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Issue

Volume 30, Issue 7 — July 2000

Articles

The Tisza Cyanide Disaster and International Law

by Aaron Schwabach

Just under 14 years ago, at a few minutes after midnight on Halloween, a fire broke out in Sandoz Warehouse 956 in Schweizerhalle, near Basel, Switzerland. The fire and subsequent fire-fighting efforts resulted in the discharge of 1,351 metric tons of chemicals, many of them toxic, into the Rhine. At the time, the Sandoz spill was considered Europe's worst environmental disaster in decades, and perhaps its worst watercourse disaster ever. The incident briefly spurred interest in protecting Europe's environment, particularly its watercourses and especially the Rhine.1

As is so often the case, however, "never again" actually meant "not for a while." On January 31 of this year, at least 100,000 cubic meters of highly polluted water escaped from a tailings dam at the Aurul gold mine in Baia Mare, Romania. The water flowed into the Somes, Tisza, and Danube Rivers, causing enormous environmental damage. Most of the damage occurred in Hungary, downstream from Baia Mare. Hungarian politicians compared the spill not to Schweizerhalle but to the Chernobyl nuclear power plant disaster; one said "it is as if a neutron bomb had been detonated. All the living organisms have been destroyed."2

Does Environmental Deterrence Work? Evidence and Experience Say Yes, But We Need to Understand How and Why

by Jon D. Silberman

The principle of deterrence underlies the U.S. Environmental Protection Agency's (EPA's or the Agency's) compliance monitoring and enforcement program.1 It is referenced expressly in virtually every EPA enforcement response and penalty policy,2 and endorsed in EPA Environmental Appeals Board (EAB) penalty decisions.3 The U.S. Supreme Court itself has cited deterrence as a key underlying purpose of penalties assessed to redress environmental violations.4 In a banner year, EPA undertakes fewer than 22,000 inspections and 4,000 civil judicial and administrative actions under multiple and complex environmental statutes,5 in addition to the approximately 146,000 state inspections and 9,000 enforcement actions tracked in EPA's compliance databases,6 for nearly eight million regulated entities.7 These numbers emphasize the practical and pressing importance of establishing a credible deterrent to noncompliance.

EPA has consistently described its compliance and enforcement programs as providing both specific and general deterrence. That is, inspections and other forms of compliance monitoring and enforcement are undertaken not only to identify specific violators and return them to compliance, but also to deter the violators and all other similarly situated regulated entities from future noncompliance.8 Underlying this paradigm is the assumption that most regulated entities will comply with the law when the costs of noncompliance exceed the benefits. For this to occur, penalty amounts must recoup any economic benefits of noncompliance (EBN) the violators may have realized. This serves to "level the playing [30 ELR 10524] field" and ensure no company obtains a competitive edge from its noncompliance. Secondly, as EPA's penalty policies consistently provide, the penalties must impose a deterrent component beyond the amount of any economic benefit of noncompliance to the violators. The current governmental emphasis on environmental performance and results,9 reflected in the proliferation of EPA programs to promote pollution prevention,10 innovation,11 self-policing,12 and other so-called beyond compliance efforts, highlights a third, increasingly important deterrence goal—encouraging regulated entities to adopt these values and participate in these programs in order to consistently maintain compliance as well as achieve environmental excellence.13 Such efforts can mean moving beyond merely preventing or correcting obvious violations, to committing the time, personnel, and funding necessary to affirmatively investigate overall compliance and identify pollution prevention opportunities.

Mitigation Banking as an Endangered Species Conservation Tool

by Michael J. Bean & Lynn E. Dwyer

A recent headline on the front page of the Wall Street Journal hailed the opening of the nation's first "butterfly bank."1 The "deposits" in this unusual bank are conservation credits earned by preserving an important area of habitat for the Quino checkerspot butterfly, an endangered species restricted to California. The bank's intended customers are other landowners who hope to develop other sites where the butterfly occurs. In order to do so, they can buy credits from the private entrepreneur who established the butterfly bank.

Meanwhile, just a week earlier on the nation's other coast, the state of North Carolina announced that it was purchasing a large tract of land containing a number of endangered red-cockaded woodpeckers. The state's intention is to earn conservation credits that it can use to meet future mitigation requirements when the state's transportation department builds new roads in woodpecker habitat elsewhere.2 The California and North Carolina examples illustrate two forms of a new phenomenon, generally known as either conservation banking or mitigation banking for endangered species.

