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Volume 37, Issue 3 — March 2007


The Regulation of Genetically Modified Organisms: Why the Biotech Products Case is a Win-Win Situation for the European Union

by Jonathan G. Dorn

Editors' Summary: The United States and the EU currently stand in discord over the safety and value of GMOs in agricultural products. The disagreement culminated in a 2006 WTO Dispute Resolution Panel ruling in favor of the EU's use of discretionary, protectionist measures when regulating GMOs. In this Article, Jonathan Dorn explores whether international trade can co-exist with environmental protection. He offers background of the differing views on GMOs, explains the U.S. rationale for filing the dispute with the WTO, and argues that the Biotech Products case is a win-win situation for the EU.

Gone With the Wind? Understanding the Problems of Wind Energy Policy in the United States Through the Successes of Denmark and Germany

by Alex Bandza

Editor's Summary: The United States saw a phenomenal period of wind installation in 2006, with over 3, megawatts of installed capacity added. Is this just another upswing in the boom-bust cycle of wind power in the United States? Alex Bandza offers an answer based on the histories of wind power and energy policy in three different countries. In this Article, he compares wind policies in Denmark, Germany, and the United States. Pulling from lessons learned from successes in the European countries, he suggests how future U.S. legislative decisions might be shaped to prevent the recurrence of policy mistakes that hindered wind development.

Critical Developments in Toxic Torts: Are There Synergistic Effects Between Toxic Tort Suits and Environmental Regulations?

by Panel discussion

Editors' Summary: On May 25, 2006, the Environmental Law Institute hosted the first seminar in a series exploring critical developments in toxic torts. After the moderator provided an overview of the relationship between toxic tort lawsuits and environmental regulations, the panelists shared their expertise on a range of topics surrounding this issue, including: agency action as the impetus for toxic tort litigation; strategies used by plaintiff and defense lawyers in litigating toxic tort suits; the role of regulatory compliance as a defense in litigation; and the challenges in introducing regulatory reports and risk assessments into evidence during trial. Below is a transcript of the event. [Transcribed by HBR Inc. of Washington, D.C. The transcript has been lightly edited, and citations have been added, for ease of reading.]

Opportunities for Regulation of Land Use and Development as a Legal Tool to Protect Biodiversity

by Robert B. McKinstry Jr., James McElfish, Michael Jacobson, and Coreen Ripp

Editors' Summary: Development and urban sprawl threaten biodiversity by displacing and fragmenting habitat with roads, commercial structures, and private homes. In this Article, authors Robert B. McKinstry Jr., James McElfish, Michael Jacobson, and Coreen Ripp look at the potential for using land use law and laws regulating development activities to address these threats to biodiversity. Using examples taken from Pennsylvania law and a 50-state survey conducted by the Environmental Law Institute and Defenders of Wildlife, the authors examine regulatory and other legal tools with the potential to protect biodiversity.


A New Clean Water Act

by Paul Boudreaux

Editors' Summary: The Supreme Court's new federalism has struck its strongest blows so far on the CWA. Last summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act's protection of wetlands and other small waterways--five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the CWA been the Court's favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover "navigable waters," but its practical definition has never been clear. The result is a statutory and jurisprudential mess, with lessons that extend across issues of constitutional law, statutory construction, and, of course, federalism. Paul Boudreaux proposes in this Article to revise statutory language in order to revive the CWA. He suggests jettisoning the Act's reliance on the misguided term "navigable waters" and advocates that, instead, the statute should directly regulate activities that substantially affect interstate commerce, such as fisheries, migratory birds, floods, and agriculture. An Act whose limits are tied to the law of the commerce power would be shielded from the federalist ax.