Copyright (c) 2009 All rights reserved. http://works.bepress.com/william_jordan Recent documents in William S Jordan III en-us Mon, 05 Jan 2009 15:17:51 PST 3600 http://works.bepress.com/william_jordan/20 http://works.bepress.com/william_jordan/20 Mon, 18 Feb 2008 15:28:56 PST William S. Jordan Environmental Law http://works.bepress.com/william_jordan/19 http://works.bepress.com/william_jordan/19 Mon, 18 Feb 2008 14:50:57 PST The author of this article examines the opinions written by Justice David Souter while he was a member of the New Hampshire Supreme Court. The author argues that these opinions will predict how Justice Souter will decide cases that come before the Supreme Court involving the construction and application of statues. The article includes an examination of the two major views of statutory construction analysis: the "textualist" view, which does not permit the consideration of legislative history, and the "nontextualist" view, which uses legislative history to discern legislative intent. The author concludes that, if Justice Souter remains consistent with his New Hampshire approach and with the approach he used during his first term as a Supreme Court Justice, he will probably join the "textualist" faction that is headed by Justice Antonin Scalia. William S. Jordan Statutory Interpretation http://works.bepress.com/william_jordan/18 http://works.bepress.com/william_jordan/18 Mon, 18 Feb 2008 14:43:50 PST This review supports the following conclusions. First, the seminal decisions, which dominated deference doctrine for forty years, do not support a strong, highly deferential application of Chevron. To the contrary, the granting of deference prior to Chevron consistently depended upon the practical, common-sense considerations reflected in multifactor analysis. Second, the four decades before Chevron saw a shift in which political conservatives turned from Opposing to embracing heightened deference, while political liberals similarly reversed their positions from support to skepticism of deference. Third, Chevron itself is entirely consistent with previous deference doctrine. It does not support the "strong" reading urged by some commentators. Fourth, the multifactor or sliding scale analysis, which derives directly from the practical reasons for deferring to'agency interpretations, remains important to deference doctrine in the Sup;reme Court. Fifth, the current split on the Supreme Court over deference doctrine reflects an ideological division between liberals and conservatives, with liberals adhering to traditional deference analysis, while conservatives seek to impose strict limitations on judicial review of agency interpretations. The conservative effort, if successful, could have dramatic implications for the future of the administrative state. William S. Jordan Environmental Law http://works.bepress.com/william_jordan/17 http://works.bepress.com/william_jordan/17 Mon, 18 Feb 2008 12:37:29 PST On May 24, 1982, in People Against Nuclear Energy (PANE) v. U.S. Nuclear Regulatory Commission (NRC), the United States Court of Appeals for the District of Columbia Circuit ruled that the National Environmental Policy Act (NEPA)' requires the Nuclear Regulatory Commission to consider the possibility of psychological health damage to the surrounding population when it decides whether to authorize the restart of Three Mile Island Unit No. 1 (TMI-1), which was not damaged in the accident that crippled Unit No. 2 (TMI-2). The court also ruled that the Atomic Energy Act' does not require the Commission to consider psychological health damage when making the TMI-1 restart decision.4 Reaction to this decision was swift; the Washington Post complained that it would "damage both the keystone of environmental law and the future of nuclear power, "while the Wall Street Journal described the decision as a "below-the-belt punch."' The Post urged a prompt appeal. Neither editorial mentioned the Atomic Energy Act decision. On April 19, 1983, the United States Supreme Court reversed the NEPA portion of the circuit court's decision. Since PANE, which had raised the issue of psychological health damage from the restart of TMI-1, did not seek certiorari from the lower court's adverse ruling under the Atomic Energy Act, it appeared that the Nuclear Regulatory Commission and the nuclear power industry had been relieved of the burden of confronting the question whether nuclear accidents might cause unacceptable psychological health damage. The Post applauded the result, but noted that, "Common sense should have led the Nuclear Regulatory Commission to hear all objections of persons opposed to reopening TMI. The failure at that site was a frightening and disruptive experience for those who live in the area."Indeed, the failure of the Nuclear Regulatory Commission to prevent the accident at Three Mile Island, coupled with its refusal to consider the impact of a possible restart of TMI-1 on the psychological well-being of local residents, has contributed to a political climate of substantial opposition to the reopening." Ironically, on the same day that the Post applauded the Supreme Court's decision regarding psychological health damage at Three Mile Island, the Court issued a second opinion that effectively places the future of Three Mile Island and other nuclear reactors in the hands of any state or local government that has the political will and the authority under state law to regulate activities for the purpose of protecting human psychological health. William S. Jordan Environmental Law http://works.bepress.com/william_jordan/16 http://works.bepress.com/william_jordan/16 Mon, 18 Feb 2008 11:08:59 PST This article will examine the scope of federal responsibility to consider the probable psychological health impacts of