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Volume 33, Issue 6 — June 2003


International Environmental Law: A Global Assessment

by Joseph DiMento

This Article offers a global assessment of the record and promise of international environmental law to the beginning of the millennium. I first present several overall accounts of the contribution of international environmental law. Herein I describe the complexities of undertaking global evaluations. After summarizing the negative and positive evaluations, the Article takes a closer look at five case studies. I then lay out a description of a set of characteristics linked to effective law. Thereafter I look forward, reviewing conditions that are expected in the policy world in which international environmental law evolves. They address the functions of science in the law, the roles of private industry, and perspectives on how to attain desirable international outcomes. I then present a set of recommendations for improving the effectiveness of the law, recognizing the considerable challenges of fostering change in complex systems. Several of these account for changes expected in international policymaking; others I consider necessary independent of anticipated changes.

A Look at EPA Overfiling: Can Harmon and Power Engineering Exist in Harmony?

by Elizabeth A. Clysdale

Federal law divides the responsibility of enforcing federal environmental regulations between federal agencies, typically the U.S. Environmental Protection Agency (EPA), and state agencies.1 Generally, state programs receive formal approval or authorization from EPA to administer the federal environmental program.2 EPA usually combines the delegation of authority to the states with retained enforcement authority for themselves.3

It is this federally retained enforcement authority that causes conflict between the states and EPA, presenting many legal questions when EPA chooses to initiate its own enforcement action.4 This practice of EPA taking enforcement action in a state that is authorized to administer a federal program is known as "overfiling."5 Overfiling by EPA is intended to promote consistent enforcement of federal regulations and protect against inadequate state enforcement actions.6

This Article compares two conflicting cases of EPA overfiling, United States v. Power Engineering Co.7 and Harmon Industries, Inc. v. Browner8 to determine whether (1) the statutory language of the Resource Conservation and Recovery Act (RCRA) and (2) the doctrine of res judicata bar overfiling by EPA.

The Article will first give general background on RCRA.9 Second, the Article discusses overfiling in the context of RCRA.10 It should be noted that this Article is limited to overfiling that occurs in the enforcement of RCRA.11 Third, the Article compares the Harmon and Power Engineering statutory analysis of RCRA.12 The Article then compares the Harmon and Power Engineering analysis of res judicata.13 Lastly, the Article concludes that the language of RCRA and the doctrine of res judicata prevent overfiling only if the state has taken action and federal issues enforced are the same or substantially similar to EPA's interests.14

Establishing a Framework for Environmental Contracts in a Democracy

by Jean O. Melious

To those who have wearied of an environmental regulatory system that manages to combine sluggish bureaucracy with partisan rancor—and the list of the disenchanted appears to include just about everybody involved in the environmental field—contracts may seem to provide an attractive alternative. Because contracts are flexible, collaborative, and enforceable, they offer an opportunity to bypass litigation while addressing the failures of command-and-control regulation. Why, then, are they so little used?

Odd as it may seem in light of the vast quantity of environmental law that engulfs us, the answer may be that, with rare exceptions, the substance of environmental law has not evolved to the point at which contracts can be useful. The paradox of environmental contracts is that they depend for their existence upon the very institutions that they are intended to replace: statutes, regulation, and litigation, which provide the substantive and procedural framework in which contracts can operate effectively. Rather than reducing the need for black-letter law, contracts require explicit statutory authorization and a clearly stated legal purpose in order to function within our system. Standards and explicit authorization are rare, however, in a system built around balancing needs and taking into account the interests of all of the parties. Only to the extent that statutes, regulations, and case law establish clear policy preferences can contracts do what they are supposed to do: allow parties to make beneficial trades, taking into account the interests of all of the parties.

Ecological Restoration and the Public Lands: Toward A More Natural Order

by Robert B. Keiter

"The task . . . is to become a co-worker with nature in the reconstruction of the damaged fabric . . . ."

—William Perkins Marsh (1864)

"This is a day of redemption and of hope. It's a day when the limits of what is possible have been greatly expanded because we are showing our children that restoration is possible, that we can restore a community to its natural state."

—Secretary of the Interior Bruce Babbitt (1995)

Less than 200 years ago, when the Lewis and Clark Expedition traversed the American West en route to the Pacific Ocean, it encountered a largely untouched and still primitive landscape. Millions of bison criss-crossed the Great Plains, grizzly bears roamed the region, salmon choked many of the rivers, and fires routinely burned the prairies and forests. The region's native ecosystems, having evolved over the millennia, were shaped primarily by natural disturbance regimes. To be sure, the region's native inhabitants had a hand in the process, setting fires, taking wildlife, and even building modest dams, but these impacts had not unraveled historic evolutionary patterns. By the mid-20th century, however, that same western landscape looked quite different. European settlement and the persistent onslaught of modern civilization had markedly altered ecological patterns: cattle had replaced bison on the plains, only a few remnant grizzly bears remained, annual salmon runs were in decline, and fires were regularly suppressed with ruthless efficiency. Intent on making the landscape safe and productive, we eliminated entire species and disrupted natural processes on a hitherto unprecedented scale. Ecological simplification was the order of the day.

With the advent of the 21st century, serious efforts are underway to reverse this destructive pattern and to restore extirpated species, natural processes, and historical disturbance regimes. Ecological restoration has gained increasing respectability, leading some astute observers to conclude that undoing the environmental mistakes and miscalculations of the past will define the next era in western natural resource policy. Whether that proves true or not, the remarkable fact is that major ecological restoration efforts are afoot, and even larger projects are on the drawing board. Witness the return of the wolf to the northern Rockies and the reintroduction of fire on the public lands—two prominent examples of our emerging commitment to making the landscape whole again. Serious proposals have surfaced to translocate grizzly bears onto new terrain in central Idaho, to remove costly dams from the Columbia River system on behalf of the salmon, and to make ecological restoration a management priority across the Interior Columbia Basin's public lands. The recent proliferation of ecological restoration initiatives and proposals can only be regarded as a sea of change in how we value the natural world. Just how this change has occurred and where it may lead offers a fascinating excursion into the evolving human relationship with nature and the policy priorities that are redefining that relationship.

Our Tainted Environment and Juvenile Violence: A Look to Legislators

by Leticia M. Diaz, Peggy Clarie

I. Introduction

In the 19th century, doctors prescribed Soothing Syrup for cranky babies. The syrup was actually laudanum, which is opium, dissolved in water. While it did quiet and calm unruly behaved children, the side effects included addiction and death.1 Currently, Soothing Syrup prescriptions are on the rise as more and more 21st century doctors prescribe psychotropic drugs to misbehaving children.

In January 2003, a study published in The Archives of Pediatrics and Adolescent Medicine2 reported that the number of children and adolescents who take psychiatric drugs more than doubled from 1987 to 1996.3 To determine how frequently doctors prescribed drugs to provide relief for behavioral and emotional problems for patients under 20, researchers studied Medicaid programs in two states and one health maintenance organization.4 The study noted that the most commonly prescribed drugs were stimulants, like Ritalin, prescribed for attention deficit disorder (ADD), and anti-psychotics which assisted with mood stabilization to manage depression and aggression.5