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Volume 33, Issue 9 — September 2003

Articles

Environmental Damage Resulting From Operation Enduring Freedom: Violations of International Law?

by Robert M. Augst

One of the many devastating, and often overlooked, effects of armed conflict is impact on the environment. An inevitable casualty of military conflict is destruction of land, water, air, and other natural resources. "Since time immemorial, war has visited its excesses on nature, excesses that many fear the Earth can no longer tolerate."1 Throughout history, excessive damage to the environment during armed conflicts has caused devastating human suffering and death, thus threatening human survival.2 However, application of existing international laws governing the methods and means of warfare can help minimize detrimental impacts on the environment, global economic interests, and overt human suffering.

Modern warfare's ability to destroy nature has become increasingly formidable, as "twentieth century technology has brought forth possible destructive forces of unprecedented virulence."3 One commentator, reflecting on the increasing threat of environmental destruction during modern wars, noted that "a curious irony of modern war is that in future armed conflicts, combat casualties may be fewer than those occurring from environmental catastrophe. The majority of likely casualties from a wartime environmental catastrophe are noncombatants, the very persons humanitarian law has long sought to protect."4

Conventional weapons comprise the primary means of warfare utilized in armed conflicts. Modern conventional weapons have the capacity to threaten expansive areas, thus increasing potential threats to the environment.5 The consistently increasing tonnage of bombs being dropped in modern wars brings with it an increased potential to devastate the natural environment.6

In response to these threats, numerous international conventions have been created to protect the environment during armed conflicts. Application of customary principles of war may provide additional environmental protection during armed conflicts.

Weakening NEPA: How the Bush Administration Uses the Judicial System to Weaken Environmental Protections

by William Snape, John M. Carter

The Defenders of Wildlife Judicial Accountability Project—undertaken with the assistance of the Vermont Law School Clinic for Environmental Law and Policy—seeks to fill a data void on the environmental record of the current Bush Administration by analyzing all reported environmental cases in which the Administration has presented legal arguments regarding an existing environmental law, regulation, or policy before federal judges, magistrates, or administrative tribunals. By examining not only all judicial decisions pertaining to environmental issues, but also the legal briefs submitted to the judiciary, the aim has been to identify quantifiable trends on whether, or to what degree, President George W. Bush, Vice President Richard Cheney, and their political appointees are working to preserve, protect, and defend the U.S. Constitution and laws of the United States as sworn in their oaths of office.1

The focus of this particular Article is the National Environmental Policy Act (NEPA) of 1970, the so-called grandparent or Magna Carta of environmental policy in our country.2 More specifically, this Article details all the NEPA cases decided by federal tribunals between January 21, 2001, and January 21, 2003, examining how the Bush Administration has interpreted NEPA's legal requirements and whether the federal judiciary agreed with the Bush Administration's interpretations.

Where Do We Fit In? U.S. Information Disclosure and Hazardous Waste Remediation Laws as Compared With the Policy Suggestions of the U.N. Environment Program

by Joel A. Mintz

In May 2002, the United Nations Environment Program (UNEP) issued its long-awaited, authoritative report, Global Environmental Outlook 3 (GEO-3).1 This 446-page document, which reflects the work of more than 1,000 scientists around the globe, surveyed the present state of the world's environment and offered provocative policy recommendations for addressing the regional and global environmental problems facing humankind over the next 30 years.

In this Article, I will summarize some critical aspects of GEO-3's analysis, including particularly its integrated discussion of recent global environmental trends, its presentation of alternative "scenarios" for responding to environmental issues and challenges, and the "lessons for the future" that those scenarios suggested to GEO-3's authors, by way of general policy guidance. Following that, I will assay the extent to which two important components of U.S. environmental law: our requirements for public access to and disclosure of environmental data, and our standards regarding the cleanup of misdisposed hazardous wastes, coincide with GEO-3's important suggestions respecting these critical aspects of environmental policy.

