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Volume 32, Issue 12 — December 2002


States as Engines of Sustainable Development: Some Think They Can

by John A. Pendergrass

States have been and should continue to be engines of sustainable development in the United States. They are not the only forces at work, and some have been willing to let others, along with the large federal locomotive, pull them up the sustainable development hill, but they are necessary if the United States is to reach its goals. The important roles that states have in policymaking and implementation means that a complete assessment of progress toward sustainable development in the United States must include an examination of what states are accomplishing. This Article begins by narrowing the broad sweep of sustainable development to those aspects that are of particular relevance to U.S. states, then provides an overview of what states had done prior to the Rio Summit, followed by an assessment of what they have done in the intervening 10 years. It concludes with recommendations for states to continue their progress toward sustainable development. As will be discussed further, states in the United States have many attributes of national governments, particularly with respect to their authority and responsibility for most aspects of sustainable development. This Article could then, in theory, encompass all of sustainable development, but it will not attempt to assess aspects of sustainable development related to specific media, resources, and issues covered comprehensively in other Articles.

Beginning even before the advent of the modern era of environmental law in the United States in 1970, some states have developed innovative laws and programs that have served as models for other states and the federal government for solving environmental problems and promoting what is now understood as sustainable development. Sustainable development depends on local action that keeps larger social goals in mind while satisfying local needs. This is the role state governments are intended to carry out in the United States and, at their best, some have done much to promote and to achieve sustainable development, but the efforts and progress have been uneven. In order to achieve sustainable development in the United States, all the states must join the effort, follow the examples of the leading states, adopt the innovations that have proven successful, involve their citizens, report on their progress, and continue to create innovative policies and programs.

The Precautionary Principle in Canada: The First Decade

by Juli Abouchar

In June 2001, the majority of the Supreme Court of Canada cited the precautionary principle1 as a principle of international law and policy and concluded that municipal power to regulate pesticides is consistent with the principle.2 This decision marked a decade of growth for the precautionary principle in Canada.

The precautionary principle states that where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.3 Globally, the earliest explicit reference to the precautionary principle is found in the "Vorsorgenprinzip" of West German legislation of the early 1970s.4 The earliest international agreement to use an explicit reference to the precautionary principle is the 1985 Vienna Convention on Ozone Depleting Substances wherein parties agree to take "precautionary measures."5 It was first given specifics for implementation in the Ministerial Declaration of the Second International Conference on the Protection of the North Sea issued in London in November 1987.6 Canada successfully "advocated inclusion of the precautionary principle" during the Bergen Conference negotiations in 1990.7 In the late 1980s and early 1990s, while the principle was being endorsed in international agreements,8 seeds of precaution were also being planted in Canadian judicial decisions.

Toward Better Bubbles and Future Lives: A Progressive Response to the Conservative Agenda for Reforming Environmental Law

by Rena I. Steinzor

Gridlock and Its Implications

In the aftermath of September 11, 2001, most of the nation's domestic agenda has receded into the background of the public's attention, eclipsed by news of the war on terrorism, the war's effect on the economy, and—in fits and starts—the corporate scandals typified by the collapse of Enron, Global Crossing, and WorldCom. Environmental policymaking, in its routine form difficult for the popular media to master, sits in the last row of side-lined issues. Only such spectacles as polar bears running from oil rigs nudge these problems into the foreground, and then only temporarily.1

Out of sight, of course, does not mean out of mind. Below the "waterline" of politically visible debate, mid-level bureaucrats, and regulated industries are actively engaged in efforts to change the rules of law and economics that determine whether the government intervenes in pollution-producing commerce. Talk of enacting so-called second generation legislation has subsided to a murmur. But at the administrative level, the debate over how best to streamline the system and eliminate distasteful regulatory requirements proceeds with unchecked vigor and enthusiasm.

Taming the Dragon Heads: Controlling Air Emissions From Power Plants in China--An Analysis of China's Air Pollution Policy and Regulatory Framework

by Barbara A. Finamore and Tauna M. Szymanski

Coal combustion is the leading source of industrial air pollution in China today, contributing up to 87% of total sulfur dioxide (SO2) emissions and 75% of carbon dioxide (CO2) emissions.1 In 2001, 46% of total SO2 emissions stemmed from power plants alone.2 These emissions in turn contribute heavily to acid rain, smog, and climate change both within China and around the world, causing severe damage to human health and natural ecosystems.3 China is now the world's largest emitter of SO24 and the second largest emitter of greenhouse gases (GHGs).5 Acid rain falls in 82% of Chinese cities and affects 29% of China's total landmass.6 The Asian Development Bank estimates that acid rain is responsible for U.S. $ 14 billion in economic losses—nearly 2% of gross domestic product (GDP).7 Total urban air pollution costs China U.S. $ 32.3 billion annually in human health impacts.8 The World Bank estimates that outdoor air pollution in excess of average national standards is responsible for 178,000 premature deaths a year in China.9 Researchers at the Chinese Academy of Sciences estimate that economic losses could amount to U.S. $ 240 billion over the next 10 years if SO2 emissions are not controlled,10 and the State Environmental Protection Administration (SEPA) estimates that overall environmental pollution could force a 10% loss in GDP.11 Furthermore, without significant reductions, SO2 emissions are expected to increase to 30 million tons from a current 20 million tons by 2010.12 Since almost three-quarters of China's electric [32 ELR 11440] power is derived from coal combustion, using about 60% of the country's coal, the power sector provides a model for examining China's overall industrial air pollution control.13 Given the prominent role of electric power in China's rapidly growing economy14 and its status as a sector targeted for reform and increased foreign investment by the central government,15 studying ways to mitigate the sector's environmental impact is an essential undertaking in its own right.

