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Volume 32, Issue 5 — May 2002


Biodiversity Conservation in the United States: A Case Study in Incompleteness and Indirection

by A. Dan Tarlock

What is the United States' obligation to conserve biodiversity? What is the relationship between biodiversity conservation and sustainable development? At both international and national levels, biodiversity conservation has recently emerged as a construct to unify a number of disparate, older environment objectives such as wildlife conservation, the preservation of endangered species,1 and the dedication of land for heritage purposes such as parks, nature reserves, wildlife refuges and other similar categories into a single overarching legal category. At the same time, the paradigm of sustainable development has emerged as the ur standard for the integration of economic development and environmental protection in both developed and developing countries.2 In brief, sustainable development seeks to encourage resource exploitation and consumption practices that are consistent with long-term environmental protection objectives. Sustainable biodiversity conservation practices include preserving representative examples of biodiversity for future generations, using undeveloped biodiversity as a valuable resource for nonintrusive bioprospecting or ecotourism and exploiting and using land and natural resources in more environmentally sensitive ways.

Since the Rio Summit (the Conference on Environment and Development) in 1992, many biodiversity conservation initiatives have been initiated in the United States by all levels of government and private parties. But, they are often ad hoc efforts to solve a single example of past environmental degradation, such as the restoration of sheet flows to the Everglades, or efforts to avoid a worst-case Endangered Species Act (ESA)3 enforcement scenario. Biodiversity conservation is often seen as a secondary byproduct rather than the primary objective of these activities. At the present time, U.S. law only imposes a duty on public and private parties to prevent the extinction of a limited number of protected endangered or threatened species4; there is no general public or private duty to conserve biodiversity qua biodiversity. Federal agencies generally have the discretion to conserve biodiversity, although this authority can generally be traded off against more traditional exploitation objectives and is often contested. In the past 10 years, the U.S. government has tried to manage large blocks of public lands on an ecosystem basis and has participated in collaborative stakeholder ecosystem basis restoration experiments. These efforts are extremely fragile because they lack a firm legal foundation, they can be modified in response to changed political conditions, and no clear performance standards exist to measure their success should they endure.

Sustainable Development and Agriculture in the United States

by John H. Davidson


Agriculture in the United States eludes easy categorization and description. The system is diverse in climate, geography, crops, and agronomic practices. For example, it includes the truly vast midwestern dryland grain belt as well as some 46 million acres of land in organized irrigation systems. Because this system is built upon the energies of successive waves of immigration, it also reflects a healthy diversity in its cultural approaches to farm production.

Agriculture has received support of one kind or another from the federal government throughout the nation's history. Land, railroads, farm-to-market transportation, scientific research, technology, education, rural infrastructure, electricity, and irrigation water have been provided. It was the Dust Bowl and economic depression of the 1930s, however, that made the federal government the financial partner of "commodity" agriculture which it is today. A significant part of that pattern of subsidy has been in the form of "conservation" practices. Some of these practices, such as terracing, land retirement, and improved forage crops have made important contributions to protection of the natural and human environment. Others, particularly land drainage, have damaged seriously the natural hydrologic environment.

The Importance of Population Growth to Sustainability

by Anne H. Ehrlich and James Salzman


If one surveys the range of challenges to sustainable development—from poverty, hunger, and desertification to collapsing fisheries and refugees—population growth reappears again and again as a root cause. Indeed, at a fundamental level, these forms of environmental degradation (and others too numerous to mention) cannot meaningfully be addressed without addressing population growth as well. This Article first explains why population growth warrants serious concern, both outside the borders of the United States and within, and then recounts the population commitments the U.S. government agreed to at Rio, Cairo, and Beijing. It then traces U.S. population trends, analyzes population policies over the last decade, and assesses whether these efforts are furthering the goal of sustainable development. While the U.S. government states that it has no population policy, the facts belie this claim. Over the last decade, the nation's population has grown more than over any 10-year period in U.S. history, with significant environmental impacts resulting both at home and abroad. This is due to a number of policies that have demographic effects—ranging from immigration regulations and restrictions on abortions to the tax code and foreign aid. In its preparations for Johannesburg, the government needs to deepen the nation's commitment to recent international agreements on population and development. Equally important, the U.S. government has not engaged in a serious consideration of the nation's carrying capacity and the related issues of resource consumption and development that this entails. Unless we confront these physical facts, and corresponding ethical implications, we cannot and will not establish a meaningful or effective policy for managing population growth in the United States.

