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Volume 31, Issue 5 — May 2001


International Environmental Law and the Achievement of Intragenerational Equity

by Duncan A. French

This Article examines the relationship between legal constructions of equity and rules of international environmental law, with particular emphasis on the emerging concept of intragenerational equity as a significant element in the debate on the international attainment of sustainable development. On one level, the concept of equity has always been an integral part of human experience. At its core is the notion that human beings, both as individuals and as members of civil society, should "pay more attention to justice . . . [than] they are compelled to do by their situation."1 In fact, it is no exaggeration to say that equity forms one of the very cornerstones of our modern liberal democracy. The term is often used as a synonym for basic notions of fairness and natural justice—the idea that human behavior is constrained by certain moral principles.2 But this is not just a question of moral philosophy; the notion of equity also forms part of many states' political and legal systems. And at the international level, equity is increasingly relied upon both by the International Court of Justice (ICJ or the Court) and by the international community, more generally. Despite this, there is no agreed meaning of equity; in fact, due to its fluidity, it is very possible for it to possess differing, even contradictory, meanings. This is as true in international environmental law as in any other area in which equity is applied.

As will be discussed below, equity is used to mean different things in different contexts. On one level, equity is seen as being merely akin to general notions of fairness, such as the example of the 1992 United Nations (U.N.) Framework Convention on Climate Change demanding "equitable and balanced representation of all Parties" within its financial mechanism.3 However, on another level, equity has a central role within the concept of intergenerational equity—ensuring justice for future generations. While such a concept is also based on fairness, it is arguably of a fundamentally different order from that requiring equitable participation. Moreover, many developing states argue that equity can also justify substantive changes to the present international situation, i.e., that equity demands a fairer world order so as to benefit the poorer states of the world (the concept of intragenerational equity), which at its extreme some critics might term international socialism.

It is the aim of this Article, therefore, to explore the many different aspects of equity in international environmental law, in particular intragenerational equity. However, to place such an analysis in context, it is necessary to discuss other aspects of equity, including the jurisprudence of the ICJ on this issue and the principle of equitable utilization of shared natural resources, two areas in which equity has already been extensively applied.

Dam Policy: The Emerging Paradigm of Restoration

by Christine A. Klein

Throughout the 20th century, the United States dedicated enormous resources to the construction of a staggering array of dams. Those structures are monuments to an era now past—a time during which free-flowing rivers were deemed "wasted," a period when the nation embarked upon a frenzied attempt to "reclaim" the landscape from its natural condition at all costs. Rivers were converted into elaborate plumbing systems as tens of thousands of dams, both public and private, impeded some 600,000 miles of flowing streams.1

Toward the end of the 20th century, a surprising change of policy began to occur. The commissioner of the Bureau of Reclamation declared that the era of dams was over.2 Even more astounding, national attention began to focus upon campaigns for dam removal, the very antithesis of more than a century of federal water policy. In cases such as the Edwards Dam in Maine, a broad coalition of federal, state, and local forces successfully devised a plan to breach the dam.3 Prominent newspapers such as the Christian Science Monitor and the Washington Post provided front-page coverage of the events, declaring "the end of an era in America."4

EPA at 30: Fairness in Environmental Protection

by Eileen Gauna

Reflecting on the U.S. Environmental Protection Agency's (EPA's) arrival at its 30th birthday, it is difficult not to anthropomorphize. This idealistic love child born of a strange affair between populist zeal and political ambition1 has developed into a commanding agency whose decisions reverberate through the economy and significantly affect individual lives. Yet it is still difficult for stakeholders who routinely encounter this mature behemoth to grasp its essential "persona." Charged with the unenviable mission of implementing most of the major environmental statutes and administering hundreds of regulatory programs,2 it should come as no surprise that its character would be complicated, and conflicted. Although this mega-agency's internecine struggles over policy and implementation remain hidden from the outside observer,3 the contradicting institutional messages subsequently emerging from EPA causes it to appear to have a severe multiple personality disorder. This tendency is particularly acute when the subject of fairness arises, in particular the vexing distributional issues. At that point, an outside observer may see one of the more benevolent alter egos emerging, one insisting that the Agency's priority is to ensure environmental regulation that is protective and equitable.4 As sincere as this sentiment is for many individuals within the Agency, however, seemingly contradictory actions may issue from this institutional Janus. In some instances, for example, Agency actions evidence greater attention to protecting the Agency politically than addressing the plight of overburdened communities.5 In addition, high level Agency officials at times articulate an overriding commitment to regulatory relief for industry stakeholders and greater autonomy to state regulators, goals that, when examined closely, potentially undermine the goals of distributional and procedural fairness to heavily impacted communities.6 In this respect, more is involved than the public relations spin of an agency maneuvering among special interest groups. Rather, these mixed messages reflect deeper institutional conflicts that impede the Agency's ability to provide comparable levels of environmental protection for all communities without depleting institutional resources or causing undue damage to competing interests. At stake in this clash among agency alter egos is the integration of fairness into environmental regulation, in other words, environmental protection for all.

