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Volume 35, Issue 8 — August 2005


The Benefits of Community Medical Monitoring at Nuclear Weapons Production Sites: Lessons From Fernald

by Benjamin G. Gerhardstein and Phil Brown, Ph.D.

Editors' Summary: A number of communities across our country host DOE nuclear weapons production facilities. This Article argues that although DOE has known about contamination caused by these facilities for decades, the federal government has not sufficiently addressed these communities' health concerns. It uses the Fernald community in Ohio, the only community to succeed in holding DOE accountable for these actions, as a case study to argue that the U.S. Congress should establish community medical monitoring programs at DOE nuclear weapons sites.

The Nature of Environmental Law and the U.S. Supreme Court

by Richard Lazarus

Editors' Summary: With his customary eloquence and intellectual rigor, Prof. Richard Lazarus tracks general trends in the U.S. Supreme Court's approach to environmental law cases and reveals what he claims is a failure of the Justices to appreciate the nature of environmental law to such an extent that they are stifling environmental law making. He analyzes the October Term 2003, during which the Court not only heard a large number of environmental cases but rendered decisions overwhelmingly favorable to those who support less-stringent environmental protection requirements. He concludes with a challenge for more scholarship and effective advocacy to articulate the role federal courts can play in evolving environmental law making. y central thesis is that the vast majority of the U.S. Supreme Court's recent environmental law precedent reflects a lack of appreciation of the special challenges presented by environmental law making. The Court's fundamental failure in this respect has prompted the Court to make a series of mistakes in its rulings both at the jurisdictional stage and on the merits. In deciding whether to accept a case for plenary review, the Court has been too willing to grant petitions filed by parties who claim that environmental protection laws are overreaching, which has led to an unfortunate skewing of the Court's docket. In deciding cases on the merits, the Court has systematically embraced constitutional interpretations and statutory constructions that unduly retard the law's ability to evolve in response to the new information and shifting societal priorities that the nation has embraced in favor of greater environmental protection. This Article is divided into three parts. The first part describes the nature of environmental law making and how it unavoidably serves up a pattern of legal issues that reflects dominant features of the ecosystem, the activities regulated by environmental law, and our law making institutions. The second part seeks to support my thesis that the Court has misapprehended the nature and significance of these legal issues by discussing the environmental law cases before the Court during the October Term 2003. Finally, there is a brief conclusion.

Wresting Environmental Decisions From an Uncertain World

by Pasky Pascual

Editors' Summary: The role of science and law are often at a cross-roads in the world of environmental policymaking. The law imposes legal norms based on what has been generally accepted in scientific circles. In turn, scientific claims are accepted only if they satisfy evidentiary rules prescribed by the law. One may be tempted to postpone decisions until we have all the pertinent scientific evidence before us. But failing to act can be costly--both in terms of financial resources for additional research and of environmental ills that persist while we delay decisions. We must therefore tolerate some degree of uncertainty. But while we may not agree with the decisions, we should know how and why they were made despite the limitations of scientific knowledge. Using a "Bayesian approach," the author demonstrates how policymakers can transparently acknowledge their theoretical and empirical limitations and can communicate the effects of choices they make in certainty's absence.

Solutions Lie Between the Extremes: The Evolution of International Watercourse Law on the Colorado River

by Karen Hyun

Editors' Summary: Looking at extremes may seem futile when dealing with important environmental issues: the outcome on either end of the spectrum is almost always objectionable. Yet they are the bounds within which the solution lies. Thus, finding the balance between the endpoints is imperative. The Colorado River and its related international water law is the story of how the context of the times drives the evolution of law within such extremes. This Article looks at the evolution of international fluvial law surrounding the Colorado River regarding quantity, quality, conservation, and ecological needs, which will continue to adapt slowly as society changes where the balance is struck.

Conservation Easements as an Effective Growth Management Technique

by Rebekah Helen Pugh

Editors' Summary: A number of innovative smart growth programs are being used to battle urban sprawl and protect environmentally sensitive land. This Article advocates for the use of conservation easements as an effective growth management technique, and demonstrates how the benefits greatly outweigh the disadvantages. Four conservation easement programs are described, which have been very effective in preserving land, historical structures, wildlife habitats, and scenic views. The Article concludes that conservation easements can become one of the most effective means for land preservation, and an essential component of any comprehensive land use plan.

Endangerment, Aviall, and CERCLA Administrative Consent Orders—The New Challenges of Managing Hazardous Waste Contamination

by Kevin A. Gaynor and Julia B. Latham

Editors' Summary: Parties undergoing cleanups at contaminated sites under CERCLA that have also been served with a notice of a citizen suit under RCRA face ambiguity and uncertainty as they try to make sense out of these two statutory schemes.The recent U.S. Supreme Court decision in Cooper Industries, Inc. v. Aviall Services, Inc., has further increased this statutory friction, particularly for those undertaking cleanups of contaminated sites pursuant to administrative orders on consent, unilateral administrative orders, or other administratively ordered means. Practitioners with clients currently undergoing such "voluntary" although administratively ordered CERCLA cleanups have an ever-increasing challenge of balancing questions of defenses, viability of contribution claims, and statutes of limitation when advising clients and protecting their interests. As this Article demonstrates, practitioners need to keep these concerns squarely before them when advising clients subject to such administrative cleanup orders.