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Volume 32, Issue 3 — March 2002

Articles

Sustainable Development and Air Quality: The Need to Replace Basic Technologies with Cleaner Alternatives

by David M. Driesen

Imagine a world where the air, even in major cities, poses no serious health threat, even during the summer. Lakes once dead from acid rain have begun to recover. And trees and crops no longer die from air pollution. Many large cities and all rural areas have taken down their transmission wires, because the owners of homes, apartment buildings, factories, and offices rely upon fuel cells or upon solar power produced on-site. We may be too late already to avoid serious disruption from global warning, but this world would, over time, ameliorate climate change as well. Our reality is far different, but movement toward sustainable development must involve substantial steps toward creating the technological pattern that might make this world possible.

Sustainable development requires the replacement of old technologies with new, cleaner ones. Generally, the United States has adopted the type of air quality programs that Agenda 211 recommends; indeed, those programs were in place at the time of the Earth Summit in 1992. Owing to a lack of fundamental technological change, however, the United States has not met the ambitious goals for environmental programs implicit in the broad principles of the Rio Declaration.2 Fully meeting those goals requires a phaseout of coal-fired power generation, a substantial movement toward renewable energy, a thorough going change in vehicular technologies, enforcement of the Clean AirAct (CAA), and improvements in emissions monitoring. We must redesign regulation with an explicit goal of encouraging fundamental innovation in order to achieve this sort of change.

This Article begins by canvassing the commitments made in Agenda 21 and the Rio Declaration that have special relevance to air quality. This review of international commitments also provides basic background on air pollution, explaining why achievement of the relevant international goals matters. This first part also links air quality concerns to the problem of sustainable development. The Article then turns to an assessment of progress toward these commitments, through a look at emission trends and the movement toward sustainable technology. The final section articulates recommendations for improving U.S. conformity to Agenda 21 and the Rio Declaration.

Stumbling to Johannesburg: The United States' Haphazard Progress Toward Sustainable Forestry Law

by Robert L. Fischman

This Article addresses how well forestry law in the United States promotes sustainable development, with special attention to the trends of the past decade. The role of law in shaping forest management decisions has been a contentious issue in this recent period, and forestry has been at the forefront of public concern about sustainability of natural resource management generally. Therefore, the problems and opportunities for forestry law to promote sustainable development are indications of the weaknesses and strengths of the overall U.S. legal regime.

This Article focuses on forestry, as opposed to forests or the forest sector of the economy. As Prof. Jeff Romm has observed, sustainable forestry is a "social process rather than a forest condition."1 Though the ecological health of the forests themselves is a critical aspect of sustainable forestry, it is but one of the three axes along which sustainable forestry should be measured. Economic viability and social responsibility are equally important dimensions of sustainability.2 Conceiving forestry as a process rather than a condition is particularly helpful in evaluating the role played by law in promoting sustainability. Because law is an important method society employs to resolve disputes, it concerns itself primarily with process. Though the process established through forestry law can promote sustainability, extra-legal ecological, economic, and social forces dominate the outcomes. This Article emphasizes those areas where law can serve as a catalyst for sustainability, but it is important to acknowledge at the outset that law is often a follower rather than a leader of changes in forestry.

Time to Walk the Walk: U.S. Hazardous Waste Management and Sustainable Development

by Joel A. Mintz

Introduction

The basic structure of the domestic laws of the United States with respect to hazardous waste was established in the mid-and late 1970s and the mid-1980s. In the face of widespread public concern over the risks to health and the environment posed by improper hazardous waste disposal during that period, the U.S. Congress enacted (and also amended) two pieces of voluminous and comprehensive legislation: the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or the Superfund Act)1 and the Resource Conservation and Recovery Act (RCRA).2 The former statute created a multifaceted scheme for eliminating dangerous conditions created by hazardous waste spills and past mis-disposal of hazardous waste. The latter legislation focused primarily on "cradle-to-grave" regulation of ongoing hazardous waste generation, transportation, and disposal.

In 1992, at the Rio Summit, our country pledged to go still further. By agreeing to the Rio Declaration on Environment and Development3 and Agenda 214, the United States promised to adopt an "overall cleaner production approach," with the goal of preventing or minimizing further hazardous waste generation. It also urged ratification of another international agreement, the Basel Convention on the Control of Transboundary Movements of Hazardous Waste,5 which set forth more effective rules with respect to the transboundary shipping of hazardous wastes.