Environmental Litigation After Laidlaw

by Daniel A. Farber

As law students frequently discover during exams, the law of standing is easy to state but hard to apply. The basic rules are simple and well-settled. Under Article III of the U.S. Constitution, in order to invoke federal jurisdiction, the plaintiff must demonstrate the existence of an "injury-in-fact" that is "legally cognizable," "fairly traceable" to the defendant, and capable of being "redressed" by the court.1 Each of the terms in quotation marks seems clear enough on the surface but has proved remarkably tricky in practice. The case law in the area has long been renowned for its inconsistency,2 and recent cases have often been unreceptive to environmental concerns.3

The U.S. Supreme Court's latest foray into the morass of standing law was Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.4 Laidlaw involved a citizen suit under the Clean Water Act (CWA), in which the plaintiffs attempted to obtain payment of civil penalties for pollution that had ceased before the district court's judgment.5 In finding a justiciable controversy, the Laidlaw Court accepted the standard formulations of standing and other justiciability doctrines, as well as the results of prior cases. Nevertheless, Laidlaw provides an important, helpful gloss on existing doctrine, smoothing away some of the more troublesome rough edges in previous opinions.

New Approaches to Environmental Law and Agency Regulations: The Daubert Litigation Approach

by Charles D. Weller, David B. Graham

For trial lawyers and judges, the U.S. Supreme Court's "Daubert Four"—four unanimous decisions since 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 General Electric Co. v. Joiner,2 Kumho Tire Co. v. Carmichael,3 and Weisgram v. Marley Co.4—overturned 70 years of trial practice regarding expert evidence, rewriting both when scientific and other expert evidence can and cannot be admitted at trial, and how a trial judge's decision to exclude or admit5 expert evidence is reviewable on appeal. Before Daubert, when a judge said "call your next witness," the experts in many cases would have been allowed to testify. After Daubert, when the judge instructed a lawyer to "call your next witness," none of the experts involved in these four Supreme Court cases were ultimately allowed to testify, and the same has been true in many other cases since 1993.6

This Article applies the Daubert Four to environmental and toxic tort7 litigation and regulation in three ways. In part I, the Article sets forth a public policy need, and opportunity, for a "next generation" of environmental regulation and litigation. Part II provides a litigator's guide to Daubert hearings and appeals regarding the admission and exclusion of expert witnesses, and sets forth a "does it work and why?" method for determining whether expert evidence is "reliable" enough to be admitted. Part III combines the new Daubert requirements for the use of experts at trial with a generalization of the underlying Daubert legal analysis of applying nonenvironmental federal law, such as the Federal Rules of Evidence, to environmental litigation. These two dimensions of Daubert are referred to as the "Daubert Litigation Approach." The Daubert Litigation Approach is then applied in 10 illustrative ways.

Dialogue

Chevron Goes Up in Smoke: Did the Supreme Court Reward Gridlock Tactics in the Cigarette Decision?

by James T. O'Reilly

Environmental lawyers have much to learn from a close study of the March 2000 U.S. Supreme Court decision in Food & Drug Administration v. Brown & Williamson Tobacco Corp.1 So much of the U.S. regulatory apparatus controlling environmental pollution is premised on administrative agency power to fill gaps in statutory language, that the 5-4 majority's dramatic slalom turn away from prior Supreme Court norms of deference2 bears close attention.

This Dialogue suggests that the tobacco industry's successful tactic in defending cigarettes may be exhibited in future industrial challenges to U.S. Environmental Protection Agency (EPA) regulatory initiatives. Silence, disharmony, and desuetude by Congress prevailed in the Supreme Court tobacco case as a barrier to gap-filling regulations by administrative agencies. Gap filling is a classic pattern of regulatory response to the vagaries of congressional indecision. The March 2000 decision was not an about-face change from Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,3 the landmark 1984 decision on judicial deference, but it can be described as a slalom turn that twists the "cigarette corollary" into anti-deference in some instances.

Preemption of Environmental Law: Is the U.S. Supreme Court Heading the Wrong Direction?

by Paul S. Weiland

On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law.1 The enactment of NEPA was the result of a confluence of numerous factors, and two among these were the Torrey Canyon oil spill of March 18, 1967, and the Santa Barbara oil well blowout of January 30, 1969.2 Twenty years later, on August 18, 1990, President Bush signed the Oil Pollution Act (OPA)3 into law. Like the enactment of NEPA, the enactment of the OPA was the result of a confluence of numerous factors, and one among these was the Exxon Valdez oil spill of March 24, 1989.4

Because of the sheer magnitude of damage they are able to inflict upon the natural environment, oil spills have catalyzed governments to enact multinational treaties, national laws, and state laws. Recently, in United States v. Locke,5 the U.S. Supreme Court held that national laws pertaining to maritime tanker transports created a regulatory scheme that preempted oil spill prevention regulations promulgated by Washington State.6 The opinion, written by Justice Kennedy for a unanimous Court, has ramifications that extend beyond oil spill prevention into many areas of environmental law and policy. Read narrowly, United States v. Locke signals the willingness of the Court to preempt state and local efforts to protect the environment in the absence of clear congressional intent to preempt. Read broadly, it signals the willingness of the Court to engage in its own policy analysis to determine whether preemption is applicable.