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Issue

Volume 31, Issue 12 — December 2001

Articles

Charting New Waters: Public Involvement in the Management of International Watercourses

by Carl Bruch

Citizens, nongovernmental organizations (NGOs), universities, and other members of civil society have played an essential role in developing and implementing environmental and natural resource laws and institutions at the local and national levels over the past decades. This role has extended more recently into the international arena.1 This Article examines the emerging norms and practices that guarantee transparency, public participation, and accountability in the management of international watercourses. Particular attention is paid to how these norms may be implemented to improve the management of transboundary watercourses in southern Africa.

When I commenced research on this project, I consulted various experts in international water law to seek their guidance on emerging norms regarding public involvement in managing international watercourses. One senior expert replied that "under customary international law, there is no rule relating to public access to information about the quality and quantity of available water, nor is there any rule about public participation in the management of international water bodies."2 As this Article shows, however, while there may as yet be no definitive statement under customary law on the topic, the widespread inclusion of relevant provisions in regional and water body-specific instruments, and in the practice of international bodies, suggests that norms on public involvement are not only emerging, but are rapidly crystallizing. In Africa, evolution of these norms has the added benefit of a "rich tradition of participation in water management" at the local level,3 which can form the basis for similar development at the international level.

United States v. Mead: Complicating the Delegation Dance

by William S. Jordan III

On June 18, 2001, the U.S. Supreme Court decided United States v. Mead Corp.,1 the third time in the last two years that the Court has directly addressed the question of when the deference authorized by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.2 applies to federal agency decisions.3 Dissenting, Justice Antonin Scalia said of the majority's opinion: "Its consequences will be enormous, and almost uniformly bad."4

Why would the mild mannered Justice write in such harsh terms? The answer may lie in Justice Scalia's view that Chevron had established a regime in which statutory ambiguity gave rise to a presumption "that Congress meant to give the agency discretion, within the limits of reasonable interpretation, as to how the ambiguity is to be resolved. By committing enforcement of the statute to an agency rather than the courts, Congress committed its initial and primary interpretation to that branch as well."5 To Justice Scalia, this principle is "important to the division of powers between the Second and Third Branches."6

Adaptive Management: How Water Law Needs to Change

by Janet C. Neuman

Adaptive management represents the future of natural resource management, including that of water and aquatic resources. Adaptive management is an inherently flexible system, in which resource managers establish desired outcomes, develop hypotheses and monitoring programs to test whether existing management approaches are achieving those outcomes, and then alter the approaches depending on the monitoring results. The need for adaptive management will become even more acute as arid region water resource managers struggle to cope with the additional uncertainties in water supply expected to result from global warming. In order to fully implement principles of adaptive management, resource managers need to cope with change and uncertainty, and need flexible management tools at their disposal. Yet this needed flexibility is incompatible in significant ways with existing water law in arid regions such as the western United States and other arid countries around the world. This Article addresses legal and policy reforms needed to adapt arid lands' water law to the goals and practices of adaptive management.

Electricity, Contract Rules, and the Environment: Welcome to the Hotel California

by Steven Ferrey

One of the major news stories of this year is the implosion of California's electric power restructuring. The most capital-intensive industry in the United States, in the largest state in the Union, which itself is one of the largest economies in the world, came completely unglued. This focused attention on how we produce, distribute, and consume electric power and its profound implications, not only for social welfare, but for the environment.1

The problems in California resulted in a rash of litigation and administrative proceedings of every conceivable stripe and hue. Every party involved is suing others over every conceivable dispute as the California system struggles to equilibrate. What is clear is that private contract rights—and legal suits regarding those rights—have replaced the traditional role of regulation. The courts will have to decide more, and the regulators less, of the rules of the newly deregulated electric marketplace.

The Minimal Effects Exemption and the Regulation of Headwater Wetlands Under Swampbuster, With a Coda on the Theme of SWANCC

by John H. Davidson and Philip P. Chandler

Introduction

Under the Wetland Conservation subtitle of the Food Security Act of 1985, as amended, commonly known as "Swampbuster,"1 wetlands may be used to grow crops provided they are not degraded by this practice. In the legislation, Congress has made an effort, by use of the "minimal effects" concept, to make precise just what farming practices are acceptable. If a farming practice has only a minimal effect on the wetland's function, then the farmer is not ineligible for participation in federal loan, commodity price and income support, and conservation programs. Whatever else the congressional minimal effects directive means, it should at least mean that, if a given area has been designated a wetland before it is subjected to any farming or related manipulation, it should remain a wetland after the manipulation.

