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

Articles

The Role of Medical and Public Health Services in Sustainable Development

by Edward P. Richards

Agenda 211 and the Rio Declaration on Environment and Development2 puts a human face on sustainable development, clearly stating that sustainable development is development that leads to maximizing human potential while protecting the environment, but that if there is a conflict, human welfare must be determinative. This has created tension between activists from the developed world, who were generally opposed to development, and those from the developing world, who realized that development was essential for human welfare, even if it had environmental costs. This view of sustainable development, however, is clearly articulated in the introduction to Chapter 6 of Agenda 21, entitled "Protecting and Promoting Human Health."3 The remainder of Chapter 6 applies this approach to key populations and programs, delineating a detailed set of objectives for personal medical services, public health services, and environmental health issues.

Agenda 21 expands the traditional environmentalist focus on illnesses related to environmental pollution to a broad emphasis on basic medical care, preventive medicine, and the improvement of mental and physical health. This parallels the World Health Organization's (WHO's) broad definition of health: "Health is a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity."4 In the developing world, health is very pragmatically related to development: if a significant part of the population is partially disabled by diseases such as malaria, or if whole professional classes are destroyed by the human immunodeficiency virus (HIV) and the acquired immune deficiency syndrome (AIDS), then this makes economic development much less efficient, which leads to unnecessary delay and environmental impact. Even in the United States there are serious access to medical care problems and failures in the public health system that impact economic development and well being.

The Never Ending Story: The Constitutionality of Superfund's Retroactive Liability Regime

by David P. Spence

Since the enactment of Superfund1 in 1980, critics of the statute's liability regime have been relentless in their attempts to convince courts that Superfund liability is so unfair as to be unconstitutional. While their persistence has produced only minor changes in the liability regime, their cause may have been given a lift by the U.S. Supreme Court's 1998 decision in Eastern Enterprises v. Apfel.2 In that decision, the Court held that when a statute "imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability," and the liability is "substantially disproportionate to the parties' experience," the legislation is unconstitutional.3 Those words have sparked the critics' hopes that the Court will eventually conclude that Superfund is just such a statute.

The long-running war over Superfund liability has been like the early stages of a bullfight. The statutory liability regime is the bull, striking fear into the hearts of businesses like no other regulatory statute has before or since. Superfund's critics have played the role of the picaderos and banderillos, striking out at the bull in the courts and the U.S. Congress, landing only nonlethal blows and narrowing the reach of the Superfund liability regime only at the margins. Will Eastern Enterprises prove to be the final act of this drama, or just another flesh wound? Many view this latest argument as merely another in a long line of meritless constitutional challenges, all of which are doomed to fail.4 After all, the courts have rejected similar claims before5; nor, say the statute's defenders, should we read much into the Eastern Enterprises decision, a case in which the Court could not even cobble together a majority opinion. Furthermore, they contend, to the extent that there is an Eastern Enterprises test of the constitutionality of retroactive legislation, Superfund passes that test: unlike the statute at issue in Eastern Enterprises, Superfund is remedial,6 designed merely to make the polluter pay. I argue here that the effect of Eastern Enterprises may be more significant than that.

The Potential Role of Local Governments in Watershed Management

by A. Dan Tarlock

The Search for a Local Government Role in Environmental Protection

Protecting healthy watersheds and restoring degraded ones is one of this country's major unmet environmental challenges. Because watersheds do not respect political boundaries, effective watershed conservation will require cooperation and coordination among all levels of government, including local units. Watershed conservation is one of the increasingly significant environmental protection roles local governments are playing for a variety of reasons, ranging from choice to coercion. Since the 1970s, many local governments have expanded their traditional land use regulatory programs to include environmental objectives such as impact assessment1 and the protection of sensitive lands including floodplains, wetlands, and steep slopes.2 Watershed protection is also a logical extension of the increasing use of habitat conservation plans (HCPs) to comply with Endangered Species Act (ESA)3 mandates. HCPs have created partnerships among federal and state environmental agencies and local governments to create multi-species habitat reserves to address environmental issues on a larger geographic scale.4 However, the environmental role of local governments is underdeveloped, compared to their federal and state counterparts, because these units have not been assigned a formal role in the implementation of the two major environmental policies followed in this country, the reduction of exposure to harmful pollutants and the conservation of biodiversity.

