Goals, instruments, and environmental policy choice

Duke Environmental Law and Policy Forum

Volumn 10, Issue 2, 2000, Pages 297-324

  Shapiro, Sidney A ^a,b   Glicksman, Robert L ^a,c,d,e  

^a UNIVERSITY OF KANSAS   (United States)

^b UNIVERSITY OF PENNSYLVANIA   (United States)

^c Union College   (United States)

^d HARVARD UNIVERSITY   (United States)

^e Department of Obstetrics Gynecology   (United States)

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EID: 1542650802     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (122)

1. OFFICE OF TECH. ASSESSMENT, U.S. CONGRESS, REP. NO. OTA-ENV-634, ENVIRONMENTAL POLICY TOOLS - A USER'S GUIDE 1 (1995) 〈http:www.wws.princeton.edu/∼ ota/〉 [hereinafter OTA REPORT].
2. Kenneth R. Richards, Framing Environmental Policy Instrument Choice, 10 DUKE ENVTL. L. & POL'Y F. 221 (2000).
3. Richards defines PC as "production costs" (which include capital, training, operation, maintenance, and management costs of producing emissions abatement), IC as "implementation costs" (which include measurement and "governance" costs), and TX as "public finance impacts." See Richards, supra note 2, at 228-29.
4. See id. at 256, 265.
5. See id. at 258.
6. See id. at 249.
7. See id. at 236, 251.
8. See id. at 225-26, 265.
9. Nathaniel O. Keohane et al., The Choice of Regulatory Instruments in Environmental Policy, 22 HARV. ENVTL. L. REV. 313, 313 (1998).
10. The national ambient air quality standards established under the Clean Air Act (CAA), for example, are expressed in terms of the maximum permissible concentrations of pollutants in the ambient air. See Clean Air Act (CAA) §§ 101-618, 109(b), 42 U.S.C. §§ 7401-7671q, 7409(b) (1994).
11. The Clean Water Act (CWA), for example, prohibits the discharge of oil into navigable waters "in such quantities as may be harmful" to the public health or welfare or the environment, as determined by the President or an agency to which he delegates his authority. See CWA §§ 101-607, 311(b)(3), 33 U.S.C. §§ 1251-1387, 1321(b)(3) (1994). The U.S. Environmental Protection Agency (EPA) issued regulations defining as "harmful" any discharge that causes a film or sheen upon the surface of the water. See 40 C.F.R. § 110.3 (1997). See also 33 U.S.C. § 1251(a)(2) (1994) (enunciating the goal of achieving fishable/swimmable waters by July 1, 1983).
12. See e.g., JOHN E. BONINE & THOMAS O. MCGARITY, THE LAW OF ENVIRONMENTAL PROTECTION: CASES-LEGISLATION-POLICIES 215 (2d ed. 1992).
13. Richards, supra note 2, at 237.
14. See id. at 284.
15. Id. at 237.
16. Id. at 249, Table 1.
17. Id. at 235.
18. Id. at 236.
19. Id. at 239. The term "grandfathering" typically describes a situation in which a regulatory scheme exempts or provides preferential treatment for activities that predate the adoption of the scheme. In this context, a system of grandfathered marketable allowances presumably refers to one in which allowable emissions are assigned based on preexisting levels of pollution by regulated firms. See, e.g., Keohane et al., supra note 9, at 316. It is not clear whether Professor Richards is using the term "grandfathered" in this fashion. The analysis of his framework for the selection of environmental policy instruments would benefit from a more extensive description of what a system of grandfathered marketable allowances entails, and how it differs from an auctioned marketable allowance system.
20. See Lead Indus. Ass'n. v. EPA, 647 F.2d 1130, 1148 (D.C. Cir. 1980) (concluding that Congress intended that "economic considerations play no part in the promulgation of" the national ambient air quality standards). See also American Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1040 (D.C. Cir. 1999), modified on rehearing, 195 F.3d 4 (D.C. Cir. 1999) (holding that the CAA precludes EPA from considering costs of implementation in setting the standards), cert. granted sub nom., American Trucking Ass'ns, Inc. v. Browner, 120 S. Ct. 2193 (2000).
21. 1 Legislative History of the Water Pollution Control Act Amendments of 1972, S. Rep. No. 93-1, at 164 (1973).
