The State of Environmental Protection

The recovery and delisting of species protected under the Endangered Species Act (ESA) is the coming fashion and no mistake.¹ This spring many of us followed with interest the nesting trevails of California condors in Arizona and California as the birds endeavored to lay the foundations for a comeback.² At the same time, we watched with mixed feelings building pressure to delist gray wolves and the announced delisting of the Aleutian Canada geese.³ The U.S.

Trade treaties have introduced the principle that similar risks should be treated similarly, and that countries must achieve internal consistency in the levels of protection they afford against certain hazards within their territories. The problem is that there is no agreement on when risks are "similar" or when levels of protection are "consistent." The danger is that in resolving these issues, international trade institutions will infringe on the political sovereignty of their Members. This Article proposes a science-based solution.

I. Introduction

There is a crucial, although implicit, empirical assumption in the debate about federal judicial review under the affirmative U.S. Commerce Clause.

According to well-settled legal principles and policies, criminal prosecution under our federal environmental laws traditionally was reserved for the most egregious and flagrant offenses, i.e., for those alleged offenses that constituted willful or knowing violations of the law or demonstrated reckless disregard for the law.

Citizens, nongovernmental organizations (NGOs), universities, and other members of civil society have played an essential role in developing and implementing environmental and natural resource laws and institutions at the local and national levels over the past decades. This role has extended more recently into the international arena.¹ This Article examines the emerging norms and practices that guarantee transparency, public participation, and accountability in the management of international watercourses.

On June 18, 2001, the U.S. Supreme Court decided United States v. Mead Corp.,¹ the third time in the last two years that the Court has directly addressed the question of when the deference authorized by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.² applies to federal agency decisions.³ Dissenting, Justice Antonin Scalia said of the majority's opinion: "Its consequences will be enormous, and almost uniformly bad."⁴

Adaptive management represents the future of natural resource management, including that of water and aquatic resources. Adaptive management is an inherently flexible system, in which resource managers establish desired outcomes, develop hypotheses and monitoring programs to test whether existing management approaches are achieving those outcomes, and then alter the approaches depending on the monitoring results.

One of the major news stories of this year is the implosion of California's electric power restructuring. The most capital-intensive industry in the United States, in the largest state in the Union, which itself is one of the largest economies in the world, came completely unglued. This focused attention on how we produce, distribute, and consume electric power and its profound implications, not only for social welfare, but for the environment.¹