16 ELR 10255 | Environmental Law Reporter | copyright © 1986 | All rights reserved

The Global Environment: Challenges, Choices and Will

Editors' Summary: In July 1985, the American Bar Association's Standing Committee on Environmental Law and the ABA's Sections on Natural Resources Law and Corporation, Banking, and Business Law sponsored a panel presentation on international environmental issues. The participants address pressing global environmental problems facing the world over the next several decades, analyze the relationship between environmental protection and economic development, and examine the role of lawyers in resolving these issues.

[16 ELR 10255]

TURNER T. SMITH, Jr.: I would like to welcome you to our program on "The Global Environment: Challenges, Choices and Will," sponsored by the American Bar Association's Standing Committee on Environmental Law, and cosponsored by the Corporation, Banking and Business Law Section and the Natural Resources Law Section.

We had three objectives for this program. The first was to survey the most significant global environmental challenges that we face over the next 20 or 30 years. That is, if we looked back in the year 2000, what would we say we should have been thinking about at this point, amidst the mass of issues that are constantly pressed on us from all sides? That subject is going to be addressed by the first speaker, Russell Train, former chairman of the President's Council on Environmental Quality and Administrator of the Environmental Protection Agency, and currently President of the World Wildlife Fund, USA.

The second objective was to assess the relationship between economic development and environmental protection. We started with two premises. First, it seems indisputable that poverty is as great an issue of public and human welfare as are environmental and resource degradation. Second, it seems equally clear that we cannot sustain economic development over the long run if it is not premised on sound resource management principles. In short, it seems that we must have both, environmental protection and economic development, not simply one or the other. This relationship will be addressed by Dr. Jim Lee, Director of Environmental and Scientific Affairs at the World Bank. He will discuss the implications and results of unsound economic development, and the linkages between resource degradation and our national security.

Our third objective was to explore the appropriate role for private institutions, particularly lawyers and the law, in resolving problems of environmental degradation around the globe. We are now 15 years into the rapid development of a comprehensive body of American environmental law. American environmental lawyers have learned a good deal about what works and what does not work. It is now time for them to assess how much of the American legal experience can be generalized and translated into usable concepts in other legal and social systems. While doing so, however, we must be sensitive to differing views in other legal systems and cultures about the proper role of law and lawyers in regulation of environmental protection and resource use. Further, we must be careful to note the importance of public education and political will to effective environmental protection and resource management, as well as the importance of themore traditional issues of institutional and regulatory design that lawyers normally deal with. Finally, it seems clear that we cannot safely address issues of either institutional design or will without examining carefully the relevance to them of cultural and social attitudes. We have had in this country a widespread adoption in public attitudes of the conservation ethic. We should ask what has brought that about in our culture and whether that ethic is compatible with the various social and cultural attitudes in other parts of the world.

These issues will be addressed by a panel of distinguished speakers that will be moderated by Mike Heyman, the Chancellor of the University of California at Berkeley. The panel consists of the Honorable Andrew Maguire, a vice president at the World Resources Institute and former member of the United States House of Representatives from New Jersey; Dr. James Mahoney, Manager of Bechtel Engineering's Environmental Services Department, the Bechtel Corporation; and Professor Richard Stewart, Assistant Dean, Byrne Professor of Administrative Law, and teacher of environmental law at Harvard Law School. In addition, our speakers, Russell Train and Jim Lee, will remain for the panel discussion.

Our first speaker is Russell Train. Mr. Train's list of career accomplishments is lengthy. He has held practically every office of significance in the environmental area in the U.S. Government. He started out as a tax lawyer, but in 1959 founded and became the first president of the African Wildlife Leadership Foundation. From there he went on to become the president of The Conservation Foundation in 1965, and in 1970 the first chairman of the Council on Environmental Quality; from 1973 until 1977, the Administrator of EPA; and now the President and chief executive officer of the World Wildlife Fund, USA.

He has represented the United States in a host of international forums and negotiations in the environmental and resource area, and we are privileged to have him address us today on the first topic: "What are the environmental challenges that we face?"

TRAIN: Thank you very much Turner.

I am delighted to have this opportunity to share with you some perspectives on the principal global environmental [16 ELR 10256] challenges confronting us in the closing years of the 20th century — a tall order. As I discuss or list various kinds of problems that I consider "major," I am sensitive to the fact that there are many others that I am not discussing which are probably equally as important. All of you may well have your own lists, and I am sure the panel will suggest additional problems that deserve attention.

Just as the United States has a special stake in finding effective solutions to these problems, so too the United States has a special opportunity for leadership in assisting the international community in meeting these challenges. Our legal profession must be prepared to play an active and informed role in that regard, just as the business community has a critical role in addressing environmental problems around the world.

When one looks at such major adverse environmental trends as tropical deforestation, soil erosion, spreading desertification, and the extinction of species, one cannot help but be struck by the way in which these environmental problems are interwoven, and indeed, interlocked with the social, political, and economic facts of global life. Such problems can seldom be addressed effectively in isolation from these other realities. The human population explosion, environmental destruction, and poverty are inextricably linked the world over.

The driving force that directly causes or complicates all other environmental trends is the rapid increase in the world's human population. This is the single overriding reality we must all face. In the year one the world had about 300 million people. It took 1500 years for the population to double. Now, 500 years later, there are 4.8 billion people, 16 times as many.

The population doubling time is down to 40 years. That means that one year from now there will be 83 million more people on earth than there are today. That's as many additional people as the combined populations of California, New York, Texas, Florida, New Jersey, Maryland, Virginia, and the District of Columbia. In Kenya the population is doubling every 17 years, and the data would probably show a similar picture in most of sub-Sahelian Africa. Between today and the year 2000, India alone will grow 240 million, to about a billion people.

Until very recently, most of the population growth of the world — excluding China — occurred in the industrialized nations. Now, over 90 percent of this increase is occurring in less developed nations, mainly in the tropics, and much of that is going into the urban areas in those countries. It is imperative that the United States step up, not cut back, its family planning assistance programs, including its support of the United Nations Fund for Population Activities.

The same nations experiencing high population growth rates are struggling to provide even the most basic needs of their people — enough food, disease-free water, and a roof over their heads. Economic development is the major national goal of these countries. Unfortunately, in too many areas, the high rates of population growth tend to undermine the development process. For example, in much of Africa, while the gross national product is up, most measures of per capita wealth are down.

Development assistance programs have often either ignored or inadequately taken into account the environmental impacts of their projects, yet sustainable economic development can only be achieved in combination with sound ecological planning. Conservation and development must proceed hand-in-hand.

One of the great ironies of our global condition, and a major impediment to agricultural development, is that soils in large areas of many tropical countries are poor, and prevailing farming methods will not produce crops on a sustainable basis. For example, in much of the Amazon Basin, the nutrient elements essential to all life are found principally in the trees. Nutrients are much less available in the soil. This is true in many tropical nations.

But the chief approach that poor people take to growing crops on these lands is to cut down and burn the trees. The nutrients in the ashes fertilize the soil, but this slash-and-burn method of agriculture can provide good crops for only two or three years before crop yields decline dramatically. With the removal of tree cover, the heavy tropical rains quickly leach the nutrients out of the soil, and they simply wash away. As a result, when people find their crop yields declining, they are forced to give up their homes and move onward. They slash and burn yet more forest.

This approach to agriculture would not present a problem if there were limitless lands and few people. In the past, with low levels of population, the slash-and-burn cycle was so extended that abandoned lands had an opportunity to regenerate before again being subjected to cutting and burning and recultivation, but some 250 million people in Latin America, Africa, and Asia are now practicing slash-and-burn agriculture, so that the natural forest cover is quickly disappearing.

In the tropics, an area the size of Great Britain is deforested every year. If current trends continue, by the end of this century tropical forests will be all but gone. There may still be remnants in the Amazon Basin, in South America, the Congo River Basin in Africa, and a few smaller areas, but the great tropical forests will be gone forever.

