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Volume 32, Issue 6 — June 2002

Articles

Learning From the President's Council on Sustainable Development: The Need for a Real National Strategy

by John C. Dernbach

"Sustainable development begins at home."1 —Paula J. Dobriansky, U.S. Undersecretary of State for Global Affairs, to U.N. Economic Commission for Europe Regional Ministerial Meeting for the World Summit on Sustainable Development, Sept. 24, 2001

Sustainable development can be understood not as a new issue but as a new way of looking at all issues.2 The name of the 1992 conference at which nations first endorsed sustainable development—the United Nations Conference on Environment and Development (UNCED)—indicates that the point of sustainable development is to integrate environment and development concerns. At UNCED, which was also known as the Earth Summit, countries specifically endorsed the principle of integrated decisionmaking—ensuring that the environment is considered and protected in all decisions.3 This principle has profound consequences for national governance, because it suggests the need for a coherent across-the-board approach to environmental matters. Indeed, when the world's nation's met in 1997 for a five-year review of progress toward sustainable development since the Earth Summit, they agreed to have national sustainable development strategies in place by 2002.4

International Assistance, Sustainable Development, and the War on Terrorism

by Royal C. Gardner

There can be no greater error than to expect, or calculate upon, real favors from nation to nation.1

As the United States embarks on a war against terrorism, it is instructive to recall George Washington's 1796 farewell address warning. Nations will act only in their perceived self-interests. Assistance from other countries comes with a cost. Note, for example, the U.S. restructuring of Pakistan's $ 379 million bilateral debt to reward its cooperation in the fight against the Taliban and the al Qaeda terrorist network.2

U.S. international assistance, like that of other countries, typically promotes strategic and national security objectives. Thus, with the end of the cold war, it was not surprising to see U.S. international assistance decline. With the beginning of a war on terrorism, we can expect to see a rise in foreign assistance.

The Roads More Traveled: Sustainable Transportation in America--Or Not?

by F. Kaid Benfield & Michael Replogle

The Challenge Before Us

There can be no sustainable development without sustainable transportation. It is an essential component not only because transportation is a prerequisite to development in general but also because transportation, especially our use of motorized vehicles, contributes substantially to a wide range of environmental problems, including energy waste, global warming, degradation of air and water, noise, ecosystem loss and fragmentation, and desecration of the landscape. Our nation's environmental quality will be sustainable only if we pursue transportation in a sustainable way.

It will be a challenge to bring this about. Over the next 25 years, the population in the United States is predicted to grow by some 60 million people; the gross domestic product is projected to approach $ 30 trillion (a 50% increase in real terms over today's levels); and annual passenger miles traveled in motor vehicles are expected to increase from 5 trillion miles in 2000 to 8.4 trillion miles in 2025. As the population and economy grow, Americans are likely to become increasingly more mobile, with increasingly larger impacts on the environment.1

Local Sustainability Efforts in the United States: The Progress Since Rio

by Jonathan D. Weiss

I. Introduction

If we want to think about changes in local sustainability over the last 10 years, perhaps the best place to start is with Al Gore. In 1992, just before the Rio Earth Summit and before he was to be tapped as a vice presidential candidate, then-Senator Gore published a treatise on the environment called Earth in the Balance.1 The book was rightfully hailed as a work of "statesmanship, evangelism, and scientific exposition."2 While visionary in its scope and prescient in its analysis of such issues as global warming and energy alternatives, the book failed to mention the words "brownfields," "sustainable communities," "livable communities," "new urbanism," or "smart growth." In short, it failed to mention what would become a national movement since the 1992 Earth Summit.

What a difference 10 years makes! Al Gore would end up championing "livable communities" as a part of his domestic agenda as vice president and later as a plank in his 2000 presidential campaign.3 The Republican presidential candidate, George W. Bush, also claimed brownfields redevelopment as an important priority and vowed that we need "smart growth."4 The word "brownfields" was not even in the dictionary in 1992; it achieved that honor in 1999.5 The term "smart growth" did not exist in 1992. It is now arguably a movement.

Dialogue

Voluntary Disclosure of Environmental Violations: Is Mea Culpa a Good Idea or a Bad Move?

by Channing J. Martin

You are in your office one afternoon when the phone rings. It's the vice president of environmental affairs for one of your clients. He tells you the company just discovered a major violation of an environmental law. The good news is that it has been corrected. "Do we have to report it?," he asks. Your quick review of the law and regulations shows there is no requirement to report. "O.K.," he says, "but should we report it anyway?"

