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Volume 34, Issue 7 — July 2004


The Future of Air Pollution Control in the Corporatist State

by Jamison E. Colburn

Chasing the Wind: Regulating Air Pollution in the Common Law State, a book authored by Noga MoragLevine, an Assistant Professor of Political Science at the University of Michigan, is a broad indictment of "air pollution control policy" in our common-law state narrated from a "historical" and comparative perspective. In the end, though, the indictment misses its mark. For, while the mistakes of U.S. air pollution control policymakers are many, they are not those spotlighted by this book. Morag-Levine argues that, when compared to a nation like Germany, the United States could be doing a lot better in its air pollution control. From the perspective of one who teaches pollution control law (and still practices it occasionally), I must admit I find this argument sobering. Unfortunately, the shortcomings featured in the argument are more misdemeanors than high crimes and the solutions suggested seem more sound and fury than sound policy prescriptions.

Ultimately, I found Chasing the Wind pointing most directly to serious shortcomings in the academic research being done in the United States in this field--not to the institutions the book critiques. This dearth of research is due at least in part to the dominance of two sets of claims about environmental law, one owed to a seemingly limitless enthusiasm for law and economics over the past 15 years, the other owed to the pervasively discriminatory effects of our legal and economic systems in the siting of locally undesirable land uses. These two sets of claims have literally dominated the political and scholarly agendas to the exclusion of other, perhaps better questions. As a result, Chasing the Wind must grapple with a series of false dichotomies and policymaking canards instead of with the issues that a more fruitful dialogue on the structure of the state and its effects on pollution control policy would embrace.

Stumbling Toward Justice: Crime and Punishment Within International Criminal Law

by Kristina D. Rutledge

"A person has a better chance of being tried and judged for killing one human being than for killing 100,000." --Former United Nations High Commissioner for Human Rights

I. Introduction

For far too long the international community willingly circumnavigated the issue of whether it had a duty to intervene in post-conflict adjudication or reconciliation of NationStates. This reality persisted even for much of the modern human rights era that has otherwise been full of movements encouraging action on an international scale. And while the international community has at times meddled too much or too little in the affairs of Nation-States, when justice fails at existing domestic venues, an international response becomes the only remaining recourse.

In the years following World War II, the international community has frequently responded to gross human rights violations with admonishments, proclamations, and even the occasional sanction. In the aftermath of crises, countries were left to their own initiatives on how to prosecute or otherwise respond to their citizens' offenses. This passive approach was altered by the creation of two international tribunals with the authority to prosecute individuals for specific violations of international criminal law. This movement renewed interest in establishing a permanent body with similar authority to prosecute violations worldwide. The unique function of these international criminal institutions reflects evolving notions of justice and perhaps even remorse that more had not been done to combat the abuses before they erupted on such grand scales. The establishment of these tribunals was in no way the only possible response for the international community. It was, however, the only feasible means of accomplishing the goals of punishing offenders, deterring future violators, and promoting greater stability in the regions most affected. This Article examines the punishment theories underlying the international criminal courts and the sentences imposed to accomplish those objectives. Part II provides a historical background to the international criminal institutions since World War II. Part III examines the leading theories of punishment that inform (to varying degrees) the courts' analysis--retribution, deterrence, rehabilitation, and reconciliation. Part IV focuses on the punishments available to and the actual practices of the tribunals in sentencing defendants.

Trouble in Mesopotamia: Can America Deter a Water War Between Iraq, Syria, and Turkey?

by Itzchak E. Kornfeld

I. Introduction

The tensions over the waters of the [Tigris-Euphrates] basin have reached internationally acknowledged levels, and a lack of cooperation among the riparians confronts the world with a new potential conflict area. This situation threatens the delicate political stability in the Middle East, and further polarization in [sic] region continues . . . . The basin is one of the most unstable political areas in the region and water plays and [sic] important role. This is a classic case of [sic] water quantity issue, and use of the available water in the basin.

The United States is poised to relinquish a degree of governance to the Iraqis on June 30, 2004, some 16 months of being enmeshed in a difficult situation. Since the end of "Operation Iraqi Freedom" in May 2003, the United States has found itself in a war of attrition, losing at least one soldier every day, and has faced international disapproval for the prisoner abuse fiasco at the Abu Ghraib Prison in Baghdad. One historian framed the problem as follows: "The country is a political basket case, a condition guaranteed by its occupier's rush to war and hasty map redrawing. That things are bad in Iraq is a given; just how bad they'll yet become is the question."

New Source Review: Should It Survive?

by Arnold W. Retize Jr.

The Clean Air Act's (CAA's) new source review (NSR) program has not been effective. Some of the worst emitters of air pollutants today were among the worst polluters when control of new source emissions by the CAA began in 1970. Moreover, the program as applied to existing sources, despite its marginal successes, is characterized by uncertainty, complexity, vagueness concerning its requirements, and the potential high costs associated with unpredictable enforcement. Moreover, the discretionary power claimed by the government in the exercise of its power to implement NSR results in regulators having far more involvement in business decisionmaking than is necessary for an effective environmental protection program.

Since 1970, the U.S. Environmental Protection Agency (EPA) has been tasked with developing new source performance standards (NSPS) for industry classifications. The U.S. Congress when enacting new source requirements expected that air quality would improve as old sources were replaced by sources subject to NSPS. This did not happen. Control of existing sources usually was left to the states, and unless they were subject to CAA regulations to improve air quality in nonattainment areas (NAAs), states often imposed few controls. Today, for areas that meet national ambient air quality standards (NAAQS), controls on existing facilities are often still minimal, although, as discussed later in the Article, this is changing. The economic benefits from not having to meet CAA requirements encouraged companies to keep facilities operating beyond their originally projected useful life.

Two-Sided Emissions Allowance Markets and the Self-Correction Criteria

by Stefani C. Smith

I. Introduction

The fundamental questions in environmental law and policy are: what role should the government play in environmental control; what is the target level of environmental quality and how is it determined; and, if the government is to act as regulator, what policy instrument should be used. Answers to these questions are extremely varied.

At one end of the ideological spectrum, many free-market environmentalists would restrict government involvement to, at most, that of property rights protector within a framework of property rules and liability laws. Activists and scholars at the other end of the spectrum advocate full government control in which policymakers and regulators would explicitly determine environmental targets and production decisions (such as technology and output) through command-and-control tools.

Considering Alternatives: The Case for Limiting CO2 Emissions From New Power Plants Through New Source Review

by Gregory B. Foote

Anthropogenic emissions of carbon dioxide (CO2) and other greenhouse gases are changing the earth's climate in ways that could lead to catastrophe. The United States is the largest emitter of these gases, producing almost one-fourth of worldwide emissions of CO2, the dominant greenhouse gas. Power plants alone account for one-third of total U.S. emissions of CO2.3 A prompt transition to economies based on efficient use of renewable, nonpolluting energy sources rather than carbon-based fuels might avoid the worst effects of climate change by stabilizing greenhouse gases at acceptable levels. But even if that transition begins now, world energy forecasts predict that for the next several decades, fossil fuel use will greatly increase. Of special concern, many new coal-fired power plants may be built in the United States--and elsewhere, particularly in China and other developing countries. In order to limit further harm to the global environment, these plants--if they are built at all--should be constructed in a way that minimizes CO emissions and facilitates future capture and safe storage of those emissions. This Article outlines a way of accomplishing that task under current U.S. law.