The wetland delineation process that has emerged since enactment of Swampbuster in 1985 is arcane and has been subject to abuse in favor of wetland destruction.2 Using the one category of headwater wetlands (which are also known as first-order streams, as well as sloped, linear, or nondepressional wetlands) in the famous Prairie Pothole region of South Dakota as a working example, one can demonstrate how the wetland delineation process operates "on the ground" and how, through the use of almost inaccessible informal rules and field procedures, widespread wetland drainage is permitted without denial of U.S. Department of Agriculture (USDA) farm program benefits.

Apples for Oranges: The Role of Currencies in Environmental Trading Markets

by James Salzman and J.B. Ruhl

Introduction

Two major, integrally related trends define U.S. environmental law at the millennium. The first trend is to bring presently unregulated risks under the control of the regulatory system. The second trend . . . is toward bigger bubbles—toward broader and broader trading among pollutants and even among various types of risk reduction . . . .1

Picture a playground where children trade environmental protection like baseball cards. The front sides bear slick images of endangered species, drops of acid rain, and vanishing habitats. The flip sides show all the statistics—population remaining, acreage consumed, who benefits from the wetlands, who is harmed by the pollution. And the kids sit huddled in an excited circle, busily swapping cards. To snag Jamie's prized cattail wetlands, Ben must part with his cherished saltwater marsh.

Dialogue

How Protectionism Is Destroying the Everglades

by Aaron Schwabach

One of the sacred canons of the antiglobalization movement is that globalization of trade is bad for the environment. Free-trade enthusiasts, on the other hand, would have us believe that free markets promote wealth (probably true) and that wealth is good for the environment (possibly true, at least some of the time). The truth is probably somewhat more complex. On the antiglobalization side, there are situations in which free trade, coupled with lax regulation, will encourage resource exploiters to pass along significant environmental externalities to their compatriots, achieving enhanced profits while diminishing the wealth and environmental well-being of their countries.

On the free-trade side, however, there are certainly situations in which protectionist regimes lead to government-protected environmental destruction for the sake of protecting otherwise unprofitable industries. Japan's whaling industry is an oft-cited example. Here in the United States, one of the most egregious cases is that of the sugar industry.

The Kyoto Protocol: A Flawed Concept

by Richard N. Cooper

In 2001, the Intergovernmental Panel on Climate Change (IPCC) issued its Third Assessment Report (TAR)1 on the prospects for and likely impact of increases in global average temperature over the next century. The summary report of Working Group (WG) I,2 on science, widened the range of likely temperature increase, compared with the IPCC's Second Assessment Report (SAR)3 of five years earlier, to 1.4-5.8 degrees Celsius ([degree] C), with the increase in the upper end of the range receiving wide public attention. The summary report of WG II,4 on impacts, sketched a somber picture of how both human settlements and nonhuman ecologies might be adversely affected by the rise in temperature and an accompanying rise in sea level.

A close reading of the WG I report, however, reveals that the wider range, and in particular the increase in the upper end of the range, was not at all due to a reassessment of the scientific evidence accumulated and closely studied since the mid-1990s. Rather, it was due to a change in the way that emissions over the next century of greenhouse gases (GHGs), mainly carbon dioxide (CO2) from fossil fuel consumption and deforestation, and methane (CH[4]) from agriculture and waste disposal, were characterized. Instead of the single "business as usual" emissions trajectory used in the SAR, the TAR produces six different scenarios, depending on the evolution both of the world economy and of its energy system over the next 100 years. This refinement is in some respects an improvement over the single assumed trajectory, but to present the outlook as likely more serious than the previous assessment is, to say the least, misleading.

SWANCC: Constitutional Swan Song for Environmental Laws or No More Than a Swipe at Their Sweep?

by Charles Tiefer

I. Introduction

The U.S. Supreme Court decision last term in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers1 (SWANCC), striking down the migratory bird rule for wetlands regulation, warrants some reading of the Court's environmental tea leaves. Some fine commentary in these pages2 still leaves murky whether the opinion seriously imperils other environmental laws and regulations. Chief Justice William H. Rehnquist's SWANCC opinion for a five-Justice majority had worrisome implications that the new restrictive view of the U.S. Commerce Clause, intensified by United States v. Morrison3 in 2000, could bar national environmental legislation that "alters the federal-state framework by permitting a federal encroachment upon a traditional state power" such as "the States' traditional and primary power over land and water use."4 Peering closely at those tea leaves, the SWANCC decision still allows the views that the Court—particularly crucial Justices Sandra Day O'Connor and Anthony M. Kennedy—acted more on the basis of their narrow statutory interpretation than with a view toward striking down environmental legislation. In particular, appellate courts sensing the Court's drift should not take SWANCC as any more than a light swipe, not a serious strike, at the Endangered Species Act (ESA) or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).