The causes of tropical deforestation are many. I have already referred to slash-and-burn cultivation. Conversion of forest land to cattle grazing to provide cheap beef for export has been a major contributor to deforestation in Central America and Brazil. Additionally, about a third of the world's people look to firewood as their principal source of household energy. In fact, 80 percent of all wood cut in developing countries is burned as household fuel, compared to less than 20 percent in developed nations. Typically, in rural areas the gathering and transporting of wood increasingly dominates the daily lives of millions of people. One hundred to three hundred work-days each year must be devoted to supplying a household with fuel wood.

Finally, products derived from tropical forests are a principal source of export earnings for many developing countries. It is a trade that has grown rapidly in recent years. (For example, Brazil exported $699 million of forest products in 1982, as compared to $142 million in 1972.) Over-exploitation of the resource, however, may lead to an equally dramatic decline in these exports. Thus, according to a recent report of the World Resources Institute, developing country exports of forest products — currently valued at $7 billion annually — are predicted to decline to less than $2 billion by the year 2000.

Now, you may ask, "Why should the loss of forest in the tropics concern us?" The first and foremost reason is that these forests are home to more species of life than [16 ELR 10257] anywhere else on earth. Tropical forests cover approximately only 6 percent of the land of the earth, yet contain approximately 30 percent of all species of plant and animal life found on the planet. A single hectare, or two and a half acres, of Amazonian rain forest may contain some 235 species of trees. A comparable area of forest in the United States might have just 10 to 15 species. A square mile of Costa Rican forest was found to have 269 bird species, more than in all of wildlife-rich Alaska, an area 500,000 times larger.

In terms of their wealth of species, the nations with tropical forests — practically all less developed countries (or LDCs) — are comparable to the OPEC nations in their oil wealth. We cannot afford to lose this biological diversity because plants, animals, and microorganisms are enormously valuable to mankind. The LDCs contain in excess of 95 percent of the remaining moist tropical forests in the world, which in turn support a staggering diversity of wild animals and plants, many as yet undiscovered by scientists.

These species represent an untapped storehouse of new foods, pharmaceuticals, and industrial chemicals. For example, a rare corn species, Zea diploperennis, discovered not too long ago on a Mexican hillside, has the potential for dramatically changing corn farming, since it is both perennial and virus-resistant. A small periwinkle plant from Madagascar produces one of the best available cures for some forms of cancer. A shell-less sea snail contains a chemical capable of reducing blood pressure. A wild hibiscus from Kenya, called Kenaf, can produce as much paper fiber in a single year as pine trees produce in 15 or so.

Wild varieties of crop plants, such as wheat and potatoes, provide safeguards against loss of cultivated strains through disease, yet in the rush for development these animal and plant resources are disappearing from LDCs before scientists can evaluate their potential. At the same time, the loss of huge tracts of tropical forest to agriculture and cattle production may change rainfall patterns and the entire climate of our planet.

There are far more examples of new foods and medicines and industrial raw materials that await discovery in the tropics. Their value to the developing biotechnology industry alone is staggering, and what is amazing is that most of the species have never been discovered and described by scientists, let alone tested for their economic value to humanity.

Several conservation groups have long recognized the critical importance of maintaining a diverse and large genetic pool. I am glad to say that the World Wildlife Fund (WWF) is a leader in this field. Last fall, WWF organized the Biological Diversity Working Group, which I chair, to assist the Departments of State and Interior in their congressionally mandated strategies on conserving biological diversity. Two documents, one published by the Interior Department to illustrate its present programs affecting biological diversity, and the other an interagency task force report to show U.S. alternatives to aid LDC conservation efforts, indicate a growing awareness of these matters on the part of the U.S. Government.

Today, Foreign Affairs Subcommittee Chairman Gus Yatron is expected to introduce two important bills. Scientists have recently discovered that one of the most important free ecosystems services is the maintenance of climate. Again, using the example of Brazil, as much as half of the rainfall in the Amazon Basin is generated from the forests within the basin itself. If the forests are removed from the land, the temperature and rainfall patterns of tropical South America will change, and because the climate-forming processes of the whole earth are tightly interconnected, climate in places far away could be severely altered. Thus, atmospheric scientists are warning us that the loss of South American forests could lead to crop failure in the grain belt of the United States.

You begin to see what happens when forests are destroyed, by considering the situation in Nepal. In this impoverished South Asian country, with its rapidly growing population, fuel-wood-hungry people have stripped the foothills of the Himalayas of their natural protective plant cover. Because there are no longer multiple layers of leaves to lessen the force of the rain nor myriad roots to bind to soil, erosion has reached disastrous proportions. The great rivers of India are chocking with sediments that used to nourish the Gangetic plain. The people of Nepal and India are losing the resource upon which their agriculture depends. The problem is so severe that the World Bank considers this deforestation its highest priority for assistance to Nepal.

The worldwide loss of topsoil from crop land in excess of new soil formation is estimated at 22.7 billion tons annually, according to the World Watch Institute's report, State of the World, 1984. I understand that the author of that report, Lester Brown, has already significantly raised this estimate based on new data from China and the United States.

Of course, the natural ecological communities of plants, animals, and microorganisms that cloak the land do far more then prevent soil erosion. These living things actually create the soil and maintain and increase its fertility. By increasing infiltration, plants help to hold rainfall, and thus protect against flooding. Ironically, for precisely the same reason, they diminish the disastrous effects of drought by allowing the earth to release water to springs, streams, and rivers slowly, over long periods.

If the efforts to halt deforestation and to restore the natural vegetation in Nepal are unsuccessful, then Nepal may become the next Ethiopia, and you have seen how in Ethiopia, overpopulation, overgrazing, and over-harvest of fuel wood have devastated the land and its people. In 1900, nearly half of Ethiopia was covered by vegetation. Now the figure is 4 percent. This process of desertification has crippled Ethiopia's chances of raising its people from their current status as the most poverty-stricken in the world. While the drought was started by lack of rain, it is greatly worsened because the rain that does fall is no longer absorbed by the soil. Now when it rains, the water [16 ELR 10258] runs off, taking away productive topsoils in the process. Unless effective methods of protecting the global environment are practiced while we develop its resources, we will see more and more human-caused disasters such as that in Ethiopia.

While i have emphasized so far in these remarks the natural resource problems that tend to be particularly significant in the tropical countries of the world, there are, of course, environmental problems that are of special importance in the industrialized nations. Several of these are already urgent, and will become more so during the rest of the century. One of these involves hazardous and toxic waste.

In the United States, we are beginning to be aware of the magnitude of this problem, as thousands of sites have been identified where industrial wastes have been dumped over the years. The risk of human health, particularly through the contamination of groundwater, is potentially enormous. Both government and industry are moving to attack the problem, although progress often seems maddeningly slow. In the private, non-profit sector, a new organization called Clean Sites, Inc., involving an innovative combination of business and environmental interests, has been formed to help speed the process of cleanup.

I can only assume that the hazardous waste dump problem exists in all countries around the world where there is significant industrial development. Clearly, the problem is not limited to the chemical industry, as the experience here in the United States is that practically every industrial category has contributed to the waste dump problem. The fact that the toxic waste problem doubtless exists in the Third World as well as in the industrialized nations leads me to comment that in the aftermath of the tragedy at Bhopal, India, multinational corporations as well as host countries will doubtless be reexamining the risks and their methods for handling the risks in carrying on potentially hazardous processes, both at home and, most particularly, abroad.

Acid rain is a problem of special importance to industrialized nations with high usage of fossil fuels, and the problem is rapidly becoming global in extent. It is clearly international in impact. The acid rain issue has been a major irritant in the relations between Canada and the United States, and it is increasingly a problem among the industrial nations of Europe. Overall, the World Watch Institute estimates that many forests in Europe and North America now receive as much as 30 times more acidity than under natural conditions.

I have referred to the impact on world climate of the destruction of tropical forests. The level of atmospheric carbon dioxide has increased by about 30 percent since the beginning of the industrial revolution, principally as the result of the combustion of fossil fuels. Scientists predict that increased levels of CO₂ in the atmosphere will have profound effects on world climate in the next several decades. The destruction of tropical forests will hasten these effects.

