. 9016 (1984).
112. See CWA § 307, 33 U.S.C. § 1317.
113. See CWA § 301(b)(2)(F), (g)(1), (4), 33 U.S.C. § 1311(b)(2)(F), (g)(1), (4).
114. See CWA § 301(g)(1), (4), 33 U.S.C. § 1311(g)(1), (4).
115. See CWA § 301(b)(2)(F), 33 U.S.C. § 1311(b)(2)(F).
116. See Rybachek v. EPA, 904 F.2d 1276, 1292 (9th Cir. 1990) (finding that "EPA's decision to treat settleable solids as a nonconventional pollutant and thus subject to BAT standards was both reasonable and permissible") (citing Chevron, 467 U.S. at 837). See also American Petroleum Inst. v. EPA., 858 F.2d 262, 263 n.2 (5th Cir. 1988) (upholding EPA's designation of diesel oil as nonconventional "indicator" pollutant, resulting in imposition of more stringent BAT regulations over discharge of muds and cuttings contaminated with diesel oil for use in off-shore drilling operations), clarified on other grounds, 864 F.2d 1156 (5th Cir. 1989).
117. See Houck, supra note 79, at 451.
118. See CWA §§ 301(b)(2)(A), 304(b)(2)(B), 33 U.S.C. §§ 1311(b)(2)(A), 1314 (b)(2)(B); Houck, supra note 79, at 445 n.188.
119. See Dale B. Thompson, Beyond Benefit-Cost Analysis: Institutional Transaction Costs and Regulation of Water Quality, 39 NAT. RESOURCES J. 517, 522 (1999).
120. CWA § 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B).
121. See Chemical Mfrs. Ass'n v. EPA, 879 F.2d 177 (5th Cir. 1989).
122. BCT is roughly equivalent to the "best of the average" performers in an industrial category. BCT limitations are established in light of a variety of factors, including a two part "cost-reasonableness" test. See CWA § 304(b)(4)(B), 33 U.S.C. § 1314(b)(4)(B); American Paper Institute v. EPA, 660 F.2d 954 (4th Cir. 1981). EPA's current methodology for the development of BCT limitations was issued in 1986. 51 Fed. Reg. 24974 (July 9, 1986).
123. See Chemical Mfrs. Ass'n, 879 F.2d at 250, citing EPA v. Nat'l Crushed Stone Ass'n, 449 U.S. 64, 71 n. 10 (1980) (Section 304(b)(2)(B) "does not state that costs shall be considered in relation to effluent reduction").
124. Robert V. Percival, Regulatory Evolution and the Future of Environmental Policy, 1997 U. CHI. LEGAL F. 159 (1997), (citing KURT FISCHER & JOHAN SCHOT, ENVIRONMENTAL STRATEGIES FOR INDUSTRY 282 (Island 1993) (citing Nicholas A. Ashford, Understanding Technological Responses of Industrial Firms to Environmental Problems: Implications for Government Policy)).
125. Robert V. Percival, Regulatory Evolution and the Future of Environmental Policy, 1997 U. CHI. LEGAL F. 159 (1997), (citing KURT FISCHER & JOHAN SCHOT, ENVIRONMENTAL STRATEGIES FOR INDUSTRY 282 (Island 1993) (citing Nicholas A. Ashford, Understanding Technological Responses of Industrial Firms to Environmental Problems: Implications for Government Policy)).
126. Robert V. Percival, Regulatory Evolution and the Future of Environmental Policy, 1997 U. CHI. LEGAL F. 159 (1997), (citing KURT FISCHER & JOHAN SCHOT, ENVIRONMENTAL STRATEGIES FOR INDUSTRY 282 (Island 1993) (citing Nicholas A. Ashford, Understanding Technological Responses of Industrial Firms to Environmental Problems: Implications for Government Policy)).
127. See Shapiro & McGarity, supra note 99, at 744 n.80.
128. See, e.g., CWA § 301(c),(g),(h), 33 U.S.C. § 1311(c),(g),(h).
129. CWA § 301(g), 33 U.S.C. § 1311(g).
130. See id.
131. See CWA § 301(c), 33 U.S.C. § 1311(c).
132. CWA § 301(n), 33 U.S.C. § 1311(n). The CWA also allowed dischargers of conventional pollutants to use "innovative technology" resulting in effluent reductions significantly greater than otherwise applicable standards, so long as the control method "moves toward the national goal of eliminating the discharge of all pollutants." CWA 301(k), 33 U.S.C. § 1311(k).
133. See Foster, supra note 45, at *WL 25 n.125 (discussing expert opinions regarding ship board versus on shore treatment).
134. See Reeves, supra note 8, at 66 (indicating that 98% exchange may be a "reasonably high standard"); 63 Fed. Reg. 17782, 17785-89 (1998) (proposed Coast Guard regulations would require 90%, a "reasonably complete exchange").
135. See 63 Fed. Reg. at 17785, 17789.
136. See Reeves, White Paper, supra note 2, at 47-50 (assessing relative merits and costs of improved ballast exchange, filtering, UV light, biocides, heat, and shoreside treatment); Foster, supra note 45, at *WL 25 n.125 (discussing application and success of various alternatives in experimental efforts).
137. See Lake Carrier's Association, Managing Ballast Water to Stop the Introduction of Non-Indigenous Species (visited Sept. 17, 1999) .
138. See Reeves, White Paper, supra note 2, at 117.
139. See id. The ALGONORTH, however, filters only 1,500 gallons per minute; 1,000-foot United States lakers, carrying as much as 14 million gallons of ballast water when "light" on cargo, could require filtration up to 18,000 gallons per minute. See Lake Carrier's Association, supra note 128; Allegra Cangelosi, The Algonorth Experiment, SEAWAY REV. at 29-33 (Jan. - Mar., 1997).
