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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — January 2002

Articles

Sustainable Development: Now More Than Ever

by John C. Dernbach

Imagine a world in which the ordinary effect of human activity—particularly activity that contributes to economic growth and social development—also protects and restores the environment. Imagine, too, a world in which large scale poverty has been eliminated.1 This may sound like pie in the sky, but it is emphatically not. Indeed, if we do not make a transition toward this world within the next 50 years, the future will be painful and costly for both humans and the environment.2 Making the transition is possible, but it will not be easy. The means and the end are indicated by a set of concepts called sustainable development.

Sustainable development is a new way of approaching the environment and its relationship to everything else we care about as a society.3 It does not lend itself to the neat categories Americans often use to describe themselves and others. It is not Democratic or Republican, liberal or conservative. It is not about more government or less government, but about better governance. It is not about more economic growth or less economic growth, but about growth in things we value, including jobs, productivity, and profits, and reduction or elimination of things we don't value, such as waste, pollution, and poverty.4 It is based on a vision of society directed athuman quality of life, opportunity, and freedom. It is based on an understanding that the economic, social, environmental, and security goals of society together provide a foundation for realizing that vision. These goals, in turn, can be realized completely and coherently only if they are achieved at the same time.

Maintaining Mizan: Protecting Biodiversity in Muslim Communities

by Ali Ahmad and Carl Bruch

Protecting biological diversity in Muslim communities presents a paradox. On the one hand, Islamic law, which governs all aspects of Muslim life, has a broad set of principles and mechanisms that mandate respect for all the elements of God's creation, the prevention of waste and harm, and maintenance of the balance of life on earth (mizan). On the other hand, there have been relatively few legal, institutional, or on-the-ground developments to protect biological diversity in many communities and nations that adhere to Islamic law.1

Recent decades have seen significant population growth in North and West Africa, with concerted efforts to promote social and economic development. Without a strong environmental framework to guide sustainable development, many Muslim nations in the region have seen significant losses of habitat (especially forests and grasslands), air and water pollution that degrade habitats and human settlements, and depredation of wildlife. For example, between 1990 and 1995, Sudan (which harbors the second largest total forest areas in sub-Saharan Africa) lost 1.763 million hectares of its total forest area, an average annual rate of destruction of 0.83%.2 This trend occurred throughout Muslim Africa, with Algeria recording the highest annual destruction rate of 1.22%, Cameroon (0.65%), Chad (0.84%), Mali (0.96%), Morocco (0.31%), Nigeria (0.86%), and Senegal (0.66%).3

Defining Power: Electrons and the Law

by Steven Ferrey

The Tunnel Before the Light

There is a long way to go through the tunnel of judicial review and/or administrative proceedings before California reaches the light. The cornerstone of the state's response to the electricity crisis has been to execute $ 43 billion in long-term power contracts with 18 wholesale suppliers to secure an emergency long-term power supply for a significant share of its future requirements, on behalf of its insolvent utilities. This, in the long run, could prove inopportune. When both natural gas and local wholesale electric prices were at historic highs, it may not have been the time to lock in long-term deals in the market. California appeared to buy either too much or too little power during different months. The long-term (10-year) average price for future power paid by California under these contracts averages about 7 cents/kilowatt hour.

Prices of natural gas, and by consequence the marginal cost of wholesale power, had declined to 18-month lows by Labor Day 2001. Gov. Gray Davis (D-Cal.), in June 2001, conceded that the state had locked-in long-term power sale contracts at a higher price than available shortly thereafter on the spot market. Reacted state legislator Tony Strickland: "People are going to get ripped off for the next 10, 15, 20 years."1 Governor Davis responded: "We've basically won the war. [The state] is on the verge of breaking the back of the spot market."2

Regulatory Innovation: Lessons Learned From EPA's Project XL and Three Minnesota Project XL Pilots

by Carol Wiessner

A number of regulatory innovation efforts were initiated in the mid-1990s in response to a growing consensus that the existing regulatory system, by itself, was no longer sufficient to address new demands or environmental dilemmas unforeseen 30 years ago. Chief among the new challenges are the ever-increasing universe of regulated entities expanding government agencies' workloads and the vexing problems of nonpoint and areawide sources of pollution. The Minnesota Center for Environmental Advocacy (MCEA)1 launched its "Regulatory Innovations Program" to participate in and analyze the effectiveness of experimental regulatory approaches aimed to deliver better environmental protection more efficiently. In particular, the MCEA set out to determine the merit of "Project XL"—a then-novel U.S. Environmental Protection Agency (EPA) program which had once been described as the "crown jewel" of the Clinton Administration's March 1995 policy report, Reinventing Environmental Regulation.2

EPA designed Project XL, short for eXcellence and Leadership, to provide regulatory flexibility in exchange for industry's commitment to achieve better environmental results than would have occurred otherwise from full compliance with all required regulations. On the same day that President William J. Clinton announced the first eight participants in Project XL, a number of environmental and public interest groups released a joint statement that included a set of key features deemed necessary to the success of Project XL. Chief among them were the requirements for achieving superior environmental results and stakeholder involvement by the local affected communities, workers, and other interested groups.3 The MCEA was among the many advocacy groups, ranging from large national organizations to small state groups, who were guardedly optimistic about EPA's new program.4

Regulation of Pesticides in Developing Countries

by Jane A. Dwasi

What is an appropriate regulatory response to the enormous growth of pesticide use in developing countries?1 The question falls within the broader issue of how developing countries deal with the consequences of their application of technological packages to agricultural production. As developing countries step up efforts to improve agricultural production, there are rising concerns about the social and economic costs of their agricultural development in terms of the negative health and environmental impact that pesticides are or are likely to cause. Further, developed countries are concerned that adverse effects of pesticides may spill over to their consumers when they import and consume agricultural products on which pesticides have been applied in developing countries. It would be difficult to address the regulatory situation in all developing countries with regard to pesticides. Therefore, this Article focuses on Kenya and seeks to examine the extent to which Kenya's laws prevent, minimize, punish, or remedy consequences and actions involving pesticides. Law plays an enormously important role in protecting health and the environment from adverse consequences of pesticide technology, yet Kenya's existing laws have not provided effective protection to health and the environment from adverse impacts of pesticides.

