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Volume 34, Issue 9 — September 2004


Beyond the Injunction: Why and How Environmental Lawyers Should Promote the Urgent Transition to a Natural Economy

by Douglas Ruley

The juggernaut of technology-based capitalism will not be stopped . . . . But its direction can be changed by the mandate of a generally shared long-term environmental ethic. The choice is clear: the juggernaut will very soon either chew up what remains of the living world, or it will be redirected to save it. --Edward O. Wilson

Why the Transition to a Natural Economy Should Be a Primary Goal of Environmental Lawyers

Our economy and our environment are in trouble, and not just because we have trillion-dollar deficits and the Bush Administration. As serious as these challenges are, the long-term, fundamental problems of our economy and our environment are systemic and nonpartisan, and always have been. The way we live is destroying the water, air, soil, forests, and living systems--the "natural capital"--upon which we and all life depend:

Capitalism, as practiced, . . . is a nonsustainable aberration in human development. . . . It liquidates [natural] capital and calls it income. It neglects to assign any value to the largest stocks of capital it employs--the natural resources and living systems [that are essential to life].

Although there are many benefits of a market economy, our current industrial model is self-destructive. Because most natural capital is neither accounted nor paid for, our economy is "chewing up" the natural world at an unsustainable rate. Absent fundamental change, the natural capital accumulated over the previous 3.8 billion years of life on earth will be all but destroyed by the end of this century, with grave implications for our existence and quality of life. This is evidenced by our expanding extinction crisis, the dwindling of our freshwater supplies, our burgeoning greenhouse gas generation, and the global warming it portends.

An Endangered Species: Aboriginal Whaling and the Right to Self-Determination and Cultural Heritage in a National and International Context

by Jeremy Firestone and Jonathan Lilley

Jeremy Firestone is an Assistant Professor of Marine Policy, University of Delaware, College of Marine Studies. Jonathan Lilley is a Ph.D. student at the University of Delaware, College of Marine Studies. The authors acknowledge the comments of Howard Schiffman, Jennifer Sepez, and Peter Singer whose insights and wisdom have enriched the manuscript. The views expressed herein, however, are only those of the authors and do not necessarily reflect in whole or in part, the views of the reviewers. We dedicate this Article to Charles Wilkinson for sharing his ethic of people, place, and culture.

Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere, and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall of our democratic faith.

So stated Felix Cohen in his seminal article, The Erosion of Indian Rights. It is through Cohen's lens that we examine the recent controversy over aboriginal whaling in the Pacific Northwest of the United States. On June 16, 1994, the federal government removed the eastern North Pacific stock of gray whales (also known as the California gray whale) from the endangered species list because it was no longer in danger of extinction; nor was it likely to become endangered in the foreseeable future. That decision set in motion a domestic and international controversy that continues to this day that places solemn treaty obligations, a devotion to cultural diversity, and a trust in the scientific community's conclusion that gray whales will not be threatened or endangered by the Makah Indian Tribe's whaling in opposition to a whale's right not to suffer and its right to life, our regret that it will endure both fates, and concern over the effect of allowing whaling in this instance on the global management of whaling.

Federal Permitting Issues Relating to Offshore Wind Energy, Using the Cape Wind Project in Massachusetts as an Illustration

by Thomas A. Utzinger

Cape Cod, Massachusetts, may soon become home to something other than quaint towns and peaceful beaches. If a Massachusetts-based company named Cape Wind Associates, LLC (Cape Wind) overcomes various administrative and political hurdles, Cape Cod will become home to the first offshore wind park in the United States (Cape Wind project or the project). Although no such projects currently exist in the United States, some European countries already utilize this offshore technology. With completion expected in 2005, the project will rival Europe's offshore wind parks. The project will have 130 turbines producing an average output of 185 megawatts and producing a maximum output of 420 megawatts.

Inland wind power constitutes a small yet increasing portion of the total U.S. power generation portfolio. Wind energy accounted for one-tenth of 1% of national generation as of the year 2000. In contrast, coal supplied 52% of the nation's electric energy needs in 2000, with nuclear power and natural gas providing 20% and 16%, respectively.

The Endangered Species Act Is Still Strong on Department of Defense Lands

by Jonathan W. Hitesman

I. Military Training Versus Endangered Species Protection

The U.S. Congress recently amended the Endangered Species Act (ESA) to exempt the U.S. Department of Defense (DOD) installations from critical habitat designation when qualified resource management plans are established. Despite an apparently sweeping exemption from a key part of the ESA, endangered and threatened species are still effectively protected on DOD installations without adversely affecting military training and national security. In fact, the recent amendments surprisingly require heightened scrutiny of DOD integrated natural resource management plans (INRMPs) while essentially codifying existing U.S. Fish and Wildlife Service (FWS) regulations. Although amending the ESA was unnecessary and unjustified, endangered and threatened species occupying DOD installations will continue to be protected because INRMPs provide protection for listed species at least as effective as the designation of critical habitat.

Recent military successes in the Global War on Terror have led some commentators to conclude that U.S. military training is "good enough." Regardless of how successful the U.S. Armed Forces have been in Iraq and Afghanistan, if better training can prevent the death of even one U.S. soldier, sailor, airman, or Marine, then the country as a whole has the obligation to ensure that better training is available. Success on the battlefield is no reason to restrict training at home, even in favor of the nation's treasured resources including endangered species. This is not to suggest that the balance between military training and endangered species protection should be skewed in favor of the DOD. Rather, balancing becomes more difficult when the lives of American servicemembers are at stake. Military readiness and endangered species protection are not mutually exclusive and must continue to be balanced.

The Aviall Case: Will the Supreme Court Deny Recovery Under CERCLA to PRPs Who Voluntarily Incur Response Costs?

by John M. Hyson

The U.S. Supreme Court's decision to grant review of the en banc decision of the U.S. Court of Appeals for the Fifth Circuit in the Aviall Services, Inc. v. Cooper Industries, Inc. case was something of a surprise. After all, in the view of many Superfund lawyers, the en banc decision had gotten it right, vacating a panel decision that was contrary to the general understanding of the Superfund bar. Every Superfund lawyer knew--or at least assumed--that a potentially responsible party (PRP) under the §107 liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) who incurred response costs in cleaning up a contaminated site could seek recovery of its response costs in a contribution action under §113(f)(1) and that such an action could be brought irrespective of the circumstances under which the PRP had incurred the response costs--whether pursuant to a consent decree, a U.S. Environmental Protection Agency (EPA) or state administrative order, or even if the costs had been incurred voluntarily. Or so it seemed until the panel decision in Aviall. But then the en banc decision of the Fifth Circuit set things straight. And, since the en banc decision, several courts have followed the decision; only a single district court has expressed disagreement.


The question presented in Aviall involves the interpretation of §113(f)(1), which provides:


Any person may seek contribution from any other person who is liable or potentially liable under [§]9607(a) of this title, during or following any civil action under [§]9606 of this title or under [§]9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by [f]ederal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under [§]9606 of this title or [§]9607 of this title.