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May 14, 2002
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Chap 1: Environmental Values and Policies

Title VI and Section 1983

Makah

Valuing Public Goods

ANWR

Title VI and Section 1983 Litigation of Environmental Justice Concerns (pp. 25-26)

South Camden Decision Reversed On December 17, 2001, the decision in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 145 F.Supp. 2d 446 (D.N.J. 2001), which is reproduced on pp. 4-28 of the 2002 Supplement, was reversed by the U.S. Court of Appeals for the Third Circuit. 274 F.3d 771 (3d Cir. 2001). In South Camden a federal district court had granted a preliminary injunction to block the issuance of air pollution permits for a cement processing plant that would be located in area where 91 percent of the population were persons of color. After the Supreme Court decided in Alexander v. Sandoval, 121 S.Ct. 1511 (2001), that Title VI of the Civil Rights Act of 1964 did not create a private right of action to enforce federal nondiscrimination regulations, the district court had held that such regulations could be enforced under 42 U.S.C. 1983. However, the Third Circuit held that EPA's Title VI regulations did not create a right enforceable by 42 U.S.C. 1983.

The Third Circuit concluded that an administrative regulation cannot create an interest enforceable under Section 1983, which bars federal officials from depriving anyone of rights under color of state law, unless the interest already is implicit in the statute authorizing the regulation. The court concluded that since Title VI prohibits only intentional discrimination, EPA's disparate impact regulations cannot be enforced by private parties under Section 1983. While the Third Circuit's decision vacates the district court decision reproduced in the 2002 Supplement, the district court's opinion still provides an illuminating discussion of how to prove racially disparate impact.


Problem Exercise: Should the Makah Be Permitted to Hunt Whales? (pp. 28-30)


Whaling by the Makah has been halted by the Ninth Circuit's decision in Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000), reproduced on pp. 225-238 of the 2002 Supplement, which required the preparation of a new environmental assessment (EA) of the whaling. As noted in the Supplement, p. 30, the new environmental assessment was completed on July 31, 2001 and it endorsed resumption of whaling in 2002. The National Marine Fisheries Service (NMFS) also has issued a notice of intent to prepare an EA for issuing a gray whale quota to the Makah for the years 2003 through 2007. Responding to this notice, the environmental group Sea Shepherd questions whether a hunt that takes 20-25 whales during this period can be sustainably practiced on a resident population that ranges from only 50 to 200 whales. The EA prepared by the NMFS for the 2002 hunt did not distinguish between resident whales and migrating whales in making its finding of no significant environmental impact. Sea Shepherd also argues that the Marine Mammal Protection Act trumps any Makah treaty rights, citing United States v. Billie, 667 F.Supp. 1485 (S.D. Fla. 1987) and that whaling by the Makah violates the International Convention for the Regulation of Whaling because the Makah are not a subsistence tribe. Sea Shepherd's comments may be found at http://www.seashepherd.org/issues/whales/makah121401.html.

Economics and the Environment: Valuing Public Goods (pp. 30-44)

In a recent paper, Philip E. Graves, an economics professor at the University of Colorado, argues that the conventional "willingness to pay" approach used by economists to estimate the value of public goods substantially undervalues environmental quality. Professor Graves notes that because individuals cannot actually purchase public goods, those who care about the environment will not work as hard to earn income as they would if they actually could spend some of it purchasing environmental quality. Thus, surveys of consumers' willingness to pay for environmental quality systematically underestimate the true value of this public good, perhaps by as much as 10 percent. While others question whether this 10 percent estimate is too high, if Professor Graves is "anywhere near right about this figure, the implied undervaluation of environmental goods by standard methods would be quite enormous." "Never the Twain Shall Meet," The Economist, Feb. 2, 2002, at 74. Professor Graves's paper is available online at http://spot.colorado.edu/~gravesp.

Problem Exercise: Should the Arctic National Wildlife Refuge Be Opened to Oil Exploration and Development? (pp. 62-69)

As noted in the 2002 Supplement (pp. 35-37), the energy bill passed by the U.S. House of Representatives in August 2001 included a provision opening ANWR to oil drilling. However, when the U.S. Senate passed its version of the energy legislation in April 2002, it rejected efforts to open ANWR to drilling. On April 18, 2002, the Senate voted 54-46 to reject a cloture motion that would have ended debate over drilling in ANWR. Proponents of opening ANWR fell 14 votes short of the 60 votes that would have been needed to permit a vote on amending the Senate bill to open ANWR to oil drilling. Five Democrats (Akaka and Inouye of Hawaii, Breaux and Landrieu of Louisiana, and Miller of Georgia) supported opening ANWR, while eight Republicans (Chafee of Rhode Island, Collins and Snowe of Maine, DeWine of Ohio, Fitzgerald of Illinois, McCain of Arizona, Smith of New Hampshire, and Smith of Oregon) opposed it.

Senate debate over opening ANWR was intense. Senator Ted Stevens of Alaska angrily denounced opponents of oil drilling, accusing them of overdramatizing the beauty of ANWR, which he described as "hell" for nearly 10 months of the year when it is covered in snow and ice. John J. Fialka and Shailagh Murray, Senators Link Steel Aid, Alaskan Oil, Wall St. J., April 17, 2002, at A12. Supporters of drilling in ANWR also enlisted veterans groups in their cause and argued that drilling was essential to national security to reduce our dependence on oil from the Middle East. On March 29, 2002, the U.S. Geological Survey had released a report stating that oil drilling in ANWR could harm the caribou herd that uses the area as a calving ground. Ten days later the U.S. Department of the Interior issued a supplemental report from the USGS that contradicted this conclusion, allegedly on the basis of new data.

In a desperate effort to garner additional support for drilling, Alaska's senators tried to tie the proposal to open ANWR to an $8 billion package of subsidies for the ailing steel industry. The steel industry subsidies would have been funded through earmarking federal royalties from oil production in ANWR. The United Steelworkers of America, which has opposed opening ANWR to drilling, was unmoved by the tactic, which was defeated by a vote of 64 to 36.

While efforts to open ANWR to drilling will now focus on the House-Senate conference on the energy bill, it is widely believed that the Senate vote effectively has killed the chances for the enactment of legislation opening ANWR in 2002.

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