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Issue

Volume 33, Issue 4 — April 2003

Articles

The Future of the Animal Rights Movement: Environmental Conflict, Artificial Intelligence, and Beyond

by Jon Owens

I. Introduction

The fate of humans has been intertwined with the fate of other animals since human ancestors scavenged the carcasses of non-human animals, nearly six million years ago. Feeding upon the meat of other animals gave these early humans a boost of protein, providing their brains with extra energy for higher level thinking. Thus began the rise of humanity and the flourishing of Homo sapiens.

The modern animal rights movement has made some gains in convincing humans that non-human animals are more than mere tools. They have convinced some humans that other animals' interests deserve at least some consideration. They have proven the strong intellectual, emotional, and linguistic similarities between humans and other higher level life-forms such as apes and whales. But the modest successes of the animal rights movement may soon be undone by recent advances in biotechnology and genetic engineering. The new technology will provide inventors with the opportunity to create nonsentient animals, lacking the ability to feel pain. Such inventions will mute the concerns of animal rights activists, to say the least.

But on the verge of awakening is the newest high-level life-forms, created from artificial intelligence (A.I.). Animal rights activists should take part in a crusade to define who controls and defines what these new animals will be. As A.I. could be the most powerful force able to affect the planet, environmentalists should argue for their concerns to be integrated into the values of this new species.

Environmental Law Enforcement and the Restoration of Contaminated Sites in Japan

by Yasushi Tsuchiya

Like other developed countries, Japan faces a serious soil contamination problem. Much of Japan's legal history, however, has failed to address the serious issue of soil contamination because Japanese environmental law focuses on human compensatory damages, injunctive relief, and environmental regulations to prevent further pollution. Unlike flow pollution,1 which can be lessened when the source of that pollution is regulated, the damage from soil contamination is accumulative and infringes upon the human environment unless and until it is completely eliminated. In addition, most contaminated sources are created by past activities, and most of the responsible parties are out of business or have no ability to pay damages. Therefore, it is often useless to order an expensive restoration action. Due to the different nature of contamination, many deficiencies exist in the law and governmental structure. Soil contamination has long been regulated through the control of air and water. In addition, as long as harm from toxic substances does not migrate to another's property, landowners cannot be ordered to take appropriate measures under Japanese law.

First, this Article briefly discusses the background and development of Japanese environmental law. Second, the Article explains the present state of soil contamination in Japan. Third, deficiencies in Japan's handling of soil contamination problems are considered. And lastly, using U.S. environmental law history as a reference, the Article suggests means to improve environmental enforcement in Japan.

The Reverse Science Charade

by James W. Conrad

One of the most significant law review articles of the past decade in the area of environmental regulation is Wendy Wagner's "The Science Charade in Toxic Risk Reduction."1 The gist of the article is quite simple: "Agencies exaggerate the contributions made by science in setting toxic standards in order to avoid accountability for the underlying policy decisions."2 The article amply documents the existence of the phenomenon in compelling fashion. Besides being simple to grasp and fundamentally correct in many cases, the article's thesis seems not to have been articulated previously. Thus, the "science charade" concept has now found a currency in the field that rivals only Don Elliott's coining of the phrase "ossification" to describe how the proliferation of procedural requirements and judicial review have combined to rigidify and slow the rulemaking process.3 (As we'll see, these two concepts are related.)4

While there should be no dispute that the science charade as Wagner describes it has been pervasive and problematic, the novelty and catchiness of the phrase may be contributing to another, equally troublesome phenomenon: the "reverse science charade." This problem consists of agencies (or others) exaggerating the limitations of science, and risk analysis, in order to justify regulation on the basis of policy choices—choices that are commonly embodied in default assumptions and safety factors.

After briefly recapping the original concept of the science charade, this Article describes several examples of the reverse science charade in the environmental literature and in U.S. Environmental Protection Agency (EPA) practice. The Article then explains why the reverse science charade is problematic for public policy generally and risk analysis in particular. I also argue that it undercuts itself. Finally, I discuss how Justice Stephen Breyer's concurrence in Whitman v. American Trucking Ass'n5 may be a harbinger of bad news for proponents of the reverse science charade.

Choking Slowly: Is Managing (or Smart) Growth Just Planning a Slow(er) Demise (and if It Is, Is There an Alternative)?

by Lee R. Epstein

Given the steady march of adverse environmental impacts and inimical socioeconomic and community change at the local level in many metropolitan areas—due in part to haphazard growth—this Article identifies and examines a significant concern with how we have tried to manage sprawl into the rural parts of regions. Planners' heavy reliance upon programs and policies that are time-limited or mostly serve to pace growth may merely delay an inevitable environmental and economic decline. This Article analyzes the legal possibilities of stronger, more definitive policies. It then proposes an approach that combines several mechanisms that might, acting together, help avoid the pitfalls of relying chiefly upon temporal urban containment tools.

Unnecessarily Hesitant Good Samaritans: Conducting Voluntary Cleanups of Inactive and Abandoned Mines Without Incurring Liability

by Sean T. McAllister

Until the 1970s, federal and state laws did little to control the harmful water quality impacts of mining exploration, and mine wastes were regularly deposited wherever was convenient, including directly into streams. As a result, one enduring legacy of the boom and bust mining cycles in the United States from the mid-1800s to 1970 is widespread and unmitigated water pollution from inactive or abandoned mines. Uncontrolled pollution from inactive or abandoned mines contributes to the degradation of water quality in over 12,000 miles of rivers and streams in the United States and 180,000 acres of lakes and reservoirs.

Inactive or abandoned mines create water pollution when sulfur-laden mine waste rock or tailings piles mix with precipitation or surface water runoff. The mixture of sulfur-laden mine waste rock, water, and air creates sulfuric acid. The sulfuric acid from mine waste rock causes heavy metals in these rocks, such as zinc, cadmium, magnesium, and aluminum, to mobilize and leach into hydrologically connected waterways. This pollution is commonly referred to as acid-rock drainage or acid-mine drainage (AMD). Individual inactive or abandoned mine sites can disrupt ecosystems and threaten human health through contamination of drinking water supplies for thousands of years if left unremediated. In addition, the AMD creates acidic, or low hydrogenion concentration (pH), conditions in receiving streams.