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Volume 32, Issue 4 — April 2002


A Case Study of Sustainable Development: Brownfields

by Joel B. Eisen

By the 1980s, deteriorating hulks of abandoned factories and overgrown vacant lots in many American cities served as notable symbols of urban decline. These sites had earned the label of "brownfields," which the U.S. Environmental Protection Agency (EPA) now defines as "abandoned, idled, or under-used industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination."1 A brownfield site can be as small as a corner lot or as large as an abandoned steel mill, though former industrial properties attract the most attention. According to one estimate there were as many as 500,000 such sites in the United States.2 The extent of contamination present at these sites after decades of industrial activity was unknown. In the meantime, businesses fled increasingly to suburban and exurban locations known as "greenfields," motivated in part by the widespread perception of these locations as "clean."

While the problem of urban blight and flight to suburban greenfields has many causes, it largely arose because of the unintended chilling effect of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),3 and its state-law analogues, on brownfields redevelopment.4 Therefore, brownfields laws and policies typically aim directly at modifying those environmental laws thought to be most responsible for stifling urban development. The brownfields discussion is somewhat retrospective: it gives us an opportunity to learn from our mistakes and "avoid re-creating Brownfields and continuing their legacy."5 If that were the only important aspect of brownfields revitalization, the link to sustainable development would probably not be readily apparent. However, each decision to remediate and reuse brownfields triggers a much wider variety of concerns: documenting and eliminating environmental health risks while promoting reinvestment, creating jobs, slowing the acceleration of suburban "greenfields" development, decreasing polarization of communities, and fostering public involvement in every aspect of redevelopment efforts. Each brownfields site thus provides an excellent opportunity for us to discuss how to reverse decades of urban decay and to alleviate the unchecked, wasteful development in suburban America.6 These are central concerns in sustainable development policy, and the link between brownfields policies and sustainable development is therefore quite tangible. Not surprisingly, brownfields developers are often quick to call their projects core elements of urban sustainability efforts.

Globalizing Environmental Governance: Making the Leap From Regional Initiatives on Transparency, Participation, and Accountability in Environmental Matters

by Carl E. Bruch & Roman Czebiniak

In recent years, the critical role of civil society and the public in protecting the environment has become clear. International declarations and agreements increasingly recognize that individuals, nongovernmental organizations (NGOs), and local governments are central to the sustainable management of natural resources and protection of critically important areas. Countries have given life to environmental governance principles by establishing institutions that guarantee public access to the decisionmaking processes, as well as by creating and clarifying substantive rights to information, participation, and justice.

Regional organizations have also advanced environmental governance in their Member countries. The United Nations (U.N.) Economic Commission for Europe (UNECE) convened a process that led to the creation of the 1998 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).1 Similarly, in April 2000, the Organization of American States (OAS) adopted the Inter-American Strategy for the Promotion of Public Participation in Decisionmaking for Sustainable Development (ISP).2 Still ongoing, the Asia-Europe Meeting (ASEM) is developing Elements of Good Practice in the draft document Towards Good Practices for Public Involvement in Environmental Policies, which is expected to be adopted in 2002.3 Other regions of the world have implemented similar initiatives: the North American Agreement on Environmental Cooperation (NAAEC),4 a Memorandum of Understanding (MOU) for Cooperation on Environmental Management5 in East Africa, and the Charter of Civil Society for the Caribbean Community.6

South Camden Citizens in Action v. New Jersey Department of Environmental Protection: Will §1983 Save Title VI Disparate Impact Suits?

by Bradford C. Mank

During 2001, an environmental justice suit by neighborhood groups challenging the siting of a cement plant in a minority neighborhood in South Camden, New Jersey, resulted in three complex and important decisions regarding whether there is a right to enforce in federal court the U.S. Environmental Protection Agency's (EPA's) Title VI regulations prohibiting disparate impact discrimination by recipients of the Agency's funding. The environmental justice plaintiffs won two decisions in the district court, but the U.S. Court of Appeals for the Third Circuit reversed, with one judge dissenting. The outcome in the Third Circuit was strongly influenced by a U.S. Supreme Court decision in April 2001, holding that there is no private right of action in federal court to enforce Title VI disparate impact regulations. Despite their defeat in the Third Circuit, environmental justice advocates can still file Title VI administrative complaints with EPA alleging that a state or local environmental agency receiving federal funding has engaged in practices resulting in disparate impact discrimination. Further, the district court's decisions in the South Camden cases can still serve as a model for EPA in deciding disparate impact complaints.

