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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — June 2005


Standing in the Government's Shoes--When Can an Intervenor Appeal a District Court Decision Invalidating a Federal Agency Action?

by Paul S. Weiland

Editors' Summary: Environmental controversies tend to involve multiple stakeholders with varied interests, which may lead to third-party intervention. This Article analyzes three alternative responses to the issue of whether and under what circumstances an intervenor can appeal a district court decision invalidating a federal agency action: the doctrine of rulemaking in the administrative state, the doctrine of prosecutorial discretion, and the doctrine of government control of litigation.

The International Plant Protection Convention and Invasive Species

by John Hedley

Editors' Summary: Phytosanitary systems have been used for many years, but it is only recently that they have received careful and detailed international scrutiny to ensure that they are fair, effective, and well documented, with appropriate internationally accepted standards. This Article examines the development of current practices and applications of phytosanitary measures, including the legal systems backing their use and the broader applicability of these systems to the maintenance of the natural environment and the biodiversity of species. The Article is excerpted from Harmful Invasive Species: Legal Responses (Marc Miller & Robert Fabian eds., Envtl. L. Inst. 2004). The book, now available from the Environmental Law Institute, describes the law and policy regarding harmful non-indigenous species in six countries: Argentina, Germany, New Zealand, Poland, South Africa, and the United States. The book also addresses three international and cross-cutting dimensions of harmful non-indigenous species policy: quarantine systems, trade issues, and the special concerns raised by genetically modified organisms. For more information and to order, visit http://www.elistore.org/books_detail.asp?ID=10930.

"Neither the Best of Times Nor the Worst of Times": EPA Enforcement During the Clinton Administration

by Joel A. Mintz

Editors' Summary: This Article examines the enforcement efforts at EPA during the Administration of President William J. Clinton from 1993 to 2001. It covers EPA's reorganization, budget dispute, institutional intragovernmental enforcement relationships, and enforcement programs. The author based the Article on interviews with current and former EPA/DOJ officials and review of numerous articles and EPA policy documents.

How to Protect Environmental Protections?

by Mark Agrast, Jonathon H. Adler, Robin Kundis Craig, and Douglas T. Kendall

Editor's Summary: On March 24, 2005, the Center for American Progress, the Environmental Law Institute, and the American Constitution Society cosponsored a panel discussion entitled "How to Protect Environmental Protections?" The program focused on the role of federalism in implementing U.S. environmental law. The following is a transcript provided by D.C. Transcription & Media Repurposing courtesy of the Center for American Progress. We have edited the transcript only to provide clarifying information and to make certain verbal statements are more clear when reduced to text.

Strange Bedfellows? The Precautionary Principle and Toxic Tort: A Tort Paradigm for the 21st Century

by Lynda M. Collins

Editors' Summary: This Article explores the relationship between the "precautionary principle," statutory regulation, and the law of toxic torts, with a focus on personal injury. The Article introduces the concept of precautionary environmental law through an analysis of the prevailing risk-based paradigm of statutory environmental regulation contrasted with a more precautionary, ecological approach. Next, it identifies the dominant injury-based paradigm in environmental tort law and concludes that if tort is to meaningfully contribute to environmental protection in the 21st century, a paradigm shift is in order. The Article next applies an "ecological paradigm" to the tort context, exploring the potential for a precautionary approach to the law of toxic torts. In particular, three proposals for precautionary reform in tort law are presented: a relaxation of the single cause-of-action rule; an increased use and liberal treatment of the tort of environmental battery; and the imposition of a reverse burden of proof on causation in environmental torts. The Article concludes that the adoption of such proposals is necessary both from the ecological perspective and in order to ensure that tort meets its core goals of compensation and deterrence in environmental cases.