Law Commons^™

Deception, Self-Deception, And Myth: Evaluating Long-Term Environmental Settlements, William H. Rodgers, Jr.

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This paper draws upon six famous settlements that are known in various degrees to students of environmental law. Three are a matter of deep history: the 1970 Environmental Defense Fund settlement that led the last manufacturer of DDT in the U.S. to cease discharges into the Los Angeles sewer system and thence into Santa Monica Bay, the Kepone settlement of the mid-70s that followed in the wake of Judge Merhige's initial assessment of a record-breaking criminal fine of $13.24 million, and the Hudson River settlement of the early 1980s in which environmentalists gave up demands for cooling towers on several …

On The Topology Of Uniform Environmental Standards In A Federal System And Why It Matters (Symposium: Environmental Federalism), James E. Krier

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Uniform standards are much favored among the makers of federal environmental policy in the United States, which is to say, among the members of Congress. By and large-judging at least from the legislation it has enacted-Congress expects the air and water eventually to meet the same minimum levels of quality in every state in the country, and expects each pollution source in any industrial category or subcategory to be controlled just as much as every other such source, notwithstanding the source's location or other peculiar characteristics. There are exceptions to these generalizations, but they are exceptions and not the rule.1 …

Property Rules And Liability Rules: The Cathedral In Another Light, James E. Krier, Stewart J. Schwab

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Ronald Coase's essay on "The Problem of Social Cost" introduced the world to transaction costs, and the introduction laid the foundation for an ongoing cottage industry in law and economics. And of all the law-and-economics scholarship built on Coase's insights, perhaps the most widely known and influential contribution has been Calabresi and Melamed's discussion of what they called "property rules" and "liability rules."' Those rules and the methodology behind them are our subjects here. We have a number of objectives, the most basic of which is to provide a much needed primer for those students, scholars, and lawyers who are …

The End Of The World News (Symposium: Twenty-Five Years Of Environmental Regulation), James E. Krier

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My title, but nothing else, owes to Anthony Burgess.' I like the ambiguity of Burgess's words. They could be a play on what an anchor says when she brings the night's news of the world to a close ("and that's the end of.. ."), or they could be the name of a doomsday periodical, or a headline announcing the bankruptcy of a tabloid, or, at the extreme, a reference to the end of the world. For my purposes, however, they signify the end of an era.

Roundtable Discussion: Science, Environment, And The Law, James E. Krier

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Science, environment, and the law is our topic. The problem of interest to me has to do with risk regulation and, more particularly, with the fact that technical and scientific views of risk differ dramatically from lay or public views. How is this conflict to be managed and resolved? I have to go through my account very quickly, given the time constraint, so let me mention that it is based on an article that sets out my arguments at length.'

Marketable Pollution Allowances (Great Lakes Symposium), James E. Krier

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In March 1993, the EPA auctioned off 150,010 sulfer dioxide emissions permits at the Chicago Board of Trade. The auction brought in $21.4 million and ushered in the Clean Air Act's market-based approach to sulfur dioxide control. Congress created these marketable pollution allowances (MPAs) under Title IV of the Clean Air Act Amendments of 19903 to regulate acid rain pollution. While most MPAs were bought by utilities, to be exchanged as a commodity according to need, some MPAs were removed from the market solely to prevent their use by polluters. The Cleveland-based National Healthy Air License Exchange bought one allowance …

The Seven Statutory Wonders Of U.S. Environmental Law: Origins And Morphology, William H. Rodgers, Jr.

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Students from around the world often ask my opinion on the most influential or effective of the United States environmental laws. I offer an opinion based on two criteria: What laws have contributed most to protection of the natural world and what laws have been most emulated? The second criterion is obviously an indicator of output, not of direct consequence. However, a linkage between the spread of strong laws and degree of environmental protection is assumed.

In theory, of course, the questions of "how much protection" and "how many laws" can be answered empirically. But this story is available only …

Where Environmental Law And Biology Meet: Of Pandas' Thumbs, Statutory Sleepers, And Effective Law, William H. Rodgers, Jr.

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The purpose of this article is to introduce some of the recent findings of evolutionary biology to the legal community and to urge their consideration in developing a more effective law. As background, Part II of this article will present a brief evolutionary history of our own species.

Part III offers a primer on Darwin's theory of natural selection and the concept of adaptation, with special attention to the elaboration of altruism as it is known in modern biology. Part IV discusses maladaptation as a counterpoise to adaptation and underscores the notion with some stories from natural history on subjects …

The Eagle Bird: Mapping A New West, Dale Goble

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No abstract provided.