22. Those that do reflect a goal-setting process consistent with the traditional economic rationale for government regulation include the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) §§ 2-32, 2(bb), 3(c)(5)(C)-(D), 7 U.S.C. §§ 136(bb), 136a(c)(5)(C)-(D) (1994); the Accountable Pipeline Safety and Partnership Act of 1996, 49 U.S.C. § 60,102(b)(2)(C)-(E) (Supp. III 1997); and perhaps the Toxic Substances Control Act (TSCA) §§ 2-412, 6(a), (c)(1), 15 U.S.C. §§ 2601-2692, 2605(a), (c)(1) (1994).
23. See Thomas O. McGarity, The Expanded Debate Over the Future of the Regulatory State, 63 U. CHI. L. REV. 1463, 1493-94 (1996) ("The purpose of pollution reduction standards is to ensure that sources do the best they can to protect health and the environment, even if a detailed cost-benefit analysis would suggest that less pollution reduction would be more efficient.").
24. But cf. 42 U.S.C. § 300g-1(b)(6) (Supp. III 1997) (allowing EPA to establish maximum contaminant levels for drinking water contaminants in public water systems at a level other than the most feasible level if the benefits of a maximum contaminant level would not justify the costs of achieving it).
25. See Emissions Trading Policy Statement, 51 Fed. Reg. 43,814 (1986).
26. The "bubble concept" endorsed in the famous (or infamous) case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is an example of intra-firm trading.
27. See Economic Incentive Program Rules, 59 Fed. Reg. 16,690 (1994).
28. See id. at 16,696.
29. For further discussion of the use of incentive-based policy instruments under the CAA, see FREDERICK R. ANDERSON ET AL., ENVIRONMENTAL PROTECTION: LAW AND POLICY 487-96 (3d ed. 1999).
30. Richards, supra note 2, at 237.
31. Id.
32. Some critics of command-and-control regulation, however, have asserted that controls based on best available technology do not provide strong incentives to develop new, environmentally superior technologies, and may even discourage their development. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333, 1334-36 (1985).
33. See Richards, supra note 2, at 238.
34. Id. at 239.
35. Id. at 268 (emphasis added).
36. See 33 U.S.C. §§ 1311(b)(1)-(2) (effluent limitations for existing point sources), 1316(a)(1), (e) (effluent limitations for new point sources), 1317(b)(1), (d) (1994) (pretreatment standards for indirect point sources).
37. See 42 U.S.C. §§ 7411(a)(1), (e) (national emission standards for new stationary sources), 7412(d) (1994) (national emission standards for hazardous air pollutants). Indeed, the statute was amended in 1990 to eliminate provisions that effectively limited the discretion of certain coal-burning sources to choose between scrubber installation and switching to fuels with lower sulfur concentrations as means of compliance with the new source standards. Compare the earlier 42 U.S.C. § 7411(a)(1) (1988) with the revised 42 U.S.C. § 7411(a)(1) (1994). The Act authorizes EPA to promulgate design or work practice standards for new stationary sources, but only if it is not feasible to prescribe or enforce a performance standard. See 42 U.S.C. § 7411(h) (1994). This authority has rarely been invoked.
38. See, e.g., 42 U.S.C. § 7423(c) (1994) ("In no event may [EPA] prohibit any increase in any stack height or restrict in any manner the stack height of any source").
39. th Cir. 1975) (citing S. Rep. No. 92-414, at 1477 (1971); S. Rep. No. 92-1236, at 311, in A Legislative History of the Water Pollution Control Act Amendments of 1972)). This is such a fundamental point that one would expect it to be highlighted in academic and judicial treatments of the federal pollution control laws. In fact, it sometimes escapes recognition altogether. But cf. ROBERT V. PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, AND POLICY 155 (2d ed. 1996) (performance standards "routinely devolve into de facto design standards").
40. See Richards, supra note 2, at 256.
41. Id.
42. See id. at 243. One is reminded of the genesis of the famous "rule four" for resolving private nuisance disputes generated more or less contemporaneously in Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1116 (1972), and in Spur Indus., Inc. v. Del E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700 (1972). See also ANDERSON, ET AL., supra note 29, at 1135-36; JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 774-75 (4th ed. 1998).
43. See id. at 243. One is reminded of the genesis of the famous "rule four" for resolving private nuisance disputes generated more or less contemporaneously in Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1116 (1972), and in Spur Indus., Inc. v. Del E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700 (1972). See also ANDERSON, ET AL., supra note 29, at 1135-36; JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 774-75 (4th ed. 1998).
