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Issue

Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — May 2000

Articles

Using Auditing, Pollution Prevention, and Management Systems to Craft Superior Environmental Enforcement Solutions

by William L. Thomas, Bertram C. Frey, and Fern Fleischer Daves

"'Now, that's what I was afraid of!' Porfiry exclaimed hotly and as if involuntarily.

'That's what I was afraid of, that you don't want our reduction.'"

—Fyodor Dostoevsky, Crime and Punishment1

The "environmental cop"2 is very much on the beat, requiring environmental cleanup and meting out punishment for transgressions of U.S. law. In fiscal year (FY) 1999, the U.S. Environmental Protection Agency (EPA) concluded enforcement cases requiring a record $ 3.6 billion for environmental cleanup, pollution control equipment, pollution prevention and improved monitoring; a record $ 166.7 million in civil and administrative penalties; and $ 61.6 million in criminal fines. The Agency took 3,935 civil and administrative enforcement actions and referred 241 cases for criminal prosecution.3 And, as in past years,4 guards escorted corporate employees and managers to prisons which, unlike those etched by Piranesi, are anything but imaginary.5

Nuisance Law and the Prevention of "Genetic Pollution": Declining a Dinner Date With Damocles

by Thomas P. Redick, Christina G. Bernstein

In the quarter century since the first applications of recombinant deoxyribonucleic acid (DNA) technology in agriculture were submitted for regulatory approval in the United States, genetically modified organisms (GMOs) have come to represent an increasingly large share of the grain produced in the United States. In 1999, more than one-half of the soybeans and one-third of corn harvested in the United States came from genetically modified (GM) seed.1 In addition, an estimated 60 percent of packaged foods sold in the United States may contain genetically altered ingredients.2 Due to the concerns of foreign governments and consumers, growers and grain companies are being pushed to segregate GMO crops from non-GMOs.3 The ensuing demand for non-GMO products drives a costly process of segregation of GMOs from non-GMOs that begins in the field and ends at the grocer's shelf.

The segregation of GMOs is creating significant economic risks from the threat of commingling unapproved varieties with those approved for export. Almost overnight, billions of dollars in trade can be impacted by the decision of a foreign government to conduct a lengthy assessment of the slightest hypothetical environmental impact of a GMO. For example, the sequence of events may begin with a regulatory agency overseas finding that threatened butterfly or wild ancestor of corn could be impacted by a particular GMO (e.g, B.t. corn)4 that is being considered for import approval as a commodities shipment. While regulators overseas conduct studies to determine if an environmental impact could exist (perhaps even searching the countryside for Monarch habitat or a mythical ancestor of corn), a chain of events is triggered in the United States, where the same GMO is planted on thousands of acres. The delay in approving the GMO for export markets may require immediate segregation of that GMO from the fungible stream of commodity commerce (e.g., open to thousands of varieties of No. 2 grade corn) to protect the export stream for that particular crop from commingling.5 In nations where there is a "zero tolerance" for unapproved GMO varieties in shipments of grain commodities, the importing authority may reject large shipments of grain if a single grain of unapproved GMO is found.6 The importing authority could theoretically accept small amounts of insect parts and rodent feces but turn away entire shipments based on a single nucleotide sequence of offending DNA or the mere lack of a certificate confirming that no illegal DNA is present.7

The Coral Reef Task Force: Protecting the Environment Through Executive Order

by Robin Kundis Craig

Coral reefs are some of the most biologically diverse and economically productive ecosystems in the world, and there are approximately 4.2 million acres of coral reefs within the jurisdiction of the United States,1 located off the coasts of Florida, Hawaii, Texas, Louisiana, Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, American Samoa, and various other American-held islands in the South Pacific.2 However, most of these reefs are suffering from environmental degradation. In 1998, the World Resources Institute concluded:

Most United States reefs are threatened. Almost all the reefs off the Florida coast are at risk from a range of factors, including runoff of fertilizers and pollutants from farms and coastal development. Close to half of Hawaii's reefs are threatened, while virtually all of Puerto Rico's reefs are at risk.3

Standing and Mootness After Laidlaw

by Craig N. Johnston

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.1 may prove to be the most important environmental decision since Chevron, U.S.A., Inc. v. Natural Resources Defense Council.2 Laidlaw's primary significance lies in its discussion of the injury component of the U.S. Supreme Court's now familiar three-part standing test.3 The Laidlaw opinion, written by Justice Ginsburg and joined by five other Justices,4 reflects the Court's newly heightened sensitivity to the nature of the injuries that citizen plaintiffs suffer in the face of environmental violations. As such, this portion of the opinion represents a major victory for environmental plaintiffs. Indeed, the Court's new approach to injury questions may bear out Justice Scalia's prediction in his dissenting opinion that, henceforth, environmental groups likely will be able to establish injury-in-fact whenever they have members that live near any offending plants.5

Second, the Court's determination that citizens who face ongoing violations may seek to have penalties imposed for all past violations constitutes another significant victory for environmental plaintiffs. Remarkably, the Court's treatment of the question whether penalties payable to the U.S. Treasury provide sufficient redress to support standing marks an almost complete about-face from the position it carved out less than two years earlier in Steel Co. v. Citizens for a Better Environment.6

Dialogue

Environmental Insurance: An Introduction for the Environmental Attorney and Risk Manager

by Chris A. Mattison and Edward H. Widmann

In the past decade, environmental insurance has evolved into uniquely different applications. Coverages have broadened, new products have been introduced, and premiums have decreased. Over the last few years, such insurance has also received greater attention from attorneys, their business clients, and corporate risk managers. This Dialogue will discuss the types of environmental coverages generally available and guide the practitioner and risk manager through the intricacies of these specialized policies and coverage concepts.

The complexity of the available coverages presents serious challenges and provides substantial benefit to prospective policyholders, risk managers, and counsel. Several policy forms have been created to cover risks arising out of brownfields and site redevelopment, real estate transactions, mergers, and acquisitions. Other products have been created for specific industries, such as chemical manufacturers, paint and coatings, chemical distributors, landfills, laboratories, environmental product manufacturers, transporters, warehouses, educational institutions, and water and wastewater treatment plants. Still other forms are designed for contractors and professionals, such as environmental consultants, architects, and engineers. While some forms are specific to the industry or environmental risk, other broader forms can be applied to numerous and diverse situations.

Legal Considerations in Voluntary Corporate Environmental Reporting

by David W. Case

Formal corporate environmental reports—voluntary periodic communication by companies of information about their environmental activities and performance in a single document generally analogous to an annual report—began to appear at the end of the 1980s.1 By 1995, over 100 Fortune 500 companies issued formal environmental reports.2 Some companies embrace these reports as a useful internal management tool and external stakeholder communication vehicle. Others have been reluctant to produce such reports, with reasons varying from perceptions that little "demand" exists for such information, questions about the report's usefulness, and lack of evidence that the benefits of producing such a report outweigh its costs. Once the company has made the decision to produce a formal report, however, a number of critical concerns in determining the substance of the report come into play. Included among these are various legalconsiderations and issues.

Although countries recently have begun to impose such requirements (notably Denmark and the Netherlands),3 no legal requirement in the United States mandates preparation and release of such reports. Nonetheless, the past decade witnessed a significant increase in the number of American companies voluntarily joining the growing worldwide trend toward producing and publicly releasing formal corporate environmental reports on a periodic basis.4 Even absent compulsory regulation, several factors motivate companies to periodically produce formal environmental reports. In the United States, the impetus to voluntarily prepare and release such reports is at least partially attributed to mandatory legal requirements to release certain environmental data for public consumption.5