Aligning North-South Financial Flows With Sustainable Development: An Unfinished Agenda

by Frances Seymour, Lisa Dreier, Lily Donge

One of the most significant outcomes of the 1992 Earth Summit in Rio de Janeiro was the sobering estimate of the financing needed by developing countries to promote sustainable development and the demand that northern countries dramatically increase concessional financial flows to the South. Agenda 21, the comprehensive plan of action produced by the Earth Summit, estimated that the annual cost of implementation in developing countries would be on the order of $ 600 billion and called for a major increase in official development assistance (ODA), stating that "for developing countries . . . ODA is a main source of external funding."1 However, participants in the United Nations (U.N.) Conference on Environment and Development failed to anticipate the dramatic shift in the landscape of development finance that actually occurred in the 1990s. Instead of significant increases in ODA, it has been private financial flows to developing countries that have boomed in the last decade.

The question to be answered in this Article is: what actions has the U.S. government taken to ensure that these North-South financial flows—particularly those originating in the United States—promote rather than undermine sustainable development? Agenda 21 fails to provide much explicit guidance regarding the goals or policies that developed country governments should undertake to ensure that private North-South financial flows promote sustainable development. Chapter 33 of the Agenda on "Financial Resources and Mechanisms" calls for funding to be provided "in a way that maximizes the availability of new and additional resources and uses all available sources and mechanisms."2 Those specifically mentioned include, among others, multilateral development banks and higher levels of foreign direct investment.3


Regulatory Reform Contracts and Regulatory Reform

by William F. Pedersen


By almost universal consensus, our existing federal systems of environmental and public health regulation are inefficient, incoherent, and slow to adapt to changing times. Our regulatory statutes do not achieve their ends at the lowest economic cost. Indeed, their very structure often prohibits low-cost approaches. They often prescribe in great and binding detail the way an agency must approach a problem, whether or not that approach is the most effective. Such statutes tend to function as piles of unrelated commands, not tied together by any operationally effective common goal. Although we live in an era of rapid change, such statutes will be particularly unable to react to new knowledge and priorities, since that requires substituting new tools for old approaches that have not worked or that have not solved their problems.

This Dialogue argues that a new statute authorizing "regulatory reform contracts" could help cure these problems. That statute would authorize agencies to accept a limited number of offers from the regulated each year to comply with a set of regulatory obligations different from the existing legal requirements, as long as "equal social benefits" would result. The statute would specify the range of obligations that could be traded, e.g., "all pollution control requirements under statutes administered by the U.S. Environmental Protection Agency (EPA)," and, perhaps, set other conditions as well, e.g., forbidding trades that caused violations of air or water quality standards. Since most EPA statutes impose comprehensive planning burdens on states, states would qualify as regulated entities entitled to make contract offers. The statute would also subject all such contracts to public comment and limited judicial review. Any contract that met those conditions would be valid.

This Dialogue is organized as follows. First, it discusses the causes of the statutory defects just outlined, and why current reform suggestions cannot adequately address them. It then argues that "regulatory reform contracts" could address these causes and that the potential objections to their use are largely insubstantial. It concludes by outlining the reformed regulatory system that widespread reliance on reform contracts might produce.

Price-Anderson Act Reauthorization: Due Diligence Is in Order

by Dan Guttman

The Price-Anderson Act (the Act)1 is the legal backbone for the development of civilian nuclear power in the United States, and for the conduct of nuclear weapons complex environmental cleanup. Initially enacted in 1957, and amended since, the Act was intended to limit the accident liability of nongovernmental entities that produce nuclear power and/or work with nuclear materials and provide compensation for injury and damages caused by accidents.2

The Act is scheduled to expire on August 1, 2002, in the absence of congressional reauthorization.3 On the surface, this year's debate over reauthorization might seem another set piece debate between proponents and opponents of nuclear power. Proponents of the Act point out that the Act is essential to the continued operation of the nuclear power plants which provide 20% of the nation's electric power supply and that the total amounts paid out under the Act since the 1950s has been relatively small.4 Opponents argue that the Act is a subsidy that puts the public's thumbs on scale in favor of nuclear power (as opposed to alternatives such as renewable resources) and that, after decades of operation, the industry should be able to sink or swim on its own.

Lost in this debate is the reality that, whether one is, or is not, a proponent of the Act's renewal, developments since the last (1988) reauthorization raise basic questions that beg public and congressional review prior to any reauthorization.

"Pre-Acquisition" Coverage for Environmental Liabilities: An Analysis of the Ongoing Dispute

by Michael C. Ford, John D. Burnside, Janna Groisman

It is now well understood in the legal and business communities that environmental statutes may impose liability on current owners of contaminated property without regard to the fact that the environmental damage may have resulted from activities of prior occupants that predated the current owner's acquisition of the site.1 A business that acquires a contaminated property and consequently inherits such liability may attempt to recover under its occurrence-based comprehensive general liability (CGL) policies that were in effect during the time that pollution occurred but that expired before the insured acquired the property. Such policies are called pre-acquisition policies because the policies expired prior to the policyholder's acquisition of the contaminated site. Until recently, the few reported judicial decisions on point held that pre-acquisition policies did not provide coverage for a policyholder subject to liability for environmental pollution occurring during the effective policy period.2 The U.S. Court of Appeals for the Ninth Circuit, however, dramatically altered the field by issuing K.F. Dairies, Inc. & Affiliates v. Fireman's Fund Insurance Co.,3 which applied California law to decide, in express contravention of California appellate precedent, that the plain language of the CGL policy at issue did not condition coverage on the existence of a connection between the insured and the contaminated property during the policy period.4 Although the California Court of Appeals subsequently issued a decision disagreeing with K.F. Dairies,5 the Supreme Court of Washington later embraced K.F. Dairies, becoming the first state high court to decide the pre-acquisition issue in favor of coverage.6