44. See Richards, supra note 2, at 243.
45. See e.g., 42 U.S.C. §§ 7671c(a)-(b), 7671d(a)-(b) (1994) (phasing out the production and consumption of chemicals with the potential to harm the stratospheric ozone layer); 15 U.S.C. § 2605(e) (1994) (phasing out the manufacture, processing, and use of polychlorinated biphenyls). Both sets of prohibitions, of course, are subject to the usual panoply of exemptions and exceptions. To the extent these exceptions and exemptions exist, they may well generate residual pollution costs that will not be borne by the private parties. To the extent this is so, the regulatory provision will move up along the vertical axis (Distribution of Costs) of Richards' Figure 3.
46. See Richards, supra note 2, at 243.
47. Id. at 226.
48. CASS R. SUNSTEIN, FREE MARKETS AND SOCIAL JUSTICE 354 (1997).
49. Richards, supra note 2, at 226.
50. Id. at 279. Richards also observes, "[g]enerally command-and-control regulation should be preferred to the enterprise mode instruments on the basis of public finance considerations." Id. at 281. We are uncertain how to reconcile this statement with the one in the text above.
51. Id. at 279 (emphasis added).
52. Sidney A. Shapiro & Thomas O. McGarity, Not So Paradoxical: The Rationale for Technology-Based Regulation, 1991 DUKE L. J. 729, 745.
53. See Richards, supra note 2, at 262-63.
54. See, e.g., Richard Toshiyuki Drury et al., Pollution Trading and Environmental Justice: Los Angeles' Failed Experiment in Air Quality Policy, 9 DUKE ENVTL. L. & POL'Y F. 231, 251-68 (1999) (providing a host of reasons why pollution trading may fail, including opportunistic behavior by firms in overestimating both compliance costs and pollution reductions).
55. See Richards, supra note 2, at 262-63.
56. See Adam M. Finkel, A Return to Alchemy, ENVTL. F., Sept.-Oct. 1996, at 15, 18 (finding that costs of installing emission control equipment on stationary sources of nitrogen oxides to reduce acid deposition turned out to be between 20 and 50 percent of the amounts initially predicted). Cf. Margaret Kriz, Heavy Breathing, NAT'L J., Jan. 4, 1997, at 8, 11 (discovering that although electrical utility officials predicted during congressional debate on the 1990 Clean Air Act Amendments that curbing sulfur dioxide emissions would cost $10,000 per ton, reductions were subsequently made for as little as $100 per ton); Dallas Burtraw & Byron Swift, A New Standard of Performance: An Analysis of the Clean Air Act's Acid Rain Program, 26 ENVTL. L. REP. 10,411, 10,423 (1996) (finding that aggregate annual compliance costs with acid rain control provisions were $1.2-2.5 billion, not the $4 billion predicted); Curtis Moore, The Impracticality and Immorality of Cost-Benefit Analysis in Setting Health-Related Standards, 11 TUL. ENVTL. L. J. 187, 199 n.55 (1998) (noting that projections by utilities of rate increases that would result from the adoption of proposed 1982 sulfur dioxide emissions requirements were far too high).
57. See Adam M. Finkel, A Return to Alchemy, ENVTL. F., Sept.-Oct. 1996, at 15, 18 (finding that costs of installing emission control equipment on stationary sources of nitrogen oxides to reduce acid deposition turned out to be between 20 and 50 percent of the amounts initially predicted). Cf. Margaret Kriz, Heavy Breathing, NAT'L J., Jan. 4, 1997, at 8, 11 (discovering that although electrical utility officials predicted during congressional debate on the 1990 Clean Air Act Amendments that curbing sulfur dioxide emissions would cost $10,000 per ton, reductions were subsequently made for as little as $100 per ton); Dallas Burtraw & Byron Swift, A New Standard of Performance: An Analysis of the Clean Air Act's Acid Rain Program, 26 ENVTL. L. REP. 10,411, 10,423 (1996) (finding that aggregate annual compliance costs with acid rain control provisions were $1.2-2.5 billion, not the $4 billion predicted); Curtis Moore, The Impracticality and Immorality of Cost-Benefit Analysis in Setting Health-Related Standards, 11 TUL. ENVTL. L. J. 187, 199 n.55 (1998) (noting that projections by utilities of rate increases that would result from the adoption of proposed 1982 sulfur dioxide emissions requirements were far too high).
