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Volume 37, Issue 11 — November 2007


Legal Issues Relating to GMO Safety in China

by Wang Mingyuan

Editor's Summary: The genetically modified organism (GMO) safety regime in China is steadily evolving, with national, regional, and local government departments vying for regulatory power. The process is leading toward a reallocation of responsibilities among governmental departments overseeing science and technology, agriculture, public health, and environmental protection. The results of this power struggle inside the government will exert direct influence on the progress of legislating and implementing GMO safety. In this Article, Dr. Wang Mingyuan explores the historical evolution and system framework of the existing legislation on the safety of GMOs in China, the basic policies on GMO safety administration, and the problems and challenges China faces in refining its GMO policies. He argues that while the legal structure and administrative system relating to the safety of GMOs in China are beginning to solidify, they have lagged dangerously behind the development of biological technology and industry. He advocates a speedy resolution to the current power play within the government, and comprehensive solutions to the problems still evident in China's GMO safety regime.

China RoHS Is Serious Business: A Discussion of China RoHS and a Road Map for Compliance

by Anne Davidson, Joe Johnson, and Ken Rivlin

Editors' Summary: Moving beyond the command-and-control product regulation of the past, China is shifting focus to product management as an alternate means to address health and safety, waste management, and environmental contamination. China's restriction of the use of certain hazardous substances (RoHS), a new legal framework designed to govern product manufacture, use, and end-of-life issues, presents a new compliance challenge for industry all over the world and at all levels of the supply chain. In this Article, Anne Davidson, Joe Johnson, and Ken Rivlin summarize China RoHS and recent related regulatory developments, highlight some similarities and distinctions between China RoHS and a comparable system now in place in the European Union, and offer a road map outlining how industry might begin to understand this complicated new regime.

Annual Review of Chinese Environmental Law Developments: 2006

by Mingqing You

Editor's Summary: The 2006 passage of the Eleventh Five-Year Plan may mark a turning point for sustainable development in China. In 2006, China began to take a comprehensive approach to natural resources conservation and environmental protection. In this annual review, Mingqing You surveys the major developments in Chinese environmental law and policy in the past year. He covers national policy shifts, international environmental regimes China joined, economic incentive policies, and pollution control indicators.

Appraising Conservation Easement Donations: The Need for More Uniform Standards and Greater Oversight

by Jessica A. Steinberg

Editors' Summary: Standardized appraisal methods for charitable contributions of conservation easement donations do not currently exist. Without such standards, landowners may potentially overvalue their donations of conservation easements to land trusts. The Internal Revenue Service (IRS) has recognized this abuse of the tax laws and has threatened to severely limit or eliminate the charitable contribution deduction program for conservation easements. In this Article, Jessica A. Steinberg refutes the notion of limiting the charitable contribution program and proposes the establishment of uniform appraisal methods and greater oversight by the IRS. She argues that without the deduction incentive, many landowners may be unwilling to donate conservation easements on their property, which will lead to less land preserved. More uniform appraisal methods and greater oversight of the appraisal process will enable the IRS to curb potential abuse of the tax laws and ensure that landowners continue to donate conservation easements on their property in perpetuity.

<I>United States v. Atlantic Research</I>: The Supreme Court Almost Gets It Right

by Jeffrey M. Gaba

Editors' Summary: Cooper Industries v. Aviall Services, a 2004 U.S. Supreme Court case, challenged the legal community's understanding of rights of cost recovery under CERCLA, ruling that PRPs who voluntarily cleaned up property did not have a cause of action in contribution under §113(f). However, earlier this year, in United States v. Atlantic Research Corp., the Court held that PRPs who voluntarily clean up contaminated properties may have a right of recovery under §§107(a)(4)(B) or 113(f). In this Article, Jeffrey M. Gaba explores the issues left unresolved or convoluted by these two opinions. He begins with background on the private rights of cost recovery under CERCLA, and then parses these two decisions. He concludes by encouraging the Court to reconcile the different parts of CERCLA to create a coherent set of rights to cost recovery for PRPs.

The Historic Navigability Test: How to Use It to One's Advantage in This Post-<I>Rapanos</I> World

by William W. Sapp, Mina Makarious, and M. Allison Burdette

Editors' Summary: Since the Supreme Court's decision in Rapanos v. United States, courts, practitioners, and scholars have continued to discuss the socalled Kennedy test and its significant nexus criterion. In this Article, authors William W. Sapp, Mina Makarious, and M. Allison Burdette explore the historic navigability test, one tool that can be used to establish a significant nexus to a traditional navigable water. The authors begin by providing a history of traditional navigable waters. They move on to discuss the Rapanos decision and, in particular, the important role played by traditional navigable waters in Justice Anthony M. Kennedy's significant nexus test. Then they discuss the three tests that have arisen in this country for determining whether a water is a traditional navigable water, elaborating on the historic navigability prong of the traditional navigability test. Finally, they discuss some key historic use cases to explain how this approach can be used to greatest effect.