This Dialogue analyzes the policyholder's pro-coverage arguments and the insurance carrier's typical response to those arguments. The Dialogue first examines pre-acquisition policies generally, focusing on the coverage extended by the plain language of the policies as well as the factors that trigger coverage. The Dialogue then analyzes the arguments carriers have asserted to deny coverage. Lastly, the Dialogue explores the policyholder's arguments for coverage under pre-acquisition policies, paying particular attention to the policy language and to interpreting its arguable ambiguities. Upon weighing both the policyholders' and the carriers' viewpoints, this Dialogue concludes that pre-acquisition policies, by their language and purpose, ought to cover an insured who is liable for environmental harm resulting from occurrences during the policy period.

The Riches of the Desert: Can the Bureau of Land Management Reject a Mining Operation Based on Historic and Cultural Concerns?

by Shaye Diveley

At first glance, the California Desert Conservation Area (CDCA) is a 25-million-acre expanse of sand dunes, brush lands, rock formations, and loneliness and desolation. However, a cursory look at the landscape belies the desert's significant historical, scenic, archeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources" that the U.S. Congress recognized when it dedicated the area in 1976. It is this amalgamation of wonders and riches that makes the CDCA one of the world's unique geographic and natural treasures, and an area ripe for conflict over value judgments and human development.

The range of riches in this region is practically immeasurable. For example, the desert is home to special protection areas for the endangered Coachella Valley fringe-toed lizard and the desert tortoise. Beneath the surface, the area holds archeological and historic remnants of Native American communities and early miners and pioneers. The highly mineralized CDCA is also host to approximately 124 mining operations extracting 34 different mineral commodities, including the country's only workable deposits of borax and rare earth minerals. Adding to the area's $1 billion annual mineral production are high-grade sodium, calcium, gypsum, clay, gold, and geothermal resources. The many visitors to the desert find it ideal for hiking, hunting, camping, and off-highway recreational vehicle driving and racing, making the CDCA one of the nation's most heavily visited recreational areas. These contrasting interests in the desert are showcased in epic battles between those looking to preserve the natural and cultural wonders of the region and those desiring to develop their potential. One such clash concerns the proposed Imperial Gold Mine near El Centro, California. This conflict has three major players—Glamis Gold, Inc., a small mining company headquartered in Reno, Nevada, which wants to develop the gold deposit at the site; the Quechan Indian Tribe, a nearby Native American community which considers the proposed mine site a place of religious significance; and the Bureau of Land Management (BLM), the federal agency charged with administering mining claims on public lands, which wants to know if it has legal authority to deny the mining operation. Added to this mix is former U.S. Department of the Interior (DOI) Solicitor John Leshy's legal opinion, known as the Glamis Directive, purportedly providing the legal authority for BLM to deny the mining operation. Relying on the Glamis Directive, former Secretary of the DOI Bruce Babbitt denied the directive's plan of operations for the mine just days before leaving office in January 2001.

Great Lakes Water Exports and Diversions: Annex 2001 and the Looming Environmental Battle

by Gary Ballesteros

On June 18, 2001, all eight governors of the Great Lakes states and the premiers of the two Canadian provinces bordering the Great Lakes basin gathered at the impressive Prospect Point in Niagara Falls to sign a sweeping joint declaration. Known as "Annex 2001," the document is a supplementary agreement to the Great Lakes Charter of 1985. But unlike the loose and informal charter, Annex 2001 commits this diverse and multipartisan group of political leaders to find a way to collectively manage the Great Lakes basin. These 10 jurisdictions have agreed to bind themselves together, before the year 2004 is finished, in a new water management union and to develop standards that will govern decisions on any requests to ship or divert Great Lakes water elsewhere.

Although the event in Niagara Falls received very little press attention, in many respects it signaled a truly remarkable development. First, it is a rare accomplishment when leaders from three U.S. political parties and two Canadian provinces can all agree on anything. But more than that, the regional nature of Annex 2001 is yet another indication that power is flowing out of Washington, D.C., and into the states. The federal government played virtually no role in developing and negotiating Annex 2001, even though the agreement involves a foreign nation. Instead, nearly the entire drama within the United States has played out in state capitols and in governors' mansions.