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Issue

Volume 31, Issue 6 — June 2001

Articles

Diversity and Deadlock: Transcending Conventional Wisdom on the Relationship Between Biological Diversity and Intellectual Property

by Jim Chen

I. Biodiversity and Biotechnology: Debate as Distraction

The struggle for human survival, so successful that it now consumes 20 to 40% of the solar energy captured by plants,1 has cast a gloomy shadow on almost all other forms of life. "Half the world's species will be extinct or on the verge of extinction" by the end of the 21st century.2 The death toll from rainforest destruction alone "might easily reach 20[%] by 2022 and rise as high as 50[%] or more thereafter."3 In its evolutionary impact, civilization has easily outclassed an ice age, or even 20.4 In geological terms as well as in a colloquial sense, contemporary mass extinctions "mark[] the end of an epoch."5

Amid this evolutionary catastrophe, the United Nations Conference on Environment and Development met at Rio de Janeiro in 1992, to fashion two international agreements, a framework convention on climate change6 and the Convention on Biological Diversity (sometimes referred to as the Biodiversity Convention).7 Although global warming may in time land an even more devastating blow,8 this Article will focus on more direct efforts under the Biodiversity Convention to stem the tide of extinctions. Crippled by the lack of U.S. cooperation, the Biodiversity Convention has weathered nearly a decade of controversy over the relationship between biodiversity and biotechnology.

Reconciling Environmental Protection and Investor Rights Under Chapter 11 of NAFTA

by David A. Gantz

I. Introduction1

Many concerns have been expressed recently regarding the likely conflicts between the extensive protections given to investors and investments under Chapter 11 of the North American Free Trade Agreement (NAFTA)2 and the legitimate needs of the NAFTA governments to exercise their normal regulatory functions, including but not limited to the area of environmental regulation.3 As an article in the New York Times recently put it, "the way a small group of international tribunals handles disputes between investors and foreign governments has led to national laws being revoked, justice systems questioned and environmental regulations challenged."4 Similar concerns were instrumental in causing the failure in 1998 of the negotiations among members of the Organization for Economic Cooperation and Development (OECD) of the Multilateral Agreement on Investment (MAI).5 Many of the same issues arise under provisions of the more than 40 bilateral investment treaties (BITs) the United States has negotiated since 1980 with developing countries around the world,6 and in the early efforts to negotiate a Free Trade Agreement of the Americas (FTAA).7 Recently, opposition has developed among some labor and "civil society" groups to the negotiation of an otherwise uncontroversial free trade agreement with Singapore because of the likelihood that the agreement will include NAFTA-like protection of foreign investors.

While business interests want to preserve the extensive NAFTA protections, particularly the "fair and equitable treatment" standard, environmental groups seek an exception for environmental and health policies.8 Even within the U.S. government, there appears to be some disagreement between the regulatory agencies (U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice, the U.S. Department of the Interior), which fear that the U.S. regulatory process may be compromised by overly broad language such as that guaranteeing "fair and equitable treatment," and the foreign relations agencies (U.S. Department of State, U.S. Trade Representative's Office), which remain committed to protection of American investors abroad and fear that a weakening of the BIT/NAFTA language in future agreements would have adverse implications for U.S. investor-host state disputes found in existing agreements.9

Environmental Regulation of Nanotechnology: Some Preliminary Observations

by Glenn Harlan Reynolds

The relationship between new technologies and the environment is a complex one. On the one hand, various human technologies—ranging from "low" technologies like slash-and-burn agriculture, to "high" technologies like nuclear weapons—have done more than their share of environmental harm. On the other hand, new technologies are often cleaner and safer than the older technologies they replace, and may offer ways of remedying environmental harms previously thought of as beyond help.

Both of these aspects are likely to come into play with molecular nanotechnology, a technology so new that, in truth, it barely exists yet. But though the actual accomplishments of nanotechnology at this date fall into the workbench or proof-of-concept stage, research is progressing at a speed that outpaces the predictions of the most optimistic prognosticators.1 (Indeed, nanotechnology has received so much attention—not all of it positive2—that some are already pronouncing it a cliche.)3 If researchers continue to make progress at this rate, nanotechnology will hit the marketplace more quickly than did biotechnology, a field of endeavor to which society is still adjusting. It thus seems worthwhile to begin the discussion now.

This all-too-brief essay will outline the basic nature of molecular nanotechnology. It will then discuss the likely environmental benefits (environmentalist Terence McKenna, writing in the Whole Earth Review, called nanotechnology "the most radical of the green visions")4 and harms (some critics worry that rogue nanodevices will devour the planet)5 of this technology, and at least seek to begin the discussion of how nanotechnology might be dealt with in a way that will maximize the environmental benefits—which are likely to be enormous—while minimizing the potential harms, which, if allowed to materialize, are likely to be large as well.