I have tried to provide a brief picture of some of the more important global environmental problems confronting us at the close of this century. Others of you doubtless have a different list. However, the important point to recognize is that we are dealing with a set of problems truly global in nature. Overall, they reflect a growing imbalance between human numbers and the natural resource base of the earth. That imbalance is a principal contributor to political, economic, and social instability in many parts of the world. I think it is probably no coincidence that El Salvador has both the highest population density of any mainland American nation and has also suffered the greatest loss of forest cover of any American nation.

The day is long since past when the United States could consider itself isolated and immune from such concerns. The developing countries of the Third World buy 35 percent of U.S. exports and account for 37 percent of our imports. We have a national self-interest in building a more stable world. Political instability in almost every part of the globe has an almost immediate impact on U.S. interests. It makes sense to me that United States national policy should give the highest priority to helping solve the major environmental problems that afflict the planet, to helping bring the growth of human numbers under control, and to promoting sustainable economic development in the Third World.

Note that I do not suggest that the United States undertake to solve all these problems on its own. I emphasize our role to be one of helping, of working in cooperation with others. One of the encouraging signs in what is undoubtedly a fairly depressing picture overall is the increased awareness by Third World countries of their environmental problems. Increasingly, leaders of Third World countries are recognizing that sustainable growth and economic development can only occur on an ecologically sound base. One evidence of this is the fact that the number of environmental agencies in developing countries has developed from 11 in 1972 to 110 in 1984. The problem, of course, is that in the usual case these agencies lack financial, technical, and personnel resources.

As we approach the year 2000, international cooperation to meet the world's urgent environmental problems presents an unparalleled opportunity for positive United States leadership, one that should engage both government and the private sector. A vital ingredient in building that leadership is increased understanding among Americans that we, as a people, have a vital stake in the health of the global environment and that our own well-being is inextricably linked to the population, environmental, and economic problems of the rest of the world. Today's program provides an important opportunity for helping increase that understanding, and I congratulate the American Bar Association for its initiative.

SMITH: Thank you, Mr. Train.

Our second speaker is Dr. James Lee. Dr. Lee is presently Director of Environmental and Scientific Affairs at the World Bank. He is trained in public health, medicine, epidemiology, and tropical medicine. He has held numerous state and federal government positions over the years in the environmental and health fields, and has published extensively.

LEE: Thank you, Mr. Chairman.

The Standing Committee on Environmental Law and its Chairman, Mr. Smith, certainly are to be commended for making this program possible, for focusing individual and collective attentions on what is presently happening to our global environment and what is likely to happen in the not too distant future — in fact, in the lifetime of many of you here today.

We live in perilous times. Certain events of recent weeks [16 ELR 10259] have brought this fact home to us in a most dramatic fashion. Present world events, be they political, social, or economic, clamor for our attention, and daily the media fills our minds and numbs our senses with the crises of the moment. They are symptoms of something that has gone wrong with the world, and somehow the specter of things big and terrible is never far from our minds.

Our first speaker, Russell Train, has detailed for you the long and growing list of problems — or challenges, as it may be — that we face as peoples who share a common environment. The world's family of nations has embarked upon change, the consequences of which we can only speculate upon, for this truly is a time of growing uncertainty and doubt in the world's understanding of itself and its future.

Some speak of the faded promise, and others preach of unlimited potential. Some see the impending doom of humanity, and others see the dawn of a new and glorious age made possible through a technology of revolutionary proportions. Be certain that profound changes are occurring, changes that are vast and sweeping in their scope and very likely irreversible in their consequences.

Although human activities have always altered the human environment, the scale of disruptions as we approach the 21st century is unprecedented. The culturally derived wants and needs of a world population soon to reach 6 billion or more now appear fully capable of causing change in environmental systems and natural resources affecting continents and, indeed, the world. As these pressures intensify, and the recognized relationships between people and their natural support systems are strained to the outer limits, breakdowns occur with tragic social consequences. You are all witnesses to this breakdown in Africa, where famine is on the march and where disease and death are taking a grave toll.

Now, you, as learned members of the bar, have gathered together here today because ostensibly you are concerned with the human condition and with the environment that, until recent times, has nurtured mankind. But concern for human welfare and social well-being and the integrity of the environment is not, of course, reserved to those of you in the legal professions, or to those such as myself in the scientific fields.

It is becoming abundantly clear that those who are charged with responsibility for the world's economy must likewise be concerned about the state of the environment which Mr. Train has so dramatically described for you. National economies and, indeed, the world economy depend upon the ability of environmental systems and natural resources to sustain them. The integrity of the environment is essential to the sustenance of economic development. Failure of our global environmental system translates into failure of our global economic system, and that which threatens the integrity of the environment threatens the economy. The deterioration of the world environment to which we are all witnesses, if in fact not contributors, represents a deterioration of the human prospect.

As lawyers, you know better than I that the last three decades have been confusing and traumatic, and witness to much human suffering and social discord. A colleague of mine, after carefully studying the emerging scene, has described it this way, ^** and I quote: "The picture emerging is one of the advent of an age of global scarcity in a world of increasing population. There are varying views," he says, "on the degree of tension inherent in this situation, on the way this tension is likely to manifest itself and how it can be alleviated, but there is no disagreement on how somber are the prospects."

Even at this moment, the resiliency of many national economic systems and the international economic system itself continues to be tested. And disorder in the economy is increasingly threatening of order in the environment. Developing countries, as we have heard, are faced with a mounting foreign debt load approaching the one trillion dollar mark, and are finding it increasingly difficult to provide for the essential needs and requirements of their burgeoning populations. As the ranks of the poverty-stricken swell, the unfortunate victims are compelled to put further pressure on their already badly-stressed environments, thereby incurring greater degradation and destruction, and diminishing their hopes for the future.

The major disaster relief organizations met last year in Stockholm, and I was privileged to be there. They indicated that "natural disasters" to which they annually respond are "increasing in frequency and severity, affecting more and more people, devastating vital life-supporting environmental systems," and they pointed to environmentally unsound economic developmentas a major causative factor in this alarming trend. They indicated that more and more of the refugees they are called upon to care for could rightfully be termed "environmental refugees."

It is both interesting and disheartening to note that the world's nations are bearing the heavy burden of arming themselves against threats to their national security. Something approaching one trillion dollars a year will reportedly be spent by the end of this year, ostensibly to deter threats to nations' individual security. At the same time, I submit there is a failure to recognize that destruction of the environmental and resource underpinnings to their economies represents no less a real and present danger. National security cannot be maintained unless national economies can be sustained.

The point needs to be made and reinforced that what is at stake are planetary resources and systems that not only support national economies and hence the global economic system, but all life as well. The biosphere, the global commons, the great bio-geo-chemical-physical cycles that distinguish this living earth — these cannot be appropriated or purchased or protected with arms by individual nations. They are inherently beyond the reach of nation-states, and we have been slow to realize the political implications of the mutual dependence of all nations on these shared systems.

In his paper on new perceptions of national security, my friend Thomas Wilson states, and I quote, "In the real world today, the national interests of the separate states converge in the need to sustain the living systems of the planet Earth. The idea of common security is relevant, as well, to the economic structures of the world we live in. An interdependent world, not only in terms of expanded exchange of goods and money and people, but of mutual dependence on the daily functioning of integrated economic and technical systems, has become kind of a metabolism for the body politic of the whole society of nations."

The idea of common security is relevant to the ecological [16 ELR 10260] realities of the world, for how can we even talk about national security when the global commons and the basic biological systems are under threat — that is, when the planet itself is insecure and under rising risks from year to year? Admittedly, the emergence of environmental insecurity as a global threat is something of a new phenomenon, but it is taking shape, particularly in the minds of the environmentally informed. But, said one critic recently, "The world does not owe the environmentally informed an audience," and that may be so. If it is, then our hopes for a near-term major change in nations' attitudes toward their own environments, and more generally towards that of the world, would appear to be dim.

