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Vol 33. No.3 Spring 2009



Patricia Ross McCubbin (359)
This article serves as an introduction to this symposium volume, which presents the proceedings of a conference held at the Southern Illinois University School of Law on February 27, 2009, on “Contemporary Issues at the Intersection of Public Health and Environmental Law.”

Sustainable Commerce: Public Health Law and Environmental Law Provide Tools for Industry and Government to Construct Globally-Competitive Green Economies

T. Rick Irvin and Peter A. Appel (367)
Sustainable commerce initiatives are creating new goods and services that will position the US economy to aggressively compete in global markets. “Sustainable commerce” refers to products and practices which minimize environmental impacts, optimize commercial value, and realize public as well as private environmental benchmarks. How law can create incentives for sustainable commerce to flourish remains a question. In this article, Professor Appel and Dr. Irvin show how industry and state and local governments have not fully utilized the existing public health and environmental legal infrastructure as tools to craft sustainable commerce initiatives. They then outline a private/public governance paradigm in which industry and government create sustainable commerce initiatives that can enhance state and local economies and employment, foster competitiveness in the global marketplace, and, at the same time, substantially improve local and state public health and environmental performance. This article finally analyzes some of the nuts-and-bolts legal issues based in existing public health and environmental law to accommodate sustainable commerce initiatives. In addition, it examines the role that third-party assurance systems will play in this new public-private partnership to ensure sustainable commerce timelines and goals are met over the immediate future. Articles Editor, Steve Sarm

Valuing the Public Health Aspects of Environmental Enforcement: Qualitative versus Quantitative Evaluations of Enforcement Effort

Robin Kundis Craig (403)
It would be difficult to contest the status of pollution as a public health problem. However, environmental regulation by definition imposes limitations on private individuals and entities, and those limitations become most acutely obvious in the context of government enforcement actions. As a result, there always has been and likely always will be resistance to environmental regulation and enforcement. In light of this resistance, pollution regulation’s public health benefits offer strong rhetorical and political arguments in favor of such regulation and its effective enforcement, especially during a flailing economy.

Unfortunately, in specific situations, the public health benefits of pollution control law and its enforcement are not always obvious. Because of this potential obscurity, this Article argues that the Environmental Protection Agency’s (EPA’s) annual enforcement assessments and reports, prepared by its Office of Enforcement and Compliance Assurance (OECA), become important vehicles for communicating the public benefits of environmental enforcement to Congress and the American public. Since 2005, OECA has been reporting specifically on the public health benefits of its Clean Air Act enforcement efforts. This new reporting metric demonstrates the rhetorical power of qualitative assessments of the public health benefits that pollution regulation and enforcement provide. However, because OECA has been using it only for Clean Air Act enforcement and not for enforcement actions under other statutes such as the Clean Water Act, the Resource Conservation and Recovery Act, or even the Safe Drinking Water Act, the new public health metric also underscores the rhetorical anemia of the EPA’s more traditional quantitative measures of enforcement effort.
This Article argues, most basically, that the rhetoric of enforcement reporting matters. While acknowledging the difficulties of producing quantitative public health benefit calculations for all of the major federal pollution control statutes, this Article concludes that the EPA and OECA could beneficially strengthen the public health analyses of enforcement by providing more and more prominent qualitative assessments of the value of certain kinds of enforcement actions, across statutory regimes. Articles Editor, Misty Edwards

EPA’s Endangerment Finding for Greenhouse Gases and the Potential Duty to Adopt National Ambient Air Quality Standards to Address Global Climate Change

Patricia Ross McCubbin (437)
The U.S. Environmental Protection Agency (EPA or the Agency) recently announced its intention to make a finding under the Clean Air Act that greenhouse gases from new cars and light trucks endanger the public health and welfare by contributing to global climate change. That proposed endangerment finding is highly controversial because of the possibility that, once finalized, it will obligate EPA and the states to regulate greenhouse gases from nearly every sector of the economy with “national ambient air quality standards,” the central program of the Clean Air Act that addresses air pollution all across the country. Reviewing the Clean Air Act and its legislative history, this article analyzes EPA’s legal obligation to adopt those broad, national standards for greenhouse gases once the endangerment finding takes effect. While the statutory language might appear to give the Agency discretion not to do so, the article identifies a possible scrivener’s error─not previously discussed by EPA, the courts or others─that would require the Agency to issue those national standards.