Local governments were not assigned a formal role in environmental law and policy because the initial strategy was to federalize environmental protection to remedy grave, perceived defects in state and local oversight. Federal superintendence was viewed as the cure for fragmented jurisdictions and uneven regulation. Early federal successes came from dealing with problems that were largely interstate and involved common property resources that had not been fully converted into exclusive private rights. Airsheds and large rivers and lakes were relatively easy to improve because the gross pollution was amenable to technological fixes and polluters could not claim firm property rights to degrade the resource. The case for federal intervention was, and remains, strong, in part because local governments were slow to deal with many environmental problems and, when they did exercise their powers to define and prevent common-law nuisances, the result was often to shift pollution to other areas. As a result, environmental policy continues to be primarily set and implemented at the federal and state levels; local efforts consist of parallel but often uncoordinated and fragmented initiatives to fill in nonpreempted gaps, such as noise and low-level pollution nuisances, left by federal and state programs. After federal land use planning legislation was defeated in the mid-1970s,5 the federal [32 ELR 11274] government left most land use regulation to the states6; with important exceptions, the states did not displace local authority.7 To deal with land-based pollution issues such as agricultural runoff, the federal government threw some money at the states and hoped that they could remedy the problem. But, as environmental protection shifted to biodiversity conservation and nonpoint pollution cancelled the gains achieved by controlling point sources of pollution, the need to integrate land use controls into federal and state environmental protection has become more pressing. More generally, as environmental protection evolves from the first to the second generation, characterized by the involvement of multiple public and private actors whose choices large and small may have adverse environmental impacts, local governments are becoming more direct participants. In addition, state land use initiatives, such as the current interest in smart growth,8 have many potential biodiversity conservation and pollution control implications.

Agricultural Biotechnology: Environmental Benefits for Identifiable Environmental Problems

by Drew L. Kershen

Agricultural biotechnology has generated much debate about the environmental consequences of field trials and commercialization of transgenic crops. Thus far, the debate has focused on opponents' claims of alleged risks presented by transgenic crops and the proponents' responses to those asserted risks.1 To date, three issues have dominated the debate:

. the risk of gene flow;

. the risk of weediness; and

. the risk of insect-resistance.2

When debates regarding the environmental consequences of agricultural biotechnology have addressed potential benefits, the discussions have largely concentrated on general issues, such as whether agricultural biotechnology will result in less pesticide use and whether agricultural biotechnology will protect a larger area of wildlife habitat from conversion to agricultural uses than other agronomic methods.3

Dialogue

Managing Environmental Trades: Lessons From Hollywood, Stockholm, and Houston

by Dennis M. King

Environmental Trading in Context

Pollution credit trading has been promoted by economists for years and, in the United States, is finally being considered seriously to deal with problems ranging from air and water pollution to global warming and the loss of wetlands and biodiversity.1 Whether these market-based alternatives to direct regulation are given a chance to succeed before they are abandoned will depend, more than anything else, on the results of early trading. In principle, most people are willing to accept that environmental markets might be a good idea. However, nothing will undermine their tentative support more than an early track record of environmental trades that fail to deliver in terms of expected emission reductions or habitat protection.

Ethical Considerations for Terraforming Mars

by Robert D. Pinson

The colonization of outer space, especially Mars, has become increasingly relevant in recent years. With technological advances and biological discoveries, Mars is perceived as more hospitable to life than previously imagined. Just recently, the Mars Odyssey spacecraft has discovered vast quantities of ice on Mars.1 As a result, long-term projects like the colonization, or even terraformation, of Mars are becoming less daunting.2

This Dialogue addresses novel concerns of environmental ethics and safety as humans begin their expansion beyond earth. The Dialogue then presents an argument for the terraforming of Mars. It is inevitable that humans will live on other moons or planets; it is only a matter of when.

