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Issue

Volume 30, Issue 9 — September 2000

Articles

A Taxonomy of Environmental Justice

by Robert R. Kuehn

"Environmental justice" means many things to many people. To local communities feeling overburdened by environmental hazards and left out of the decisionmaking process, it captures their sense of the unfairness of the development, implementation, and enforcement of environmental laws and policies. To regulated entities facing allegations that they have created or contributed to injustices, environmental justice is an amorphous term that wrongly suggests racial-based or class-based animus or, at the very least, indifference to the public health and welfare of distressed communities. The company may believe it did not even create, or at most only plays a small role in causing or solving, the community's problems. To government officials often the target of environmental justice activists' ire, the term may imply that they are executing their responsibilities in a biased or callous manner. Caught in the middle between local residents and industry, the call for environmental justice may pressure agency officials to move from a well-established, technocratic decisionmaking approach to a largely undefined, populist approach that encompasses issues beyond the comfortable domain of the agency.

Efforts to understand environmental justice are further complicated by the term's international, national, and local scope; by its broad definition of the environment—where one lives, works, plays, and goes to school; and by its broad range of concerns—such as public health, natural resource conservation, and worker safety in both urban and rural environs. Disputes at the international level include allegations that governments and multinational corporations are exploiting indigenous peoples and the impoverished conditions of developing nations. At the national level, although an overwhelming number of studies show differences by race and income in exposures to environmental hazards, debate continues about the strength of that evidence and the appropriate political and legal response to such disparities. At the local level, many people of color and lower income communities believe that they have not been treated fairly regarding the distribution of the environmental benefits and burdens.

Environmental Federalism Part II: The Impact of Harmon, Smithfield, and CLEAN on Overfiling Under RCRA, the CWA, and the CAA

by Jerry Organ

In Environmental Federalism Part 1: The History of Overfiling Under RCRA, the CWA, and the CAA Prior to Harmon, Smithfield, and CLEAN, the history of judicial and administrative decisions relating to overfiling under the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Clean Air Act (CAA) was analyzed. The history showed that the U.S. Environmental Protection Agency (EPA), with limited exceptions, generally was understood to have overfiling authority under RCRA, the CWA, and the CAA. The limited exceptions focused on two situations. First, some courts in dicta and some administrative law judges (ALJs) had suggested that EPA lacked the statutory authority to overfile under RCRA when a state with an approved program had taken some enforcement action. Second, the Ninth Circuit in United States v. ITT Rayonier, Inc.1 had indicated that in at least one circumstance under the CWA res judicata would bar EPA from overfiling.

Environmental Federalism Part II: The Impact of Harmon, Smithfield, and CLEAN on Overfiling Under RCRA, the CWA, and the CAA evaluates the decisions in Harmon Industries, Inc. v. Browner,2 United States v. Smithfield Foods, Inc.,3 and Citizens Legal Environmental Action Network, Inc. (CLEAN) v. Premium Standard Farms, Inc. (PSF),4 and then takes a careful look at how the statutory authority and res judicata arguments impact EPA's authority to overfile under RCRA, the CWA, and the CAA. Part II contains four separate sections. Section Two explores in detail the decisions in Harmon, Smithfield, and CLEAN; Section Three evaluates the statutory analysis arguments regarding overfiling under RCRA, the CWA, and the CAA in light of these cases; Section Four addresses the res judicata arguments regarding overfiling under RCRA, the CWA, and the CAA in light of these cases; and Section Five outlines some thoughts on how EPA, the states, and the regulated parties are likely to respond to these recent decisions regarding overfiling.

New Nonimpairment Policy Projected for the National Park System

by William J. Lockhart

From the enactment of the National Park Service Organic Act (the Organic Act or the Act) in 1916 until a 1998 decision by a federal district court in Utah, the National Park Service (NPS) had managed national parks without resolving theseeming contradiction between the Act's directive to conserve park resources "unimpaired" and its simultaneous directive to provide for visitors' "enjoyment" of those resources. Uncertainty, confusion, and disputes about the inevitably conflicting implications of these mandates were virtually guaranteed by the text of the Act, which requires the NPS to—

promote and regulate the use of [national parks] by such means and measures as conform to the fundamental purpose of the said parks, . . . which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.1

Cross-Examining Market Approaches to Protecting Endangered Species

by Nancy K. Kubasek, M. Neil Browne, Michael D. Meuti

If a value system is simply presupposed and obeyed as the given structure of the world that all are made to accept and serve, it can become systematically destructive without our knowing there is a moral choice involved.1

Imagine your shock were you to find your home missing. After walking around for several minutes, you notice that your neighbors' homes are gone as well. Confused, you decide to go out to find something to eat. However, after searching for a place to eat for hours, you discover that your habitat has no food left. First, one neighbor dies, then another. Soon there is almost none of your kind remaining.