140. Chemical Mfrs. Ass'n, 870 F.2d at 263.
141. See id. at 264. See Houck, supra note 79, at 452 (noting that EPA's final standard for organic chemicals and plastics could hardly be called the best available technology, where EPA failed to recognize that recycling technologies adopted by a number of plants had already achieved zero discharge).
142. Reeves, supra note 8, at 55 (noting that "swish and spit" would require approximately 1.5% reduction in cargo).
143. See id. at 55.
144. CWA § 303(b)(1)(C), 33 U.S.C. § 1313(b)(1)(C). "[T]here shall be achieved ⋯ any more stringent limitation, including those necessary to meet water quality standards⋯ established pursuant to any State law or regulations." Id.
145. See CWA §§ 304(a), 303(c), 33 U.S.C. §§ 1314(a), 1313(c).
146. CWA § 303(c), 33 U.S.C. § 1313(c).
147. See id. The ultimate purpose of water quality standards, as with the other provisions of the CWA, is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA § 101(a), 33 U.S.C. 1251(a).
148. See 40 C.F.R. Part 131.
149. See CWA § 303(d)(2), 33 U.S.C. § 1313(d)(2).
150. See CWA § 303(d)(1)(C), 33 U.S.C. § 1313(d)(1)(C).
151. See 63 Fed. Reg. 59556.
152. See Foster, supra note 45, at 23-24.
153. See Section IV.B infra.
154. See CWA § 402(a)(1), 33 U.S.C. § 1342(a)(1); 40 C.F.R. § 124.12(c).
155. See 40 C.F.R. §§ 124.10, 124.12(a)(4).
156. 40 C.F.R. § 124.15.
157. 40 C.F.R. § 124.74(a).
158. See Rodgers, supra note 89, at 1012 (noting that one of the reasons for the CWA's successes in reducing water pollution is its effective system of monitoring, underscored by a highly effective citizen-suit mechanism).
159. Drew Caputo, A Job Half Finished: The Clean Water Act After 25 Years, 27 ELR 10574, n.82 (1997) (citing U.S. Government Printing Office, 1 A Legislative History of the Water Pollution Control Act Amendments of 1972, 216 (1973)).
160. Houck, supra note 79, at 467.
161. CWA § 505(a)(1), 33 U.S.C. § 1365(a)(1). An "effluent standard or limitation" is defined as, among other things, an unlawful act under CWA § 301(a). Id. at § 1365(f).
162. See WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW 63 (1986) (noting that Congress, through various provisions of the CWA, encouraged "citizen initiatives to enforce the water pollution laws"). See also Jeffrey G. Miller, Private Enforcement of Federal Pollution Control Laws Part I, 13 ELR 10309 (1983) (detailing legislative history of citizens' suits provisions).
163. See WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW 63 (1986) (noting that Congress, through various provisions of the CWA, encouraged "citizen initiatives to enforce the water pollution laws"). See also Jeffrey G. Miller, Private Enforcement of Federal Pollution Control Laws Part I, 13 ELR 10309 (1983) (detailing legislative history of citizens' suits provisions).
164. Claudia Polsky & Tom Turner, Justice on the Rampage, 21 AMICUS J. 34 (1999).
165. See Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (enjoining construction of dam); Scenic Hudson Preservation Conference v. Fed. Power Comm'n, 354 F.2d 608 (2d Cir. 1965) (remanding FPC license to construct pumped storage hydroelectric project), cert, denied, 384 U.S. 941 (1966). See also Sierra Club v. Morton, 405 U.S. 727 (1972) (holding that Sierra Club did not have standing because it failed to allege that corporation or its members would be affected by the proposed ski resort; however, the resort was never actually built). See Rodgers, supra note 89, at 209 n.12.
166. Polsky & Turner, supra note 154.
167. See Michael D. Axline & Patrick C. McGinley, Universal Statutes and Planetary Programs: How EPA Has Diluted the Clean Water Act, 8 J. ENVTL. L. & LITIG. 253, 287-88 (1993). See Michael R. Lozeau, Tailoring Citizen Enforcement to an Expanding Clean Water Act: The San Francisco Baykeeper Model, 28 GOLDEN GATE U. L. REV. 429, 440 (1998) (describing role of NRDC in CWA enforcement during diminished role of EPA during Reagan administration).
168. See Michael D. Axline & Patrick C. McGinley, Universal Statutes and Planetary Programs: How EPA Has Diluted the Clean Water Act, 8 J. ENVTL. L. & LITIG. 253, 287-88 (1993). See Michael R. Lozeau, Tailoring Citizen Enforcement to an Expanding Clean Water Act: The San Francisco Baykeeper Model, 28 GOLDEN GATE U. L. REV. 429, 440 (1998) (describing role of NRDC in CWA enforcement during diminished role of EPA during Reagan administration).
169. See Oliver A. Houck, TMDLS, Are We There Yet?: The Long Road Toward Water Quality-Based Regulation Under the Clean Water Act, 27 ELR 10391 (1997).
170. Zygmunt Plater, Environmental Law and Three Economies: Navigating a Sprawling Field of Study, Practice and Societal Governance in Which Everything is Connected to Everything Else, 23 HARV. ENVTL. L. REV. 359, 382-83 n.54 (1999). See JOHN CRONIN & ROBERT F. KENNEDY, JR., THE RIVERKEEPERS at 178-99 (1997) (discussing need for citizen enforcement in light of under-enforcement by federal and state environmental agencies due to "agency capture" by regulated industry, political pressure and budget shortfalls).