58. See Adam M. Finkel, A Return to Alchemy, ENVTL. F., Sept.-Oct. 1996, at 15, 18 (finding that costs of installing emission control equipment on stationary sources of nitrogen oxides to reduce acid deposition turned out to be between 20 and 50 percent of the amounts initially predicted). Cf. Margaret Kriz, Heavy Breathing, NAT'L J., Jan. 4, 1997, at 8, 11 (discovering that although electrical utility officials predicted during congressional debate on the 1990 Clean Air Act Amendments that curbing sulfur dioxide emissions would cost $10,000 per ton, reductions were subsequently made for as little as $100 per ton); Dallas Burtraw & Byron Swift, A New Standard of Performance: An Analysis of the Clean Air Act's Acid Rain Program, 26 ENVTL. L. REP. 10,411, 10,423 (1996) (finding that aggregate annual compliance costs with acid rain control provisions were $1.2-2.5 billion, not the $4 billion predicted); Curtis Moore, The Impracticality and Immorality of Cost-Benefit Analysis in Setting Health-Related Standards, 11 TUL. ENVTL. L. J. 187, 199 n.55 (1998) (noting that projections by utilities of rate increases that would result from the adoption of proposed 1982 sulfur dioxide emissions requirements were far too high).
59. See Adam M. Finkel, A Return to Alchemy, ENVTL. F., Sept.-Oct. 1996, at 15, 18 (finding that costs of installing emission control equipment on stationary sources of nitrogen oxides to reduce acid deposition turned out to be between 20 and 50 percent of the amounts initially predicted). Cf. Margaret Kriz, Heavy Breathing, NAT'L J., Jan. 4, 1997, at 8, 11 (discovering that although electrical utility officials predicted during congressional debate on the 1990 Clean Air Act Amendments that curbing sulfur dioxide emissions would cost $10,000 per ton, reductions were subsequently made for as little as $100 per ton); Dallas Burtraw & Byron Swift, A New Standard of Performance: An Analysis of the Clean Air Act's Acid Rain Program, 26 ENVTL. L. REP. 10,411, 10,423 (1996) (finding that aggregate annual compliance costs with acid rain control provisions were $1.2-2.5 billion, not the $4 billion predicted); Curtis Moore, The Impracticality and Immorality of Cost-Benefit Analysis in Setting Health-Related Standards, 11 TUL. ENVTL. L. J. 187, 199 n.55 (1998) (noting that projections by utilities of rate increases that would result from the adoption of proposed 1982 sulfur dioxide emissions requirements were far too high).
60. See Richards, supra note 2, at 264.
61. See Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed. Reg. 8,859 (1998); ANDERSON ET AL. supra note 29, at 187; Robert L. Glicksman, Wildlife Habitat and Protection, in ENVIRONMENTAL LAW PRACTICE GUIDE: STATE AND FEDERAL LAW § 24.06[3] (1998).
62. See Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed. Reg. 8,859 (1998); ANDERSON ET AL. supra note 29, at 187; Robert L. Glicksman, Wildlife Habitat and Protection, in ENVIRONMENTAL LAW PRACTICE GUIDE: STATE AND FEDERAL LAW § 24.06[3] (1998).
63. J.B. Ruhl, While the Cat's Asleep: The Making of the "New" ESA, NAT. RESOURCES & ENV'T, Winter 1998, 187, 225.
64. See id.
65. Karin P. Sheldon, Habitat Conservation Planning: Addressing the Achilles Heels of the Endangered Species Act, 6 N.Y.U. ENVTL. L. J. 279, 283-84 (1998). See also John H. Cushman, Jr., The Endangered Species Act Gets A Makeover, N.Y. TIMES, June 2, 1998, at D2.
66. Karin P. Sheldon, Habitat Conservation Planning: Addressing the Achilles Heels of the Endangered Species Act, 6 N.Y.U. ENVTL. L. J. 279, 283-84 (1998). See also John H. Cushman, Jr., The Endangered Species Act Gets A Makeover, N.Y. TIMES, June 2, 1998, at D2.
67. See OTA REPORT, supra note 1, at 144-45.
68. Id. at 146.
69. Id. at 147.
70. See id.
71. Id.
72. Id. at 147-48.
73. See Richards, supra note 2, at 228.
74. OTA REPORT, supra note 1, at 145.
75. Id. at 160 (citation omitted).
76. Id. For more on the environmental justice implications of emissions trading, see Drury et al., supra note 53.
77. OTA REPORT, supra note 1, at 162. On some of the choices made by firms in Los Angeles under the RECLAIM program, see Drury et al., supra note 53, at 260.
78. OTA REPORT, supra note 1, at 147. One possible means of mitigating the resultant undesirable concentrations of pollution, often referred to as "hot spots," would be to weight tradable emissions such that the selling entity receives more credit for selling excess emissions to a nearby source than it would by selling to a source located further away.
