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Volume 38, Issue 10 — October 2008


Annual Review of Chinese Environmental Law Developments: 2007

by Mingqing You

Editors' Summary: In 2007, China continued its environmental development goals outlined in the Eleventh Five-Year Plan passed in 2006. The Seventeenth National Congress convened in Beijing to adopt new policies for 2007-2008 and beyond. This annual review surveys the major developments in Chinese environmental law and policy in the past year. The Article covers national policy shifts, China's activities in the international environmental law arena, zoning and planning regulations, and enforcement mechanisms.

The Last Stand of the Wild West: Twenty-First Century Water Wars in Southern California

by Shannon Baker-Branstetter

Editor's Summary: In 2003, the Imperial Irrigation District (IID) of California agreed to transfer water from rural Imperial County to urban southern California cities as part of a quantitative settlement agreement (QSA). The Colorado River water that the IID transferred to the wealthy coastal cities was held in trust for the residents of the Imperial Valley, the poorest county in the state. In this Article, Shannon Baker-Branstetter asserts that the IID Board of Directors breached its trust to the residents and farmers of Imperial County when it sold water rights to municipal districts in southern California. The IID leased the water for less-than-market price for an unreasonable length of time, and the IID Board of Directors did not insist on adequate compensation and a formalized plan to mitigate damage to the public health that will result when the reduced runoff from agriculture exposes the Salton Sea lakebed. Thus, the IID exacerbated the poor economic conditions of residents of the county.

Evaluating the Social Effects of Environmental Leadership Programs

by Jonathan C. Borck, Cary Coglianese, and Jennifer Nash

Editor's Summary: In the past decade, EPA and over 20 states have created voluntary environmental leadership programs designed to recognize and reward businesses that take steps that go beyond compliance with the strictures of environmental law. Environmental leadership programs seek not only to spur direct improvements to environment quality but also to advance broader social goals that may lead indirectly to environmental improvements, such as improving businessgovernment relationships and changing business culture. Measuring progress toward leadership programs' social goals is a particularly challenging but essential task if researchers and decisionmakers are to understand the full impacts of these programs. In this Article, Jonathan C. Borck, Cary Coglianese, and Jennifer Nash present strategies for overcoming the three core challenges in evaluating the social effects of leadership programs and any voluntary environmental initiative: (1) defining appropriate measures of social goals; (2) inferring whether programs achieve those goals; and (3) linking social effects to environmental outcomes. Only through careful attention to these three empirical issues will it be possible to rule out alternative explanations and determine whether environmental leadership programs are truly generating their intended positive social effects as well as improvements to the environment.

The Fatal Flaw of Cost-Benefit Analysis: The Problem of Person-Altering Consequences

by Gregory Scott Crespi

Editor's Summary: Cost-benefit analysis, which is now the dominant approach in American public-sector decisionmaking, suffers from a serious and perhaps even fatal flaw that is unfortunately not widely recognized. Any social policy, among its other impacts, will also have "person-altering consequences" in that it will have geometrically cascading and eventually universal effects on the genetic identities of the members of future generations. The cost-benefit analysis methodology as now applied fails to incorporate those consequences. As a result, the policy recommendations reached through this methodology are essentially irrelevant to the real choices at hand. However, any attempt to incorporate person-altering consequences into cost-benefit analysis through the usual willingness-to-pay metric leads to the counterintuitive and unhelpful result that all of the policy options under consideration will each generate massive future net benefits of uncertain magnitude. There does not appear to be any plausible way to avoid this result within the framework of secular and consequentialist ethical premises from which the cost-benefit analysis methodology is derived, and the willingness-to-pay valuation criterion may therefore have to be supplemented by or even discarded altogether in favor of normative criteria developed from secular but non-consequentialist ethical premises, or from overtly theistic premises.

The Role of Economic Emergency Situation Determinations in Expediting Fire Salvage

by Melanie Stidham, Gwen Busby, and K. Norman Johnson

Editors' Summary: In 2003, the George W. Bush Administration expanded the definition of an emergency situation to include cases that may result in a "substantial loss of economic value to the Federal Government." During the last few years, the U.S. Forest Service has invoked this new provision to enable implementation of fire salvage decisions on the national forests without waiting for appeals of the projects to be resolved, and has generally won court cases challenging its interpretation. Thus, the provision changes the legal role of economic considerations in decisions on national forest lands. Previously, economic considerations certainly could influence the decisions of national forest managers. With the new regulations, however, economic considerations can override public participation processes, narrowing the power of the public to influence decisions on national forests.