Tag: Administrative Law

For the Birds: The Statutory Limits of the Army Corps of Engineers’ Authority over Intrastate Waters After SWANCC – Note by Jennifer DeButts Cantrell

From Volume 77, Number 6 (September 2004)
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Every year the Army Corps of Engineers receives over 74,500 applications for permits under section 404(a) of the Clean Water Act (“CWA”), the provision regulating the discharge of fill or dredged material into the nation’s waters. Consequently, when the Supreme Court granted certiorari for Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”) – a case potentially affecting the status of millions of acres of American wetlands – property owners, developers, and environmentalists alike were wise to stand up and take notice.

The SWANCC case involved a Chicago-area consortium of municipalities that sued the U.S. Army Corps of Engineers (“Corps”) for denying them a permit to develop a landfill on an abandoned mining site because the Corps had determined the land in question was inhabited by migratory birds. The central issue presented in SWANCC was whether this “Migratory Bird Rule” – a regulation promulgated in 1986 giving the Corps authority over wetlands populated by migrating birds – was a proper exercise of jurisdiction under the CWA. The municipalities argued that the rule exceeded the Corps’ authority because the CWA was meant to only regulate waters that are navigable or that adjoin navigable waterways. On the other hand, the Corps argued that its jurisdiction is not limited by traditional notions of navigability; rather it has authority over the nation’s waters to the fullest extent of the Commerce Clause.

 

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Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear Itself? – Article by Howard F. Chang

From Volume 77, Number 4 (May 2004)
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The dispute between the United States and the European Union (“EU”) regarding the EU ban on meat imports treated with hormones raises the question: How should regulators respond to public fears that are disproportionate to the risks as evaluated by experts in risk assessment? If regulators cannot eliminate public fears through education, then there is some social benefit from regulations that reduce the feared risks and thereby reduce public anxiety and distortions in behavior flowing from that anxiety. These considerations imply that we cannot simply ignore public fears that technocrats would deem “irrational.” On the other hand, there is the danger that special interests may seek to generate consumer anxiety and lobby for regulations that serve their interests. I explore an approach that takes public fears seriously as social costs but also treats them as endogenous variables. I use this framework to evaluate risk regulations in terms of economic efficiency and suggest that the danger of inefficient regulation is most acute when domestic industries promote or sustain fears regarding imported products. From this perspective, the World Trade Organization ruling against the EU in the hormones dispute, based on the risk assessment requirements in the Agreement on the Application of Sanitary and Phytosanitary Measures, may represent a reasonable approach to guarding against the danger of regulatory protectionism, understood broadly to describe inefficient regulations that the importing country would not have adopted but for the foreign nationality of the producers disadvantaged and the domestic nationality of the producers favored by those regulations.

 

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A Market-Based Approach to Telecom Interconnection – Article by David Gilo

From Volume 77, Number 1 (November 2003)
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This Article offers a new solution to the problem of interconnection among telecom networks. According to the Federal Communications Commission’s (“FCC”) proposal, interconnection between local exchange carriers (“LECs”) and long-distance carriers would be mandatory, and all charges demanded by LECs for outgoing and incoming long-distance calls would be regulated down to zero. In contrast, this Article proposes simple regulatory changes that would foster the deregulation of interconnection between long-distance carriers and LECs. Such regulatory changes would enable several market forces, revealed by the Article and neglected by the FCC and the previous literature, to keep LECs’ charges for interconnection from rising above competitive levels and encourage carriers to interconnect. First, long-distance carriers should be allowed to transit long-distance calls made to one LEC’s subscribers by interconnecting with the competing LEC. The Article illustrates that if LECs are forbidden from charging each other for completing each other’s calls, the credible threat to use such transit will induce each LEC to interconnect directly with long-distance carriers and to charge them voluntarily for incoming calls no more than the competing LEC’s marginal costs of transit. Moreover, future growth of cellular telephony and broadband Internet-protocol telephony is expected to strengthen this market force, especially if the FCC’s current requirement that long distance carriers average their rates is eliminated. As to the rates LECs charge long-distance carriers for long-distance calls made by the LECs’ subscribers, if the Telecommunications Act of 1996’s (“1996 Act”) requirement that long-distance carriers equalize their rates is amended, direct competition among LECs is shown to restrain them. Even short of amending the 1996 Act, the Article shows how long-distance carriers’ ability to ask one LEC to transit long-distance calls made by the competing LEC’s subscribers is expected to drive these rates down to the marginal costs of transit. The Article shows how interconnection among the LECs themselves should be regulated in order to enable the proposed deregulation of interconnection between the LECs and long-distance carriers. First, interconnection among LECs themselves should be mandated. Second, LECs should not be allowed to charge each other for completing each other’s calls. The Article also exposes an additional justification for not allowing LECs to charge each other for completing each other’s calls: LECs might negotiate an excessive reciprocal rate for such calls to enforce an implicit commitment on the part of a new LEC entering the market to focus only on “net receivers of calls” (such as Internet service providers), leaving the rest of the market to the incumbent.

 

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