Sand Through the Hourglass: PSD Enforcement and the Statute of Limitations

by Thaddeus R. Lightfoot

In 1977, the U.S. Congress amended the Clean Air Act (CAA)1 to codify a new source review (NSR) program for major new or modified sources in areas that attain national ambient air quality standards (NAAQS). These prevention of significant deterioration (PSD) provisions require major new or modified sources2 that will emit significant amounts of regulated pollutants3 to obtain a permit before commencing construction of the source or modification. To secure a permit, the source must establish that the new construction or modification will comply with the NAAQS, as well as the PSD "increments"—or fractions of the NAAQS established to preserve air quality in attainment areas—for sulfur dioxide, particulate matter, and nitrogen dioxides. In addition, the source must employ the best available control technology (BACT) for each regulated pollutant that it will emit in significant amounts. The CAA defines BACT as the "maximum degree of [emission] reduction" achievable, considering "energy, environmental, and economic" factors.4 BACT, therefore, is an emissions limit typically derived from the control technology for regulated pollutants in attainment areas that the U.S. Environmental Protection Agency (EPA) and state regulatory agencies mandate in preconstruction permits.

In the late 1980s and early 1990s, EPA brought a number of civil judicial enforcement actions against the wood products industry for failure to obtain preconstruction permits for new sources or source modifications under the PSD program. In the mid-1990s, EPA began an extensive investigation of suspected violations of PSD NSR provisions in the coal-fired electric utility industry. The investigation led the U.S. Department of Justice, at EPA's request, to file eight enforcement actions against coal-fired electric utilities in 1999 and 2000, and to pursue enforcement for alleged PSD violations in the refinery, wood products, mini-steel, food manufacturing, and chemical processing industries.5 These recent NSR enforcement actions contend that industries built or modified facilities without installing BACT emission controls and without obtaining PSD permits. EPA is seeking civil penalties and injunctive relief requiring the facilities to install emission controls that satisfy BACT. Many of the alleged violations involve facilities or modifications built as long ago as 1978.

The Role of Carbon Sequestration in the U.S. Response to Climate Change--Challenges and Opportunities

by David J. Hayes and Nicholas Gertler

Climate change is widely acknowledged as one of the greatest environmental challenges facing the United States and the international community.1 The Bush Administration's rejection2 of the Kyoto Protocol (the Protocol)3 and related activities have focused a significant amount of public attention on the issue, both at home and abroad. The recent international agreement on rules for implementing the Protocol4 has added further currency to the climate issue, by laying the groundwork for an international regime for controlling greenhouse gases (GHGs) to come into force.

Climate change policy is receiving serious domestic consideration5 despite the Bush Administration's firm position6 that the United States will not ratify the Protocol. The U.S. Congress is considering a number of climate change-related measures7 that would establish reporting, monitoring, and potentially, emissions reductions and trading obligations. These may, or may not, mesh with the emerging global scheme. In addition, there is increased interest in exploring policy options relating to carbon sequestration: the trapping of carbon dioxide (CO2) in forests, soils, and other natural resources.8

The Tragedy of Fragmentation

by Eric T. Freyfogle

Among certain academic circles it has become common to assert that owners of private land take care of what they own. One encounters the claim most often in discussions about land-related environmental problems. Unowned lands, resources shared by many: these are the ones that are degraded, it is said, not lands that have a single owner vested with clear, secure rights. Private owners take care of what they own.1

For people worried about the health of the overall land community this claim tolls a comforting tone. It is a hope-filled assertion, particularly for those who live in states where nearly all land is private. If private owners take care of what they own, then the challenge of land stewardship is not nearly as vast as one might fear. Conservationists only need to worry about parcels not in private hands—public lands or undivided lands—a more manageable job. And the best way todeal with such lands, or at least one way to deal with them, is to turn them over to private owners, whenever and as quickly as possible.