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

Articles

Oregon's Growth Boundaries: Myth and Reality

by Michael Lewyn

Introduction: The Portland Miracle

The most stringent1 anti-sprawl measure adopted by any American state is Oregon's urban growth boundary (UGB) program.2 A UGB is a line designating "areas already marked by 'urban-type' development, within which that type of development is to be channeled and encouraged, and beyond which such development is to be discouraged or forbidden."3 Thus, a UGB discourages development of new suburbs, and encourages development in older cities and suburbs.

Growth boundaries have been good for Oregon's cities. While many older American cities have been eviscerated by middle-class flight to suburbia,4 Portland (Oregon's largest city)5 has grown and prospered. From 1980 (when the Portland UGB was created)6 to 2000, the city of Portland's population grew by over 40%,7 after declining for several decades.8 Portland's population growth compared favorably to that of the central cities of the most comparable western metropolitan areas without UGBs. The metropolitan areas of Denver, Salt Lake City, and Seattle grew as fast as the Portland metropolitan area9 — yet their central cities' populations [32 ELR 10161] increased at only a 10% to 15% rate in recent decades.10 All three regions have lacked UGBs for most or all of the past two decades.11

Fresh Water: Toward a Sustainable Future

by Robert W. Adler

Introduction

It is difficult to imagine a resource more essential to a sustainable economy and to a sustainable, healthy human community than fresh water. Humans cannot live for more than several days without water, shorter than for any source of sustenance other than fresh air. Water is essential to grow, raise, or support in the natural environment every source of food used by human populations, from wild fish and game to livestock and to all forms of plant food, whether cultivated or collected. Without adequate supplies of water we could not rely on trees and other plants for building materials, natural fabrics, paper, and other goods. Natural water cycles play a role in maintaining the relatively stable weather patterns relied on for a sustainable economy and lifestyle, and protect communities from flooding, drought, and other impacts of more volatile climates. Fresh water is also essential to natural communities, the ecological foundation on which sustainable human economies are built. As international water expert Peter Gleick writes, "water runs like a river through our lives, touching everything from our health and the health of ecosystems around us to farmers' fields and the production of goods we consume."1

Unfortunately, human societies worldwide have not always appreciated the need to protect and maintain adequate sources of fresh water. Throughout history, human populations have abused aquatic ecosystems and water sources, either through ignorance, neglect, or greed. From oversalination of agricultural soils in the fertile crescent2 to desertification of what is now the Sahara Desert to contamination of city water supplies and accompanying epidemics of typhoid, cholera, and other diseases, neglect of fresh water has reduced or, in some cases, eliminated entirely the sustainability of human civilizations.

Contribution Claims Under Section 113(f)(1) of CERCLA: Preconditions, Elements of Liability, and Entitlement to Relief

by John M. Hyson

The federal courts are in agreement1 that an action by a potentially responsible party (PRP) against another PRP to recover privately incurred response costs is a claim for contribution in which the plaintiff is limited to the relief that is available under § 113(f)(1)2 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).3 This Article considers: (1) the preconditions for the assertion of contribution claims under § 113(f)(1); (2) the plaintiff's burden in establishing a defendant's liability; and (3) the plaintiff's burden in establishing entitlement to relief.

Sustaining the Unknown Seas: Changes in U.S. Ocean Policy and Regulation Since Rio '92

by Robin Kundis Craig

Introduction

Oceans cover more than 70% of our planet.1 With an average depth "about five times the average elevation on land,"2 the world's oceans hold "about 97% of the total water on earth"—a massive amount compared to the 0.02% of the earth's water found in inland lakes, channels, and seas.3 Oceans were the cradle of life on earth, supporting primitive life forms that arose "approximately 3.5 to 3.7 billion years ago."4 Today, scientists estimate that, conservatively, "more than 250,000 different types of plants and animals live in oceans"; some estimates run as high as 10 million species.5 In addition, water evaporating from oceans drives the earth's hydrological cycle6; "seawater dissolves large quantities of existing carbon dioxide (CO2) from the atmosphere"7; and oceans play a significant role in the earth's weather.8

