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Volume 38, Issue 4 — April 2008


Germany's Efforts to Reduce Carbon Dioxide Emissions From Cars: Anticipating a New Regulatory Framework and Its Significance for Environmental Policy

by Kerry E. Rodgers

Editors' Summary: In this Article, Kerry E. Rodgers presents an overview of Germany's current efforts to reduce carbon dioxide (CO2) emissions from cars, including discussions of the proposed European Union legislation to set binding CO emissions targets for cars and supporting measures. She identifies several factors that appear to be driving Germany's efforts: (1) ambitious national commitments to reduce CO emissions; (2) the desire to show global leadership on climate protection; (3) recent events that have drawn public attention to climate protection and "clean cars"; and (4) traditions in German environmental policy such as a political and scientific consensus on the need for climate protection, the tradition of viewing environmental regulation as a way to competitive advantage, and public experience with taxes as an environmental policy tool. She also identifies perceived challenges for change, including the car industry, consumer behavior, and features of governance structures, and argues that the debate in Germany over CO emissions from cars merits watching because of its potential significance for three areas of environmental policy: (1) the future of voluntary, self-regulatory agreements in Europe; (2) the value of an international legal and political framework in developing national environmental policy; and (3) the interrelatedness of environmental policies toward cars with broader energy and transport policies and climate protection initiatives.

The Siren Sounds for Nitrogen

by Jeremy S. Scholtes

Editors' Summary: The international community is intensifying its efforts to combat nitrogen pollution, a threat to human health and the environment. In this Article, Jeremy S. Scholtes examines the nature of this type of pollution and the legal instruments currently in place that deal with it. He begins by explaining the theoretical concerns that negotiators must consider when designing legal instruments, recommending that regional hard law instruments in concert with partnership coordination platforms are the most effective tools for addressing nitrogen pollution. He concludes that the 1979 Convention on LongRange Transboundary Air Pollution (LRTAP) should be used as the model for developing additional regional air pollution regimes around the globe to address nitrogen pollution. Finally, he asserts that an additional benefit of negotiating regional multilateral environmental agreements modeled after LRTAP is that the comprehensive regional programs could be used to implement applicable provisions of the United Nations Framework Convention on Climate Change and the Kyoto Protocol.

Regulating Risks of Nanotechnologies for Water Treatment

by Reut Snir

Editors' Summary: Commercialization of nanotechnologies for water treatment prior to careful study of their potential risks may put human health and our limited freshwater resources at risk. In this Article, Reut Snir explores the risks surrounding regulating nanotechnologies for water treatment. She analyzes the gaps in the current legislative and regulatory framework managing nano-based applications for water treatment, focusing specifically on EPA's tools for collecting environmental health and safety information. She suggests ways in which EPA can oversee the development of such technologies within its existing authorities, highlighting short-term possibilities to achieve more with less. She acknowledges, however, that in some cases current authorities are simply inadequate for the task.

The Limits of Statutory Law and the Wisdom of Common Law

by Michael D. Axline

Editors' Summary: Although federal environmental statutes may largely have been created to address limitations in the common law, common law still retains some advantages over statutory law for plaintiffs seeking redress in the face of risk or uncertain harms. In this Article, Michael D. Axline explains some of the shortcomings of statutory law. For instance, although citizen suit provisions are built into most federal environmental laws, plaintiffs bringing actions pursuant to these provisions face substantial burdens such as notice limitations, standing challenges, mootness, and jurisdictional issues. Common law, on the other hand, offers plaintiffs a greater range of remedies as well as more flexibility and creativity. Common law also affords plaintiffs the opportunity to make their case to a jury, which has the ability to make determinations of reasonableness in the face of uncertainty.

Conserving Endangered Species in an Era of Global Warming

by John Kostyack and Dan Rohlf

Editor's Summary: While the ESA is lauded as one of the country's most powerful tools of environmental protection, the statute may not be strong enough to protect wildlife and habitat in the face of global warming. In this Article, John Kostyack and Dan Rohlf argue that legislative and administrative changes will be needed if the ESA is going to make a real difference in protecting biodiversity from the dangers of climate change. They describe the effects that climate change will have on wildlife and habitat, and relay a list of potential management responses to these effects. They then discuss implementation challenges that climate change will bring, such as difficulties in designating critical habitat for wildlife moving due to warming. Finally, the authors conclude with some policy recommendations, including how to tackle climate change legislation, update the ESA, and institute adaptive management practices.