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Volume 33, Issue 1 — January 2003


Progress Toward Sustainability in Higher Education

by Wynn Calder and Richard M. Clugston

When society recognizes a need that can be satisfied through advanced education or research and when sufficient funds are available to pay the cost, American universities respond in exemplary fashion. . . . On the other hand, when social needs are not clearly recognized and backed by adequate financial support, higher education has often failed to respond as effectively as it might, even to some of the most important challenges facing America . . . . After a major social problem has been recognized, universities will usually continue to respond weakly unless outside support is available and the subjects involved command prestige in academic circles.1

—former Harvard University president Derek Bok

Sustainable development remains barely recognized as a significant social, economic, or environmental challenge for the United States. The President's Council on Sustainable Development (PCSD)2 was disbanded in May 1999, based in part on the perception of Vice President Albert Gore's campaign that sustainability was not an issue for the American electorate. Little funding from either governments or foundations supports higher education initiatives to promote sustainable development, and only a few disciplines are beginning to afford a measure of legitimacy to teaching, research, and outreach in this area. Hopeful signs are emerging, but education for sustainable development in America is still at the margins.

The seeds of the movement to green higher education in the United States go back to the emergence of environmental concerns in the late 1960s and early 1970s. The first Earth Day in 1970 was a student-based effort. Internationally, the Stockholm Declaration of 19723 related environmental concerns to all societal sectors, including education. Only after the 1992 Rio Earth Summit4 did the term education for sustainable development (also "education for sustainability") enter the vocabulary of educational reformers. While the movement continues to draw on an environmental foundation, concerns have broadened to include the social and economic dimensions of sustainability.

The New Agrarianism: Land, Culture, and Community of Life

by Eric T. Freyfogle

With no fanfare, and indeed with hardly much public notice, agrarianism is again on the rise. In small corners and pockets, in ways for the most part unobtrusive, people are reinvigorating their ties to the land, both in their practical modes of living and in the ways that they think about themselves, their communities, and the good life. Agrarianism, broadly conceived, reaches beyond food production and rural living to include a wide constellation of ideas, loyalties, sentiments, and hopes. It is a temperament and a moral orientation as well as a suite of economic practices, all arising out of the insistent truth that people everywhere are part of the land community, just as dependent as other life on the land's fertility and just as shaped by its mysteries and possibilities. Agrarian comes from the Latin word, agrarius—"pertaining to land"—and it is the land, as place, home, and living community, that anchors the agrarian scale of values.

For contemporary adherents, in cities, suburbs, and rural areas alike, agrarian traditions and ways have supplied a diverse set of cultural tools to use in fashioning more satisfying and durable modes of life. And today's agrarians are making extensive use of those tools, to strengthen families and local communities, to shape penetrating critiques of modern culture, and in varied ways and settings to mold their lives to their chosen natural homes.

Judicial Review and Environmental Analysis Under NEPA: "Timing Is Everything"

by Suzanne O. Snowden

The timing of environmental analysis and judicial review presents critical issues of interpretation under the National Environmental Policy Act (NEPA). Courts must be able to review an agency's compliance with NEPA before the agency makes major decisions, and before it invests significant resources that can compromise environmental review. Agencies must not be allowed to delay environmental review just because necessary data and research are difficult to obtain, or environmental impacts are uncertain. This Article discusses how the courts have handled these timing problems.

3M and the Withdrawal of PFOS: TSCA, Product Liability, and the Precautionary Principle

by Chris Higgins

On May 16, 2000, Minnesota Mining and Manufacturing (3M) Company announced its intention to voluntarily phase out its perfluorooctane sulfonate (PFOS)-based line of products from the global chemical market.1 This announcement surprised many in the industry, as 3M had manufactured PFOS-based products such as Scotchgard TM for nearly 40 years.2 In its press release, 3M executives indicated their decision was based on their pursuit of responsible environmental management.3 However, while the scientific information available at the time of 3M's decision certainly indicated the potential for adverse long-term environmental effects due to these chemicals, the evidence was much less damaging than one might expect for it to lead to a decision affecting $ 320 million (roughly 2%) of the company's annual sales.4

This Article explores the potential factors that may have contributed to 3M's decision to withdraw PFOS from the global market. Such factors may have included regulatory pressure from the U.S. Environmental Protection Agency (EPA), concerns over long-term liability, and the company's desire to maintain a positive public environmental image through its adoption of the precautionary principle. This analysis will demonstrate that 3M's apparent commitment to responsible environmental management was the major factor leading to its decision, though potential liability issues may have played a minor role. While it may ultimately be impossible to determine the exact relative importance of these various factors, an investigation into these factors is warranted if one desires to encourage such behavior by other chemical manufacturers in the future.

Genomics and Toxic Sustances: Part I--Toxicogenomics

by Gary E. Marchant

Advances in genomics, the study of the structure and function of our genetic make-up, are fundamentally transforming toxicology, the science of how toxic substances affect our bodies. These changes will inevitably spill over into the legal regimes that frequently rely on toxicological data, including toxic torts and environmental regulation.1 Genomic data, and the techniques with which they are generated, have the potential to make toxic torts and environmental regulation more effective, efficient, and fair, but at the same time will present many new doctrinal, evidentiary, and ethical challenges.