79. See id. at 164.
80. See Richards, supra note 2, at 228. The third constraining factor identified by Richards is "pollution abatement requirements." See discussion supra Part IV.
81. See Richards, supra note 2, at 224.
82. Id. at 273.
83. See id.
84. See id. at 273-75; see, e.g., Dolan v. City of Tigard, 512 U.S. 374 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987). See also First English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304 (1987) (recognizing the availability of an inverse condemnation damage remedy for temporary takings). The courts may have begun to limit, if not roll back, the reach of these expansive takings precedents, however. See, e.g., City of Monterey v. Del Monte Dunes, 526 U.S. 687, 702 (1999) (holding that the Dolan rough proportionality test does not apply to denial of permission to develop property); Bonnie Briar Syndicate, Inc. v. Town of Mamaroneck, 94 N.Y.2d 96, 721 N.E.2d 971, 699 N.Y.S.2d 721 (1999) (holding that the Nollan essential nexus test does not apply outside the exactions context).
85. See Lucas, 505 U.S. at 1023-28.
86. See, e.g., Robert L. Glicksman, Making A Nuisance of Takings Law, 3 WASH. U. J. L. & POL'Y 149 (October 2000).
87. See Nollan, 483 U.S. at 866 (Stevens, J., dissenting) (noting "the unprecedented chilling effect" that the majority's conclusion that land use regulation worked a taking "will obviously have on public officials charged with the responsibility for drafting and implementing regulations designed to protect the environment and the public welfare").
88. See Concrete Pipe and Prod, of Calif, Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 645 (1993) ("mere diminution in the value of property, however serious, is insufficient to demonstrate a taking"); Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) (although the economic impact of regulation is a relevant consideration, mere diminution in value of regulated property is not enough to work a taking).
89. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 119 S. Ct. 2199, 2225 (1999).
90. Oliver Houck, Why Do We Protect Endangered Species, and What Does that Say about Whether Restrictions on Private Property to Protect Them Constitute Takings?, 80 IOWA L. REV. 297, 326 (1995). Houck's research "disclosed no cases in which pollution control requirements were found to constitute a 'taking' for which just compensation was required and few cases that even raised the issue." Id. at 326 n.164 (emphasis added). He cites illustrative cases rejecting takings claims. By contrast, a state Supreme Court recently held that an effort to immunize by statute certain agricultural activities from liability for externality-generating activities amounted to a taking of neighboring property owners' land. See Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998).
91. See 33 U.S.C. § 1344 (1994).
92. See, e.g., Palm Beach Isles Assoc. v. United States, 208 F.3d 1374 (Fed. Cir. 2000); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994); Florida Rock Indus., Inc. v. United States, 45 Fed. Cl. 21 (1999). Takings challenges to dredge and fill permit denials do not always succeed. See, e.g., Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999), cert. denied, 120 S. Ct. 1554 (2000); Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993).
93. See Endangered Species Act (ESA) §§ 2-18, 9(a)(l)(B), 16 U.S.C. §§ 1537-1544, 1538(a)(1)(B) (1994). But cf. Blaine I. Green, The Endangered Species Act and Fifth Amendment Takings: Constitutional Limits of Species Protection, 15 YALE J. ON REG. 329 (1998) (asserting that the Fish and Wildlife Service has become "increasingly constrained" in its application of the Endangered Species Act to avoid raising takings questions). Professor Houck has predicted that constitutional takings claims will arise under the Endangered Species Act. But he has argued that they should not succeed. According to Houck, restrictions on development to protect endangered species are analogous to pollution controls, which have generally not been vulnerable to takings challenges because they replicate limitations on the use of private property that inhere in common law private nuisance doctrine. See Houck, supra note 84, at 321-31.
94. See Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999), cert. denied, 120 S. Ct. 1554 (2000).
95. See id. at 1362-63.
96. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1029 (1992).
97. See United States v. Morrison, 120 S. Ct. 1740 (2000); United States v. Lopez, 514 U.S. 549 (1995).
98. See New York v. United States, 505 U.S. 144 (1992).
99. See Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe v. Florida, 517 U.S. 44 (1996). See generally Stephen R. McAllister & Robert L. Glicksman, Federal Environmental Law in the "New" Federalism Era, 30 ENVTL. L. REP. 11122 (2000); Stephen R. McAllister & Robert L. Glicksman, State Liability for Environmental Violations: The U.S. Supreme Court's "New" Federalism, 29 ENVTL. L. REP. 10665 (1999) [hereinafter McAllister & Glicksman, State Liability].
