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Volume 31, Issue 1 — January 2001


Getting Our Priorities Straight: One Strand of the Regulatory Reform Debate

by David M. Driesen

Several prominent academic critics of regulation, most notably Cass Sunstein and Justice Stephen Breyer, claim that our regulatory system does not establish sensible priorities.2 Their reform recommendations seek to correct this problem—to get our priorities straight. What, however, precisely does it mean to say that we do not have our priorities straight? This Article develops a theoretical framework to address this question.

This strand of the regulatory reform debate is of considerable importance. Congressional and academic proponents of regulatory reform have relied heavily upon claims that the regulatory system fails to establish sensible priorities to justify more reliance upon cost-benefit considerations in agency decisionmaking.3 The goal of improving priority setting sounds much more attractive than the goal many knowledgeable scholars link to cost-benefit analysis (CBA), the reduction of the stringency and scope of laws protecting public health and the environment.4 So reliance upon priority-setting talk helps CBA politically, giving it a neutral aura. After more than two decades of writing legislation that made protection of public health the primary goal of much of the regulatory system,5 the 104th Congress passed the Unfunded Mandates Reform Act of 1995,6 which requires CBA of major rules.7 Since then, Congress has regularly considered, and come close to passing, regulatory reform legislation that requires agencies to justify substantially all major regulation in [31 ELR 10004] cost-benefit terms.8 This involves a major change in the goals of statutes that have hitherto sought to protect public health and the environment.9 In general, industry has enthusiastically supported CBA, while environmentalists and consumer advocates have opposed it.10

Challenges to Humanity's Health: The Contributions of International Environmental Law to National and Global Public Health

by David P. Fidler

In the past 30 years, international environmental law has grown from an obscure field to one of the most dynamic and important areas in contemporary international law. The growth in the significance of international environmental law contrasts with the neglect experts detect in the use of international law to help protect public health. Much of the analysis about the neglect of international law in public health focuses on the World Health Organization (WHO),2 which is the specialized agency of the United Nations responsible for international health.3 This focus on WHO's attitude toward international law is important, but it can produce a distorted picture of the relationship between international law and public health if a wider frame of reference is not used.4 The contributions of international environmental law to the protection of public health illustrate the importance of a more comprehensive understanding of international law's role in national and global public health.5

The discipline of "public health" concentrates on population health as opposed to individual health.6 The focus on population health can be seen in such classic public health concerns as infectious disease control. A key public health principle is prevention of morbidity and mortality in populations.7 Preventing illness and death requires reducing a population's exposure to health-damaging substances, organisms, and events.

The Changing Environmental Management Scene: Federal Policy Impacts the Private and Public Sectors

by John Voorhees

The U.S. Environmental Protection Agency (EPA) appears to be genuinely interested in promoting the development of environmental management systems (EMSs) for businesses, municipalities, universities and colleges, and other nongovernmental organizations (NGOs). In November 2000, EPA issued an EMS Action Plan that contains strong advocacy and credible new program initiatives to encourage the use of EMSs to reduce environmental impacts and to improve environmental performance. EPA continues to advocate that businesses implement EMSs for compliance and enforcement purposes, but the EMS Action Plan—the most extensive policy guidance issued to date on the subject—suggests that EMSs can be used for a wider range of applications. Together with President Clinton's "Greening the Government Through Leadership in Environmental Management" Executive Order,2 which mandates EMSs for federal agencies, these policy initiatives may cause a rapid expansion in the use of EMSs and facilitate new multidisciplinary approaches for a much larger group of organizations.

An EMS is a tool that converts ordinary thinking about the daily affairs of a business enterprise or organization into a systems approach designed to reduce environmental impacts and improve the environment in which we live. An EMS is no longer simply a means by which heavy industry can achieve environmental compliance and avoid sanctions for noncompliance. Innovations are occurring in how EMSs are designed and implemented that are reshaping how we think about the interaction between human behavior and the environment. EMSs are being used by a new group of organizations. Municipalities, universities and colleges, service firms, and other NGOs have begun considering the application of a systems approach to achieve superior environmental performance. A trend is emerging in which these and other proactive organizations are implementing systems, not because of fear or apprehension of federal criminal prosecution, although this is clearly possible,3 but rather because it makes sense financially, socially, and morally to undertake "a systems approach" to improve environmental performance.

Some Dangers of Taking Precautions Without Adopting the Precautionary Principle: A Critique of Food Safety Regulation in the United States

by Vern R. Walker

A more substantive precautionary principle of international law is evolving as new treaties articulate new measures of precaution in different contexts. Although there is considerable controversy over how to articulate or define a precautionary "principle" of law, the goal is to ensure that the mere lack of scientific knowledge about risks cannot justify a failure to take appropriate precautions. Where we have sufficient evidence of risk, we often take precautions, despite a lack of certainty about those risks. The question arises, however, what the difference is between adopting a precautionary principle and merely taking precautions. Put another way, what is to be gained by adopting a precautionary principle at all, as compared to merely taking precautions? This Article explores that question by using the example of food safety regulation in the United States. My principal conclusion is that although precautionary measures for achieving food safety in the United States are some of the oldest and most successful in the world, even such measures fall short when they are evaluated from the unifying perspective of the precautionary principle.

Any articulation of the precautionary principle would apply at two distinct levels of decisionmaking: (1) decisions about the factual situations that trigger justifiable recourse to precautionary measures; and (2) the management decisions to select the desired level of protection and to establish measures to achieve that level of protection. The first aspect involves primarily risk assessment, while the second is part of risk management. This Article examines these levels of decisionmaking in the regulation of food safety in the United States. My objective is not, of course, to provide a comprehensive survey of that regulatory structure. Rather, the goal is to use food safety regulation to find concrete examples of the difference between merely taking precautions and adopting the precautionary principle. A byproduct of this examination is a more detailed account of what it means to adopt the precautionary principle.