171. Zygmunt Plater, Environmental Law and Three Economies: Navigating a Sprawling Field of Study, Practice and Societal Governance in Which Everything is Connected to Everything Else, 23 HARV. ENVTL. L. REV. 359, 382-83 n.54 (1999). See JOHN CRONIN & ROBERT F. KENNEDY, JR., THE RIVERKEEPERS at 178-99 (1997) (discussing need for citizen enforcement in light of under-enforcement by federal and state environmental agencies due to "agency capture" by regulated industry, political pressure and budget shortfalls).
172. CRONIN & KENNEDY, supra note 159, at 178.
173. See U.S. Const. art. III (providing federal courts with jurisdiction to hear only concrete cases or controversies).
174. Frothingham v. Mellon, 262 U.S. 447, 479 (1923).
175. See id.
176. See Flast v. Cohen, 392 U.S. 83, 103 (1968) (noting that "one of the specific evils feared by those who drafted the Establishment Clause ⋯ was that the taxing and spending power would be used to favor one religion over another or to support religion in general").
177. Challenges to economic incentive programs are almost routinely rejected for lack of standing. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976); Allen v. Wright, 468. U.S. 737 (1984).
178. See ADLER, LANDMAN & CAMERON, THE CLEAN WATER ACT 20 YEARS LATER 150-70 (1993). For example, the five-year review required by CWA, which views BAT development as a continuing, dynamic process, has bogged down under the weight of industry resistance and judicial challenges from both sides. See Houck, supra note 79, at 456, n.240-41.
179. See Houck, supra note 79, at 418, 463. See also Shapiro & McGarity, supra note 99, at 746 n.96 (reporting that the CWA's initial performance standards caused "some impressive reductions in conventional pollutant discharges," citing data on reductions from pulp and paper mills from 1973-1984, in Council on Environmental Quality, Environmental Trends 31 (1989)).
180. Shapiro & McGarity, supra note 99, at 743. As Professor Houck aptly notes, "The success of technology-based standards in abating toxic water pollution depends largely on one's predisposition to enjoy the donut or regret the hole." Houck, supra note 1, at 310.
181. Houck, supra note 79, at 407.
182. Id. at 427. See Plater, supra note 159, at 366, 374-78, 379-82 (generally discussing historic failure of market economics to address environmental problems).
183. Oliver A. Houck, The Regulation of Toxic Pollutants Under the Clean Water Act, 21 ELR 10528, 10541-42 (Sept. 1991). See Houck, supra note 79, at 417-24 (describing gains made in cutting emissions into water and other media under "best available technology" approaches currently required by the CWA, CAA, and RCRA's hazardous waste pretreatment regulations).
184. See Section I supra, discussing effects and current control methods.
185. 63 Fed. Reg. 17782, 17785, 17789 (April 10, 1998) (stating that "90 percent is a reasonable standard to set, which is of minimal cost to the industry in that it does not require any changes to current ship designs, subject to the clearly stated exemption for vessels that cannot safely conduct an exchange").
186. Reeves, White Paper, supra note 2, at 67. See 64 Fed. Reg. 26672 (1999). Yet, the Coast Guard's stated goal remains "for owners and operators to exchange 100 percent of the original water in the ballast tank" if possible given "operating systems and physical limitations of the vessel." 64 Fed. Reg. at 26677.
187. See Reeves, White Paper, supra note 2, at 109-11.
188. See Shapiro & McGarity, supra note 99, at 743; M. SAGOFF, THE ECONOMY OF THE EARTH (1988); Breger, Stewart, Elliott & Hawkins, Providing Economic Incentives in Environmental Regulation, 8 YALE J. ON REG. 463, 481-82 (1991).
189. See Shapiro & McGarity, supra note 99, at 743; M. SAGOFF, THE ECONOMY OF THE EARTH (1988); Breger, Stewart, Elliott & Hawkins, Providing Economic Incentives in Environmental Regulation, 8 YALE J. ON REG. 463, 481-82 (1991).
190. See CWA §§ 304(b)(2), 402(p), 33 U.S.C. §§ 1314(b)(2), 1342(p). See generally Valentina O. Okaru, Financing Publicly Owned Treatment Works and Instituting Enforcement Measures Against Non-Compliant Works Under The Clean Water Act, 2 BUFF. ENVTL. L.J. 213 (1994). Federal funding is still a component of the publicly owned treatment works (POTW) program, but before obtaining funds, "the applicant for a federal construction grant must show that its project is the most economical means of meeting effluent and water quality goals in a specific geographic area." G. Nelson Smith, III, Lawmaker as Lawbreaker: Enforcement Actions Against Municipalities for Failing to Comply With the Clean Water Act, 41 CLEV. ST. L. REV. 685, 700-701 (1993) (citing 33 U.S.C. § 1311(i) (1988)).
191. See CWA §§ 304(b)(2), 402(p), 33 U.S.C. §§ 1314(b)(2), 1342(p). See generally Valentina O. Okaru, Financing Publicly Owned Treatment Works and Instituting Enforcement Measures Against Non-Compliant Works Under The Clean Water Act, 2 BUFF. ENVTL. L.J. 213 (1994). Federal funding is still a component of the publicly owned treatment works (POTW) program, but before obtaining funds, "the applicant for a federal construction grant must show that its project is the most economical means of meeting effluent and water quality goals in a specific geographic area." G. Nelson Smith, III, Lawmaker as Lawbreaker: Enforcement Actions Against Municipalities for Failing to Comply With the Clean Water Act, 41 CLEV. ST. L. REV. 685, 700-701 (1993) (citing 33 U.S.C. § 1311(i) (1988)).
