University of Colorado Law Review
Volume 76, Issue 2, Spring 2005
FOREWORD
In our lead article, Federal Land Retention and the Constitution's Property Clause: The Original Understanding, Robert G. Natelson explores the original meaning of the Constitution's federal land ownership powers. The article contains the most extensive review to date of founding-era materials pertaining to the subject. The author concludes that the founding generation understood the Constitution to give the federal government wide power to own land within state boundaries, but only for enumerated purposes. Professor Natelson thus rejects the view of some conservative scholars that the federal government could own land within state boundaries only pursuant to the Enclave Clause. He also rejects the view of some courts and liberal scholars that federal land ownership is unlimited by the Constitution's enumeration of federal powers.
In our second article, Corporate Environmental Reporting as Informational Regulation: A Law and Economics Perspective, David W. Case examines utilizing the growing industry trend of voluntary formal corporate environmental reporting as a means to potentially expand the use and effectiveness of information disclosure as an environmental protection agency tool. Professor Case undertakes the first major analysis of whether the industry trend of voluntary formal corporate environmental reporting—especially the leading model of the Global Reporting Initiative—is appropriate for use in building mandatory informational regulatory policy tools. The past decades have seen substantial effort to evaluate alternative policy tools to supplement, or where appropriate, replace traditional environmental regulatory approaches. The goal is more flexible and effective methods to obtain greater environmental protection at lower costs to both government and the regulated community. Towards this end, Professor Case constructs a law and economics framework to evaluate the viability of utilizing the existing voluntary formal corporate environmental reporting regime to establish a comprehensive strategy of environmental informational regulation. Through this article, Professor Case seeks to encourage informational regulatory policy initiatives that build upon the existing voluntary reporting regime to promote environmental performance improvement beyond that achievable by traditional approaches.
Our third article, The Effectiveness of the NAFTA Environmental Side Agreement's Citizen Submission Process: A Case Study of Metales y Derivados, Tseming Yang explains that the citizen submission process has been one of the most visible features of the North American Agreement for Environmental Cooperation, commonly known as the NAFTA environmental side agreement. Professor Yang shows that the submission process allows private individuals to trigger an official international investigation into a NAFTA government's failure to effectively enforce its environmental laws. The aim of the process is to address international environmental issues related to trade liberalization. While some commentators have been optimistic about its usefulness in promoting transparency and accountability, an examination of one of the more recent published factual records, the Metales y Derivados matter, presents a cautionary tale. The former battery and lead waste recycling facility located in Tijuana, Mexico, was abandoned by its U.S. owner, leaving behind thousands of tons of toxic heavy-metal wastes and contaminated soil next to a poor, working-class community. Through the Metales example, Professor Yang considers the effectiveness of the citizen submission process, not only in promoting openness and increasing public knowledge about governmental processes, but also in bringing about substantive environmental improvements, enhancing enforcement activities, and improving public participation and community involvement in environmental governance.
In our essay, Executive Power and the Public Lands, Harold H. Bruff explores the limitations of administrative law and public land law in their efforts to confine administrative discretion. Professor Bruff notes that, in part, discretion persists in this field because managerial functions demand it and Congress appreciates that fact. In the context of designating national monuments, Congress has allowed Presidents to act quite freely, and reviewing courts, sensitive to separation of powers principles, have not confined presidential discretion. In contrast, departmental actions governed by the Administrative Procedure Act must follow prescribed procedures and survive searching judicial review. Yet when agencies engage in informal processes of policy formation, their subordinate employees may be able to exercise wide discretion without fear of court intervention.
In our first student comment, Reviving the Coercion Test: A Proposal to Prevent Federal Conditional Spending that Leaves Children Behind, Coulter M. Bump examines current Spending Clause doctrine as it relates to Congress's authority to implement the No Child Left Behind Act ("NCLB"). NCLB provides eligible public schools with Title I money in exchange for their commitment to implement certain education programs designed to raise the academic proficiency level of all elementary and secondary school students by the 2014-15 academic year. To implement this program, the federal government promised to provide states with the necessary funds, but states must continue to spend more of their own money to achieve the academic targets prescribed for them. Insufficient federal funds and state budget cuts have left many schools with few economic alternatives but to accept the Title I money and agree to comply with the Act. Ms. Bump argues that because states have no practical or political choice but to accept the money and the accompanying demands, the result is unconstitutional coercion. While acknowledging that under current Spending Clause doctrine, NCLB would likely be declared unconstitutional, Ms. Bump argues that if the Supreme Court revived the coercion test it articulated in the 1930's, NCLB would be an example of the federal government unconstitutionally compelling education reform by coercing states to comply. Ms. Bump advocates the use of the coercion test to strengthen the current limitations on Congress's power to spend in the future.
In our second student comment, The Battle Between the Colorado Oil and Gas Conservation Commission and Local Governments: A Call for a New and Comprehensive Approach, Angela Neese considers the ongoing battle in Colorado between state and local governments over the regulation of natural gas. Ms. Neese explores a number of factors contributing to the tension between state regulations and local interests. This tension has led to a great deal of litigation, and the author describes the ways in which Colorado Supreme Court decisions have failed to adequately define the limits of state preemption of local oil and gas regulations. Because legal disputes drive up consumer prices and limit the available supply of natural gas, Ms. Neese concludes that Colorado should adopt legislation that provides clearer guidelines to delineate what matters are of state versus local control. The author suggests that clearer guidelines would benefit not only the oil and gas industry, but also citizens and communities throughout Colorado.
THE EDITORS