Whether a court will accept that new interpretation or, instead, find flexibility for EPA depends ultimately on whether the Agency persuasively demonstrates that national standards are unworkable for greenhouse gases and unnecessary in light of the other steps it is taking under the Clean Air Act. The article analyzes EPA’s claims on both scores, especially in light of the Massachusetts Court’s skepticism on the Agency’s climate change record. Although applying the current statute to greenhouse gases poses challenges, a skeptical court might very well conclude that the national standards can be sufficiently tailored so as to prove useful in our efforts to mitigate global climate change. Articles Editors, Kyle Oehmke and Cyndi Bollman

The Recent Explosion in Summary Judgments Entered by the Federal Courts Has Eliminated the Jury From the Judicial Power

Richard L. Steagall (469)
Prior to a trilogy of Supreme Court cases in 1986, summary judgment was entered only when it was “quite clear what the truth [was].” Demurrers to the pleadings resolved the case on the merits for or against the defendant, and demurrers to evidence at trial required the consent of the parties. Summary judgment was a 19th century device to eliminate spurious defenses from debt collection actions extended to analogous narrow circumstances. It existed in twenty states when adopted with the Federal Rules of Civil Procedure in1938. Today, a judge reviews the evidence on a motion for summary judgment to determine if the burden of proof is satisfied before a jury can hear the case. Meanwhile, the Article III power of judges is limited by the Seventh Amendment preservation of the common law right to trial by jury, which is both an individual right of litigants and a community right of participation in the judiciary. 

The history of the common law jury and its institutional role as a check on the power of judges developed in the English and American Revolutions demonstrates the radical alteration in federal judicial power that has occurred in the past twenty-four years through expansive summary judgment. The jury, which now participates in only 1.7% of civil cases as opposed to 12.1% in 1952, will not survive if its ability to sit continues to depend on a judge’s review of the evidence on summary judgment. Articles Editor, Amanda Blades


Can’t Get No Satisfaction: The Consequences of Pisciotta v. Old National Bancorp, 499 F.3d 629 (7th Cir. 2007) For Potential Victims of Identity Theft

Amanda Blades (509)
Although online services are convenient for both businesses and consumers, the electronic storage of personal information has made consumers more vulnerable to identity theft. Pisciotta v. Old National Bancorp represents the continuing trend in cases that have barred recovery of damages for plaintiffs whose personal information has been compromised but not yet been used fraudulently. This Casenote examines why the Pisciotta decision should be overturned and the reasons why businesses that store personal information should be required to provide free credit monitoring to consumers following a security breach. In the meantime, consumers whose personal information has been compromised will have to cross their fingers and hope that they do not become identity theft victims.

To Emit Is Human; To Regulate, Divine: Statutory Interpretation of the Clean Air Act in Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438 (2007)

Kathryn Hurie (527)
Whether global warming is scientific fact or mere conjecture, Massachusetts v. Environmental Protection Agency is the quintessential case regarding the future of air pollution regulation. In this case, the Supreme Court held that the Environmental Protection Agency must make a ruling as to whether carbon dioxide and other greenhouse gases constitute air pollutants. If so, the Clean Air Act requires the EPA to regulate emissions of such gases from new motor vehicles. If not, the EPA can avoid regulation of such emissions. 
Regardless of its findings, the EPA can no longer refuse to make a determination. This Casenote argues carbon dioxide and nitrous oxide emissions constitute air pollutants under the CAA’s definition, while deference should be given to the EPA finding that methane and hydrofluorocarbons do not constitute pollutants. By exploring the text of the CAA, the statutory interpretation arguments of the Court and dissenters, and the impact of each outcome, it is possible to determine the appropriateness of the Court’s holding, as well as whether this decision puts the federal government on a path toward regulating greenhouse gases.


Game Over? A Call for Reform in Illinois Insurance Law’s Treatment of Test Drivers

Kyle Christopher Oehmke (547)
Every American is familiar with the vehicular test drive, and many consider the opportunity necessary in the search for the “car of their dreams.” Currently, a straightforward legal status quo governs Illinois test drivers in the event of a third party liability claim: the high coverage limits of dealership insurance remains primary over any insurance of the driver. Nevertheless, the author of this Comment urges legislative and judicial reconsideration of Illinois test driver treatment. Without significant reevaluation of insurer primacy and the coverage dichotomy between dealerships and test drivers, the right of dealerships to contract is substantially impaired, injured third parties are not provided with a sufficient sense of compensatory expectation, and negligent test driving is inadequately deterred.

The Unexamined Life Is Not Worth Living . . . Or Is It? Preserving the Sanctity of Human Life in American Courtrooms

Stephanie R. Fueger (571)
This Comment argues that the ways in which disparities between wrongful pregnancy and wrongful birth claims are handled by judges has set up a subconscious bias against those who are born with genetic, developmental or other defects. This article proposes that the current distinctions among such claims be abolished in favor of other alternatives that actually carry out the stated goals of the judges making these decisions: respect for all human life. To do so, judges must abolish the distinctions between wrongful life and wrongful pregnancy claims because they ignore the benefits disabled children bestow on their parents. These distinctions cannot be supported by the unprincipled, philosophical “excuses” given by judges, nor can they be supported from an economical standpoint. This Comment urges courts to adopt a new, unified framework that focuses on the tortfeasor. By employing traditional negligence principles to decide these cases, judges will be able to adequately compensate wronged plaintiffs, which will, in turn, protect disabled persons.