192. David M. Dreisen, Is Emissions Trading an Economic Incentive Program?, 55 WASH. & LEE L. REV. 289, 293 (1998).
193. Regulatory reform has gained renewed interest and vigor since the 104th Congress took its seat in 1994, but it had its supporters in earlier years as well, in particular, the Reagan Administration. See Thomas O. McGarity, Regulatory Analysis and Regulatory Reform, 65 TEX. L.R. 1243 (1987). Similarly, although cost-benefit analysis has played a significant role in environmental regulations since the early 1980's, see id., it has become "even more significant" based in part on the principles of the 104th Congress's "Contract with America." Thompson, supra note 112, at 517, citing proposed CWA Amendments of 1995, H.R. 961, 104th Cong. (1995); H.R. 9, 104th Cong. (1995). See Exec. Order 12,866, 3 C.F.R. 638, reprinted in 5 U.S.C. § 601 (1994).
194. See CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 74-110 (1990); Symposium, Free Market Environmentalism: The Role of the Market in Environmental Protection, 15 HARV. J.L. & PUB. POL'Y 297 (1992).
195. See CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY STATE 74-110 (1990); Symposium, Free Market Environmentalism: The Role of the Market in Environmental Protection, 15 HARV. J.L. & PUB. POL'Y 297 (1992).
196. See, e.g., EPA, Regulatory Reinvention (XL) Pilot Projects, 60 Fed. Reg. 27282 (May 23, 1995) (proposing "Project XL" to provide businesses greater flexibility in meeting environmental goals); 60 Fed. Reg. 27282 (May 23, 1995) (embracing "Common Sense Initiative" to allow six industries to develop "cleaner, cheaper, smarter" approaches to regulation). The Clinton Administration has "jumped on the reinvention band-wagon by announcing several initiatives to further this goal," including a proposal to extend compliance schedules for effluent standards for companies adopting innovative approaches for pollution prevention. Paula C. Murray, Inching Toward Environmental Regulatory Reform-ISO 14000: Much Ado About Nothing or a Reinvention Tool?, 37 AM. BUS. L.J. 35, 36 (1999) (citing BILL CLINTON & AL GORE, REINVENTING ENVIRONMENTAL REGULATION 43 (1995)). See also Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance In Environmental Law, 23 HARV. ENVTL. L. REV. 297, 307 (1999) (noting that the "Clinton Administration has shown particular interest in renegotiating regulatory standards").
197. See, e.g., EPA, Regulatory Reinvention (XL) Pilot Projects, 60 Fed. Reg. 27282 (May 23, 1995) (proposing "Project XL" to provide businesses greater flexibility in meeting environmental goals); 60 Fed. Reg. 27282 (May 23, 1995) (embracing "Common Sense Initiative" to allow six industries to develop "cleaner, cheaper, smarter" approaches to regulation). The Clinton Administration has "jumped on the reinvention band-wagon by announcing several initiatives to further this goal," including a proposal to extend compliance schedules for effluent standards for companies adopting innovative approaches for pollution prevention. Paula C. Murray, Inching Toward Environmental Regulatory Reform-ISO 14000: Much Ado About Nothing or a Reinvention Tool?, 37 AM. BUS. L.J. 35, 36 (1999) (citing BILL CLINTON & AL GORE, REINVENTING ENVIRONMENTAL REGULATION 43 (1995)). See also Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance In Environmental Law, 23 HARV. ENVTL. L. REV. 297, 307 (1999) (noting that the "Clinton Administration has shown particular interest in renegotiating regulatory standards").
198. See, e.g., EPA, Regulatory Reinvention (XL) Pilot Projects, 60 Fed. Reg. 27282 (May 23, 1995) (proposing "Project XL" to provide businesses greater flexibility in meeting environmental goals); 60 Fed. Reg. 27282 (May 23, 1995) (embracing "Common Sense Initiative" to allow six industries to develop "cleaner, cheaper, smarter" approaches to regulation). The Clinton Administration has "jumped on the reinvention band-wagon by announcing several initiatives to further this goal," including a proposal to extend compliance schedules for effluent standards for companies adopting innovative approaches for pollution prevention. Paula C. Murray, Inching Toward Environmental Regulatory Reform-ISO 14000: Much Ado About Nothing or a Reinvention Tool?, 37 AM. BUS. L.J. 35, 36 (1999) (citing BILL CLINTON & AL GORE, REINVENTING ENVIRONMENTAL REGULATION 43 (1995)). See also Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance In Environmental Law, 23 HARV. ENVTL. L. REV. 297, 307 (1999) (noting that the "Clinton Administration has shown particular interest in renegotiating regulatory standards").
199. See Plater, supra note 159, at 374-77, 379.
200. Ohio v. Dep't of Interior, 880 F.2d 432 (D.C. Cir. 1989).
201. 42 U.S.C. § 9607(f)(1).
202. Dep't of Interior, 880 F.2d at 445.
203. See Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and "Fine-Tuning" Regulatory Reforms, 37 STAN. L. REV. 1267, 1270-71 (1985) (regulatory programs result in decreased costs for information collection and evaluation, and greater consistency and predictability of results).
204. See Shapiro & McGarity, supra note 99, at 749.
205. See id. See also Daniel H. Cole and Peter Z. Grossman, When is Command-and-Control Efficient? Institutions, Technology, and the Comparative Efficiency of Alternative Regulatory Regimes for Environmental Protection, 1999 WIS. L. REV. 887, 918-19 (1999) (monitoring and enforcement costs tend to be higher for market-based programs).
206. Shapiro & McGarity, supra note 99, at 748.
207. Id. at 745.
208. See Shapiro and McGarity, supra note 99, at 743. The Exotics Policy White Paper itself acknowledges that its conclusions raise "some highly complex questions about the synergistic interaction of taxes, subsidies, and regulatory costs in various competing segments of industry which are beyond the analysis I can present here." Reeves, Exotic Politics, supra note 2, at 202-05.
