A Cautionary Tale

Let us begin with a cautionary and, unfortunately, true tale. The Bethlehem Steel facility at Sparrow's Point, Maryland, is among the largest integrated steel mills in the country, with multiple production lines and a new $ 300 million, state-of-the-art cold rolling mill.¹ With a capacity of 3.7 million tons of steel annually, the plant is a classic "Rust Belt" employer, anchoring Maryland's economy with some 4,000 unionized jobs.²

This short Dialogue is a first stab at trying to unravel the meaning and significance of the U.S. Supreme Court's ruling in Palazzolo v. Rhode Island,¹ issued on June 28, 2001, the last day of the Court's Term. One's assessment of major Court rulings—like red wine in a coolcellar, or, if you prefer, milk sitting in the hot sun—tends to ripen over time. Accordingly, these observations are offered with the caveat that I may think somewhat differently about the case weeks, months, or years from now.

The most significant accomplishment for the U.S. Environmental Protection Agency (EPA) during the decade of the 1990s may have been the critical role that it played in the Clinton Administration's successful campaign to deflect the efforts of regulatory reform advocates in the 104th Congress to replace the existing statutory foundation of environmental law with a much less protective regulatory regime.

Introduction and Overview

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.