In fact, Mr. Train, it must be admitted that despite our collective efforts to increase awareness of this issue over the past decade, there still persists throughout much of the world today a universal complaceny about the declining state of the global environment. Despite our collective warnings, our admonitions, our appears, our cajolings, and our intriguings, the patterns of development around the world remain largely unchanged and unheeding of the connections that link environment and development.

And yet we may — and I want to emphasize "may" — be on the threshold of nations' discovering that they have compelling, self-serving national interests in a hitherto unattainable level of international cooperative action — action to safeguard and husband the environmental systems and the resources upon which they are all mutually dependent. The time remaining for that discovery is, however, rapidly telescoping, as a spate of recent reports attest, and as you will hear from the World Resources Institute.

There are those who will counsel that the future has already been determined, that there are now in place the trends, the movements, the inescapable tide of events, the already observable indicators of irreversible change that preclude society from altering its march down the path of evolutionary retrogression upon which they perceive mankind has now embarked. In support of this assertion, they will frequently point to the carbon dioxide climate change scenario which Russell Train just mentioned. Question: Will the measured increase in carbon dioxide: concentrations in the world's atmosphere result in temperature increases globally that will trigger major climate changes? If so, they contend it is certain that it will happen because the collective preventive measures required will not be taken, and this would appear to be the case, for the experts are now suggesting that adaptation rather than prevention will be the likely result.

Others would remind us of the old adage that what is past is prologue. They contend that the environment as an issue of commanding international concern, and hence, vigorous, concerted international action will continue to languish, awaiting rescue from the backwaters of society's agenda for action. They contend that unless the threat to the environment is convincingly linked to a universally understood and recognized issue of international concern, such as a threat to international peace, a threat to the international economic system, a threat to human survival, it will continue to receive relatively little serious attention.

There is, however, a growing awareness that the security of not a few nations is now threatened, not so much by an armed adversary outside their borders, but by the triad of internal, pervasive, and persistent poverty, population growth, and resource degradation and destruction. The linkages between environmental and resource degradation, population increases, social and political stability, and national security are emerging, albeit slowly and uncertainly. Loss of essential environmental systems and resources necessary to the economic future of a country's growing population can rightly be seen, I believe, as threatening of its national security, and trees rather than tanks may be much more important to their national security. The related interests of all countries can be seen to center around the need for ensuring that the demise of national environments is not allowed to coalesce into a broader threat to the global environment.

Let us briefly examine the forces that work to bring about an equilibrium. For a growing number of the world's people, poverty is bringing about an unprecedented assault on environmental systems and resources essential not only to their economies but to their very lives. If the environmental and resource underpinnings that undergird and support these societies collapse, the security of the affected nations is immediately placed at risk. The likely social and political manifestations of such dislocation may be a matter for speculation, but in their efforts to find relief, such national calamities can take on wider dimensions, thereby serving as a potential threat to regional harmony and to international peace.

If, however, these relationships and linkages can be perceived by a wider audience as challenges to the stability of the biosphere, as a culmination of destructive actions at the level of individual nations, representing a threat, and a common concern to all nations, this would constitute a significant step toward the world's family of nations viewing itself in a manner that links vital national interests to environmental security, and hence national security and international peace.

While acknowledging these connections, some are insisting — and very seriously so — that little or nothing can really be done on an international scale to secure the stability of environmental systems and natural resources. They contend that what would be required is the defenence of all nation-states to an agreed upon series of concerted actions that are not even remotely politically or economically possible, at least at this point in the evolution of our international relations.

Can we reasonably expect that, once having discerned that they have a compelling national interest in cooperative undertakings to protect and manage environmental systems and resources upon which they are all mutually dependent, that nations will in fact do it? I leave it to you as members of the legal profession to ponder the question, for it will be largely in your domain, in the domain of international law and treaties and agreements, that we will be seeking how or even if such actions are possible. There can be no doubt that it is national interests that must first be perceived, for whatever concerted actions we would hope would occur derive directly from countries viewing them as in their own national interest.

In our examination of the relationships between human society and the biosphere, could we have the beginnings of a new approach to the conduct of international relations, including the traditional uses of diplomacy and national power? Again, my friend Thomas Wilson has an answer. He says, and I quote:

[16 ELR 10261]

These emergent, coherent, internally consistent perceptions of an integrated human environment of critical transnational resources that are responsive only to cooperative systems management, of transcendent threats and indivisible security for nations and the people of the world as a whole, these it seems to me are essential elements of a modern world view that links vital national interests firmly to world resources and in turn to the need for a global security system. The collapse of national environmental systems, bringing about economic disruption that can serve to trigger social and political destablization, whose dimensions can enlarge to present a threat to regional and international peace, presents a scenario that we would not casually toss aside, for in it are the elements for both global disaster and global security.

In conclusion, then, when seen in an environmental context, the search by nations to ensure their own security and the search for international peace enters into very new and untested waters. At a recent conference on the global possible, I listened with great interest to assertions by several scientists that the consequences of a nuclear exchange would include biosphere instability leading to, and I quote, "a nuclear winter." The scientists strongly suggested that the destruction that would be visited upon the warring nations would not end there, but rather the whole world would have thrust upon it an ecological nightmare.

Nations everywhere, regardless of their hemispheric locations, are beginning to understand that their national self-interests are clearly best served by the prevention of such an exchange. The global environmental consequences are thought to be so horrendous as to compel all nations to dismiss the illusion that nuclear destruction would be limited solely to the antagonistic theater of war.

This would seem to me to suggest that individual nations are, at least to some extent, becoming aware that in the collective maintenance of biosphere stability they would also be serving their own individual national interests. But make no mistake about it — it is national interests, as perceived by national governments. They are the master incentive for the behavior of all nations.

There is only one global climatic system, one source of photosynthesis, one ozone layer. The unitary biosphere cannot be subdivided. No nation, no continent, no hemisphere, no people can partition the biosphere and fashion it to its own purpose, and thus no nation can ever be secure if the planet itself is insecure. The vital interests of every nation converge in a common concern, a common interest, a common necessity, and that is the defense of the planetary systems and the resources that sustain all life, that make all economies possible, without recognition of political boundaries and ideologies.

If what I have been talking about — the need for a markedly improved understanding and appreciation of the linkages between the growing human pressures on the natural support systems that underpin all our national economies, the extension of these pressures to include the integrity of our global environment, and how these are seen to relate to national security and international peace — seems something to be devoutly wished for but not likely to be achieved, it is, after all, in the striving that we must persevere.

In surveying the emerging world scene, Albert Einstein is reported to have said, "We shall require a substantially new manner of thinking if mankind is to survive." It just may be that the emerging connections between national security, international peace, and biosphere stability — representing the elements of a modern world view that links national interests firmly and irrevocably to world resources and planetary systems — may represent that new manner of thinking, and perhaps a new approach to international peace and global security.

SMITH: Our panel discussion will now begin, moderated by Mike Heyman. Mike is Chancellor of the University of California at Berkeley, a former professor of environmental and land use planning law at Berkeley, a former member of the Standing Committee on Environmental Law, and currently a member of the Council of the Corporation, Banking and Business Law Section.

CHANCELLOR HEYMAN: A central issue at this meeting of lawyers ought to be how lawyers and law can contribute to the solution, or at least the amelioration, of problems that have been addressed by our two main speakers. I hope we will be able to develop that as we go along.

The major problems, as well know now, and have had elucidated for us anew, are pressing population growth, resultant need for economic development to sustain growth and raise material standards of living for those presently deprived, and the simultaneous need to foster attitudes that lead to conservation and the preservation of environmental and ecological health. That balancing is a tall order. Can lawyers and law contribute to it on a global scale?

Joining our two principal speakers we have three fine commentators.

Andrew Maguire is Vice President for Policy Affairs of the World Resources Institute (WRI). The Institute is a relatively recent creation of the MacArthur Foundation which, according to its own literature, seeks to link scientific research, economic analysis, and policymaking, so that the needs of the world's people and nations can be met while sustaining the natural resources and environmental quality on which life and growth depend. Mr. Maguire served three terms in Congress from New Jersey. He is a Phi Beta Kappa graduate of Oberlin, with a subsequent Ph.D. from Harvard, considerable international experience, competency in French, Swahili, and German, and has produced a variety of publications, including two books.