China's electric power industry has played a fundamental role in its national economic development. Local governments have traditionally viewed power plants as "dragon heads" that, if properly fed and protected from reforms, would continue to yield substantial tax revenues and other benefits.16 For many years, the central government focused on policies to facilitate the rapid development of the power sector, in some cases perhaps looking the other way when it came to enforcing environmental regulations on these plants. China's oldest power plants, as well as small ones built during the economic boom of the 1980s, typically highly polluting and inefficient, were kept in service as long as possible to help meet China's burgeoning demand for electricity.

Updating Deference: The Court's 2001-2002 Term Sows More Confusion About Chevron

by William S. Jordan III

The U.S. Supreme Court's Chevron, U.S.A., Inc. v Natural Resources Defense Council, Inc.1 decision has dominated administrative case law and scholarship for nearly 20 years.2 In 1999, this dominance prompted the participants in the bi-annual Administrative Law Discussion Forum to plead that the next Forum topic be "anything other than Chevron!"3 At the 2001 Forum, however, Chevron again took center stage,4 driven to the fore by the Court's then-recent decisions in Christensen v. Harris County5 and United States v. Mead Corp.6

One would think that after all this time and discussion we would know what Chevron means. Far from it. In 2001, Thomas Merrill's and Kristin Hickman's influential article, Chevron's Domain,7 identified 14 unanswered questions concerning the application of Chevron deference to agency statutory interpretation. Mead represented an opportunity to provide clear answers to at least one of these questions, and perhaps two others.8 Unfortunately, as discussed below, Mead only confirmed the uncertainty as to when Chevron deference is available to agency statutory interpretations.

Using Smart Growth to Achieve Sustainable Land Use Policies

by Patricia E. Salkin


Any analysis of U.S. progress toward meeting the goals of Agenda 211 must include a hard look at the political will and actions toward reforming our system of land use controls. Land development policies and decisions are inextricably intertwined with a significant number of items contained in Agenda 21, creating a perhaps unusual scenario requiring cross-disciplinary and interjurisdictional approaches to effectively implement strategies that will both promote and yield sustainable land development. The following Agenda 21 goals relate directly to land use planning and decision-making: promoting sustainable human settlements (Chapter 7) that include adequate shelter, management of urban settlements, sustainable land use planning, and management of sustainable construction policies; policymaking for sustainable development (Chapter 8) that includes the full integration of, among other things, environmental and development issues for government decisionmaking addressing economic, social fiscal, energy, agricultural, and transportation issues; protecting the atmosphere (Chapter 9) by utilizing certain land use and resource practices; implementing an integrated approach to land resource use (Chapter 10) that requires environmental, social, and economic issues to be considered simultaneously for the sustainable use and management of land resources; combating deforestation (Chapter 11) by employing strategies that include the "greening" of the urban areas; halting the spread of deserts (Chapter 12) by, among other things, adopting sustainable land use policies and sustainable management of water resources; and meeting agricultural needs without destroying the land (Chapter 14) by harmonizing land resource planning.2


How the Tulane Environmental Law Clinic Survived the Shintech Controversy

by Adam Babich

In late 1996, the Tulane Environmental Law Clinic (the Clinic) took on representation of a community group called St. James Citizens for Jobs and the Environment in a controversial challenge to Shintech Inc.'s proposed construction of a polyvinyl chloride plant in Convent, Louisiana. After the U.S. Environmental Protection Agency (EPA) granted a petition to veto the Louisiana Department of Environmental Quality's issuance of an air permit to Shintech,1 Shintech changed its plans and located a downsized facility elsewhere in Louisiana.2

The Shintech dispute sparked a national controversy, featured on national television news shows and, ultimately, in a cable-television movie called "Taking Back Our Town."3 A common postscript to retellings of the Shintech story is a statement that the Clinic essentially paid for its contribution to St. James Citizens' success with its life—suffering retaliatory restrictions that supposedly would prevent it from ever representing a group like St. James Citizens again.4 In fact, the Clinic has continued to represent St. James Citizens and similar clients and continues to enjoy its fair share of successes and to weather its share of defeats.5 The following questions and answers are intended to explain the Clinic's survival as a viable member of Louisiana's legal community and as a place where law students continue to represent clients on the cutting-edge of environmental law.

Lessons Learned From the Intersection of CERCLA and Contract Law

by Ridgway M. Hall, Jr., Kirsten Nathanson

In Blasland, Bouck & Lee, Inc. v. City of North Miami,1 the U.S. Court of Appeals for the Eleventh Circuit addressed two significant issues involving the interrelationship between Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)2 cost recovery actions and contract law. These issues, and the way the court addressed them, highlight problems for drafters of both commercial contracts and partial settlement releases, which if not carefully done can frustrate the intentions of the parties and cause significant economic loss to at least one of them.

First, in reversing the trial court, the Eleventh Circuit refused to give effect to an express limitation on liability in a contract between the parties. Instead, the court held that one party could use a CERCLA cost recovery action to avoid the contractual limitation on liability and recover precisely the amounts that the parties had agreed in the contract were not to be recoverable.