209. See Reeves, White Paper, supra note 2, at 114-17; ROBERT V. PERCIVAL, ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE & POLICY 165-67 (Brown, 2d ed. 1996) (citing ACKERMAN & STEWART, REFORMING ENVIRONMENTAL LAW: THE DEMOCRATIC CASE FOR MARKET INCENTIVES (1988)); Pedersen, Turning the Tide on Water Quality, 15 ECOLOGY L.Q. 69, 85 (1988); RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 279 (2d ed. 1977).
210. See Reeves, White Paper, supra note 2, at 114-17; ROBERT V. PERCIVAL, ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE & POLICY 165-67 (Brown, 2d ed. 1996) (citing ACKERMAN & STEWART, REFORMING ENVIRONMENTAL LAW: THE DEMOCRATIC CASE FOR MARKET INCENTIVES (1988)); Pedersen, Turning the Tide on Water Quality, 15 ECOLOGY L.Q. 69, 85 (1988); RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 279 (2d ed. 1977).
211. See Reeves, White Paper, supra note 2, at 114-17; ROBERT V. PERCIVAL, ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE & POLICY 165-67 (Brown, 2d ed. 1996) (citing ACKERMAN & STEWART, REFORMING ENVIRONMENTAL LAW: THE DEMOCRATIC CASE FOR MARKET INCENTIVES (1988)); Pedersen, Turning the Tide on Water Quality, 15 ECOLOGY L.Q. 69, 85 (1988); RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 279 (2d ed. 1977).
212. See Reeves, White Paper, supra note 2, at 114-17; ROBERT V. PERCIVAL, ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE & POLICY 165-67 (Brown, 2d ed. 1996) (citing ACKERMAN & STEWART, REFORMING ENVIRONMENTAL LAW: THE DEMOCRATIC CASE FOR MARKET INCENTIVES (1988)); Pedersen, Turning the Tide on Water Quality, 15 ECOLOGY L.Q. 69, 85 (1988); RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 279 (2d ed. 1977).
213. CWA § 308(a), 33 U.S.C. § 1318(a). See Latin, supra note 186, at 1271.
214. See Dudek & Palmisano, Emissions Trading: Why is this Thoroughbred Hobbled?, 13 COLUM. J. ENVTL. L. 217, 234-36 (1988); POSNER, supra note 192, at 279. See also Reeves, White Paper, supra note 2, at 114 (quoting a vice president of Chrysler, discussing achievable technology for reducing emissions, "We're all worried that if we sound hopeful, what will the damned standards be tomorrow?").
215. See David M. Driesen, Is Emissions Trading An Economic Incentive Program?: Replacing The Command and Control/Economic Incentive Dichotomy, 55 WASH. & LEE L. REV. 289, 294 (1998); Cole & Grossman, supra note 188, at 892-94.
216. Shapiro & McGarity, supra note 99, at 749.
217. See Reeves, White Paper, supra note 2, at 116-17; Richard B. Stewart, Controlling Environmental Risks Through Economic Incentives, 13 COLUM. J. ENVTL. L. 153, 158 (1988) (arguing that the more stringent treatment of new sources "encourages existing sources to prolong their design lives and discourages new sources, with state-of-the-art water pollution technology, from entering the market"). Perhaps in recognition of the potential for stringent BADT standards to create incentives to keep older, dirtier facilities operating, EPA has, at least on occasion, attempted to set BADT for new sources no higher than BAT. See Houck, supra note 171, at WL*32 (discussing litigation and reversal of petrochemical industrial standards, in Chem. Mfrs. Ass'n v. EPA, 883 F.2d 253 (5th Cir. 1989)).
218. See EPA v. Nat'l Crushed Stone Ass'n., 449 U.S. 64 (1980); 33 U.S.C. § 1311(d). See also notes 102-103 and 125-126, supra, and accompanying text (discussing BADT and BAT considerations).
219. See 46 U.S.C. § 3703(a); 57 Fed. Reg. 36,222 (1992). For existing vessels, the double hull requirement is phased in over several years, depending upon the size and age of the vessel, beginning in 1995 and proceeding in stages until 2010, when all vessels over 5000 gross tons must be equipped with double hulls. See Jeffery D. Morgan, The Oil Pollution Act of 1990: A Look at Its Impact on the Oil Industry, 6 FORDHAM ENVTL. L.J. 1, 7 (1994).
220. PERCIVAL, ET AL., supra note 192, at 145 (citing Hudson, Tanker Safety Plans are Mulled as Oil Spill Threatens Shetlands, WALL ST. J., Jan. 8, 1993 at A7B).
221. The Coast Guard reported the following data for U.S. waters: 1991 - three spills totaling 55,000 gallons (the lowest level in 14 years); 1992 - 1 spill at 98,700 gallons; 1993 - 1 spill releasing 33,500 gallons; 1994 - 1 spill at 35,700 gallons. See PERCIVAL, ET AL., supra note 192, at 144.
222. See id. at 143.
223. See id. at 145 (citing Reuters, Oil Supplies Unaffected by Tanker Rules, N.Y. TIMES, Dec. 29, 1994 at D4). See 57 Fed. Reg. 1855 (1992). In fact, up until late 1999-early 2000, oil prices were the lowest seen in decades. See Continuing Decline in Oil Prices Benefits Consumers and a Wide Range of Industries, WALL ST. J., Dec. 2, 1998 at A2; Jeffrey Ball, Gasoline Price Rise Worries Auto Makers, WALL ST. J., Dec. 8, 1999 at A2 (reporting that, although oil prices rose somewhat during fall 1999, "[r]etail prices, adjusted for inflation, fell to their lowest level last year since pump prices began to be tracked in 1918, according to the American Petroleum Institute").