Two key applications of genomic data for toxic torts and environmental regulation are2: (i) the study of the expression of genes in cells or tissues in response to exposure to a toxicant, known as toxicogenomics; and (ii) the identification of genetic variations affecting susceptibility to toxic agents, sometimes referred to as toxicogenetics.3 This Article will address the application of toxicogenomics to toxic torts and environmental regulation; a subsequent companion article will address toxicogenetic applications. After first describing the scientific background of toxicogenomics, this Article explores some potential uses of toxicogenomic data in regulation and litigation involving toxic substances.

Does Emissions Trading Encourage Innovation?

by David M. Driesen

Proponents of "economic incentives" frequently state that emissions trading promotes technological innovation.1 Emissions trading programs authorize polluters to meet pollution reduction obligations by purchasing extra reductions from polluters reducing their emissions below applicable limits. This Article examines the claim that this trading of compliance obligations fosters innovation. This claim relies upon an error in economic theory,2 which many economists and lawyers have repeated,3 and on insufficiently analyzed, incomplete anecdotal observation.4 There are solid reasons to suspect that an emissions trading program does a poorer job of stimulating innovation than a comparably designed traditional regulation.5

In theory, government can require all polluters to purchase allowances from a limited supply at an auction.6 Whether or not polluters can trade allowances, this requirement that all polluters purchase allowances for each ton of pollution can create incentives to innovate and reduce pollution. This Article, however, focuses on emissions trading programs that give away limited allowances for free, and then authorize trades to redistribute them. I choose this approach because all existing U.S. pollution trading programs give away, rather than sell, the overwhelming majority of allowances,7 and because this focus sharpens analysis of trading's effect on innovation.

Planning Is Essential: A Reply to Bishop and Tilley

by Dwight H. Merriam

Timothy S. Bishop and Cristina C. Tilley, litigators in the Chicago office of Mayer, Brown, Rowe & Maw, offered up a Dialogue in the July 2002, issue of the Environmental Law Reporter News & Analysis entitled Smart Growth or Dumb Bureaucracy? They didn't cite the Article I wrote with my law partner of 25 years, Gurdon H. (Don) Buck, Smart Growth, Dumb Takings, which was also published in this august periodical. I don't think we own the form of the title beginning with "Smart" and linked to "Dumb," but it would have been nice to have been recognized. Even better, it would have been nice had they acknowledged, rather than dismissed, the efficacy of good planning inherent in the smart growth movement—even though any right-thinking (that is, correct-thinking) person will be quick to point out that smart growth has its shortcomings and is often the stalking horse for other agendas. In our Article, we discuss the smart growth movement and explain how one can have smart growth and respect private property rights at the same time.

Bishop and Tilley lay waste not to smart growth alone, but land use planning generally. If I can summarize what they had to say—it should be easy because they have but a single and simplistic premise—the city of Chicago and its suburb of Sugar Grove are both pretty nice places because they know what they want to be and they have good leadership. Chicago has done well because of its mayor, Richard M. Daley (D), and Sugar Grove has done equally well on its own, because it uses large-lot zoning to attract families who like to live in such places instead of Chicago.

Sustainable Production and Consumption of Energy: Developments Since the 1992 Rio Summit

by Lynn Price & Mark Levine


Energy is a fundamental component of myriad services and benefits to humanity in pursuit of a healthy and productive life, including production of food and other essential goods; provision of buildings for housing, education, health care, and commerce; and provision of transportation for goods and people. However, production and consumption of fossil fuel-based energy, which accounts for approximately 85% of total energy consumption in the United States1 can also result in scarring or pollution of the environment during extraction of the fuels and contributes to local air pollution and smog formation, regional acid rain production, and global warming as the fuels are burned. Further, continued large-scale consumption of nonrenewable energy sources will eventually lead to depletion of these resources and future generations will need to rely on alternative sources of energy. Thus, the significant characteristics of sustainable development for the energy sector include more efficient use of nonrenewable fossil fuel-based energy resources, development of technologies to significantly reduce local and global pollutants from fossil fuels, and increased development and use of renewable energy resources.

This Article looks at the characteristics of sustainable development vis-a-vis energy consumption and production, reviews the laws and policies enacted in the United States that could contribute to more sustainable energy consumption and production, and evaluates actual achievements in three areas that measure sustainability of energy consumption and production. We find that although there are many guiding principles relevant to energy sustainability and there have been numerous energy-related laws and policies enacted both prior to and after the 1992 Rio Declaration on Environment and Development,2 growth in fossil fuel-based energy use as well as in energy-related greenhouse gas (GHG) emissions was more rapid—and thus less sustainable—in the eight years after 1992 than in the two decades prior to Rio. We recommend a comprehensive package of policies and measures that includes carbon fees, increased research and development (R&D), expanded efficiency standards, building codes, tax credits for energy efficiency and renewable energy investments, expanded government procurement programs, negotiated agreements with industries to improve energy intensity of manufacturing, increased information dissemination, promotion of combined heat and power, increased fuel efficiency standards for vehicles, etc. A recent study that analyzed the combined impact of this comprehensive package found that, if very aggressive policies were introduced in all sectors and significant research and development breakthroughs occurred in the transportation sector, it might be possible to reduce energy-related carbon dioxide (CO2) emissions to 1990 levels by 2020.