Gathering Danger: The Urgent Need To Regulate Toxic Substances That Can Bioaccumulate, Richard L. Williamson Jr.

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No abstract provided.

The Porcupine's Dilemma: Strategic And Psychological Uncertainty In The Face Of Global Warming, William H. Rodgers, Jr.

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No abstract provided.

A Superfund Trivia Test: A Comment On The Complexity Of Environmental Laws, William H. Rodgers, Jr.

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Professor Rodgers examines the reasons for the American obsession with trivia. While unable to determine the cause of the obsession, he does provide some insight on the usefulness and need for the information in the study of environmental law.

The Tragedy Of The Commons, Part Two, James E. Krier

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This symposium is about the idea of "free market environmentalism" in general and the book Free Market Environmentalism, by Terry Anderson and Donald Leal,1 in particular. While I focus chiefly on Anderson and Leal's book, the discussion will necessarily involve the general idea of free market environmentalism as well. The conceit of my tide, which obviously derives from Garrett Hardin's celebrated essay on The Tragedy of the Commons,2 is this: Superficial differences aside, Hardin's essay and Anderson and Leal's book address the same fundamental problem of coordinating human behavior as it affects environmental quality. But both the essay and the …

On Integrated Pollution Control, James E. Krier

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Integrated pollution control, or IPC, can be defined for now as an approach to environmental regulation that "seeks particularly to link air, water, and waste programs. Its concern is institutional changes that reduce total risk to the environment from pollutants." 8 This sounds remarkably appealing, which perhaps explains IPC's recurring popularity. As we shall see, it enjoyed a brief celebrity about twenty years ago, and it is once again in vogue-especially within the U.S. Environmental Protection Agency (EPA).

Is the Agency's recent interest in IPC a good thing? We worry that it is not. First of all, IPC has an …

Environmental Warfare [Comment], Bernard H. Oxman

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No abstract provided.

The Duty To Respect Generally Accepted International Standards, Bernard H. Oxman

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No abstract provided.

Nepa At Twenty: Mimicry And Recruitment In Environmental Law, William H. Rodgers, Jr.

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We are gathered here to consider not so much a twenty year-old law but a twenty year-old that has been extraordinarily far-reaching and influential. In its own special way, the National Environmental Polic Act and the environmental assessment that it represents have become the legal equivalent of cultural fads such as Hula Hoops, Rubik's Cubes, and Air Jordans.

A good portion of this conference, I suspect, will be devoted to documenting the many measures of NEPA's significance—the legal business it has generated, the institutional moves it has inspired, the precious places it is credited with saving.

My opening remarks will …

The Lesson Of The Red Squirrel: Consensus And Betrayal In The Environmental Statutes, William H. Rodgers, Jr.

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The subjects of legislation and legislative change are undergoing a revival of sorts in United States' law schools. The academic community has offered a variety of theoretical visions on the nature of legislation—purposive and rational, irrational and political, the accidental outcome of competing interests, the imperfect product of high philosophy; the legislative process—formal and ritualistic, markets and auctions, plots and cabals, or publicregarding negotiations; and the individual legislators themselves—ritual players, auctioneers, maximizers of political gain, profiteers, and philosopher kings in shiny suits.

This author's personal approach to legal affairs of this sort is to draw on the laws of biology …

The Lesson Of The Owl And The Crows: The Role Of Deception In The Evolution Of The Environmental Statutes, William H. Rodgers, Jr.

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In this world of strategies and counterstrategies, the advantages of the good fake are not to be overlooked. Fakery is an indelible part of the landscape in settings where we readily accept the gaming metaphor—sporting events are the obvious examples. But I wish to emphasize how fakery and deception can play an important role in legal interactions as well, particularly in the writing of the environmental statutes. Environmental lawyers often are fond of borrowing examples from natural history to illustrate propositions of law. There is more to this practice than habit, it seems to me, because the natural laws of …

The Political Economy Of Barry Commoner, James E. Krier

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The centerpiece of what follows is an article by Barry Commoner that appeared in The New Yorker magazine in 1987.' The article, although an essentially popular work, is for several reasons worth the attention of a community professionally interested in law and the environment. First, it distills and supplements views that Commoner has advanced with much prominence throughout the life-twenty years to date-of the environmental movement in the United States. Thus it provides an opportunity for the present generation's students of environmental law, many of whom seem to know nothing of Commoner and his ideas, to become familiar with a …

Guerilla Decisionmaking: Judicial Review Of Risk Assessments, William H. Rodgers, Jr.

