Document Type



The purpose of this article is to examine the legal adequacy of proposals now under consideration for a nitrogen trading program on Long Island Sound, and to assess the likelihood of success in light of the experience with other trading programs, both for water and air pollution. Part I outlines the current environmental condition of Long Island Sound and explains the factors which have led proponents of trading to believe such a program could be effective. In Part II we consider the essential elements of a trading program, and the lessons to be learned from the Clean Air Act programs. Part III examines the federal policy framework within which water pollutant trading may take place, while Part IV analyzes the legal framework and explains the ways by which a trading program may be crafted to fit within it. Part V reviews existing water trading programs and the lessons to be learned from their successes and failures. Part VI undertakes a rigorous analysis of the specific proposal under consideration for Long Island Sound, evaluating both its legal adequacy and the likelihood that a sufficient market driver would be created to provide economically efficient environmental results. Part VII concludes that although a Long Island Sound pollutant trading program can be accommodated within the framework of the Clean Water Act, the factual predicates for such a program have yet to be established, and practical and policy concerns make such a trading program problematic.