Richard Stewart is Associate Dean and Professor of Administrative Law at Harvard. He is also a teacher of environmental law and regulation, amongst other subjects. He has served as a consultant to the U.S. EPA; was a visiting scholar with EPA in 1980; worked with the President's Commission on Three Mile Island; and served on various committees of the National Academy of Science. He is a former Rhodes scholar and has published four books and numerous articles.

James Mahoney has a Ph.D. in meteorology from the Massachusetts Institute of Technology. He is manager of Bechtel Engineering's Environmental Industry Center, which provides a broad range of environmental consulting and engineering services to Bechtel projects and directly to clients worldwide. He was co-founder of Environmental Research and Technology, Inc., and undertook major work in both Saudi Arabia and Mexico, and he will bring a perspective to this that will be quite valuable.

To organize the panel discussion, we will first offer observations on Russell Train's perceptions regarding the [16 ELR 10262] central, long-range environmental issues. Next, we will comment on James Lee's propositions, with perhaps special emphasis on population, economic development, and stability in the link between environment and economic growth. Finally, we will look at institutions, with a special emphasis on law and lawyers.

I would like to start with Andrew Maguire.

MAGUIRE: Thank you. First, the two presentations we have heard provide an illuminating overview. I do not intend to repeat those comments, but to add to the list. I will refer to some examples of environment and resources management problems in other parts of the world which may have reasonably direct short-term effects on the United States. I also plan to discuss how we can start asking new questions about what kind of assistance we provide around the world. I will close with brief remarks on the implications for lawyers and, as Jim Lee says, of the fact that no nation can accomplish improvement by itself, since the issues so often are transboundary in nature.

Russell Train's list of issues was extensive, ranging from biological diversity and forests to acid rain, climate change, and population. I would add threats to human health from mismanagement of pesticides and hazardous substances, and threats from waterborne pathogens. Waterborne diseases are responsible for about 80 percent of all illness in the world today. I would also add over-fishing and habitat destruction and pollution of the marine environment — 25 of the world's most valuable fisheries are seriously depleted today due to over-fishing — as well as mismanagement and shortages of fresh water resources. It now seems possible to many researchers that water may be to the 1990s what energy was to the 1970s.

Examples abound of effects on U.S. economic, political, and longer-term security interests of mismanagement of environmental resources. For instance, we all know about the Haitian "boat people" coming to our shores. But how many people who read the newspaper accounts recognized that the Haitians were not just political but also environmental refugees fleeing a country where agricultural productivity had been reduced drastically as a result of extreme soil erosion, preceded by massive destruction of forests and other vegetation?

By the end of the century, Mexico City's population will be 30 million or more, four times the size of New York City. How will Mexico manage this large, concentrated group of people? Water, public services, housing supply, job markets — the needs are tremendous. What are the implications for Mexico's political stability and economic future, and for the rate of illegal immigration into the United States?

Everybody understands the dimensions of the tragedy in Bhopal. But do people fully understand that the United States government and our people, as well as individual private companies, may now find their interests rearranged in significant ways? Demands for compensation, the need for new legal and regulatory frameworks, and concerns about operations of plants involving hazardous materials will receive increasing attention.

Ethiopia has been mentioned, but let's look back over the last ten years to the entire Sahel region in Africa. Billions of dollars have been spent over more than a decade to combat extreme situations of mass starvation. Nature and ill-planned development schems share the blame. Unless future development assistance in Ethiopia and elsewhere across wide bands of Africa focuses more effectively on improving the capabilities for environmental and resource management and population control, there will be increasing malnutrition and starvation, and economic, political, and military unrest, and potentially very serious regional and international implications.

Closer to home, in El Salvador, how many people understand, as AID reported in 1982, that the fundamental causes for the present conflict — and I quote, "are as much environmental as political, stemming from problems of resource distribution in an overcrowded land"?

If we are going to understand and focus clearly on such specific problems as these, the next step is to look at how U.S. assistance, through multilateral lending institutions and other vehicles, can be reshaped in order to deal not only with a project here or a program there, but with the underlying system maintenance problems.

Through the Alliance for Progress, for example, overall economic growth objectives were frequently achieved, but fundamental social, economic, and political change was thwarted. Population pressures and resource degradation, which went unaddressed through the Alliance, now jeopardize future economic growth and orderly change in Latin American countries, particularly in Central America. I would submit that the Kissinger Commission repeated the Alliance's error of believing that economic growth, per se, will solve the region's problems, if only we provide a military shield.

The World Resources Institute has offered suggestions about how the United States might reexamine its current external assistance program. We focus on such issues as building up the institutional and personnel strengths of host countries to deal with environmental issues; monitoring and assessment of trends; strengthening countries' research and development capabilities; and providing incentives to cope with industrial hazards. U.S. AID and the multilateral banks are beginning to perceive the importance of undertaking strategies of growth and change that will be more sustainable over time.

Finally, institutional frameworks are already under development, and new legal regimes, for a variety of international and regional global common issues. Nearly a dozen regional seas action programs have been set up by the United Nations Environment Programme including those in the Mediterranean and the Caribbean, and they are beginning to achieve some leverage. While Law of the Sea negotiations were not as positive in their total outcome with respect to U.S. participation as we might have hoped, these talks are a harbinger of a future in which this kind of effort must more often be undertaken.

Cross-boundary international situations abound: There are major river systems, in about 75 different locations, shared by more than one country. There has been an effort to establish a peaceful international regime for Antarctica. The U.S. shares the acid rain problem with Mexico and with Canada.

A tropical forestry action plan is now launched, with leadership from the World Bank and World Resources Institute, to determine specifically what one can accomplish in 56 different countries around the world, and how such efforts can be financed.

All of these efforts will call upon the skills of lawyers [16 ELR 10263] as we move into new kinds of diplomacy and negotiation, and as the private and public sectors begin to deal with the dilemmas that are posed.

Thank you, Mr. Chairman.

HEYMAN: Jim Lee stated that we face an atmosphere of impending doom, and that there is a sense of overall destabilization. I want to ask both Russell Train and Andy Maguire whether or not they agree, and, if so, what is happening in practical terms to cope with this acceleration? Are you hopeful or not?

TRAIN: I don't know that there is a good answer to that question. There is a sense of a growing problem; the very fact that we are beginning to see it that way may be an indication that we are becoming educated.

I think one problem is that, in the United States, it is difficult to explain to citizens why they should care about the tropical forests of the world when they face unemployment problems, not tropical forest problems.

There is also the other end of the equation, the poor individuals, wherever they may be, trying to find the next meal for their family. It is just as difficult to interest these people in the long-term, when they are facing an immediate problem of proverty and hunger. So no matter where one seems to be, unless one is intellectually interested in these problems, one does not have an everyday interest in them. They just are not all that meaningful.

I want to raise a question myself, which relates to Jim Lee's statement that I also made: that we have, as a nation, a shared stake in global stability — political, social, economic — and environmental degradation is a destabilizing factor.

It is well and good if we all recognize that and work together to try to solve the problems, because we have a shared self-interest. But I also want to consider specificaly one of the major players in the world — the other superpower. If the Soviet Union were to share with us a common view that environmental degradation in Ethiopia or El Salvador or elsewhere contributes to its own, as well as our own, instability, and threatens self-interest and self-security, then we might believe that this is a great base upon which to build an international cooperative regime that truly addressed these problems.

On the other hand, my Kremlinologist friends tell me that a principal interest, certainly of Soviet policy in international affairs, is to identify areas to current instability and to exploit them, or to identify areas where conditions of instability can be created. I wonder, Jim, in the world of geopolitics, how successful we are in mobilizing world institutions to address this shared problem?

LEE: If it is the policy of certain governments of the world to promote and exploit political and economic destabilization, then what is happening to the environment certainly is to their advantage, because so long as the underpinnings of national economies continue to be eroded, with social and political events that follow in their train, then we can expect that they will be the focal points for those who are interested in the continuation, expansion, and exacerbation of destabilization.

