University of Colorado Law Review
Volume 75, Issue 2, Spring 2004
FOREWORD
In our lead article, More Unfinished Stories: Lucas, Atlanta Coalition, and Palila/Sweet Home, Oliver Houck shows that environmental cases are but the tip of histories in which people, government programs, and private interests bump into each other, clash, and then spin on towards their own destinies. Professor Houck seeks to provide what is often missing - the rest of the movie; what came before and, more importantly, what ultimately happened. The current article is the third, and perhaps the most detailed, of a series on major environmental cases. What Professor Houck shows once more is that, whatever the verdicts, their stories, with all of their precarious compromises and heartfelt conflicts, do not end.
In our second article, To See the Mountains: Restoring Colorado's Clear and Healthy Air, Justice Gregory Hobbs reviews the history of Colorado's struggle to restore and maintain its air quality. Colorado's post-World War II growth brought with it terribly murky and unhealthy air. Citizens complained bitterly about manufacturing and power plant pollution, but failed to see their own part in causing the problem - backyard trash incineration and the dirty, but beloved, automobile. Progress was slow throughout the 1970s because of the cost of pollution controls, initial resistance by industrial polluters, and delay-causing provisions in the state air laws. By the 1980s, important court cases in favor of air pollution enforcement were in place, and state and local citizen advocates and political leaders were stepping forward to bust the Brown Cloud and achieve compliance with the national health standards. The link between transportation and air quality planning, so important to livable Colorado communities, was forged in the early 1990s, but necessary projects continue to depend on funding approval by the electorate. At the start of the Twenty-First Century, new regulations produced compliance with the national health standards and a dramatic lessening of the Brown Cloud. Nevertheless, ozone pollution and regional haze now threaten to reverse Colorado's air quality progress. Colorado's continued growth will require ongoing community commitment to the brightening air.
Our third article, Finding More Pieces for the Takings Puzzle: How Correcting History Can Clarify Doctrine, by Professor David Thomas, addresses two areas of dispute that persist in the writing about and litigation over regulatory takings: whether, first, in the early years of the American republic, the police power was exercised mainly for the purpose of suppressing land-based nuisances, and second, whether during that same time precedents of paying compensation for "takings" that merely took rights rather than appropriated ownership can be found among early state cases. Some prominent scholars have denied that there is historical foundation for either practice. This article establishes that in the colonial and immediate post-independence period, exercises of police power for affirmative purposes, beyond suppression of nuisances, were the exception rather than the rule, that compensation was often given for such exceptional exercises of police power, and that giving compensation for depriving owners of property rights as well as for actual appropriations was widely practiced. Thus there is historical foundation for modern takings jurisprudence.
In our first student comment, Who's Driving the Train? Railroad Regulation and Local Control, Maureen Eldredge examines implications of the Interstate Commerce Commission Termination Act (ICCTA). The Act was passed in 1995 in order to deregulate the transportation and shipping industry and included language preempting certain types of state regulation. The Surface Transportation Board (STB), the agency overseeing the railroad industry, and several federal courts have interpreted this language in such a broad fashion that some railroad activities and construction projects are left unregulated by any entity, state or federal. Other courts interpret the same language in more narrow terms, preserving state authority. Ms. Eldredge analyzes the origin of the ICCTA, the different interpretations of the preemption language, and the impact of these interpretations on state and local control of land-use planning and environmental protection. She then goes on to analyze alternatives to the current position taken by the STB and suggests that the ICCTA should be interpreted restrictively to ensure state and local authority to protect the environment at the local level.
Our second student comment, The Last GASP: The Conflict Over Management of Replacement Water in the South Platte River Basin, by Lain Strawn, considers issues facing water users and regulators on Colorado's eastern plains. Eastern Colorado receives approximately ten inches of moisture per year and even less in drought years. Despite this reality, Colorado's agriculture industry and its urban centers require a steady supply of water. To get water where it is needed, irrigators construct surface diversions that transport water to places where it will be used. Technological improvements during the 1930s and drought in the 1950s compelled farmers in Colorado's river basins, including the South Platte, to sink hundreds of wells into the aquifers moving beneath the rivers. These tributary ground water wells were not initially regulated, and no system existed requiring well users to replace or augment the water they diverted. Increased numbers of water users and three consecutive years of severe drought recently triggered sharp conflicts over the legal and practical means of effectively managing water in this arid region. Ms. Strawn presents the conflict over water management in Colorado's South Platte River Basin, the events that led to the conflict, and solutions proposed by the judiciary and the legislature.
Finally, in Can We Stand For It? Amending the Endangered Species Act With an Animal-Suit Provision, Katherine Burke suggests that Congress has the power to confer a cause of action on endangered animal species to enforce the Endangered Species Act (ESA). A strict application of the injury-in-fact aspect of the test for constitutional standing has made it extremely difficult for human plaintiffs to avail themselves of the citizen-suit provision of the ESA, because they cannot sufficiently identify a personal, concrete injury arising from harm to protected species. Ms. Burke argues that an animal-suit provision in the ESA logically closes this enforcement gap. Examining the limits on Congress's power to confer causes of action generally and the Court's strict approach to standing analyses in environmental cases, Ms. Burke demonstrates that an animal plaintiff suing under an animal-suit provision could survive each of these levels of scrutiny. Despite the divergent and deep-seated views on the issue of animal rights generally, legally and theoretically Congress could grant a cause of action to animals and the Court could hear a case based on it. Finally, Ms. Burke shows that next friend representation under Fed. R. Civ. P. 17(c) would be an appropriate means for these cases to come to court, if certain criteria are met.
THE EDITORS