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Volume 33, Issue 11 — November 2003


A Crisis of Pessimism

by Jack M. Hollander

Can you remember a day when you opened your morning newspaper without finding a dramatic and disturbing story about some environmental crisis that's either here already or lurks just around the corner? That would be a rare day. On one day the story may be about global warming, on the next it may be about overpopulation, or air pollution, or resource depletion, or species extinction, or sea-level rise, or nuclear waste, or toxic substances in our food and water. Especially jarring is the implication in most of these stories that you and I are the enemy—that our affluent life styles are chiefly responsible for upsetting nature's balance, polluting our cities, skies, and oceans, and squandering the natural resources that sustain us. Unless we change our thoughtless and wasteful ways, we are reminded, the earth will become a very inhospitable place for ourselves and our progeny.

Such media reportage reflects the pervasive pessimism about the future that has become the hallmark of today's environmental orthodoxy. Its central theme is that the affluent society, by its very nature, is the polluting society—the richer we become, the more we consume the earth's scarce resources, the more we overcrowd the planet, the more we pollute the earth's precious land, air, and water. The clear implication of this viewpoint is that the earth was a better place before humans were around to despoil it.

Ontario and U.S. Safe Drinking Water Acts in Comparison and Contrast: How Ontario Should Regulate for Public Confidence

by Tania Monteiro

In May 2000, in a town of 4,800 people in southern Ontario, 7 people died and more than 2,300 became seriously ill from drinking tap water contaminated with Escherichia coli (e-coli). The loss of life and the staggering degree of illness devastated the small town community. Even today many Walkerton residents continue to suffer adverse health effects while feelings of frustration and insecurity persist. The Walkerton tragedy ultimately unfolded a national debate in Canada on drinking water safety and hastened the Ontario provincial government to establish a public inquiry to investigate the issues.

Appointed as commissioner to the inquiry, Justice Dennis R. O'Connor of the Ontario Court of Appeals was charged with the twin mandates of investigating the causes that led up to the tragic events in Walkerton and of making recommendations to ensure the future safety of drinking water in Ontario. Part One of the inquiry was held in Walkerton to make findings of fact about the specific physical and systemic causes of the tragedy. Over a nine-month period, the commission heard evidence from many witnesses including residents of Walkerton, various special interest groups that were given standing for ongoing participation and, quite dramatically, even from the Premier of Ontario. Justice O'Connor's findings of fact and his 28 recommendations were released on January 18, 2002, in Part One Report of the Walkerton Inquiry, The Events of May 2000 and Related Issues.1 Sadly, provincial government budget reductions and discontinuation of laboratory testing services were held largely to blame for the severity of the Walkerton tragedy.

Reinterpreting Confucianism for Environmental Protection in China

by Christopher S. Van Wyk

I am not one who was born in the possession of knowledge; I am one who is fond of antiquity, and earnest in seeking it there.


The relationship between a group of people and the natural environment surrounding them differs from one culture to the next. On one end of the spectrum are the traditional tribal cultures of Indonesia and Nepal, where "the scale of the harvest or the size of a hunt are always negotiated between the tribal community and that natural world it inhabits"2; at the other are urban cultures where the only remnant of the natural world is a few trees scattered throughout the city and potted plants in homes. At least one scholar has argued that a symbiotic relationship with the natural world is necessary for humans to thrive.3 This Article will compare environmental protection in the United States and China with an eye toward cultural influences. In addition, it discusses some ways to enhance environmentalism in China.

Environmental ethics and a proper relationship to the natural world are increasingly important in China. The nation's environmental problems, like its economy, are growing quickly and have become a global concern.4 Even discounting the global impact of China's environmental problems, they are domestically significant due to the fact that approximately 1.3 billion people reside there.5

Self Regulation--Has Its Time Come?

by Al Iannuzzi

The environmental movement has come a long way since the first half of the 20th century, when such forward thinkers as John Muir and Aldo Leopold helped shape worldwide environmental policy with their articles and books on preservation. Despite their good intentions, rapid industrialization still resulted in a slew of nightmares: Love Canal; Times Beach; the air pollution episodes of the 1960s; and Bhopal, India. But Muir and Leopold would at least take some comfort in the fact that legislators reacted by passing tough regulations like the Clean Air Act (CAA), the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the Resource Conservation and Recovery Act (RCRA).1

Environmental regulation grew exponentially from the first days of the modern environmental movement in the 1970s to the present. At the same time, state and federal enforcement agencies were formed to ensure compliance with the regulations. This type of oversight has resulted in cleaner air, water, and land. For industry, the reality has been coping with volumes of new regulations, which has led to a greening movement of sorts. Many companies have even become proactive, implementing pollution prevention programs and trying to design out hazardous materials from their products and processes. Over time, a once unthinkable thing has occurred: environmental groups, once traditional adversaries with industry, have in some instances chosen to partner with companies.