TRAIN: Would you say, therefore, that a primary focus of U.S. policy in dealing with the Soviet Union could be to try to assume internationally a leadership role in addressing environmental policy?

LEE: As an international civil servant, it is not appropriate for me to discuss the policies of the United States. A generic answer would be that, in the face of a common threat, regardless of their own individual situation, political proclivities, and ideologies, they would be able to sublimate those in order to proceed in a concerted, orderly fashion.

If you ask me if that will indeed happen, I don't know. But it will be in their domain where these answers are likely to come from, and not necessarily from the scientists.

HEYMAN: Let's return to Andy Maguire. Here is a practical politician, who tells us that AID saw as a good part of the problem with respect to the instability in El Salvador, environmental problems — overpopulation in relationship to resource base and a system of exploitation.

Are we going to do something about it? Are we going to act in a way that seems to be in our self-interest?

MAGUIRE: I think your question is critical. We will be publishing a book later this year that will explore exactly what are the underlying issues in a dozen situations in Latin America. Perhaps this will attract some attention, since these are neighboring countries, and since we are potentially and actually involved in ways which are highly controversial and very much on the front pages of newspapers.

I'd like to comment on the USSR and China for a moment. Some beginnings are being made. Just in the last few months, the National Center for Atmospheric Research in this country has come to an agreement with the Soviet Academy of Sciences to begin a computer conferencing arrangement between scientists of the two countries to look at the CO₂ and other related atmospheric issues. WRI has initiated some conversations also with the Soviet Academy about the possibility of subsequently undertaking a space bridge on television involving both scientific and political leaders of the two countries.

Just two years ago, China set up a new environmental assessment and policy unit at the highest levels of government, and already there have been exchanges between their people and our people. The Chinese are asking new questions about their own future. They have terrible problems there — air pollution, toxics, a gigantic dam proposed for a questionable location, and so on — and they are now starting to look at the policy implications to the end of the century and beyond.

A change in the last 15 years in this country is noticeable in the attitudes and actions of private companies. That affects discussions in the U.S. and also the international picture. There is a desire among both private corporate leadership and those of us concerned about environmental issues to talk together and to look at these issues. At a WRI conference chaired by Bill Ruckelshaus and Jimmy Carter at Emory University last fall, business leaders said that resource management issues are an important part of their calculations, not just because it's a good issue but because it affects their bottom line and their image over time.

The Bhopal situation underlines that. We have reached the stage where people recognize that we're now discussing, negotiating, and developing new frameworks. That is where the legal communities can become increasingly involved.

STEWART: We know that the United States has provided leadership on environmental issues, a good deal of which seems to be due to the interaction between environmental groups, the media, and political figures. But most of the national environmental groups devote a very small percentage of their resources to international issues.

[16 ELR 10264]

Why can't we stimulate greater interest in the international environmental issues? People do get exercised in the United States about threats that aren't necessarily in their neighborhood and motivate political concern. Is there room to provide some political motive power behind this issue in environmental politics in the United States?

MAGUIRE: The environmental groups in the United States right now are starting to focus on a congressional agenda. Led by the Global Tomorrow Coalition, in which many of the groups participate, and by people like Russell Train and others who have held top policy positions in our government and are now on the cutting edge of the NGO sector, we are seeing the development of some legislative packages. World Resources Institute has testified 15 times this year before congressional committees that have some members who are now focused enough on these issues to begin to ask the right questions.

And environmental groups increasingly are paying attention to international issues, such as the role of multilateral banks. In fact, it was an initiative of the Natural Resources Defense Council, the Environmental Policy Institute, and others that has forced the pace in Congress and at the Treasury Department, which is responsible for overseeing the activities of the U.S. executive directors to the various international banks. As Russell Train noted, the World Wildlife Fund has been a part of a coalition working with the U.S. government on biological diversity policy.

At the same time, one has to be pessimistic about how quickly we can proceed, because the immediate crisis is always what compels people's attention, not longer term international issues.

TRAIN: I think the picture is changing in this regard. To put it in the perspective of my organization, which is a membership organization, our number of supporters has grown from something like 25,000 in 1978 or 1979 to about 200,000 today, and seems to be growing at the rate of approximately 30 to 40 percent annually. I don't know whether we can sustain that development or not, but it does indicate to me that something is going on in terms of public attitudes and interest in this country. There is real interest in international environmental matters. Our program is almost entirely international, so it seems to me it does provide a fair measure of some change.

SMITH: I want to return to the premise that the current situation is unacceptable. The Heritage Foundation published a book called The Resourceful Earth last year that challenged the proposition that things are as bad as we have been suggesting. What does the panel think of that book and its critique?

MAGUIRE: I think, frankly, that the publication you refer to could be examined rather carefully against the factual material that is available on any of the subjects that we have been discussing today, and that it could be pretty easily rebutted and placed in perspective. I believe we are past the point of painting just a rosy picture of "more people is going to produce more brain power, is going to put technological innovation in place fast enough to deal with all of our problems." That's the sort of debate that we've had for the last ten years or so.

The facts are fairly clear and the general consensus on these issues ought to be where we focus our attention, not with extreme statements on either end of the spectrum, which we may assume are likely to be wrong. What we are giving you today is a middle-ground set of projections about these issues.

PARTICIPANT: Could any of you give us an example of significant movement on an international agreement, where the United States has not wielded a significant club, such as controlling the resource. Or is international agreement contingent upon the United States wielding a club?

MAGUIRE: I can offer an example. The Mediterranean Regional Seas Action Plan was developed entirely by the countries that border on the Mediterranean. The U.S. had absolutely nothing to do with it, either formally or informally, and the nations did it because they saw it to be in their interests.

MAHONEY: Another good example is the European Long-Range Transport of pollutant experiment and analysis through the early and mid-1970s, which provided the first documentation about acid deposition and the combined fate that we face on a regional and trans-boundary basis. Through much of the development of that experimental work, which involved ten western European nations, there were urgent requests that the United States take a role. We did not, and in fact the information developed and the first steps toward real control were achieved in western Europe, in the absence of any U.S. involvement.

I would like to introduce a slightly different and practical perspective about some of the challenges facing the world — the developing countriesin particular — in coming to grips with the issues of environmental management we have been hearing about today. What we have heard in the discussion so far has been a statement of great concern, to be sure. We do have some serious issues in the matter of depletion of resources, even those which sustain basic human life in many parts of the world.

Since that discussion, we have also heard something of a hopeful message: that there are some things happening, in the United States and elsewhere. But my concern would be that mid-course corrections, or what we are doing here in the States, are perhaps of the order of a 2 or a 5 percent solution, where we need a 100 percent solution if not a 200 percent solution.

I say that not at all as an extremist. As you heard in my introduction, I have worked in the private sector for 20 years in many parts of the world, often at the edge of public sector involvement, but I would like to think of myself as a practitioner trying to work on specific issues and problems. In doing so, and in working in virtually every part of the world as advisor and technician, I have become increasingly concerned about the inability of most nations to apply the resources to bring about effective management of our environmental heritage.

When I speak about the application of resources, I have more than one kind in mind: first, financial resources, in the broad sense, that is, the resources which must stand in competition relative to other special purposes in each nation; second, the resources of institutions themselves. The fact is, that while we have seen the educated and worldview elite of virtually every nation become involved and aware of environmental management problems over the last decade or more, the bench strength, the individuals behind these few leaders who would be available to work on problems of management and control of resources, is virtually lacking in almost every case. So, we see a great [16 ELR 10265] frustration in coming to grips with the day-by-day implementation of individual programs which represent the course of a good management practice.

Let me give one specific example. Jim Lee has participated in a series of environmental management workshops which I organized and conducted specifically for agency heads, ministers of government, and others in developing nations. In every case, the context was the matter of managing for proper environmental controls while undergoing the development process.