224. See id. at 145 (citing Reuters, Oil Supplies Unaffected by Tanker Rules, N.Y. TIMES, Dec. 29, 1994 at D4). See 57 Fed. Reg. 1855 (1992). In fact, up until late 1999-early 2000, oil prices were the lowest seen in decades. See Continuing Decline in Oil Prices Benefits Consumers and a Wide Range of Industries, WALL ST. J., Dec. 2, 1998 at A2; Jeffrey Ball, Gasoline Price Rise Worries Auto Makers, WALL ST. J., Dec. 8, 1999 at A2 (reporting that, although oil prices rose somewhat during fall 1999, "[r]etail prices, adjusted for inflation, fell to their lowest level last year since pump prices began to be tracked in 1918, according to the American Petroleum Institute").
225. See id. at 145 (citing Reuters, Oil Supplies Unaffected by Tanker Rules, N.Y. TIMES, Dec. 29, 1994 at D4). See 57 Fed. Reg. 1855 (1992). In fact, up until late 1999-early 2000, oil prices were the lowest seen in decades. See Continuing Decline in Oil Prices Benefits Consumers and a Wide Range of Industries, WALL ST. J., Dec. 2, 1998 at A2; Jeffrey Ball, Gasoline Price Rise Worries Auto Makers, WALL ST. J., Dec. 8, 1999 at A2 (reporting that, although oil prices rose somewhat during fall 1999, "[r]etail prices, adjusted for inflation, fell to their lowest level last year since pump prices began to be tracked in 1918, according to the American Petroleum Institute").
226. See PERCIVAL, ET AL., supra note 192, at 145.
227. See Houck, supra note 79, at 430 n.107 (requirements for alternative technology, including even outright bans of harmful substances, e.g., leaded gasoline and DDT, can force industry to find alternative means of production or alternative, less destructive, products and, in doing so, save money as well).
228. See Alan S. Miller, Environmental Regulation, Technological Innovation, and Technology-Forcing, 10 NAT. RESOURCES & ENV'T 64, 66-67 (1995); PERCIVAL, ET AL., supra note 192, at 168-70. Ironically, although Nixon's proposal for a stiff tax on lead additives in 1971 to encourage their phase-out was given short-shrift by Congress at the time, the subsequent inclusion of mandatory lead phase-out in the CAA is now touted as "the singular success story in air pollution control." Id. at 168.
229. See id.
230. Id.
231. See Reeves, White Paper, supra note 2, at 111-12, and Reeves, Exotic Politics, supra note 2, at 192 (noting that the shipping industry asked the Vancouver Harbour Master to issue a standing order making a voluntary ballast exchange initiative into a mandatory program).
232. See Anastasios Xepapadeas & Aart de Zeeuw, Environmental Policy and Competitiveness: The Porter Hypothesis and the Composition of Capital, 37 J. ENVTL. ECON. & MGMT. 165-82 (1999).
233. See Latin, supra note 186, at 1270-71. See also Costle, 568 F.2d at 1369 (effluent limitations imposed by NPDES permits impose minimum, uniform floors below which neither individual nor jurisdictional efforts may sink, thereby avoiding the "race to the bottom" that would otherwise result among jurisdictions with different requirements).
234. See Houck, supra note 79, at 428, 454 n.226-28.
235. See 40 U.S.C. § 7651b; Shapiro & McGarity, supra note 99, at 747. See also Larry B. Parker, Robert D. Poling & John L. Moore, Clean Air Act Allowance Trading, 21 ENVTL. L. 2021 (1991) (noting that emissions trading initiatives have gained momentum with respect to addressing interstate air pollution).
236. Alexandra Teitz, Assessing Point Source Discharge Permit Trading: Case Study in Controlling Selenium Discharges to the San Francisco Bay Estuary, 21 ECOLOGY L.Q. 79, 81-82 (1994) (noting that these factors allow a market to develop but that transaction costs can "impose trading barriers and reduce realizable cost savings").
237. See Elise M. Fulstone, Effluent Trading: Legal Constraints on the Implementation of Market-Based Effluent Trading Programs Under the Clean Water Act, 1 ENVTL. LAW. 459, 480-89 (1995) (concluding that CWA amendment might be necessary before such trading would be allowed, citing, e.g., the anti-backsliding provisions of 33 U.S.C. § 1342(o)). See also Teitz, supra note 215, at 108, 152 (concluding that CWA § 302(a)-(b), which require NPDES permits to specify effluent limitations unless elaborate modification procedures are met, "may significantly constrain the trading options currently available"). Fulstone recommends that Congress enact a variance from the CWA's technology-based requirements for "qualified" participants in "qualified" point source trading programs. Fulstone, supra, at 489.
238. See U.S. EPA, Assessment and Watershed Protection Division, Guidance for Water Quality Decisions: The TMDL Process 51 (EPA 44014-91-001 (Apr. 1991)). See also CWA § 303(d)(4)(A), 33 U.S.C. § 1313(d)(4)(A) (effluent limitations based on TMDL may be revised if the water quality standards will still be attained).
239. See President Clinton, Clean Water Initiative: Restoring and Protecting America's Waters (visited Jan. 25, 2000) . The Clean Water Initiative provides that EPA guidance: (1) "establish criteria to allow for prior approval of trades by" the permitting and administering authorities; (2) "specify that trades shall not violate water quality standards"; (3) "specify that where water quality standards are not met, trades based on TMDLs may still take place"; (4) identify settings, based on models, that may complement trading programs when on-site monitoring would be otherwise prohibitively expensive; (5) "clarify that the anti-backsliding provision of the (Clean Water Act) ⋯ does not prohibit trading"; and (6) authorize pretreatment trading programs. Fulstone, supra note 215, at 462 n.8. For a comparison of the costs of a German effluent trading system with the CWA's technology-based requirements, see Thompson, supra note 112, at 538-39 (concluding that, depending on certain variables, including how much industry spends to lobby Congress and the regulators, effluent trading may be more cost-effective).