This Article is not an attack on pesticides or pesticide use as such. What the Article calls for is a rational use of pesticides that allows for consideration of the actual and potential detriments. The Article is not intended to blame Kenya or to highlight its failure in the area of health and environmental protection. Rather, it serves as an example of the kinds of measures a developing country can take to deal with negative consequences of development. After providing a background of pesticide use in Kenya, the Article examines Kenya's laws that are intended to regulate pesticides and laws that are intended for other purposes but have relevance to pesticides. This examination demonstrates that although law would play an enormously important role in protecting health and the environment from adverse consequences of the pesticide technology, Kenya's existing laws have not provided effective protection to health and the environment from adverse impacts of pesticides. The Article also looks at the various international treaties and agreements that regulate the use of pesticides. They too are inadequate for purposes of regulating pesticides in Kenya. The Article then looks at a recently enacted law, the Environmental Management and Coordination Act, that gives hope that pesticides will be better regulated in the country. The Article concludes with a number of suggestions for the improvement of existing laws and their enforcement machinery, including legal reform and the creation of supportive tools and mechanisms. Any measures taken, however, must be suitable to the circumstances of the people of Kenya.

Dialogue

Communitarian Discourse as a Catalyst for Emergent Environmental Law

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

Introduction

Environmental law, like any body of law, emerges from a complex interplay of cultural vision, accepted assumptions, factual claims, and negotiations among interest groups. When an environmental protection measure is proposed, these factors all play their roles through the use and interpretation of a single medium—language. Consequently, the words we use and don't use in the discourse through which we articulate our respective positions play a fundamental role in the success or failure of a particular proposal. We hear and react to what we believe certain words connote.

In many areas of environmental law, e.g., wetlands protection, management of endangered species,and liability for cleaning hazardous waste sites, legislative debate is at a standstill. Proposals are made; predictable counterarguments are heard within a few hours. The ability of legislators on either side of the proposal to forestall the inclinations of their opponents is guaranteed in many areas of environmental law by the financial and public relations strength of each set of opponents.

Palazzolo v. Rhode Island: A Few Clear Answers and Many New Questions

by Steven J. Eagle

The U.S. Supreme Court's latest regulatory takings decision, Palazzolo v. Rhode Island,1 is significant for its rejection of what I term the positive notice rule.2 It also confirms the narrow scope of the categorical rule, developed in Lucas v. South Carolina Coastal Council,3 for government actions that work complete takings of property.

Beyond that, Palazzolo evokes the potential for the enhanced recognition of property rights implicit in some of the Court's earlier cases. In particular, it signals fresh life to the doctrine of partial regulatory takings and to the concept of the relevant parcel. On the other hand, a majority of the Justices indicated that a weaker form of the notice rule should have some bearing on landowners' "reasonable investment-backed expectations." The latter concept is crucial in partial takings analysis, and, arguably, applies to complete takings analysis as well.

Fee Shifting After Buckhannon

by Adam Babich

Introduction

On May 29, 2001, the U.S. Supreme Court decided Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources,1 sharply limiting the situations under which "prevailing parties" can recover their attorneys fees under citizen enforcement and judicial review provisions of federal laws. The Buckhannon Court rejected the "catalyst theory" of recovery, which allowed plaintiffs to receive fee awards "in the absence of a judicial determination on the merits" for litigation that was a significant factor in causing a defendant to change its conduct.2 Under the catalyst theory, a plaintiff could recover fees and costs even if it settled out of court or dropped its lawsuit after inspiring the defendant to voluntarily come into compliance.3 With respect to statutes that limit attorneys fee awards to "prevailing parties," those days are gone.

Buckhannon concerned the Fair Housing Amendments Act of 1988,4 and the Americans With Disabilities Act,5 but is clearly relevant to environmental litigators. The Court has long recognized that "fee-shifting statutes' similar language is a strong indication that they are to be interpreted alike."6 Further, the Buckhannon Court framed the issue before it in terms of the "numerous federal statutes [that] allow courts to award attorney's fees and costs to the 'prevailing party.'"7 Among these numerous federal statutes are many fee-shifting provisions important to environmental litigators, including citizen enforcement and judicial review provisions of major environmental laws. Other environmental laws, however, include fee-shifting provisions that do not use the phrase "prevailing party."

This Dialogue begins with a brief background discussion of the importance of citizen litigation to the U.S. environmental protection system. Next, the Dialogue identifies key concerns that have animated the Court's decisions on fee shifting. The Dialogue then examines Buckhannon's holding and argues that, in conjunction with prior Court holdings, Buckhannon creates an easily administrable "bright line" for determining when a litigant qualifies as a "prevailing party" entitled to recover attorneys fees. Next, the Dialogue discusses Buckhannon's application to statutes that do not use the phrase "prevailing party," arguing that the catalyst theory should remain viable under those laws. The Dialogue concludes that Buckhannon's primary impact will be to reduce settlement options and therefore increase costs for both plaintiffs and defendants of litigating and settling citizen enforcement and judicial review actions under statutes that provide for payment of attorneys fees under the "prevailing party" standard.