On April 19, 2001, in South Camden Citizens in Action v. New Jersey Department of Environmental Protection (SCCIA I),1 the U.S. District Court for the District of New Jersey for the first time found that a state agency's issuance of an environmental permit violated EPA's disparate impact regulations under § 602 of Title VI of the 1964 Civil Rights Act2 despite the state agency's compliance with all applicable environmental statutes and regulations. The New Jersey Department of Environmental Protection (NJDEP) argued that its issuance of a permit to applicant St. Lawrence Cement Co., L.L.C. (SLC),3 for a proposed cement plant would not violate Title VI because the facility would comply with all applicable federal and state laws and regulations.4 However, in light of EPA's two draft guidances5 on Title VI and its Select Steel6 decision involving a Title VI administrative complaint, SCCIA I concluded that recipients of federal aid have a distinct duty under EPA's Title VI regulations to prevent significant unjustified disparate impacts to protected minority groups even if avoiding such impacts requires the recipient to go beyond requiring compliance with existing laws. The court found that the plaintiffs had established a prima facie case of disparate impact discrimination by submitting substantial evidence that the surrounding predominantly minority community would suffer significant adverse harms from the facility's particulate and ozone precursor emissions. Notably, the court concluded that the NJDEP had a duty under Title VI to consider the cumulative pollution impacts of the proposed plant in an area with a large number of existing polluters. In SCCIA I, Judge Stephen M. Orlofsky concluded that the NJDEP had violated its duties under Title VI to the residents of the Waterfront South community in South Camden because the NJDEP had refused to [32 ELR 10455] consider the SLC's cumulative health impacts on a predominantly minority community already burdened with numerous polluting industries. The SCCIA I court granted the plaintiffs' request for a preliminary injunction, vacated the NJDEP's issuance of air permits to the applicant, and remanded the case to the NJDEP to address the issues raised in its opinion.

The Clean Water Act TMDL Program V: Aftershock and Prelude

by Oliver A. Houck

The U.S. Environmental Protection Agency (EPA) is in the process of redesigning the Clean Water Act's (CWA's) total maximum daily load (TMDL) program. Section 303 of the Act requires states and, if necessary, EPA to: (1) identify waters that do not meet water quality standards; (2) establish the TMDLs for pollutants discharged into these waters that will achieve these standards; and (3) incorporate these loads into state planning. These are of course the classic steps of ambient-based water quality management.

Ambient-based management has not worked well in any media—air, water, or waste. It requires enormous amounts of data. It requires analysis that is rarely definitive and nearly always litigable. It launches a process that never ends. These same factors plagued the CWA's predecessors and the similarly constructed Clean Air Act (CAA). They have prolonged and frustrated decisions under federal pesticide, toxic substances, safe drinking water, hazardous waste, and Superfund laws as well. EPA's task with TMDLs is not an easy one, then, under the best of circumstances.


Toward Security for All: Development Assistance and Global Poverty

by James Gustave Speth

The historian Paul Kennedy has defined "grand strategy" as a commitment to a major result in international affairs, a commitment to be pursued flexibly but comprehensively and determinedly, until the end is realized. Grand strategy presumes that the ends are few; grand strategies address true strategic priorities. The grand strategies chosen by nations tend to define what those nations stand for in the world.

Should western nations have a grand strategy of promoting development in the poorer countries? Does the United States have such a strategy today, and is it pursuing it?

Writing in 1994, Kennedy and a fellow historian, Matthew Connelly, called attention to a key problem underlying the need for sustainable development—"unbalanced wealth and resources, unbalanced demographic trends, and the relationship between the two."1 These authors portrayed a chilling vision of "a world of two camps, North and South, separate and unequal." As they wrote then:

We are heading into the twenty-first century in a world consisting for the most part of a relatively small number of rich, satiated, demographically stagnant societies and a large number of poverty-stricken, resource-depleted nations whose populations are doubling every twenty-five years or less. The demographic imbalances are exacerbated by grotesque disparities in wealth between rich and poor countries.2

Environmental Enforcement: Industry Should Not be Complacent

by Kevin A. Gaynor & Benjamin S. Lippard

Any suggestion that the U.S. Environmental Protection Agency's (EPA's) enforcement activity is less than vigorous is incorrect. Instead, EPA is pushing enforcement on all fronts. Its cases are also increasingly innovative. EPA referrals of criminal cases to the U.S. Department of Justice (DOJ) steadily and dramatically increased from 20 in fiscal year (FY) 1982 to 107 in FY 1992 to a record 278 in FY 1997 and declined slightly in FY 2000 to 236. Criminal fines, which in FY 1997 reached a record $ 169.3 million,1 declined in FY 1999 to $ 61.5 million but doubled in FY 2000 to $ 122 million.2 Years assessed for criminal sentences rose from 146 years in FY 2001 to 256 years in FY 2002.3 Federal courts imposed jail time of 146 years in FY 2000. At the close of FY 2000, the total of all criminal fines assessed under the criminal enforcement program neared $ 720 million.4

