Clark_11e-AM-Ch45.doc

Clark_11e-AM-Ch45.doc - C HAPTER 4 5 E NVIRONMENTAL LAW...

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355 C HAPTER 45 E NVIRONMENTAL L AW A NSWER TO C RITICAL A NALYSIS Q UESTION IN THE F EATURE CONTEMPORARY LEGAL DEBATES—WHERE DO YOU STAND? (PAGE 925) Some argue that the requirement that plaintiffs have standing is one of the self-restraints on the power of the federal courts. Do you think that the Supreme Court’s decision in the Massachusetts decision diluted the standards for standing? Why or why not? Will the Supreme Court’s new approach to standing increase or decrease the role of the courts in U.S. public life? Why? The decision in the Massachusetts case diluted, or broadened, the standards for standing by loosening the requirement for a showing of harm or imminent harm. The decision did not affect the general standards, however, because that element is still required. If the standards for standing are interpreted as new and diluted, or broadened, and the courts respond by opening their doors to plaintiffs who might otherwise have been denied a hearing, and the decisions in those cases have effects that would not have otherwise occurred, the role of the courts in U.S. public life could be said to have increased. A NSWERS TO Q UESTIONS AT THE E NDS OF THE C ASES CASE 45.1—QUESTIONS (PAGE 927) 1A. What would support an argument that the Court should have given the term modification a definition that would be common to both regulations? The strongest support for this argument would be that Congress intended a common definition for the term “modification.” This interpretation could be based on the specific cross-reference in the regulation to the statute. 2A. Did the U.S. Court of Appeals for the Fourth Circuit’s attempt to equate the NSPS and PSD regulations implicitly—without analysis or discussion—invalidate those regulations? Explain. This was the Court’s position. On this point, the Court said, “In sum, the text of the 1980 PSD regulations on ‘modification’ doomed the Court of Appeals's attempt to equate those regulations with
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356 UNIT NINE: GOVERNMENT REGULATION their NSPS counterpart. As a consequence, we have to see the Court of Appeals's construction of the 1980 PSD regulations as an implicit invalidation of those regulations, a form of judicial review implicating [other] provisions . .. of the Act, which limit challenges to the validity of a regulation . ... Because the Court of Appeals did not believe that its analysis reached validity, it did not consider the applicability or effect of that limitation here. We have no occasion at this point to consider the significance of [this provision] ourselves.” CASE 45.2—WHAT IF THE FACTS WERE DIFFERENT? (PAGE 929) Would the result in this case have been different if the quality of the water flowing through the turbines of Warren’s dams improved before returning to the river? Why or why not? Probably not, because the Court’s definition of “discharge,” and its application of that definition in this case, did not rely on the actual quality of the water before and after its passage through the turbines. It was the
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This note was uploaded on 03/17/2011 for the course LAW 1024066 taught by Professor K during the Spring '09 term at Fairleigh Dickinson.

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Clark_11e-AM-Ch45.doc - C HAPTER 4 5 E NVIRONMENTAL LAW...

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