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This paper describes four types of uncertainty confronted by decisionmakers undertaking risk assessments. It then discusses individual and institutional responses to uncertainty; these include both formal attempts to acquire more information, and pragmatic efforts to isolate and act upon salient considerations. The tendency of decisionmakers to narrow the agenda and search for a decisive datum or metaphor is called guerilla decisionmaking. Courts oversee agency decisions by techniques known widely in the legal community as the hard-look doctrine. This doctrine is defined, and the case law is used to illustrate how courts insist upon identification of salient risk-assessment factors and the …

The Compact Clause And Transboundary Problems: A Federal Remedy For The Disease Most Incident To A Federal Government, Dale Goble

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The political and constitutional relationship that is known as "federalism" creates boundaries that often do not correspond to resources. The anadromous salmon and steelhead of the Columbia River Basin, for example, cross several jurisdictional boundaries during their life cycle. Jurisdictional boundaries frequently contribute to poor resource planning because some actors are excluded. One traditional response to such transboundary resource difficulties has been to nationalize the problem, thus creating a forum in which all of the actors may participate. Nationalization, however, may be overinclusive when the problem is regional. An alternative that is potentially more sensitive to local concerns is found …

Council And The Constitution: An Article On The Constitutionality Of The Northwest Power Planning Council, Dale Goble

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No abstract provided.

Introduction To The Symposium On Legal Structures For Managing The Pacific Northwest Salmon And Steelhead: The Biological And Historical Context, Dale Goble

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No abstract provided.

Protection Of Biodiversity Under The Public Trust Doctrine, Ralph W. Johnson, William C. Galloway

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The public trust doctrine is an ancient Roman legal doctrine that has been applied in both England and the Umted States. The doctrine traditionally addressed questions of public access to and use of commercially navigable waters for navigation, fisheries and various other uses of the underlying seabeds, lake bottoms, and riverbeds. In recent years, the public trust doctrine has been invoked to protect birds and other wildlife, water quality, ecological and environmental values, and different types of recreation. Although no public trust case has applied the doctrine to protect biodiversity per se, it seems clear by analogy to existing case …

Pollution Control By Effluent Charges: It Works In The Federal Republic Of Germany, Why Not In The U.S., Gardner M. Brown Jr., Ralph W. Johnson

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This article describes the recent Federal Republic of Germany effluent charge law and the political and legal background that permitted this law to be enacted. The impact of that law is assessed, although the assessment is necessarily tentative in view of the short experience with the law to date. The economic and legal implications of enacting an effluent charge law in the United States also are analyzed. Included in this discussion are the advantages and disadvantages of state vs. federal enactment, the constitutional objections that might be raised to such a law, and how it might be coordinated with existing …

The Washington Environmental Policy Act, William H. Rodgers, Jr.

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As the Washington State Environmental Policy Act of 1971 (SEPA)'approaches its fourteenth birthday, the time is ripe for an assessment of its recent history and foreseeable future. Several SEPA milestones have come and gone in the last several months, and a period of stability is in order. Reported Washington decisions citing SEPA now number close to one hundred; more than fifty of these are decisions of the Washington Supreme Court.

The books are closed on the two-year efforts of the Washington Commission on Environmental Policy (the SEPA Commission), whose work culminated in a report to the 1983 Legislature. There was …

Clearcutting: Can You See The Forest For The Trees?, James E. Bernstein, Penny Hazelton, Dennis J. Hubel

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The Organic Act of 1897 provided for the establishment and ,management of the national forest and park lands. In West Virginia Division of the Izaak Walton League v. Butz the United States District Court, applying the "plain meaning" of the Organic Act, permanently enjoined clearcutting on the Monongahela National Forest of West Virginia. The meaning of isolated words, however, is rarely determinative of Congressional intent. This article will demonstrate the shortcomings of the court's decision through an examination of the doctrines of statutory construction and analysis of the legislative history and administrative interpretation of the Act and by addressing the …

Siting Power Plants In Washington State, William H. Rodgers, Jr.

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No abstract provided.

Industrial Water Pollution And The Refuse Act: A Second Chance For Water Quality, William H. Rodgers, Jr.

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The primary purpose of this Article is to encourage a forceful implementation of the Refuse Act as a second chance to achieve water quality. The presentation commences in Section I with a brief outline of the dimensions of industrial water pollution and the legal and scientific barriers to effective control. Against this background, Section II summarizes the central features of the Refuse Act, presents a narrative history of its recent renovation, and analyzes the major issues arising under the statute.

Section III discusses the traditional industrial and governmental view of water pollution and how a change in regulatory attitude invites …