The Protection of Cultural Resources on Public Lands: Federal Statutes and Regulations

by Sandra B. Zellmer

I. Introduction

The federal public lands—national forests, parks, and rangelands—are widely known for their vast natural resources: timber; range; minerals; watersheds; wildlife; and sweeping vistas of incredible beauty and diversity. No less notable are the cultural resources found on the public lands. Some of the earliest withdrawals of public lands from homesteading or other disposition occurred because of their cultural and historic importance.1

Preserving and allowing access to resources with cultural significance are critical to sustaining diverse, viable communities as well as our national, collective heritage. For American Indian people in particular, certain places, physical features, and objects on the public lands hold deep cultural and spiritual significance. Without ongoing relationships with a defined physical "place," the integrity of many contemporary American Indian societies could be jeopardized.2

Federal Regulation of Isolated Wetlands After SWANCC

by Stephen M. Johnson

This past January, the U.S. Supreme Court held that the Clean Water Act (CWA) did not authorize the federal government to prohibit a landfill operator from filling isolated ponds on its property merely because the ponds were used as habitat by migratory birds.1 The National Association of Home Builders claimed that the decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC)2 was "a major legal victory for home builders and other private property owners." Critics of the SWANCC decision argued that it jeopardizes "perhaps a fifth of the water bodies in the United States."3 The timing of the Court's decision was particularly disheartening to wetlands protection advocates, since the ruling was announced shortly after the U.S. Fish and Wildlife Service (FWS) released a report that indicated that the annual rate of wetlands loss has been declining steadily.4

While the ruling will primarily impact federal wetlands regulation, the Court's holding applies to isolated waters, in general, and not merely to isolated wetlands.5 Further, while the SWANCC case merely examined the federal government's authority to prohibit the filling of isolated waters under § 404 of the CWA,6 the reasoning of the Court precludes the federal government from regulating any pollution of isolated waters that are within the reach of the ruling. The Court concluded that the U.S. Army Corps of Engineers (the Corps) could not prohibit the filling of the ponds because they were not "navigable waters,"7 as defined in the statute.8 Since the term "navigable waters" is used throughout the statute, the Court's ruling has implications for the § 402 national pollutant discharge elimination system (NPDES) permit program, and for the rest of the statute.9

Dialogue

NWF v. Babbitt: Victory for Smart Growth and Imperiled Wildlife

by John Kostyack

On August 15, 2000, the U.S. District Court for the Eastern District of California issued a landmark ruling, in the case National Wildlife Federation v. Babbitt (NWF v. Babbitt),1 interpreting key provisions of the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). This ruling provides important new direction to local governments, developers, federal wildlife agencies, and others seeking to design habitat conservation plans (HCPs). In striking down the Natomas Basin HCP and incidental take permit (ITP), the court signaled that HCPs purporting to conserve imperiled species that cross jurisdictional boundaries must confront the challenges of planning at the regional scale honestly and must provide guaranteed funding to achieve conservation objectives. This far-sighted ruling may stimulate the regional planning that is so desperately needed to achieve the interrelated goals of countering sprawl, promoting smart growth, and conserving imperiled wildlife.

Whither Environmental Reform? Some Thoughts on a Recent AALS Debate

by Joel A. Mintz

From Wednesday, January 3d, through Sunday, January 7th, the Association of American Law Schools (AALS) held its 101st annual meeting in San Francisco. Among the numerous panel discussions, workshops, luncheons, receptions, and field trips that took place at that event was a lively and well-attended session (held on Friday, January 5th) entitled "Dinosaur or Phoenix?: Choosing Between Old-Fashioned Regulation and Second-Generation Strategies in the New Millennium."

This discussion, co-sponsored by the AALS' sections on Environmental Law and Administrative Law, was moderated by Prof. Thomas O. "Tom" McGarity, a widely respected environmental law professor at the University of Texas at Austin, who has participated in and written about the formulation of environmental policies for many years. Other participants included Jan Mazurek, an economist and visiting fellow with the Public Policy Institute of California who, for a number of years, was associated with Resources for the Future (RFF) in Washington, D.C.; David B. Spence, an assistant professor at the University of Texas at Austin McCombs School of Business, who specializes in the analysis of environmental regulatory issues; and John Walke, an attorney with the Natural Resources Defense Council (NRDC) in Washington, D.C. A number of the environmental law professors in attendance at this session also volunteered perceptive comments and questions.

The BPA Power-Salmon Crisis: A Way Out

by Michael C. Blumm and Daniel J. Rohlf

The electricity crisis of 2001 produced more than rolling blackouts in California, skyrocketing prices throughout the West, and calls from the Bush Administration to open up the Arctic National Wildlife Refuge to oil and gas development. It also revealed that the historic imbalance between hydropower generation and salmon protection in the Columbia Basin remains a fixture of life in the Northwest.

When the U.S. Congress passed the Northwest Power Act more than two decades ago, it directed the Bonneville Power Administration (BPA) and other federal agencies managing river flows in the Columbia Basin to put fish and wildlife protection on par with the generation of hydroelectric power.1 The Ninth Circuit Court of Appeals interpreted this promise of parity to give fish and wildlife "equal footing" with hydropower.2 However, as recent events again demonstrate, the BPA and other federal water managers have never embraced this balance.

The Superfund Program at its 20th Anniversary

by John Quarles & Michael W. Steinberg

The 20th anniversary of Superfund1 is a time to reflect upon the extraordinary history of this singular environmental law. This Dialogue begins with an overview of that history. It then offers some observations about Superfund's achievements and about the evolving societal strategy for addressing contaminated sites. Finally, this Dialogue examines some of the many challenges that still confront Superfund as it moves into its third decade.