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Volume 32, Issue 7 — July 2002


Awkward Evolution: Citizen Enforcement at the North American Environmental Commission

by Paul Stanton Kibel

The Lessons Learned Report: A Time to Reassess

The debate in the early 1990s over the North American Free Trade Agreement (NAFTA)1 was extremely contentious in Canada, Mexico, and the United States. Citizens in all three countries voiced concerns that the proposed NAFTA would hinder and weaken protection of the environment and the rights of workers. More specifically, critics of the proposed agreement highlighted that while NAFTA established new standards and procedures to protect the economic rights of private corporations engaged in North American trade, the agreement did not establish equivalent standards and procedures to ensure that Canada, Mexico, and the United States protected public health, endangered ecosystems and species, and the rights of workers and labor unions.2 Opponents to the proposed NAFTA therefore called for revising the agreement so that the environment and workers were provided with legal protections equivalent to those provided to private corporations.3

In response to mounting political opposition to NAFTA from environmental groups and unions, one of the key pledges of William J. Clinton's 1992 campaign for the U.S. presidency was that he would make environmental and labor issues an integral part of the NAFTA negotiations.4 Clinton won the 1992 U.S. presidential election, and in August 1993, Canada, Mexico, and the United States completed negotiations for two new agreements: the North American Agreement on Environmental Cooperation (NAAEC) and the North American Agreement on Labor Cooperation (NAALC).5 The NAAEC called for the creation of a new institution to be headquartered in Montreal, Quebec—the North American Commission for Environmental Cooperation (CEC). The NAAEC also called for the creation of a new procedure that permitted citizens and groups to file submissions with the CEC regarding the nonenforcement of Canadian, Mexican, and U.S. environmental laws.6 This new procedure can result in the CEC's preparation and publication of a document called a factual record.7

Information, Public Participation, and Justice

by Frances Irwin and Carl Bruch

An informed and active civil society plays an integral role in realizing sustainable development. Involving citizens,1 nongovernmental organizations (NGOs), and businesses expands the knowledge base and resources for developing laws and policies, as well as improving compliance and enforcement. Public involvement can identify problems at an early stage, allowing them to be addressed while options are still open. As a result, transparency and public involvement improve the credibility, effectiveness, and accountability of governmental decisionmaking processes, ultimately resulting in better implementation of sustainable development objectives.

The United States has been an international leader in promoting transparency, participation, and accountability, both generally and in the environmental context. This Article examines the progress that the United States has made, as well as the problems encountered, over the last decade. It examines the international norms and standards for access to information and public participation articulated in Principle 10 of the Rio Declaration and Agenda 21, as well as regional instruments clarifying and implementing these principles. In many cases, the international standards have been inspired by or drawn upon specific U.S. laws and institutions such as environmental impact assessment (EIA) and freedom of information laws. As international standards develop, though, a number of them envisage a broader public role than the U.S. legal system currently allows. Examples include a right of access to information (not just a statutory empowerment), developing and using indicators of sustainable development and environmental governance, mandating state and local authorities to guarantee access to information and public participation, establishing a national entity to provide public leadership on public participation in sustainable development, and ensuring broad access to courts.

The U.S. Performance in Achieving Its 1992 Earth Summit Global Warming Commitments

by Donald A. Brown

Many participants in the global warming debate recounted in this Article appear either to have been unaware of or have chosen to ignore numerous commitments made by the United States pursuant to the 1992 United Nations Framework Convention on Climate Change (UNFCCC or Convention).1 For instance, on numerous occasions members of the U.S. Congress have opposed various global warming program proposals on the basis of alleged scientific uncertainty or the lack of commitment by developing countries to reduce emissions—positions that are arguably inconsistent with the UNFCCC. This unacknowledged relevance of the UNFCCC to U.S. policy on global warming is curious because the United States is a party to it notwithstanding the recent withdrawal from the Kyoto Protocol.

Commitments made by the United States under the UNFCCC included agreements to cooperate with other signatories in a number of specific ways, and promises to reduce U.S. greenhouse gas (GHG) emissions. In addition, the Convention itself includes various provisions which limit the excuses that a signatory might use in ignoring its commitment to address global warming.

Pursuing Sustainable Solid Waste Management

by Marian Chertow

This Article discusses the original goals of Agenda 211 related to achieving "environmentally sound" solid waste management and reviews U.S. activities and policies with regard to solid waste over the last decade. Of greatest interest to the public and the media has been municipal solid waste (MSW)—ordinary household, commercial and institutional garbage or trash. Overall, the record of the United States in achieving sustainable solid waste management, including steady state or decreasing levels of waste generation and disposal, is mixed. On one hand, recycling and composting rates have increased dramatically and the portion of the U.S. population with access to curbside recycling has doubled to over 140 million people, helping to decrease the percentage of MSW that is landfilled. On the other hand, percentages tell only part of the story and mask some unsustainable trends: recent increases in per capita generation and landfill dependence.

The need for consistent data and indicators for solid waste management is highlighted here. Although one might expect quantification in this area, vastly disparate estimates of waste generation are confounding and suggest considerable discrepancies and room for improvement. In the late 1980s, when a disposal crisis seemed imminent, there was tremendous enthusiasm for reduction in waste generation and disposal. Most of today's solid waste policy, including the solid waste management hierarchy, stems from that era. While the ideas are sound, programs and practices clearly need revitalization. The United States must be prepared to address its growing complacency with regard to easy, but unsustainable, waste management "solutions."