Use of Human Subjects Data for Regulating Chemical Exposures

by Gail Charnley and Jacqueline Patterson

On December 14, 2001, the U.S. Environmental Protection Agency (EPA) issued a press release establishing an "interim" human testing policy for pesticides that suspended EPA's long-established policy of using human testing data to establish pesticide tolerances or to determine other human health-protective limits on chemical exposures. The policy was restricted to the results of studies using human subjects sponsored by private companies (so-called third-party studies). That press release signaled a departure from previous EPA policy on human testing as indicated by two 1998 statements issued by the EPA Office of Prevention, Pesticides, and Toxic Substances, one of which states that the protection of public health from adverse effects of pesticides can be achieved through reliance on animal testing and the use of the highest ethical standards. The other is an internal memorandum indicating that EPA will not consider a human study unless it meets the highest ethical standards (without specifying what those standards should be). Prior EPA policies and guidance for the protection of public health encouraged the use of human data, giving such data priority over all other types of toxicity testing data, without addressing specifically the issue of ethical conduct. For example, EPA's guidelines for developmental toxicity risk assessment state: "Human data are preferred for risk assessment." Between January and October 1998, EPA itself conducted or supported 43 research projects involving human subjects and chemical exposures.

EPA's policy suspending consideration of data from third-party studies using human subjects resulted from several concerns. One concern is that using human data as the basis for pesticide tolerances would lead to less stringent tolerances, placing public health at risk. Another concern is that using human data is inconsistent with the protection of children's health through the additional safety factor required for tolerance-setting by the Food Quality Protection Act (FQPA). A third concern is that clinical studies conducted by contract laboratories on behalf of pesticide manufacturers (or other private companies) do not adhere to the ethical standards for the protection of human subjects that were established by the Federal Policy for the Protection of Human Subjects, generally known as the Common Rule. A final concern is that intentionally exposing human subjects to chemicals is unethical, even if the goal of doing so is public health protection.

Control of Nonpoint Pollution Through Citizen Enforcement of Unpermitted Stormwater Discharges: A Proposal for Bottom-Up Litigation

by John M. Carter II

This Article investigates the murky regulatory world of stormwater pollution. Nonpoint source pollution has been described as the most significant water quality problem facing the United States. It is generally not subject to the primary enforcement mechanisms of the Clean Water Act (CWA). Stormwater is where the CWA's primary enforcement mechanisms, usually reserved for point sources, intersect with nonpoint pollution. Effective regulation of stormwater could go far toward controlling nonpoint sources of water pollution. However, the U.S. Environmental Protection Agency's (EPA's) approach to stormwater regulation has stopped short of effectiveness, reaching only a narrow albeit significant segment of industrial stormwater dischargers, while attempting to leave the overwhelming majority of dischargers discretionarily exempt from the CWA. The bulk or balance of stormwater discharges that EPA has chosen not to regulate are the focus of this Article.

If EPA's determination not to regulate these sources of stormwater is allowed to stand, it will, for the first time, allow the Agency to exempt categories of point sources from liability under the CWA. Far from providing effective regulation for the improvement of water quality, EPA's stormwater regulations will allow a significant number of point sources, which have been recognized as a threat to water quality, to discharge pollutants with immunity from both national pollutant discharge elimination system (NPDES) permit requirements and the strict prohibition against unpermitted discharges found in §301(a) of the Act.

Judicial, Administrative, and Congressional Responses to SWANCC

by Lawrence R. Liebesman

In the wake of the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), courts have scrambled to reevaluate the scope and reach of the government's regulatory authority over "navigable waters" pursuant to the Clean Water Act (CWA). A growing majority of courts, especially the U.S. Court of Appeals for the Fourth Circuit, the U.S. Court of Appeals for the Sixth Circuit, the U.S. Court of Appeals for the Seventh Circuit, and the U.S. Court of Appeals for the Ninth Circuit, have read the decision narrowly, interpreting it as merely invalidating a controversial 1986 regulation allowing the U.S. Army Corps of Engineers (the Corps) to assert jurisdiction over isolated wetlands based on their use by migratory birds (the migratory bird rule). These courts hold that SWANCC's reasoning for invalidating the migratory bird rule as an invalid jurisdictional basis centered on the use of isolated waters by migratory birds. Therefore, they read the "significant nexus" language in SWANCC to mean any nexus to "waters of the United States" even if such nexus is based on an indirect hydrologic connection or some other U.S. Commerce Clause connection other than use by migratory birds.

A significant minority of courts, including the U.S. Court of Appeals for the Fifth Circuit, have instead read SWANCC broadly as restricting the authority of the Corps and the U.S. Environmental Protection Agency (EPA) over waters and wetlands that are a significant distance from traditionally navigable waters. These courts read SWANCC as "reining in" the historical expansion of federal jurisdiction since 1972 with the Corps' revisions of its regulations in 1975, 1977, and 1986. They hold that the Corps has expanded its jurisdiction to waters and wetlands a distance from traditionally navigable waters, misconstruing the congressional intent underlying the CWA. These courts generally conclude that while not all regulated waters must be navigable-in-fact, the government must show that a "significant nexus" exists between the waters sought to be regulated and a navigable waterway and that tenuous and indirect linkage is not sufficient to confer CWA jurisdiction.

While the courts have been grappling with SWANCC, the Bush Administration and the U.S. Congress have also "jumped into the fray." In January 2003, the Corps and EPA released a long-awaited guidance memorandum and an advance notice of proposed rulemaking (ANPRM). Congress has also recently begun considering legislation that would "fill the gap" created by the SWANCC decision.