Dialogue

Legitimacy, Trust and the Environmental Agenda: Lessons From Armenia

by Ruth Greenspan Bell

Lake Sevan is land-locked Armenia's chief water resource. The largest alpine lake in the Caucasus, Lake Sevan's catchment basin is one-sixth of Armenia's total geography. Almost one-half of the fish for the kitchens of Armenia come from Lake Sevan. Lake Sevan is a source of recreation, hydropower, croplands irrigation, habitat for fish and shellfish, nursery zones for aquatic and amphibian species, and a resting place for migratory birds. Not surprisingly, the lake figures importantly in Armenia history, literature, and culture.

Lake Sevan is also in severe danger. Its declining environmental health is one of the many problems Armenia inherited from the Soviet Union. Stalin-era decisions to rely heavily on lake water for irrigation caused Lake Sevan water levels to be lowered by 19 meters in 40 years. Combined with pollution from municipal sewage, agriculture, and industry—when industry was active in Armenia—the quality of Lake Sevan water has dropped significantly. Lake Sevan is a major reason why Armenia considered an environmental sector loan from the World Bank to support comprehensive environmental management reform, including law drafting and capacity building.

Incorporating Hormesis in Risk Regulation

by Frank B. Cross

I suspect that many readers are unfamiliar with the concept of, evidence for, or implications of, the biological principle of hormesis.1 This is a shame, insofar as environmental policy purports to be based on scientific evidence.2 There is a substantial body of evidence behind the theory that even very hazardous substances have a hormetic pattern of effects—that is, they may be beneficial to health at very low levels of exposure.

The evidence for hormesis has received virtually no attention in environmental regulation, perhaps because the concept is seen as a "front" for industry efforts at deregulation.3 Yet one sincerely concerned with public health, and not merely concerned with opposing industry, must take hormesis seriously. This Dialogue seeks to do so. I explore the implications of hormesis in the context of environmental regulation of carcinogens, where it represents the greatest departure from prevailing regulatory theory.

Congressional Self-Interest, Bureaucratic Self-Interest, and U.S. Environmental Policy Implementation

by Michael Lyons

Formally or informally, scholars widely assume that political and bureaucratic self-interest largely determines the character of public policy in the United States. Previous research has indicated how the political self-interest of voters, interest groups, Congress, and the President might shape the goals and broad patterns of resource allocation in U.S. environmental policy.1 This Dialogue complements that previous research. It explores the relationship between congressional self-interest, bureaucratic self-interest, and the implementation of U.S. environmental policy by federal agencies.

The Dialogue begins by explaining how the delegation of policymaking power to environmental agencies might advance the political self-interest of congressional members. It then examines the implications for environmental policy of the traditional, "subgovernment" or "iron triangle" theory of bureaucratic self-interest.2 It considers the environmental policy implications of theories that depictbureaucrats as "budget maximizers."3 The Dialogue concludes that Congress has been handing the agencies unrealistic statutory mandates, that environmental agencies have become intensely politicized, and that continuing fragmentation of environmental policy is likely.

Redwoods, Junk Bonds, and Tools of Cosa Nostra: A Visit to the Dark Side of the Headwaters Controversy

by Gideon Kanner

The February 2000 issue of the Environmental Law Reporter (ELR) carried an Article by Deputy Secretary of the Interior David J. Hayes relating the dramatic negotiations that led to the settlement of the Headwaters controversy, whereby the federal government agreed to buy the Pacific Lumber Company's (PALCO's) Headwaters Forest, a 7,500-acre tract of old growth redwood trees, in order to preserve it as a national park.1 Though I was one of the lawyers for PALCO, and thus my perspective of this affair understandably differs from Mr. Hayes' perspective, I must at the outset agree with his bottom line that in terms of ultimate outcome, this was a "win-win" transaction. The public gained a major, environmentally important asset and PALCO received the protection of the Fifth Amendment of the U.S. Constitution, which requires the government to pay just compensation for private property it acquires for public purposes.

But this note of agreement falls short of ending the matter. Any telling of the Headwaters story must also take note of the "dark side" of this affair, particularly the astonishing tone of the public debate that preceded the settlement. After all, what was involved here was a land purchase, something that the government does routinely.2 No doubt, preservation of the Headwaters old growth redwood grove was important, but no more so than the creation of the National Redwood Park in 1968. Yet for all the constructiveness of the Headwaters deal, this controversy implicates a saga of mendacity in public discourse3 that—with the eager cooperation of the press—succeeded in purveying a false picture of these events to the American public.