Endeavoring to assess the successes, failures, and limitations of EPA's various attempts to manage fairness claims over the last 30 years would be a formidable task. Fairness and distribution issues in environmental protection are varied. There is an issue of regulatory fairness that arises when some polluting sectors of the economy go virtually unregulated while others are subject to the torturous ratcheting of ever tighter standards. Closely related to this are property rights issues, fairness claims that arise when private property of the few appears to be constructively confiscated, via regulation, for the benefit of the many. There is a fairness issue that arises when environmental laws are enforced by criminal sanctions that effectively negate the types of mens [31 ELR 10529] rea requirements familiar to criminal law and theory.7 Then there is environmental justice, which presents some of the most perplexing fairness and distributional issues to confront the Agency thus far.

Debunking the Natural Gas "Clean Energy" Myth: Coalbed Methane in Wyoming's Powder River Basin

by Thomas F. Darin and Amy W. Beatie

"When the trees are made of plastic and there's no more oil to drill; when Africa is empty and the zoos are finally filled; we'll sacrifice our children at the altar to the God of fossil fuel."1

I. Introduction

Natural gas—which includes the methane derived from coal seams (coalbed methane)—is largely viewed as "clean energy." The only aspect true about this belief is that natural gas burns many times cleaner than coal, and is widely accepted as the cleanest burning of all fossil fuels. However, burning cleaner does not equate to a clean form of energy. Often ignored by government agencies, the natural gas industry, and even some environmental organizations is the fact that natural gas exploration and production often have tremendous and negative impacts on the natural environment. Considering the production-end damage resulting from natural gas extraction, this form of energy is anything but "clean." The purpose of this Article is to provide a case study of the production-end environmental consequences of natural gas production and exploration: coalbed methane extraction in Wyoming's Powder River Basin (PRB or Basin).

Coalbed methane (CBM) is now the "hottest natural gas play in the United States."2 Industry analysts describe CBM development in the Wyoming portion of the PRB—an area encompassing over 20,000 square miles in the Northeast part of the state—as the "fastest growing coalbed methane play in North America."3 Within the United States, CBM has grown from almost complete obscurity only 20 years ago to an established and growing energy source, supplying 6% of current total dry natural gas production.4 Experts project that dry natural gas consumption will increase 40 times faster than all other energy types by 2015, and with it, CBM production will continue to grow.5

Navigating Federalism: The Missing Statutory Analysis in Solid Waste Agency

by Robin Kundis Craig

For the last several years, federal circuit courts have debated the exact jurisdictional scope of §404 of the Clean Water Act (CWA), which authorizes the Secretary of the U.S. Army (the Army), acting through the U.S. Army Corps of Engineers (the Corps), to issue permits "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." The circuit courts have based their debates on the assumption, well-supported by earlier CWA decisions, that Congress intended the term "navigable waters" within the CWA to extend to the limits of the U.S. Commerce Clause. This interpretation of "navigable waters" gives the agencies that administer the CWA much broader jurisdiction over water pollution than federal agencies have traditionally exercised through other statutes focused on "navigable waters," such as the Rivers and Harbors Act of 1899. It also rather immediately requires courts to assess CWA jurisdiction in terms of the ordinary constitutional Commerce Clause analysis.

The factual basis for the most recent debates on the Corps' CWA jurisdiction has been the Corps' assertion of jurisdiction over isolated wetlands through the so-called migratory bird rule. Pursuant to the migratory bird rule, the Corps claimed jurisdiction over isolated wetlands—that is, wetlands with no direct hydrological connection to other waters—if those wetlands served as habitat for birds protected by the Migratory Bird Treaty Act, birds that migrated across state lines, or endangered species. As such, the migratory bird rule clearly dispenses with any traditional "navigable waters" requirement that the subject waters be navigable in fact or subject to the ebb and flow of the tide.

Conservation Plans in Agriculture

by John H. Davidson

Through the post-World War II era the U.S. Congress, by an incremental process of experimentation and error, developed the knowledge and experience that led to the imposition of individual permits based on uniform technology-based effluent limitations to regulate industrial water pollution. The resulting permit system has gradually reduced the amount of industrial pollution that enters our national waterways. While this encouraging process proceeds, however, unpermitted and unregulated runoff from farm, ranch, forest, and recreational lands—the now familiar nonpoint sources—remains an unsolved problem.

Just as the uniform technology-based standards once emerged gradually as a tool for controlling industrial point sources, a device known generally as the "conservation plan" may be emerging as the possible instrument of choice for controlling nonpoint source runoff. If this is so, the concept requires close examination prior to general acceptance, in order that our waterways do not endure yet another generation of failed efforts at nonpoint runoff control. This brief Article attempts an introduction, and a first brush at the issues. It urges that leaders of the agricultural, forestry, environmental, and conservation communities examine carefully the "conservation plan" concept prior to accepting it as the control tool of choice.


Toward Data-Driven Environmentalism: The Environmental Sustainability Index

by Daniel C. Esty

Too often environmental debates turn on rhetoric and emotion rather than carefully considered data and analysis.1 Firmer factual foundations and a higher degree of analytic rigor would help to narrow the range of dispute over which environmental battles rage and to move us beyond the current polarization over how best to achieve environmental goals.2 At the heart of any shift toward more systematic environmental decisionmaking lies a need for reliable environmental "indicators" or "metrics" and other data that clarify the issues and the trend lines. To facilitate such a shift in environmental policymaking toward firmer underpinnings, the World Economic Forum's Global Leaders for Tomorrow Environment Task Force launched an initiative in 1999 to develop an Environmental Sustainability Index (ESI), the first full-fledged version of which has just been released.3