Overall, EPA brought a record total of 6,027 civil judicial, criminal, and administrative enforcement actions in FY 2000, an increase of nearly 65% from FY 1999. EPA referred 368 civil cases to the DOJ, a slight reduction from FY 1999 and a 30% increase over FY 1996. EPA also issued a record 1,763 administrative complaints, up nearly 8% from FY 1999. Additionally, EPA forced defendants to spend $ 2.6 billion to correct violations and take additional steps to promote environmental protection. Civil penalties dropped slightly in FY 2000 to $ 102.6 million from the record $ 166.7 million in penalties assessed in FY 1999, which included the largest Clean Air Act (CAA) and Resource Conservation and Recovery Act (RCRA) penalties in EPA's history.5 But violators paid over $ 125 million in civil penalties in FY 2002, with an additional $ 25 million allocated to states in shared penalties.6

To Trade or Not to Trade . . .

by Deepa Badrinarayana

"I'm Not Dead Yet: Genetic Mutation That Lives Up to Its Name Is Found."1 This heading from the December 15, 2000, New York Times is a precursor to one of the most fiercely debated issues of our times. Genetic modification with the use of biotechnology is now perceived as a goldmine due to the prospects that it holds for combating the problems that were hitherto considered mostly unsolvable. The ability to locate the information contained in the deoxyribonucleic acid (DNA), separate it, and relocate it in another organism through modern biotechnology techniques has opened new vistas for social problems. In addition, the financial promise that biotechnology holds may be tremendous. For example, intellectual property rights may enable patent holders to make high profits on their investment.2 The flip side to this is the legal and cultural differences over the commercial use of biotechnology. Disagreements over genetic modification have emerged between environmental and human rights groups over the possible adverse impacts that genetically modified organisms (GMOs) may have on human health and the environment.3 The promise of innovations that would reduce the use of harmful chemicals and pesticides, increase the productivity of animals and plants at low environmental costs, and cure diseases that have plagued humankind for centuries do nothing to allay fears about the long-term threats that GMOs may pose. The recent outbreak of foot and mouth disease confirms the risk associated with the use of modern science.4 It also brings to the forefront the dangers involved in the trade of GMOs.

The response of the international legal community to the issue can be evidenced in the Cartagena Protocol on Biosafety (Protocol), which was opened for signature in May 1992, during a meeting of the Parties to the Convention on Biological Diversity and was finalized in January 2000.5 The Protocol provides a mechanism to mitigate the risk associated with trade in GMOs. The Protocol essentially establishes an international regime for trade in GMOs, mainly trade in GMO agricultural products. Trade, however, is primarily regulated by the General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO)6 system pursuant to the Sanitary and Phytosanitary Measures Agreement (SPS Agreement).7 While the main objective of the WTO is to ensure free trade in goods, the SPS Agreement allows the imposition of non-tariff barriers on trade in view of plant, animal, or human life and safety.8 Yet there is a difference between the Protocol and the SPS Agreement. While the Protocol is a product of concern for environmental protection, the SPS Agreement is a product of concern for free [32 ELR 10513] and nondiscriminatory practice in trade. This may lead to conflicts over the application of the appropriate law.

This Dialogue examines and compares the two legal instruments. The Dialogue first discusses the SPS Agreement and then goes on to describe the Protocol. The Dialogue then analyzes the compatibility between the two international documents.

The Small Business Liability Relief and Brownfields Revitalization Act: Real Relief or Prolonged Pain?

by Dale A. Guariglia, Michael Ford, and Gerald DaRosa

On January 11, 2002, President George W. Bush signed the Small Business Liability Relief and Brownfields Revitalization Act (Act), which includes numerous amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The new legislation is designed to relieve small businesses from the financial burden of CERCLA liability, promote brownfields redevelopment, define transactional due diligence standards, and encourage state primacy in enforcement matters. The Act to some degree codifies U.S. Environmental Protection Agency (EPA) policy on certain issues and builds upon other recent CERCLA amendments in narrowing CERCLA's liability scheme and providing relief to certain types of potentially responsible parties.

The Act provides several CERCLA liability exemptions, including a de micromis exemption (for parties that have contributed only very small amounts of hazardous substances to a contaminated facility), and a municipal solid waste (MSW) exemption (for parties that have contributed only innocuous types of waste). There is an extensive section dealing with the funding of brownfield revitalization efforts, and a section designed to bolster state response programs by encouraging state, rather than federal, enforcement of cleanup responsibility. Finally, the Act contains several liability exemptions and "clarifications" that deal with contaminated properties owned by contiguous landowners, "innocent" landowners, and bona fide prospective purchasers. While the Act's provisions are promising in terms of alleviating certain liability concerns and promoting brownfields development, there are a number of ambiguities that render the true impact of the legislation unclear.