The U.S. happened to become involved in some of these issues because of the kind of government and society we have, and because of the recognition of the pressures brought by the environmental groups, by the press, and felt through the Congress and others. When individuals came to these workshops run in the U.S. — roughly 150 representatives over a period of four or five years, representing just about every part of the world dealing with these issues — we found in almost every case that virtually the only technical engineering standards information available for use in these nations was that developed in the United States, with a few exceptions, of course, such as things the World Health Organization has done in the matter of drinking water standards. Nearly the exclusive library resource for the individuals and the institutions in most countries were EPA reports that had been prepared, providing some basis for controls and resource management.

These same individuals in their leadership positions see the United States in a position of wasting substantial financial, legal, and technical resources in decisionmaking on environmental challenges and management issues, because we started out with a very good process under NEPA in the environmental impact assessment methodology, but we have seen our system almost overwhelm us because we are unable to make rapid and decentralized decisions in a number of cases.

The result is that a number of those individuals who must take the leadership positions in their own nations almost throw up their hands at the problems and say, "We see the practice that you, a rich United States, can carry out. We know our needs, and we find virtually no way to implement this kind of program in our country. With our limited resources, we don't see what we can do." And time goes on.

This brings me back to my opening comment: are we looking at a 2 to 5 percent mid-course correction, when the situation we see in terms of population growth, organization, depletion of resources — especially the forest and the croplands and potable water — is marching at such a pace that we only have a generation's time or less left to make 100 percent solutions? I put the challenge, before all of us in our environmental practice in the States, to be aware of the need to develop efficient decisionmaking processes, and to leverage our experience by sharing it and seeking its efficiencies and its appropriate implementation in those nations that are central to the concerns we have heard raised here, where the human and financial resources are so much more limited.

HEYMAN: The presence or absence of lawyers in environmental regulatory processes in different nations is quite striking. Turner Smith tells me, for instance, that he is going to take a three-month sabbatical and will be in residence at Oxford, and he is finding it very hard to find an environmental lawyer in England. On the other hand, if you go to West Germany, you find a surfeit, in the same sense that you might here. It is interesting that the institutional responses are so different. Here are two systems with common-law heritages, with absolutely different experiences about the role of lawyers.

It interests me to know, especially in the context of this program, what kind of role lawyers and judges have in the resolution of these problems.

STEWART: Let me talk a bit about institutional questions and the roles that lawyers might play in moving environmental problems forward. The situation of environmental law in the United States is striking, with lawyers heavily involved in extended, massive regulatory rulemaking proceedings, siting hearings, judicial review proceedings, and other forms of litigation. They can justifiably feel that, whether the role is on balance constructive or not, they are in the middle of things.

The situation is quite different in other nations or international organizations concerned with the global common. Environmental law, in the form of statutes and regulations, is often rudimentary, and formal administrative proceedings and court litigation are relatively rare. As a result, the role of lawyers has to be very different. The lawyers have to give much more place to the scientists, engineers, planners and managers, to populists and publicists; perhaps that's a healthy corrective to what we have in our own country.

Nonetheless, there are a number of institutional settings in which lawyers, including in particular U.S. lawyers, can usefully play a role in dealing with international environmental problems.

First, there are international conventions on a variety of topics, including those dealing with the oceans (ocean dumping, marine pollution, the Antarctic), and with trade in endangered species. These conventions rarely result in litigation, but they do provide a forum and a process through which the participating nations can make agreements that seem to be of mutual interest, and develop an ongoing process of implementation and revision.

Bilateral and multilateral development funding provides a second point of institutional leverage. Bilateral development projects funded by AID, the Defense Department, and others are regulated under Executive Order 12114. Litigation has been brought against the federal government to ensure better environmental assessment in connection with these projects.

Projects funded on a multilateral basis by the World Bank or the regional development banks are not subject to these legal handles. In the case of these projects, environmental groups have achieved some success in lobbying Congress and the executive branch to use U.S. influence to strengthen the environmental assessments done by the multilateral banks on projects which they fund. Recently, United States directors of such banks have in a few cases taken the unprecedented steps of voting against project funding on environmental grounds.

Jim Lee and Andy Maguire mentioned the problem of strengthening the personnel and institutional resources in the host countries. I know that the European Community Development Bank earmarks a certain percentage of its grants for building up technical resources, citizen advisory groups, and a political and administrative infrastructure [16 ELR 10266] within the host country. It seems to me that we could give this approach morke attention. Obviously, if the United States were more generous in supporting international development, we could make our environmental concerns known more effectively.

A third institutional approach is liaison or coordination among environmental groups and legislators, both away in the developed countries, to encourage cooperative or joint solutions to the environmental poroblems associated with the industrialized part of the world, and also within the developing countries. It's a delicate task. There is a problem with a U.S. environmentalist telling a third world nation or group what is good for it, and the advice, even if sound, is not always welcome advice. One has to be careful to work within those countries themselves and develop the environmental constituency.

A fourth institutional element, which is specialized but very interesting, is the human rights struggle. An important part of this struggle concerns rights of indigenous peoples and the preservation of their culture and environment. The indigenous peoples in the Amazon have, for example, been decimated by development pressures. Many of their traditional sources of food and protein have disappeared. Protecting their rights involves protection of the environment. Human rights can thus be a lever for environmental concerns and a means to preserve the habitat and natural conditions in which indigenous peoples live.

Another institutional reference point is provided by the great variety of intergovernmental organizations and non-governmental organizations in the international arena — including the United Nations Environment Programme and Food and Agriculture Organization and a host of more specialized organizations. In this context, some environmental group and government lawyers have worked effectively, not as litigators but as facilitators, networkbuilders, and institutional architects. They have sought to advance through informal coordination a joint awareness of and joint responses to international environmental problems.

A final possible institutional joint of leverage lies with the multinational corporations. As we have seen, some steps have been taken to ensure that environmental concerns are considered in the investments flowing into developing countries from bilateral and multilateral government sources. But the investment and operating decisions of the multinational corporations are far more important. Their decisions often are not substantially regulated either by the developing countries or by the developed countries where such multinationals are based. After Bhopal, there is talk of change, but what action do we have? Can we rely on corporate responsibility and the long-run interests of the multinationals to engage in environmentally sound investment and operating practices, or do we need some sort of a legal lever? What might that be?

Should the United States, for example, attempt to require, perhaps through legal requirements applicable to multinationals that do a substantial portion of their business in the U.S., an environmental assessment process for the activities of such multinationals abroad? Of course there would be resistance to any such unilateral action by the U.S. Perhaps a threatened U.S. initiative would open the way to a solution within OECD or a group of the developed nations who would jointly subscribe to a code of good environmental conduct for the multinationals. This code would not be enforced through domestic litigation, but through new corporate or multinational institutions, in which lawyers can play an important role.

In short, if they are going to play an effective role in dealing with international environmental problems, U.S. lawyers are going to have to develop or re-learn skills of communication, negotiation, mediation, information transfer, and institution-building, and cut back on the adversarial litigation role that predominates at home.

HEYMAN: If the urgency of the situation is as great as I am led to believe it is, and we are taking irreversible actions on a global basis, I think that the general level of awareness and effective action seems somewhat lacking.

I am enormously appreciative of those organizations and people who are going their best, but it interests me to see, in terms of general attitude — which has to translate itself into political reality, at least in this country — how rapidly, for instance, we forget a gasoline shortage, when for a variety of reasons we can tap what is a very small resource, more rapidly now because of a conservation response.

In the mid 1970s, speeches were made about how long it took to create petroleum and how rapidly we were using it up. Nobody talks about that any more. We have a terrible tragedy at Bhopal, and I suspect that many people have approximated that to the thousands of Sikh corpses that came in on Indian trains after the assassination of Mrs. Ghandi. I could continue. I am not terribly optimistic that if the threats are as substantial as they seem to be, we are going to respond to them in a timely way, and I am not optimistic that the situation will take care of itself in the sense of a self-regulating system. PerhapsI am incorrect.

SMITH: Let me address for a moment the question of the role of lawyers. Perhaps lawyers have a larger long-term role in these global environmental issues than they do a short-term rule. It seems to me that we are at an early stage in dealing with global environmental problems, analogous to our early experience with domestic environmental issues when are were dealing with basic public health issues — direct, palpable, immediate public health threats from, for example, lack of sewerage. At that point, lawyers were not crucial to the solution of the problem because the solutions required chiefly application of technical knowledge and political willpower.