100. See Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe v. Florida, 517 U.S. 44 (1996). See generally Stephen R. McAllister & Robert L. Glicksman, Federal Environmental Law in the "New" Federalism Era, 30 ENVTL. L. REP. 11122 (2000); Stephen R. McAllister & Robert L. Glicksman, State Liability for Environmental Violations: The U.S. Supreme Court's "New" Federalism, 29 ENVTL. L. REP. 10665 (1999) [hereinafter McAllister & Glicksman, State Liability].
101. The Lopez case represented the first time the Court struck down a statute as beyond the scope of the commerce power since the New Deal.
102. However, in New York v. United States, 505 U.S. 144 (1992), the Court did bar the federal government from forcing the states to take title to low-level radioactive waste not properly disposed of within the time periods specified by statute.
103. See United States v. Olin, 107 F.3d 1506 (11th Cir. 1997).
104. See National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 936 (1998). See also Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) (holding, in another split decision, that regulatory restrictions on the taking of red wolves on private land did not violate the Commerce Clause). See generally John C. Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 MICH. L. REV. 174 (1998). Post-Lopez commerce clause attacks on other federal species protection legislation have all come to naught. See, e.g., United States v. Bramble, 103 F.3d 1475 (9th Cir. 1996) (challenging the Eagle Protection Act); United States v. Lundquist, 932 F. Supp. 1237, 1244-45 (D. Or. 1996) (challenging the Bald and Golden Eagle Protection Act); United States v. Romano, 929 F. Supp. 502 (D. Mass. 1996) (challenging the Lacey Act).
105. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997).
106. See Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers, 191 F.3d 845, 850-51 (7th Cir. 1999), rev'd on other grounds, 2001 WL 15333 (U.S. Jan. 9, 2001).
107. See id. at 851-52. See also United States v. Hallmark Constr. Co., 14 F.Supp.2d 1069, 1074-75 (N.D. Ill. 1998) (upholding the same congressional objective of preventing actual wetland habitat destruction).
108. See generally McAllister & Glicksman, State Liability, supra note 93.
109. This probably overstates the point. The government's oversight costs may be higher under a system of nonpoint source control than under a system of point source control due to the large number of nonpoint sources, their dispersed nature, and the general unavailability of best available technology-based mechanisms for controlling runoff from activities like agriculture, silviculture, and construction. Thus, even if production costs of nonpoint source controls may be no higher (and, as indicated below, may well be lower) than for point source controls, implementation costs may be higher.
110. See ANDERSON ET AL., supra note 29, at 613-14.
111. See Mississippi Comm'n on Natural Resources v. Costle, 625 F.2d 1269, 1272 (5th Cir. 1980) (citing H. R. Rep. No. 89-215, reprinted in 1965 U.S.C.C.A.N. 3313, 3320-23).
112. See supra note 37 & accompanying text.
113. See 42 U.S.C. § 7411 (1988). For an explanation of the political backdrop as well as criticism of the percentage reduction requirement, see BRUCE A. ACKERMAN & WILLIAM T. HASSLER, CLEAN COAL/DIRTY AIR (1981). For a defense of the requirement, see Eugene M. Trisko, Universal Scrubbing: Cleaning the Air, 84 W. VA. L. REV. 983 (1982).
114. See 42 U.S.C. § 7411 (1988). For an explanation of the political backdrop as well as criticism of the percentage reduction requirement, see BRUCE A. ACKERMAN & WILLIAM T. HASSLER, CLEAN COAL/DIRTY AIR (1981). For a defense of the requirement, see Eugene M. Trisko, Universal Scrubbing: Cleaning the Air, 84 W. VA. L. REV. 983 (1982).
115. See ANDERSON ET AL., supra note 29, at 495.
116. See Shapiro & McGarity, supra note 51, at 748.
117. See Richards, supra note 2, at 256.
118. See id. at 261-62.
119. See generally JAMES MARCH & HERBERT SIMON, ORGANIZATIONS (1958).
120. See generally HERBERT SIMON, ADMINISTRATIVE BEHAVIOR: A STUDY OF DECISION-MAKING PRACTICES IN ADMINISTRATIVE ORGANIZATIONS 65-68, 122, 174-75 (1st ed. 1948).
121. See id., 3rd ed. 1976, at xxiv.
122. For excellent recent articles, see Keohane et al., supra note 9; Daniel H. Cole & 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 (1999).