a variety of federal projects under NEPA following the PANE decision. Part I discusses NEPA's coverage of psychological health concerns in general, delineates the 'causal relationship' test that the Court adopted in PANE, and discusses possible obstacles to consideration of psychological impacts under NEPA. Part II divides federal actions into four categories in order to analyze the varying application of NEPA to psychological health effects in different contexts. That Part then considers the benefits and burdens of NEPA consideration of psychological impacts and concludes with the example of the Nuclear Regulatory Commission's responsibility to consider psychological health effects before licensing new nuclear reactors. William S. Jordan Environmental Law http://works.bepress.com/william_jordan/15 http://works.bepress.com/william_jordan/15 Mon, 18 Feb 2008 11:02:37 PST With its recent decision in Friends of the Earth v. Consolidated Rail Corporation, the Second Circuit reasserted its role as one of the leading players in the development of environmental law in the United States. The case involved efforts by private environmental organizations to enforce water pollution standards established under the Clean Water Act. These actions had been brought pursuant to the citizen suit provision, which grants private rights of action to those seeking enforcement of the Act. The court first held that the plaintiff organizations had the necessary standing under the standards established by the Supreme Court in Sierra Club v. Morton. It then went on to hold that based upon the 'plain meaning' of the Clean Water Act, state agency enforcement actions did not preclude the plaintiffs from seeking judicial enforcement of the pollution standards. The Friends of the Earth standing decision is important because it strengthens the hand of citizens' groups seeking enforcement of the Clean Water Act through the Act's citizen suit provision. The decision has broader implications in the field of environmental law generally, since several other environmental statutes contain citizen suit provisions under which the same standing issue could arise. The second aspect of the court's decision is of even greater significance; it reaffirmed the vitality of the 'plain meaning rule' of statutory construction in the face of a third circuit decision reaching a contrary interpretation of the same statutory provision. In so doing, the court not only simplified citizen suit litigation under the Clean Water Act but also reaffirmed an approach to statutory construction that would streamline litigation in general and assure that judicial decisions take their proper place in a democratic system.This article first traces developments in environmental law under the National Environmental Policy Act of 1969 (NEPA), the Clean Air Act, and the Clean Water Act. Then it examines the Second Circuit's role in the field of environmental law. Next, it discusses the court's decision in Friends of the Earth and focuses on the issue of plaintiffs' standing and the proper method for determining standing under the Clean Water Act. Finally, it discusses the propriety of the Second Circuit's reliance on the 'plain meaning' method of statutory construction. William S. Jordan Environmental Law http://works.bepress.com/william_jordan/14 http://works.bepress.com/william_jordan/14 Mon, 18 Feb 2008 10:47:08 PST Reviewing Joseph P. Tomain, Nuclear Power Transformation (1987).'A few seconds after 4 o'clock on the morning of March 28, 1979,' various mechanical and human failures combined to produce the accident at Three Mile Island. 'For critical hours, as water boiled into steam, the reactor failed to cool and began to disintegrate. . . . [T]housands of gallons of deadly radioactive water were negligently pumped into an adjoining building.' So begins Nuclear Power Transformation, Professor Tomain's thought-provoking effort to bring reason and responsibility to American nuclear energy policy.This book is an important contribution to the debate over nuclear power and over energy supply in general in the United States. It has two great strengths and one great weakness. As the first of its strengths, it details the history of nuclear power and its regulation by the federal Nuclear Regulatory Commission (NRC) and by various state ratemaking bodies. That history, particularly the details of management incompetence, regulatory failure, and financial disaster at three nuclear reactor projects, reveals the need for a major revision in American nuclear energy policy. Second, the book proposes a coherent energy policy that would address many of the problems revealed by the history of nuclear power to date. The book's weakness is its failure to suggest a realistic means through which that policy might be adopted.I recommend Nuclear Power Transformation to anyone who is concerned with the future of nuclear power. For nuclear opponents, it provides the facts necessary to make a strong case against the current regulatory scheme. For supporters of nuclear power, it provides a clue as to what has gone wrong so that similar mistakes can be avoided in the future. For advocates on both sides, and for state and federal policy makers, it proposes a policy designed to assure that nuclear energy development is consistent with safety requirements, energy needs and market realities. William S. Jordan Environmental Law http://works.bepress.com/william_jordan/13 http://works.bepress.com/william_jordan/13 Mon, 18 Feb 2008 10:26:48 PST THE LAST DECADE has seen a remarkable change in the Supreme Court's willingness to refer to or rely upon legislative history in statutory interpretation. In 1983, Judge Patricia Wald wrote that "the 'plain meaning' rule . . . has effectively been laid to rest [by the Supreme