Conservative Judicial Activism and the Environment: An Assessment of the Threat

by Douglas T. Kendall, Timothy J. Dowling, Sharon Buccino and Elaine Weiss


Our nation's environmental protections constitute one of this country's most significant accomplishments of the second half of the 20th century. Through years of effort, visionary leaders and environmental activists have successfully translated public support for protecting natural resources—our air, water, and land—into effective and far-reaching legislation. Enjoying widespread popular support and bipartisan endorsement in the U.S. Congress, these statutes have been strengthened in both Republican and Democratic administrations, and they have survived repeated, industry-funded rollback attempts.

These protections now face a serious challenge in an unlikely venue: our nation's federal courts. A group of highly ideological and activist sitting judges are already threatening the very core of environmental law. New appointees to the bench could transform this threat into a death sentence for many environmental protections. In the last decade, judges have imposed a gauntlet of new hurdles in the path of environmental regulators, slammed the courthouse doors in the face of citizens seeking to protect the environment, and sketched the outline of a jurisprudence of "economic liberties" under the Takings Clause1 and the U.S. Commerce2 Clause of the U.S. Constitution that would frustrate or repeal most federal environmental statutes.

Seeking Prudent Policy in the Face of Uncertainty: Observations on an AALS Discussion of Global Climate Change

by Joel A. Mintz

On January 5, 2002, the fourth day of the 102d annual meeting of the Association of American Law Schools (AALS) in New Orleans, Louisiana, the section on environmental law sponsored a well-attended, provocative panel discussion entitled "Global Climate Change Policy and Perspectives." The session was moderated by Prof. Mark Squillace of the University of Wyoming Law School. Participants included Haroon S. Khesgi, the global climate change science program leader for Mobil Exxon Research and Engineering Company, and a principal author of the first volume of the recently published Third Assessment Report of the Intergovernmental Panel on Climate Change (IPCC)1; Vicki Arroyo Cochran, the director of Policy Analysis of the Pew Center on Global Climate Change; Alberto Szekely, ambassador/advisor to the government of Mexico; and Daniel M. Bodansky, a law professor at the University of Washington and (from August 1999 to June 2001) the climate change coordinator at the U.S. Department of State (State Department). Several environmental law professors attending the discussion also volunteered lively and interesting comments and questions.

This Dialogue is intended both to summarize and to comment upon the remarks of the participants in this panel discussion. In particular, I will recount and assay their observations in two distinct areas: the current state of scientific knowledge concerning the causes, extent and impacts of global climate change, and the political responses that the United States and the international community have made and should make to the global climate change.

Smart Growth or Dumb Bureaucracy?

by Timothy S. Bishop & Cristina Tilley

In the west Chicago suburb of Sugar Grove—population 4,000, twice what it was 10 years ago—new large-lot developments spread spider-like from the downtown public library, police station, and village hall out into open farmland. The village has no sizeable employers or large shopping centers, and has limited recreational facilities. All those things are available close by in other suburbs and, of course, in the city of Chicago. After elementary school, children travel to neighboring suburbs for high school. When developers come calling with high-density projects and in-fill proposals, they are sent packing. The village administration explains that people who want to live in a town with greater density and with every service right at hand have their choice of numerous other suburbs. Those who choose to live in Sugar Grove do so because they want large lots and plenty of open space and are willing to travel to their jobs and to shopping in order to live in that sort of environment. The village has identified its niche, markets to that niche, and vows to resist the pressure for different types of development that would change its character.

Twenty-five miles to the East is Chicago. Like other northern, deindustrialized cities, Chicago seemed for a long time to be caught in a downward vortex to disaster. Crime, deteriorating public schools, a dilapidated infrastructure, unpleasant and outdated public transportation, and the expense and myriad hardships of living sent families in droves to the suburbs. The city was gradually depopulated of its middle classes, being left to the poor—many of them warehoused in huge and hugely depressing public housing complexes such as Cabrini Green—and the very wealthy, who had the resources to overcome Chicago's inhospitable conditions.

Beyond Section 404: Corps Permitting and the National Environmental Policy Act

by Timothy J. Hagerty

Wetlands permitting under § 404 of the Clean Water Act (CWA)1 presents many complex and challenging issues, ranging from the extent of the federal government's jurisdiction over potential "waters of the United States," to controversies over the definition of "dredge" and "fill" activities, to appropriate forms and amounts of mitigation for wetlands impacts. Additionally, beyond § 404 itself, numerous other federal, state, and local requirements complicate the § 404 permitting process, making even the most simple permitting action a time-consuming and potentially controversial affair. One of the important federal statutes that is implicated to some extent in every § 404 permitting action is the National Environmental Policy Act (NEPA). This Dialogue examines some of the issues that have arisen over the years in the intersection between § 404 and NEPA.

The first section of this Dialogue presents a brief overview of NEPA and the environmental impact statement (EIS) preparation process. The next section then examines the application of NEPA in the § 404 permitting context, focusing particularly on the continuing controversy surrounding the U.S. Army Corps of Engineers' (Corps') "scope of analysis" under NEPA for § 404 permitting actions. This section particularly examines a handful of recent cases that demonstrate that this area of law is far from settled and will continue to pose difficult challenges for § 404 practitioners. The following section briefly examines a handful of additional issues that arise in the NEPA/§ 404 nexus, including the definition of project purpose, substantive versus procedural requirements, NEPA/§ 404 process integration, and the analysis of environmental effects under both statutes.