Now More Than Ever: Environmental Citizen Suit Trends

by James R. May

Introduction

Environmental citizen suits matter. In 1970, borne in a fulcrum of necessity due to inadequate resources and resolve, and borrowing a bit from common-law qui tam without the bounty, the U.S. Congress experimented by providing citizens the remarkable authority to file federal lawsuits as "private attorneys general" to enforce the Clean Air Act (CAA).1 Unless precluded, forestalled, unconstitutional, or otherwise unwise, the archetypal citizen suit provision allows "any person" to "commence a civil action on his own behalf" against either (1) "any person" who violates a legal prohibition or requirement, or (2) the U.S. Environmental Protection Agency (EPA) for failure "to perform any act or duty . . . which is not discretionary."2

The experiment worked. Nowadays, most of the dozen and one-half bulwarks of federal environmental law, and numerous state and foreign laws, invite citizen enforcement.3

Environmental Citizen Suits at Thirtysomething: A Celebration and Summit

by James R. May, Bruce J. Terris, Zygmunt J.B. Plater, Ann Powers, Michael D. Axline, David Bookbinder, Peter Lehner, and Robert F. Kennedy, Jr.

Preface

In 1970, the U.S. Congress gave citizens the remarkable authority to file federal lawsuits as "private attorneys general" to enforce the Clean Air Act (CAA).1 Congress intended citizen suits to fill the vast void left by inadequate enforcement by federal and state regulators, and to ensure compliance and deter illegal activity. The approach stuck. Now more than one dozen federal environmental statutes, numerous state laws, and myriad foreign laws allow for such "environmental citizen suits." In 2002 alone, environmental and conservation groups, states, landowners, developers, and companies collectively provided advance notice of intent to bring federal environmental citizen suits nearly 200 times.

To commemorate the inception of the first environmental citizen suits, on April 4, 2003, the Widener Law Symposium Journal and the Mid-Atlantic Environmental Law Center, joined by cosponsors the Environmental Law Reporter(R), Sierra Club, and Trial Lawyers for Public Justice, hosted a conference at the university's campus in Wilmington, Delaware, Environmental Citizen Suits at Thirtysomething: A Celebration and Summit. The conference featured a virtual who's who of leading environmental law lawyer advocates and law professors.

Genomics and Toxic Substances: Part II--Genetic Susceptibility to Environmental Agents

by Gary E. Marchant

The sequencing of the human genome revealed that the variation in the genetic material between any two individuals averages approximately one variation for every 1,000 base pairs of deoxyribonucleic acid (DNA).1 Even though we are remarkably 99.9% genetically identical, there are still on average three million genetic differences between any two people, given that the human genome contains approximately 3.1 billion base pairs of DNA. While many of these genetic variations appear to have no functional significance, others have important consequences, including contributing to the significant differences between individuals in their appearance, personality, abilities, and health. Of particular interest here, there are also genetic variations that affect our individual susceptibility2 to disease from exposure to exogenous substances that enter our bodies, such as drugs, foods, infectious agents, and toxic substances (collectively referred to as xenobiotics).3

Genetic differences in susceptibility provide an important part of the answer to the age-old question of why do some people get sick from certain exposures while others do not.4 For example, it has been known for centuries that some individuals, especially people of Mediterranean and Asian origin, can develop a potentially fatal illness (called favism) from eating fava beans, while most people experience no problems from eating this food product.5 This differential response is now known to be caused by a genetic variation in the glucose-6-phosphate dehydrogenase gene.6 Every person who has to date succumbed to "mad cow disease," known technically as new variant Creutzfeldt-Jacob disease (vCJD), carried a particular genetic variation that is present in approximately 40% of the population.7 Genetic susceptibility [33 ELR 10642] factors now explain many examples of pharmaceuticals that are not effective in some people, or which cause toxicity in others.8 Indeed, it now appears to be the general case that for exposure to any xenobiotic, some members of the public will be more susceptible than others due to their genetic profile (or genotype).9

This Article examines the implications of recent findings of relatively common genetic variants, known as "polymorphisms,"10 within the population affecting susceptibility to environmental exposures. In particular, the Article examines the potential applications of such information in toxic tort litigation and environmental regulation.11 The study of differences in genetic susceptibility to environmental toxicants is sometimes referred to as "toxicogenetics."12 Toxicogenetics, which studies the variations in single genes, is distinct from toxicogenomics, the subject of a previous accompanying Article,13 which studies the expression of the entire human genome in response to toxic exposures.