Despite the obvious importance of the oceans to the well-being of the world, however, our knowledge of this vast expanse is extremely limited. "We are better informed about the Moon and Mars than about the bottom of the ocean floor; we know more about the life cycle of stars than those of the sperm whale, giant squid, and many of the creatures sought by the world's fishing fleets."9 Given this ignorance, for much of history humans have looked at the ocean's size and refused to believe that they could do it any real harm. As little as a quarter of a century ago, the sustainability of the oceans seemed like a non-issue.10

Dialogue

Good Faith as a Fundamental Principle for Relational Environmental Governance

by Rick Reibstein

In the late 1990s, the Massachusetts Office of Technical Assistance for Toxics Use Reduction (OTA), a nonenforcement agency of the commonwealth of Massachusetts dedicated to the on-site provision of pollution prevention assistance, developed a sector-based program intended to demonstrate a fast path to a common-sense environmental regulatory system. The program, funded by the U.S. Environmental Protection Agency (EPA) as the Massachusetts Auto Body Project, became known as the Collision Repair Auto Shop Help (CRASH) Course, which was the title given to the training materials and documents produced.1 The CRASH Course demonstrated a new way of simplifying the many complex rules faced by a small business sector that, like many other small business sectors, had never received very much enforcement attention.2 The method of presenting requirements also created a "positive" enforcement context for pollution prevention and other best management practices (BMPs). The chief officials of the relevant environmental enforcement agencies of the state signed a joint letter, distributed with the project's materials, to indicate their united agreement on the approach.3

The Massachusetts Auto Body Project used the concept of "good faith" to produce a simplified version of the rules. The good-faith approach allowed for the inclusion of pollution prevention and other BMPs in a way that made them more than just suggestions. No rule promulgation was performed, yet the simplified version of the rules applies the force of law. This Dialogue recommends broadening the application of good faith to more effectively cover activities of regulated entities before they come in contact with agencies, and sending a clear message to all actors, not just high performers, that the Agency will distinguish between those making an effort to comply and/or reduce their impact, and those who do not evidence responsibility. The Dialogue examines the Massachusetts Auto Body Project and how it demonstrates a methodology for building a regulatory system that makes practical or common sense, and why the concept of good faith is important to the future evolution of our system of environmental governance. The first part of the Dialogue explains the specific use of good faith in the project and other contexts. The Dialogue then applies the concept of good faith to the larger issue of the relationship between government and regulated citizenry.

Toxic Chemical Control Policy: Three Unabsorbed Facts

by David Roe

This Dialogue offers three quantitative facts, drawn from long-term experience in toxic chemical control in the United States. Each one documents failure, on a large scale, of conventional federal policy to protect human health against toxic chemical hazards in the environment. Each also disproves some of the core assumptions of that policy. Individually and together, these three facts pose a deep challenge to the policymaking community, not only for toxic chemical control but for environmental regulation broadly.

A Defense of Cost-Benefit Analysis for Natural Resource Policy

by Shi-Ling Hsu and John Loomis

The recent flurry of scholarship and debate1 over the use of cost-benefit analysis (CBA) in environmental policymaking is still largely academic. However strongly the academy feels one way or the other, the role of CBA in environmental policymaking does not appear to be changing dramatically. Even the Senate confirmation of the controversial John Graham to an important Office of Management and Budget (OMB) post2 is not likely to substantially change policy, given the scrutiny his decisions will now receive. Undoing the U.S. Supreme Court decision in Whitman v. American Trucking Ass'n,3 which upheld a U.S. Environmental Protection Agency (EPA) interpretation of the Clean Air Act (CAA) to establish ambient air quality standards without regard to cost,4 will require an amendment of the CAA, an unlikely event given the persistence of congressional partisanship. This Dialogue seeks to contribute to the growing body of scholarship that argues for a wider use of CBA, in the hopes of winning over some of the last vestiges of resistance. Eventually, we hope that broader acceptance of CBA in the academy and among environmental advocates will lead to its broader use in policymaking. We will press a now-familiar argument that CBA is, if not an exact science, a better tool for decisionmaking than the alternatives, but we will do so in a policy area that has heretofore been ignored: natural resource policy.