Welcome to The Twilight Zone of environmental law, a dimension where there are no easy answers. Deciding whether to report when there is no obligation to do so is not just a legal decision; it also involves considerations of corporate philosophy and ethics. Some clients may decide to report all major violations regardless of a legal requirement to do so. In that situation, your job is relatively straightforward: find the best way to disclose the violation with the least onerous consequences. The question is no longer whether to report, but how to do it.

Patently Erroneous: How the Supreme Court's Decision in Farm Advantage Ignores Congress and Threatens the Future of the American Farmer

by Joseph Mendelson III

Over 200 years ago, Thomas Jefferson introduced America's first Patent Act.1 The Act introduced the use of intellectual property rights to foster and reward human creativity. However, Jefferson and the Act's other authors were conscious that unchecked extension of these new rights could also harm society by unduly restricting the spread and use of new inventions. Accordingly, they placed limits upon what subject matter could be patented. Jefferson's attention to this matter is exemplified by his action concerning the extension of patentability over products of nature. While aware of the enormous value of new plant varieties to society, Jefferson also understood the legal and scientific bars to patenting these products of nature.2 To that end, the president consciously excluded the patenting of plants from the Act's subject matter. However, the expansion of patent rights over the last 20 years, has overwhelmed specific limitations placed upon patent rights and ushered in a era where living organisms, including plants, have become patentable subject matter.

Despite Jefferson's original intent, since the mid-1980s seed and chemical companies have expanded the use of patent rights over sexually reproducing plants, i.e., seeds, as means of recouping research and development investments and to consolidate control over seed markets. Spurred on by an internal 1985 U.S. Patent and Trademark Office (PTO) decision, corporate use of patents over sexually reproducing plants was sanctioned and has expanded rapidly.3 This expansion of intellectual property rights now sits at the financial heart of the development and commercialization of new genetically engineered plant varieties.

Jogging in Place: The Bush Administration's Freshman Year Environmental Record

by Thomas O. McGarity

Introduction

The laws of the United States that George W. Bush agreed on January 20, 2001, to see faithfully executed included the environmental laws. Although the record of Governor Bush offered very little evidence to suggest that faithful execution of the environmental laws would be a high priority for President Bush, many statements of candidate Bush uttered in the heat of a closely contested election campaign led optimists to conclude that the next Bush Administration would be at least as "environment friendly" as that of President George H.W. Bush. As the Administration moves halfway through its second year, however, a more pessimistic view seemsappropriate. Although it is difficult to fault the new Administration for not doing more to protect the environment during a year in which terrorism dominated the domestic and the foreign policy agenda, the Administration sent out powerful signals prior to September 11 that it did not have a proactive environmental agenda in mind and that environmental preservation and enhancement play second fiddle to energy development and economic growth. Important Administration initiatives undertaken recently strongly indicate that the Bush Administration may be implementing an environmental agenda that is more reminiscent of the Reagan Administration than the more environmentally benign Administration of his father.

While events unrelated to the environment ensured that the Administration's first year would be an unforgettable one, at least six important themes are discernable in its nascent efforts to implement the nation's environmental laws. After an initial period of preoccupation with what turned out to be a fairly small number of "midnight regulations" left in the wake of the Clinton Administration, the Bush Administration turned to its own agenda. It soon became clear that the Administration was an ambivalent steward of common resources and a reluctant regulator of private polluting activities. It ensured that the environmental agencies would not get too aggressive by assigning a tighter oversight role to the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) and by allowing states greater flexibility in managing delegated environmental programs. All of this occurred under a curtain of greater governmental secrecy that dropped soon after September 11. This Dialogue will examine these themes in a broader effort to place the Bush Administration's freshman year environmental record in historical perspective.

Draft Guidance on the Appropriate Use of Rules Versus Guidance

by James W. Conrad, Jr.

Trade associations and other representatives of regulated entities frequently decry federal agencies' use of guidance documents and the like in lieu of notice-and-comment rulemaking.2 The U.S. Congress has denounced such "back-door regulation,"3 and even public interest groups and individuals will sue over "de facto" or "spurious" rules when it suits their purposes.4

However—in my organization, at least—whenever we have collected examples of agency use of guidance documents, we have found as many cases where we supported the use of guidance as where we opposed it. Drawing from that experience, this Dialogue attempts to articulate a set of considerations that might help federal agencies decide whether to proceed by regulation or guidance.