240. See CWA § 303(d)(1)(C), 33 U.S.C. § 1313(d)(1)(C) (TMDLs shall be allocated to meet water quality standards) with 42 U.S.C. §§ 7409, 7502(c)(2) (state implementation plans must make "reasonable further progress" toward meeting National Ambient Air Quality Standards).
241. See CWA §§ 301(b), 304(b), 402(a)(1), 33 U.S.C. §§ 1311(b), 1314(b), 1342(a)(1).
242. See Fulstone, supra note 215, at 462 n.109.
243. See Reeves, Exotic Politics, supra note 2, at 204-06. The potential implications of any form of subsidy for "clean" ballast would require detailed economic consideration, given that the construction and maintenance of the St. Lawrence Seaway is already subsidized. See id. at 205. Moreover, in general, federal expenditures aimed at supporting the position of particular industries should be used sparingly, only in those instances where private markets have failed, as in mass transit, or where public needs would otherwise go unmet, as in parks and the arts, and "should be constantly reevaluated in light of changing circumstances." CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 19 (1992), citing U.S. Congress, Joint Economic Committee, Subsidy and Subsidy-Effect Programs of the U.S. Government, 89th Congress, 1st Sess., 1 (U.S. Gov't Printing Office 1965).
244. See Reeves, Exotic Politics, supra note 2, at 204-06. The potential implications of any form of subsidy for "clean" ballast would require detailed economic consideration, given that the construction and maintenance of the St. Lawrence Seaway is already subsidized. See id. at 205. Moreover, in general, federal expenditures aimed at supporting the position of particular industries should be used sparingly, only in those instances where private markets have failed, as in mass transit, or where public needs would otherwise go unmet, as in parks and the arts, and "should be constantly reevaluated in light of changing circumstances." CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 19 (1992), citing U.S. Congress, Joint Economic Committee, Subsidy and Subsidy-Effect Programs of the U.S. Government, 89th Congress, 1st Sess., 1 (U.S. Gov't Printing Office 1965).
245. Of course, mobility in and of itself does not prevent a discharger from being classified as a point source. Courts have consistently held that dump trucks and bulldozers, such as those used for depositing and spreading fill, qualify as "point sources." See United States v. Pozsgai, 999 F.2d 719 (3d Cir. 1993); Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir.1983); Matter of Alameda County Assessor's Parcel, 672 F. Supp. 1278, 1284-85 (N.D.Cal.1987); United States v. Tull, 615 F. Supp. 610, 622 (E.D.Va.1983), aff'd, 769 F.2d 182 (4th Cir.1985), rev'd on other grounds, 481 U.S. 412 (1987). See also Concerned Area Residents for Env't v. Southview Farm, 34 F.3d 114, 119 (2d Cir. 1994) (finding that vehicles used to spread manure are point sources), cert, denied, 514 U.S. 1082 (1995).
246. CWA § 510, 33 U.S.C. § 1370; 40 C.F.R. § 122.1(f). See O'Toole, supra note 55, at 45 (discussing the Navy's difficulties in complying with disparate state standards, and noting that "no state has yet required the permitting of a U.S. Navy ship, though individual discharges are being increasingly challenged").
247. See Costle, 568 F.2d at 1369.
248. Id. at 1380.
249. Id. at 1380.
250. See 40 C.F.R. § 122.28 (1993).
251. Costle, 568 F.2d at 1382. See, e.g., 57 Fed. Reg. 41236 (1992) (providing for general permits for storm water discharges, requiring facilities to "implement a site-specific storm water pollution prevention plan"; however, if storm water discharges in a particular watershed or from particular facilities or industries are found to cause water quality problems, watershed-specific or other individualized permits may be required).
252. Id.
253. 40 C.F.R. § 122.44(p).
254. See CWA § 312(k)-(1), 33 U.S.C. § 1322(k)-(1). Section 312 may also be enforced by a State. Id. at (k).
255. See CWA § 312(b), 33 U.S.C. § 1322(b). EPA had previously been reluctant to regulate sewage discharges from vessels due to the lack of availability of pump-out facilities. See S. REP. 95-370, 1977 U.S.C.C.A.N. 4326, at *59 (July 28, 1977).
256. See CWA § 312(g)-(h), 33 U.S.C. § 1322(g)-(h).
257. See CWA § 312(c)(1)(A), 33 U.S.C. § 1322(c)(1)(A).
258. See CWA § 312(b)(1), 33 U.S.C. § 1322(b)(1).
259. See CWA § 312(c)(1)(B), 33 U.S.C. § 1322(c)(1)(B).
260. See CWA § 312(n)(3)(A), 33 U.S.C. § 1322(n)(3)(A).
261. See CWA § 312(n)(2)-(3), 33 U.S.C. § 1322(n)(2)-(3). Section 312(n) applies unless the Secretary of Defense finds that compliance "would not be in the national security interests of the United States." Id. at (n)(1).
262. CWA § 312(c)(2), 33 U.S.C. § 1322(c)(2).
263. See 64 Fed. Reg. 25126, 25130 (1999) (final rule); 63 Fed. Reg. 45298, 45306 (1999) (proposed rule).
264. See id. at 45308 (defining MPCD, as used in the proposed rule, as "a control technology or a management practice that can reasonably and practicably be installed or otherwise used on a vessel of the Armed Forces to receive, retain, treat, control or discharge a discharge incidental to the normal operation of the vessel.").