Fortunately for the economics profession, CBA has already insinuated itself into many environmental policy and policymaking processes. The case of the ambient air quality standards at issue in American Trucking is not necessarily representative of pollution control statutes; much statutory environmental law at least implicitly acknowledges a "balancing" or "reasonableness" approach to standard-setting processes, if not explicitly calling for the use of CBA.5 Even where statutes call for standards to be keyed to technological feasibility, there is often an indirect mandate for consideration of the costs and benefits of regulation.6 And in any case, President Ronald Reagan's Executive Order No. 12991, as modified by President William J. Clinton, requires CBA for any "major" rule or regulation, which is defined as any rule or regulation that is likely to result in "an annual effect" on the economy of more than $ 100 million.7 Since most significant environmental regulations have at least such an impact, this Executive Order is thought to [32 ELR 10240] cover most new federal environmental regulatory decisions anyway.

Palazzolo v. Rhode Island and the Supreme Court's Increased Support of the Constitutional Protection of Private Property: A Response to Echeverria

by Joel R. Burcat and Julia M. Glencer

Introduction

On June 28, 2001, the U.S. Supreme Court rendered its long-awaited decision in Palazzolo v. Rhode Island.1 This closely watched case promises to impact many individuals and groups with interests in land development, including landowners with wetlands, mineral rights' owners, landowners with designated "endangered" plants and animals on their lands, farmers, general land developers, environmentalists, and state and local government officials. Palazzolo is yet another sign of the general march of the Court toward stricter accountability for governmental land use decisions that adversely impact private property.

In the September 2001 issue of the Environmental Law Reporter, John D. Echeverria presented a Dialogue containing his Preliminary Assessment of the Palazzolo decision.2 Echeverria's assessment (which more resembles the work of a haruspex than an objective observer) attempts to turn the Court's ruling on its head. Now, drawing on his candid recognition that he "may think somewhat differently about the case weeks, months, or years from now,"3 we would like to offer Echeverria (and other anti-private property rights advocates) some points to ponder as he (and they) contemplate the real meaning of Palazzolo.4

Property Rights, the Market, and Environmental Change in Twentieth Century America

by Eric T. Freyfogle

The economic success of the United States over the past century has prompted observers around the world to look to it for lessons on stimulating growth. Compared with many countries, the United States is plainly doing something right in terms of fostering the energies of its people. One cause of U.S. success has been the fertile land of central North America, and no study can overlook that unearned natural blessing. Still, American culture and its many institutions have played chief roles in the nation's cornucopia. Somewhere in the American story are useful lessons, however hard they might be to find and transport.

One American institution that has rightly drawn attention is the system of private property, particularly the private ownership of land. Economic enterprises commonly take place on land and entail the mixing of labor and capital with land. Much land is used directly to produce food, fiber, and minerals; other lands become sites for enterprises less dependent on a land parcel's particular natural features. In all cases, investment is needed for economic gains to flow. Both economic theory and common sense give guidance on what it takes to stimulate such investments in land. One requirement is that people have secure land tenure. Mine shafts will not be dug, nor office buildings constructed, when entrepreneurs risk losing their investments because of unstable property rights. Another requirement, less necessary but still important, is the ability to transfer property freely. People are more likely to invest when they can exit an enterprise by selling to others. Free transferability also facilitates the shift of assets to their mostly highly valued uses. When property is easily transferred, markets soon develop, and assets in time move to owners able to use them for the greatest gain.