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Volume 5, Issue 12 — December 1975


The 1973 Japanese Law for the Compensation of Pollution-Related Health Damage: An Introductory Assessment

by Julian Gresser

In 1972, the United Nations Stockholm Conference on the Human Environment highlighted for all the world the significance of foreign practice and experience in the search for more effective environmental management at home. Less well-publicized is the mandate that the Conference imposed on the legal profession: to look through a foreign culture to the essence of its response, to translate it and, ultimately, to render it usable abroad. In this sense, the Conference curiously was ahead of its time, since it asked of the legal profession a task that lawyers have been ill-equipped by training or proclivity to perform.

A central barrier for the American environmental lawyer venturing into this field is that a foreign approach, devised for the exigencies of another setting, may offend basic values and sensibilities. The establishment of a system of compensation to victims of pollution in Japan, for example, may outrage some American public interest lawyers uncompromisingly committed to preventative litigation. Nevertheless, patient study of alternative approaches can be rewarded by insights valuable to ourselves, and also, one hopes, to other countries. This is the challenge of the Japanese Law for the Compensation of Pollution-Related Health Damage enacted in 1973.1


Despite Recession, Environment Wins Out Over Resource Shortages

When in the aftermath of the 1973 energy crisis jobs began to disappear and prices to rise, it came to be widely believed that pocketbook issues would soon eclipse the public's recently-developed fervor for cleaning up the environment.1 This view was shared, albeit covertly, by many environmental groups, which responded by reducing public visibility.

Now, however, word has come from unexpected quarters that environmental awareness is still with us despite the energy crisis. Two public opinion surveys conducted this summer by the Opinion Research Corporation (ORC) have found that a majority of people continue to support government efforts to clean the air and water even if it means higher prices for fuel and energy. That this should occur in a recession is surprising. But what is most significant is that the environment seems to have won out in this encounter with that supposed "irresistible object" known as resource shortages.2

Latent Risks of Ocean Dumping: EPA Administrator Affirms Philadelphia's Phaseout Order

The Administrator of the Environmental Protection Agency has upheld on appeal1 a subordinate's commitment to more vigorous protection of the marine environment from the adverse effects of ocean dumping. In a test case2 involving the city of Philadelphia's dumping of sewage sludge, Mr. Train, adopting the recommendations of a Hearing Panel, affirmed imposition by the Regional Administrator for Region III, of a significant condition on the city's latest one-year interim dumping permit. The condition requires the city to phase out its ocean disposal of sewage sludge over the next six years, halving the level of discharges by 1979 and shifting completely to on-land disposal by 1981.

The Administrator's decision, which incorporated by reference the Hearing Panel's more extensive conclusions,3 rested on a strict interpretation of the pertinent federal law and a sophisticated approach to latent environmental risks. In Mr. Train's view, Congress, by enacting the Marine Protection, Research, and Sanctuaries Act of 1972,4 affirmatively prohibited the transport of materials for the purpose of ocean dumping, and allowed the EPA Administrator to modify that prohibition only in situations where he determines either that the dumping will not cause adverse effects to the marine environment, or that alternative disposal methods present a greater threat of harm to public health or the environment. Further, such a determination must include consideration of whether the dumping will unreasonably endanger the marine environment in terms of the persistence and permanence of its effects. And the proponent of dumping bears the burden of proving that no such adverse effects will occur.

More Pesticide Power: EPA's Farm Worker Field Reentry Standards Oust OSHA's Jurisdiction

The environmental hazards most often associated with pesticides are those posed by chronic low-level exposure: bioaccumulation of toxic and possibly carcinogenic chemicals in both man and animals. While these relatively diffuse and long-term harms are real enough, persons who come into direct contact with such chemicals because of their occupations face greater dangers. This category includes both persons who apply pesticides to fields and farmworkers who must go into fields after these applications. Of the two groups, the farmworkers are less well able to protect themselves, since in most instances, they are not privy to warnings on pesticide labels and thus may not be aware of suggested precautionary measures.

Two laws recently enacted by Congress, the Occupational Safety and Health Act of 1970 (OSHA),1 and the Federal Environmental Pesticide Control Act of 1972 (FEPCA),2 were intended to remedy this problem. Predictably, confusion soon arose over possible jurisdictional conflicts between the broad regulatory schemes established by the two statutes.

Death Valley: Congress Debates Strip Mining in National Parks

Resource extraction on a large scale has recently begun in some national parks, dwarfing the modest diggings and pickings of old-time gold bugs and causing consternation in Congress. As a result, a rash of measures have been introduced which would curtail, regulate or ban mining operations within the boundaries of the National Parks. The legislative action was prompted in large measure by increases in mining activity within the boundaries of Death Valley National Monument, where 10 open pit (strip) mines are presently operating, producing approximately 169,000 tons of borates and 100,000 tons of talc annually. Mining activity within the Park has increased dramatically since 1971, and nearly 200 new mining claims are being filed each year.

Six units of the National Park System currently lack legal protection from mining: Death Valley National Monument, Mt. McKinley National Park, Glacier Bay National Monument, Organ Pipe Cactus National Monument, Coronado International Memorial, and Crater Lakes National Park. The only other "unprotected" park in which mining is currently taking place is Mt. McKinley, which produces 100 tons of antimony per year.