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Volume 34, Issue 4 — April 2004


The 1990 Clean Air Act Amendments: Failing the Acid Test

by Curtis A. Moore

I must tell you that we have heard much of this before in less sophisticated form. We heard it in 1970 and again in 1977. We heard it repeatedly in the 1980s. It is the same message today and it boils down to this: Impose the cost of pollution on people who breathe, so the people who pollute can avoid the cost of control. I think that is backwards. What must life be like for that asthmatic child when the very air can make her a shut-in and even threaten her life? What does it cost the rest of us to turn our backs on that child when the solution to her problem is known? The late Sen. Edmund S. Muskie (D­Me.) Author of the Clean Air and Water Acts November 14, 1995

The acid rain trading program embodied in Title IV of the Clean Air Act (CAA) Amendments of 1990 has been widely applauded, but on few occasions, if any, has it been critically analyzed to determine its true impacts on cost, innovation, and, most especially, the achievement of its stated objectives. That is the purpose of this examination. The acid rain trading program requires electricity-generating facilities in the United States to gradually reduce emissions of sulfur dioxide (SO2) using what is often referred to as a "cap-and-trade" approach. The law establishes a "cap," or national limit on aggregate utility emissions of SO2. This is at a level said, incorrectly, to be 10 million tons below 1980 emissions.

A Perfect Storm: Mercury and the Bush Administration

by Lisa Heinzerling and Rena Steinzor

Unprecedented Events

In October 1991, four separate weather systems gathered off the coast of New England: Hurricane Grace from the Atlantic, a cold front from New England, a high pressure system over southeastern Canada, and a low pressure system in the Maritimes. When they converged, they created a storm as strong as any in recorded history, with winds of 120 miles per hour and waves the height of 10-story buildings. The interaction of the weather systems was so rare and its effects so cataclysmic, meteorologists dubbed the results "the perfect storm." No one caught in the middle of such a phenomenon could survive.

For an Administration hostile to environmental protection, suspicious of regulation in virtually any form, and devoted to the short-term interests of the energy and chemical industries, the circumstances surrounding its decisions in December 2003 to forego meaningful controls on mercury air emissions from power plants and mercury cell chlor-alkali facilities amounted to the regulatory equivalent of the perfect storm.

Harnessing Consumer Power: Using Certification Systems to Promote Good Governance

by Pooja Seth Parikh

A vast array of consumer products, including diamonds, timber, coffee, and rugs, have been linked to environmental and social harm around the world. Diamonds, for example, have financed global terrorist operatives such as Al Qaeda, and have perpetuated armed conflict and civil wars that have caused the death of more than three million people and driven more than six million people from their homes. The diamond-fueled civil war in Sierra Leone, in which a rebel insurgency group forcibly conscripted over 12, children, hacked off the limbs of over 20, people, and committed abductions, rapes, and murders against civilians, illustrated for the world the gruesome realities surrounding conflict diamonds. Similarly, timber sales have helped to sustain oppressive dictatorships, civil wars, and human rights violations in countries such as Cambodia, Liberia, and Sierra Leone. Coffee production in Latin America has involved the vast clearing of tree cover, eliminating crucial wildlife habitat. Hand-woven rugs from India and Pakistan have been produced using child labor. These examples, and countless others, have illustrated the linkages between consumer products and global humanitarian and ecological crises and have raised serious ethical issues for consumers, industries, and civil society.

National and international law, to the extent that it exists, has not succeeded in eliminating many of these harmful impacts. Certification has therefore emerged as a new tool that attempts to harness market forces to promote environmental protection, fair labor and fair trade practices, human rights, and conflict-resolution. By identifying raw materials extracted, firms operating, or products produced in an environmentally or socially sustainable way, certification allows consumers to "vote" with their wallets by selecting certified goods and services over other, less desirable alternatives, thus providing incentives for industry to produce these goods and services. Certification systems have emerged in a wide spectrum of industries, including chemicals, coffee, timber, mining, petroleum, fisheries, transportation, apparel, footwear, rugs, and toys, among others.

Invasive Alien Species and the Multilateral Trading System

by Jacob Werksman

International trade is one of the most important pathways for both the intentional and the unintentional introduction of alien species. The intentional introduction of alien species takes place through the importation of exotic plants and animals as commercial products. But alien species may also enter unintentionally, as byproducts of trade, e.g., through cross-breeding of exotics with local populations, as parasites of products, e.g., as an infestation or infection on agricultural products, or as "stowaways" during trade, e.g., in the ships, planes, or vehicles that deliver products. Furthermore, the unintentional introduction of alien species occurs not only by way of trade in goods, but also by way of trade in services, e.g., as parasites or stowaways through tourism. Not surprisingly, governments have used their authority and responsibility to regulate commerce at their borders as a primary means of controlling the introduction of alien species. As the volume and geographical spread of trade grows, this regulatory challenge will increase, particularly for developing country governments.

This Article examines the potential interaction between the policy objectives and rules associated with efforts to regulate the introduction of alien species, and those designed to promote and protect free trade. Free trade rules, as represented by the agreements of the World Trade Organization (WTO), generally recognize the right of governments to impose rules necessary to protect domestic animal and plant life and health. However, WTO rules may not take full account of the specific concerns of officials and nongovernmental organizations (NGOs) working to protect native biodiversity from the threat of invasive alien species.

Recycling and Take-Back Opportunities for Batteries, With Particular Attention to Household Alkaline Batteries

by Jeremy Arling

The disposal of consumer batteries constitutes a significant flow of toxic materials into municipal solid waste (MSW). While there have been efforts to recycle consumer batteries in the United States for the last 15 years, the vast majority of batteries still end up in landfills and incinerators. Efforts to recycle nickel-cadmium (Ni-Cd) batteries increased dramatically when they were classified as a "universal waste" and the complicated requirements under the Resource Conservation and Recovery Act (RCRA) were removed. However, while the regulatory environment for battery transport and recycling has improved, economics have become the limiting factor in further recycling growth.

There is significant potential to improve this problem through the implementation of improved battery recycling legislation, including the option of requiring manufacturers to take back waste batteries. Many European countries have implemented manufacturer take-back laws of both rechargeable and alkaline batteries. If such programs are designed efficiently with convenient collection programs and provide appropriate incentives to industry, they may create substantial environmental benefits, at low or break-even costs.