Court]. No occasion for statutory construction now exists when the Court will not look at the legislative history." In 1990, however, Judge Wald described the Court's shift toward a new "textualism," under which the Court increasingly purports to rely upon the statutory text itself as the primary, and perhaps the only, definitive source of meaning. More recently, Peter Strauss has referred to the Court's "increasingly strident rejections of legislative history." One element of the argument against the use of legislative history in the federal courts has been reliance upon what is often described as the English practice of refusing to consider legislative history. In speeches delivered in 1985 and 1986, Justice Scalia cited English authority in arguing for a limitation on the use of legislative history. In another context, Professor Kay of the University of Connecticut School of Law has noted that, "Support for the view that text alone creates legal rules might be drawn from the English practice of statutory interpretation." Professor Mayton of Emory University School of Law, an opponent of the use of legislative history, asks "If a tradition of Anglo-American jurisprudence is not much of a justification for our own use of legislative history, what is?" Even supporters of the use of legislative history tend to view English practice as an obstacle they must overcome in order to legitimize their positions. Judge Wald, for example, refers to the "legitimate British ancestry" of the textualist position. Justice Breyer goes so far as to present a brief argument that the English refusal to consider legislative history is not relevant because English legislation is drafted more clearly and is more readily understood by judges than legislation in the United States.Despite any advantages they may have, however, the English courts continue to struggle with the interpretation of statutes, and commentators continue to complain about the difficulties of statutory interpretation. Thus, while the drafting may make interpretation somewhat easier, the English courts seem to face comparable problems in interpreting legislative enactments.This Article examines the relevance of English interpretative practices to the American debate over the use of legislative history in the interpretation of federal statutes. Part I begins by discussing the English approach to the general problems of statutory interpretation and the use of legislative history. Part II discusses the relevance of English practice to federal statutory interpretation in the United States. This section incorporates an analysis of the differences between the legal cultures and national characters of the two systems, and the ways in which such differences affect efforts to transplant theories or practices from one system to the other. The purpose of this effort is to place the American debate in a broader perspective in order to enhance our ability to judge the value and legitimacy of reliance upon legislative history in the interpretation of federal statutes.The relevant material supports two major conclusions. First, while the English courts take a strongly textualist approach to statutory interpretation, they have, for roughly the last century, considered extrinsic materials that are comparable to legislative history in this country. In November 1992, for example, the House of Lords explicitly approved consideration of some statements made in Parliament. Thus, modern English practice, while somewhat restrictive, does not support a refusal to consider legislative history in statutory construction. Second, various differences between the cultures, the legal and political systems, and the constitutions of the two countries are consistent with the relatively permissive use of legislative history in American federal courts and the historically restrictive attitude toward reliance upon legislative history in the English courts. William S. Jordan Statutory Interpretation http://works.bepress.com/william_jordan/12 http://works.bepress.com/william_jordan/12 Sun, 17 Feb 2008 14:56:56 PST The 1990 amendments to the Clean Air Act (CAA or "the Act") created section 112(r) to address the prevention of accidental releases of airborne pollutants. Section 112(r)(7) directs the United States Environmental Protection Agency (EPA) to promulgate regulations to help prevent and detect accidental releases and to minimize the consequences of any such releases. On June 20, 1996, EPA promulgated a final rule ("the Rule") to aid in the prevention of, and to outline emergency responses to, accidental releases of airborne pollutants. The Rule sets forth the criteria that stationary sources are required to meet to comply with section 112(r). The Rule requires that the owner or operator of each source that has more than a threshold quantity of a regulated substance must submit a Risk Management Plan (RMP) to EPA. The RMP must include a hazard assessment, prevention programs and an emergency response program. The Rule, which is codified at 40 C.F.R. pt. 68, became effective August 19, 1996. This Note will discuss the Rule and its impact on stationary sources. Part II looks at the history of the CAA regulatory scheme. Part III discusses the applicability of the Rule. Part IV examines the parameters of the Rule, including program criteria and the requirements of the Risk Management Plan. Finally, Part VI concludes the Note with a review of the benefits of submitting an RMP. William S. Jordan Environmental Law http://works.bepress.com/william_jordan/11 http://works.bepress.com/william_jordan/11 Sun, 17 Feb 2008 14:37:32 PST Reviewing Genevra Richardson and Hazel Genn, eds., Administrative Law and Government Action: The Courts and Alternative Mechanisms of Review (1994). William S. Jordan Administrative Law