As we develop more refined environmental control and resource management systems, however, we reach the point of diminishing returns on the types of control technology we apply, we have to weigh costs and benefits and make more careful choices, and we begin to see the difficult problems inexorably presented in rationally allocating resources, for example, available assimilative capacity of our air and water. At this point, lawyers and the design of the legal system become much more relevant, but we are a long way from that point of refinement. We have not nearly drive resolution of the global issues to such a fine point. We have not yet really addressed the resource allocation issues nationally and explicitly in the U.S., but we have developed highly articulated systems for dealing with the pollution control issues. That kind of comprehensive regulatory system does not seem even to be on the horizon on a global scale.

MAHONEY: About three or four weeks ago, I was a [16 ELR 10267] visitor at Berkeley, giving a lunchtime talk to the local chapter of the United Nations Association. I was addressing the global environmental problem and what the U.N. agencies — UNEP in particular, and others — were doing, and where these steps will lead in the next several years. It turns out that the U.N. Association members, who had a median age of 73, were highly active in asking questions.

In concluding those comments, I said that I considered global environmental management as perhaps the second most important problem in the world, after war and peace. Then I said that, even in the context of the discussion we had had there, I was not sure that we really separate those issues any more, and I think that is part of the theme that Jim Lee was speaking about earlier.

There is an absolutely intense population pressure, and urbanization problems, and we see the inability or slowness in bringing about institutional change to deal with problems of this sort. We have to look carefully at how we proceed now and over the next 5, 10, and 20 years to recognize these problems and to make changes.

I would like to pick up on Turner's comment about global issues compared to the domestic issues of the late sixties and ealy seventies. We did have the experience in the States, one that I think of as an absolutely necessary starting inertia, in which there was a great deal of "crying wolf" about some issues that were not quite as serious as others. In a sense, that was a necessity, in order to get the process of real management and control started in the U.S., and we had the luxury to do it because we had some time and we are a rich country in many senses.

On the world scene, we don't have the same time and resources. We must proceed to define the most important problems and workable management solutions. The institutional framework is likely to be one which will involve lawyers very substantially through the bilateral and multilateral international organizations, through the role of the multinational companies, and through the educational role of the environmental groups. But it is a challenge to all of us to seek practicality and to be certain that we define priorities, because the problem is so large.

STEWART: I agree with Jim Mahoney's last remarks. One of the advantages in the U.S. is the availability of a loosely structured congressional hearing process in which public interest groups and others can raise these issues and raise them insistently. I also recall that lawyers played an important role of institutional-building in connection with the Marshall Plan. Perhaps we need a similar conception to deal with international environmental problems.

MAGUIRE: I agree. Lawyers should never limit their perspectives to simply the service of providing legal counsel in a given situation. They can be policymakers, and we need farsighted people in every profession. Law has always contributed more than its share of political leadership and institutional leadership, both public and private, of the sort we have been talking about today. I would make one final comment: The lead times associated with these issues pose a problem both for our understanding of them and for our ability to construct political strategies to deal with them. The decisions that have already been made by the peoples and governments of the world mean that we will have 8 to 10 billion people on this planet reasonably early in the next century. The amount of CO₂ that has already gone into the atmosphere and that will continue to do so no matter what we do over the next few decades, as a result of facilities and processes already in place and decisions already made, will mean that there will be temperature changes of some significance over the next 30 to 50 years. We just don't know how great they will be.

It is important for us to continue to emphasize that, somehow, we must bring people to the point where they can visualize concretely and specifically the situation we will have to deal with 10, 20, 50, or 100 years from now. There may be a range of uncertainty, but that shouldn't imply inaction. It means we might undertake one mix of actions instead of another, but it can't be an excuse for doing nothing. Understanding lead times and acting despite uncertainties is a difficult problem, but one we must surmount.

LEE: I would inject one small but important admonition. As my good colleague, Vince Riley from the World Bank, knows, I spend most of my time in the developing countries, not in this country, so I have a tendency to see the developed world from their point of view. Much of what you hear that concerns us today on this panel, and much of what you will hear increasingly from the environmental organizations in the developed world, doesn't strike a resonant chord in those countries.

I would admonish you that, given the situation that prevails today in the world, if not carefully promoted and carefully handled, and carefully put forth in a very real cultural perceptive way, United States unilateral action can be counter-productive. I think you all understand that. As one Minister of Interior told me, "You people sit there and pontificate, and you chastise and you criticize, and you tellus how we are going to handle our forests and our rivers. Suppose the situation were reversed. How would you like it if non-governmental organizations in my country were to tell you how to manage your wilderness system, and how to manage your Mississippi and your Missouri River systems?" They take umbrage.

We must realize that we are dealing with sovereign nations. It is a fine line that we walk, that we must not trespass.

There is one other set of institutions of which I would remind you. We talk always in terms of development assistance being funneled through either multilateral and/or bilateral involvement, through multinational corporations. I would remind you that by far the lion's share of resource transfer between the developed and the developing countries is through the large commercial banks. Who assumes responsibility for the environmental transgressions that may occur as a result of their activities?

TRAIN: I would certainly not presume to sum up this discussion. This has been an extraordinary panel. I have found what I have heard to be extremely interesting, provocative, and to the point.

There was a question from the floor that I wanted to add to, which leads into my final comment. The question was, are there any examples of international environmental agreements being effective unless the U.S. is able to wield a club? I think quite proper examples were cited of cases where there had been effective environmental agreements among nations without the participation of the U.S., but I would point out that those were regional agreements. In my view, I can not conceive of a truly non-regional, broad-scale, global or international environmental agreement or program being effective without the active participation of the United States, including positive [16 ELR 10268] implementation by the United States. I think it is inconceivable.

Most of us would probably agree that the world picture in this regard is probably going to continue to worsen for quite a long time before it improves. The environmental problems of the world, including population and economic problems, increasingly are going to challenge the conduct of foreign affairs, and certainly U.S. participation in foreign affairs, not only for the remainder of this century but, I would say, for the foreseeable future.

We are concerned about public opinion and awareness in the United States, and I think that we must continue to address that problem, but I'm not sure that we can wait until public opinion has fully made up its mind on the issues. I note that, even at a time when the U.S. government appears to be backing away from the support of international family planning programs, every indication of public opinion in the United States would suggest that the U.S. public definitely favors those kinds of programs. One thing this tells you is that the problems will never be addressed effectively or, in the long term, solved, without active U.S. participation and leadership, and we will not have that kind of participation without a real act of leadership within our government.

I believe that American society will respond to that leadership and given it support, as was done with respect to the Marshall Plan. There was no polling of the public then, and I suspect that if there had been before the Marshall Plan was adopted, public opinion in the United States would have rejected it. But leadership turned that around, and I suggest that's what we need.

* * *

SMITH: As a result of the addresses by the two speakers and the panel discussion, I am convinced that the problems we face are not really scientific or technical. The problem on a global scale is not that we do not know what to do or how to do it. The essence of the problem is human organization and willpower — our ability to organize people in such a way that the resources and the knowledge we have are applied to the problems.

As a final comment on the role of lawyers, I suggest to you that if you look at the role of lawyers at large, it is not just as people who go into court or even people who negotiate agreements and contracts. At least in this society, lawyers perform a valuable role as "fixers," as people who make the process work, who design organizations and legal, governmental and regulatory institutions and make them function on a practical and ad hoc basis. Perhaps this is where lawyers can make the greatest contribution in the long run to resolution of these global issues.

I would like to extend our sincere thanks for the superb papers and the discussion that the panel has produced. I hope that we will be able to publish the proceedings of this program, because I think this discussion should be made available to a larger audience of lawyers.

Thank you.

** Burki, The Prospects for the Developing World: A Review of Recent Forecasts. Fin. & Dev., Mar. 1981, at 20.

16 ELR 10255 | Environmental Law Reporter | copyright © 1986 | All rights reserved