Back to the Present: The Supreme Court Refuses to Move Public Range Law Backward, but Will the BLM Move Public Range Management Forward?

by Joseph M. Feller

"In the ranchers' view, history has created expectations in respect to the security of 'grazing privileges'; they have relied upon those expectations; and the statute requires the Secretary to 'safeguard' that reliance."

"Their adamance derives from a recollection of history that never existed and from asserted promises that were never made."

For the last quarter-century, there has been a persistent dichotomy between law and practice in the administration of livestock grazing on the western public lands. At least since the passage of the Federal Land Policy and Management Act (FLPMA) in 1976 (and arguably before then), the law has regarded the federal public lands managed by the Bureau of Land Management (BLM) as a public resource to be managed in the manner that "best meets the present and future needs of the American people." Under this statutory mandate, livestock production is just one of many potential uses of the public lands, and the Secretary of the Interior, acting through BLM, has substantial discretion to decide whether, how much, and under what conditions grazing will be permitted to occur in any particular area. BLM has broad authority to reduce, restrict, or eliminate grazing in order to protect or enhance other public land resources and uses, including wildlife, water quality, and recreation. In practice, however, personnel of BLM have tended to treat the privilege of grazing livestock on the public lands as an entitlement that may be abridged without the consent of the permittee only under certain narrowly defined conditions. This deference to livestock interests by BLM has encouraged and perpetuated expectations by ranchers that have often been mistaken for legal rights.


Breathing New Life Into the ESA: The Pacific Northwest's Endangered Species Act Experiment in Devolution

by Valerie Ann Lee and Jaelith Hall-Rivera

The Endangered Species Act (ESA or Act)2 has been in Congress' gun sights for a number of years. The regulated community has decried the impossibility of balancing strong economic development with species protection. Local governments have been hit with lawsuits and held liable under the ESA for "take" in connection with traditional permitting decisions. In this atmosphere, few gave the ESA very long to live. However, developments in the Pacific Northwest bring to mind Mark Twain's pithy comment: "The reports of my death are greatly exaggerated."

There is a revolution in ESA implementation that is designed to breathe new life into the Act. With the collaboration of state and local governments in California, Idaho, Oregon, and Washington, the federal government is using a provision of the ESA known as § 4(d).3 Section 4(d) allows the Secretary (of the U.S. Department of the Interior (DOI) or Commerce) to relax the normal prohibitions on "take" usually applied to threatened species, provided the regulations issued continue to "conserve the species."4 Though it has been used in the past, this is one of the few times it has been employed in such a broad manner.5 If the process is successful in the Pacific Northwest, it may change the way the federal government implements the ESA in other geographic areas. Has the federal government found a way to revive an ailing statutory patient and make the ESA more streamlined and effective in encouraging sustainable development? This Dialogue will explore these issues, focusing specifically on the National Marine Fisheries Service (NMFS) § 4(d) rule6 and its implementation primarily in the Pacific Northwest.

Science, Agencies, and the Courts: Is Three a Crowd?

by E. Donald Elliott, Alan Charles Raul, Richard J. Pierce, Jr., Thomas O. McGarity and Wendy E. Wagner

WENDY WAGNER: Welcome to the Panel on Science, Agencies, and the Courts. This panel is sponsored by the Environmental Natural Resources Regulation Committee of the Administrative Law and Regulatory Section of the [American Bar Association (ABA)], and also co-sponsored by the Standing Committee on the Environment of the ABA.

My name is Wendy Wagner. I'm going to moderate the panel, and as the title of the panel implies, we're going to talk about judicial review of agency science. This isn't a new topic in administrative law, but over the past few years there have been some different developments in the courts that may ultimately change the way the courts review agency science in the future.

Sovereign Immunity and the National Nuclear Security Administration: A King That Can Do No Wrong?

by K.C. Schefski, Shelby Perkins, and James D. Werner

The 1999 National Nuclear Security Administration Act (NNSA Act) threatens to reverse 20 years of reforms and court decisions intended to bring the U.S. Department of Energy (DOE) into compliance with environmental laws and regulations. The NNSA Act, enacted in the wake of allegations of spying at Los Alamos nuclear weapons laboratory in New Mexico, established a semi-autonomous agency within DOE—the National Nuclear Security Administration (NNSA). The NNSA operates nine laboratories and facilities within the U.S. nuclear weapons complex. The National Association of Attorneys General (NAAG), former DOE officials, members of Congress, and the public have all raised concerns regarding language in the NNSA Act, which, they argue, erodes existing waivers of sovereign immunity in environmental laws. If correct, such an interpretation could effectively shield the NNSA from environmental law enforcement; thus, the Act takes a step backward toward a structure that many argue produced the significant environmental problems found at DOE facilities today.

For over 40 years, DOE and its predecessors—the Atomic Energy Commission (AEC) and the Energy Research and Development Administration (ERDA)—operated the U.S. nuclear weapons complex in secrecy and essentially devoid of environmental oversight and regulation. Largely as a result, DOE is now faced with an enormous environmental cleanup problem—1.7 trillion gallons of contaminated groundwater and 40 million cubic meters of soil and debris; 18 metric tons of weapons-usable plutonium; more than 2,000 tons of intensely radioactive spent nuclear fuel; and about 4,000 facilities to decontaminate and decommission. From the beginning of the Manhattan Project in 1942 through 1995, the U.S. government spent more than $300 billion researching, producing, and testing nuclear weapons. In comparison, DOE estimates that cleanup through 2070 will cost over $200 billion, and has already spent nearly $60 billion on its environmental management program.