265. Id. at 45310-11. The Navy and Coast Guard either currently implement or are in the process of approving a ballast water management policy requiring open-ocean ballast water exchange, based on IMO Guidelines for Preventing the Introduction of Unwanted Aquatic Organisms and Pathogens from Ships' Ballast Water and Sediment Discharge (May 10, 1995). See 63 Fed. Reg. at 45306. In the final rule, the agencies noted that a more detailed assessment of the MPCD control options and performance standards for each class of vessels would be performed in a subsequent phase of rulemaking. See 64 Fed. Reg. at 25130.
266. See CWA § 312(f)(1), 33 U.S.C. § 1322(f)(1). States are allowed to impose more stringent requirements for MSDs on houseboats. Id. 244. CWA § 312(f)(3)-(4), (n)(7)(B), 33 U.S.C. § 1322(f)(3)-(4), (n)(7)(B).
267. See, e.g., Seafood General Permit, 60 Fed. Reg. 34991 (1995) (authorizing discharges from offshore, nearshore and shore-based vessels and onshore facilities engaged in the processing of fresh, frozen, canned, smoked, salted, and pickled seafoods; permitted discharges include processing wastes, process disinfectants, sanitary wastewater, and other wastewaters, cooling water, boiler water, gray water, freshwater pressure relief water, refrigeration condense, water used to transfer seafood to a facility, and live tank water "to waters of the United States in and contiguous to the State of Alaska, except for receiving waters excluded from coverage as protected, special, at-risk, degraded or adjacent to a designated 'seafood processing center'"; discharges of petroleum hydrocarbons, toxic pollutants, or other pollutants not specified in the permit are not authorized).
268. See O'Toole, supra note 55, at 48. O'Toole concludes that "[t]he best way to ensure Navy ship compliance is to develop a coherent body of effluent standards for application to all Navy ships in all waters of the U.S. and on the high seas." Id. at 46. Instead of EPA enforcement, however, he recommends that the standards be implemented through the existing command and control structure of the Navy. Id. 247. See CWA § 402(b), 33 U.S.C. § 1342(b).
269. See O'Toole, supra note 55, at 48-49.
270. See CWA § 402(b), (c), 33 U.S.C. § 1342(b), (c). To establish "adequate" permit authority, states must insure, among other things, that their permits will (1) comply with CWA provisions governing effluent limitations, new sources, toxic pollutants, MSDs, and ocean discharge criteria; (2) be limited to fixed terms not exceeding five years; (3) be terminated or modified for cause; (4) require reporting and inspection; and (5) be enforceable through civil and criminal penalties. See id. at (b)(1)-(9). States must also insure that EPA will receive notice of permit applications, Id. (b)(4), and that no permit will issue if the Army Corps of Engineers, after consulting with the Coast Guard, determines that "anchorage and navigation" of navigable waters would be "substantially impaired." Id. at (b)(6).
271. See CWA § 402(c), (n), 33 U.S.C. § 1342(c), (n); See S. REP. No. 92-414, 71 (1971), U.S. CODE CONG. & ADMIN. NEWS 1972, 3737, 2 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, 1489 (1973). Even in delegated states, however, EPA retains substantial review authority. Id. See EPA v. Cal. Water Resources Control Bd., 426 U.S. 200, 226 (1976) (citing legislative history).
272. See CWA § 402(n)(3)-(4), 33 U.S.C. § 1342(n)(3)-(4).
273. See CWA § 402(c)(3)-(4), (n), 33 U.S.C. § 1342(c)(3)-(4), (n).
274. See CWA § 402(c)(3), (d), 33 U.S.C. § 1342(c)(3), (d). These provisions have been described as giving "all-or-nothing authority to withdraw approval of a state NPDES program." Cal. Water Resources Bd., 426 U.S. at 226 n.39.
275. See 1 Leg. Hist. 814, 854-855, H.R. REP .NO. 92-911, at 127.
276. RODGERS, supra note 153, at 367-68 (footnote omitted).
277. See D. Brennen Keene, The Inconsistency of Virginia's Execution of the NPDES Permit Program: The Foreclosure of Citizen Attorneys General from State and Federal Courts, 29 U. RICH. L. REV. 715, 748-49 (1995).
278. Disapproval would likely be on the grounds that inconsistent state programs fail to comply with CWA provisions governing effluent limitations. See CWA § 402(b)(1), 33 U.S.C. § 1342(b)(1).
279. See CWA § 402(d)(2), 33 U.S.C. § 1342(d)(2); 40 C.F.R. § 123.44(c).
280. Oliver Houck & Michael Rolland, Federalism in Wetlands Regulation: A Consideration of Delegation of CWA § 404 and Related Programs to the States, 54 MD. L. REV. 1242, 1293.
281. See RODGERS, supra note 153, § 4.26, at 385 ("Individual permit supervision is a form of counsel quieter than a strident takeback of approved state authority ⋯ and should be invoked more often.").
282. S. REP. NO. 370, 95th Cong., 1st Sess. 73 (1977), reprinted in 1977 U.S.C.C.A.N. 4326. See Houck & Rolland, supra note 259, at 1293, 1312.
283. Great Lakes Water Quality Agreement of 1978 (GLWQA), as amended by the Protocol of 1987, Canada and U.S., 30 U.S.T. 1383, art. II (Nov. 22, 1978).
284. Representatives of some environmental groups expressed concern that using the GLWQA to envelop exotic species would diminish the effectiveness of the toxics program. See Reeves, Exotic Politics, supra note 2, at 134, 194-97.
285. GLWQA, supra note 262, at Annex 6. See also, GLWQA, supra note 262, at art. IV.
286. See id. art. III, § 1(c).
287. See Reeves, White Paper, supra note 2, at 122. See also Reeves, Exotic Politics, supra note 2, at 202-06.
288. See Reeves, White Paper, supra note 2, at 122. See also Reeves, Exotic Politics, supra note 2, at 202-06.