Triangulating Sustainable Development: International Trade, Environmental Protection, and Development

by Sanford E. Gaines

The Agenda: "To Make International Trade and Environment Policies Mutually Supportive in Favour of Sustainable Development."1

Introduction

At the time of the United Nations (U.N.) Conference on Environment and Development (UNCED) in Rio de Janeiro, the persistent effort by governments during the previous half century to remove barriers to the free movement of goods among nations had contributed to a rise in living standards unparalleled in world history.2 Liberalized trade had also wrought an ever richer network of economic and social interactions among nations that helped reduce political tension and international armed conflict.3 With this affirmative history in mind, the Rio Declaration ordains: "States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation."4

The second half of the 20th century also saw deepening economic disparities between the wealthiest and least wealthy individuals and nations, intensification and proliferation of violent civil strife and regional conflict, and perceptible deterioration of the environment locally and globally in most parts of the world brought about in considerable measure by the prodigious activities of people and businesses engaged in the production and consumption of the ever-increasing quantity of goods flowing in international trade.5 Cognizant of this darker side of the late 20th century, the world's leaders at Rio also undertook to "cooperate in the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world."6 They further committed themselves to "reduce and eliminate unsustainable patterns of production and consumption" in order to "achieve sustainable development and a higher quality of life for all people."7

Historic Preservation Law in the United States

by David L. Callies

Over the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance. These nationwide legislative efforts have been precipitated by two concerns. The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways. The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today.1

Dialogue

The Global South as the Key to Biodiversity and Biotechnology-A Reply to Prof. Chen

by Srividhya Ragavan

This Dialogue seeks to respond to Prof. Jim Chen's recent Article in the Environmental Law Reporter, Diversity and Deadlock: Transcending Conventional Wisdom on the Relationship Between Biological Diversity and Intellectual Property.1 In that Article, Professor Chen highlights the role of the Convention on Biological Diversity (CBD)2 in protecting biodiversity. This Dialogue argues that the CBD is an inherently ineffective mechanism to protect biodiversity. It disagrees with Professor Chen's argument that the CBD provides for access to technology and wealth transferred to the global South from the global North.3 In his Article, Professor Chen concludes that contrary to the "fear" of the North, the CBD promotes trade and facilitates the acquisition of technology by developing countries from the developed world.4 This Dialogue highlights the gaps in the CBD and challenges its capacity to conserve biodiversity. It demonstrates that in practice the CBD actually precludes the flow of benefits to the South. The CBD works in tandem with the other international treaties, particularly the annex on Trade-Related Aspects of Intellectual Property Rights (TRIPS),5 and the International Convention for the Protection of New Varieties of Plants (UPOV)6 to facilitate proprietary protection over biotechnology. Contrary to Professor Chen's conclusions,7 TRIPS and the UPOV concern themselves with neither biopiracy nor the flow of technology to the South. This Dialogue concludes that while the active participation of the South is the key to protection of biodiversity and prevention of intellectual property piracy, these goals will be hard to come by unless there is fairness of treatment for the South in the various conventions.

Risk Versus Precaution: Environmental Law and Public Health Protection

by Gail Charnley and E. Donald Elliott

Environmental regulation in the United States has been characterized by short-term decisions with unknown or unanticipated long-term public health consequences. Some propose to use our inability to predict possible long-term consequences of environmental health regulation as a justification for replacing risk assessment with the "precautionary principle" as the dominant paradigm for making regulatory decisions. The precautionary principle is based on the idea that it is better to be safe than sorry; that is, precaution reflects the need to take action in the face of potentially serious risks without awaiting the results of scientific research that establishes cause-and-effect relationships with full scientific certainty.1 In contrast, U.S. law reflects a traditional suspicion of government regulation, requiring extensive factual records proving "significant risks" to justify regulation aimed at protecting public health from environmental contaminants. This fundamental norm of the U.S. legal culture, sometimes called the "principal of legality," makes precautionary environmental health regulation difficult because government must assemble a factual record to support its actions.

Support for the precautionary principle is motivated in part by a desire for a more agile legal system that does not use incomplete science as a reason to postpone regulating. But the long-term consequences of substituting precaution for risk-based decisions could undermine the already somewhat meager scientific basis for regulatory actions unless we develop improved mechanisms to revisit decisions as better scientific information develops. Meanwhile, huge investments continue to be made in complying with regulation of chemical contaminants despite our limited ability to demonstrate the impact of that investment on improving public health. In that sense, environmental health regulation in the United States already implements the precautionary principle on a grand scale. This Dialogue argues that applying a combination of both risk assessment and the precautionary principle in environmental regulation, along with an improved environmental health infrastructure, are needed to protect public health and the environment more effectively.

Pondering Palazzolo: Why Do We Continue to Ask the Wrong Questions?

by Michael Allan Wolf

I must confess that I first read the U.S. Supreme Court's opinions in Palazzolo v. Rhode Island1 with more than a bit of apprehension—not just because I was afraid about the fate of the nation's wetlands, but, more selfishly, because there was just the slightest chance that the Justices would abandon the highly problematic and unnecessarily confusing regulatory takings approach once and for all. If the Court had sworn off the practice of applying the Takings Clause to regulations affecting the use or value of private property, then much of the scholarship I was pursuing at the time would have been worthless (or, perhaps, worth even less).

Thankfully, for Mr. Palazzolo, at least for the moment,2 the Justices only further muddied the waters—or should I say further mucked up the swamp—allowing me this and other opportunities to point out the drawbacks of the Court's approach. Basically, what this Dialogue is designed to demonstrate is that, with Palazzolo, and soon with Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,3 the Court continues to ask the wrong questions. As each new, confusing, regulatory takings case emerges from the Court—usually at the end of the term, hidden behind more newsworthy decisions—we are left with at least one more question to ask in our attempt to figure out if the government has once again indirectly violated the Takings Clause.