Environmental Law Commons^™

Federalism In The Era Of International Standards: Federal And State Government Regulation Of Merchant Vessels In The United States (Part Ii), Craig H. Allen

Articles

No abstract provided.

Federalism In The Era Of International Standards: Federal And State Government Regulation Of Merchant Vessels In The United States (Part I), Craig H. Allen

Articles

In examining federalism issues relevant to merchant vessels, this article will distinguish between those laws and regulations governing liability for harm and those which regulate safety. Federalism questions arise most frequently in the former, private, maritime law domain, when courts are called upon to determine judicial jurisdiction and the extent to which state law may be applied to adjudicate liability and damages in cases falling within the admiralty and maritime jurisdiction. Less frequently, the federalism debate focuses on public maritime law, when states seek to regulate commercial vessel safety or vessel-source pollution.

This article will begin with an examination of …

The Role Of Bilateralism In Fulfilling The Federal-Tribal Relationship: The Tribal Rights-Endangered Species Secretarial Order, Charles Wilkinson

Washington Law Review

On June 5, 1997, Secretary of the Interior Bruce Babbitt and Secretary of Commerce William Daley signed a jointly-released Secretarial Order entitled "American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act"' The Order culminated a year-and-a-half of work by tribes and federal officials to craft an administrative system for resolving difficult questions involving tribal rights and the Endangered Species Act (ESA). The Order is important for the ESA's implementation. It also carries broader significance, for it serves as one major example of how the government-to-government relationship between the United States and Indian tribes can be successfully implemented.

Environmental Regulation Of Russia's Offshsore Oil & Gas Industry And Its Implications For The International Petroleum Market, Deborah K. Espinosa

Washington International Law Journal

Due to Northeast Asia's increasing energy demand, the Russian Far East's immense oil and gas reserves, and the close physical proximity between the two regions, international petroleum companies are exploring Russia's offshore petroleum reserves in the Far East. The Russian offshore industry, however, presents foreign investors with many legal uncertainties including exposure to environmental liabilities. This Comment suggests that Russia's environmental regulatory system, which includes a constitutional right to a healthy environment, presents international petroleum companies with a new set of circumstances to which they must adapt if Russian reserves are to satisfy Northeast Asia's rising energy needs. To do …

Consistent Inconsistency: Cercla Private Cost Recovery Actions And The Community Relations "Requirement", Shelley J. Pellegrino

Washington Law Review

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides private parties with the right to recover their cleanup costs from third parties responsible for contaminating sites with hazardous waste. To do so, plaintiffs must show that their response costs are consistent with the National Contingency Plan (NCP), which establishes procedures and standards for hazardous waste cleanup. Courts presently diverge regarding the NCP community relations requirement. Some courts find that private parties satisfy these public participation provisions by working with a government agency. Other courts bold that private parties cannot recover their cleanup costs without providing the public with an …

Cries And Whispers: Environmental Hazards, Model Rule 1.6, And The Attorney's Conflicting Duties To Clients And Others, Irma S. Russell

Washington Law Review

This Article explores the attorney's duty of confidentiality in the context of environmental dangers, examining the history and purpose of the duty and the model ethical rule that controls issues of confidentiality, Rule 1.6 of the Model Rules of Professional Conduct ("Model Rules"). Important scholarship has criticized Model Rule 1.6, but that scholarship has not explored the effects of the Rule in the area where the stakes are highest: environmental catastrophes. The Article analyzes the Rule's text, commentary, and legislative history and discusses the two predominant views of the attorney in our society, the attorney as champion and as officer …

New Developments In Environmental Law And Policy In Taiwan, Dennis Te-Chung Tang

Washington International Law Journal

This article provides a critical review of the important developments of the environmental laws and policies of the Republic of China on Taiwan since 1993. The article also supplements the author's 1990 and 1993 publications. Section II briefs the reader on background political and economic changes. Section III analyzes three new environmental statutes, including the Environmental Impact Assessment Act of 1994. Section IV investigates the problems encountered in some environmental initiatives, including the collection of air pollution control fees and the newly launched "four-in-one" recycling program. Section V summarizes important environmental decisions by the Administrative Court. Section VI suggests strategies …

Defeating Environmental Law: The Geology Of Legal Advantage, William H. Rodgers, Jr.

Articles

My talk today will: (1) introduce the metaphor of geology, (2) suggest to you that complexity has "gainers" as well as "losers," and (3) show you how environmental laws can be defeated by these twin engines of complexity and clever human adversaries.

[Third Annual Lloyd K. Garrison Lecture on Environmental Law.]

Simply A Matter Of Growing Pains? Evaluating The Controversy Surrounding The Growth Management Hearings Boards, Derek W. Woolston

Washington Law Review

In 1990, the Washington Legislature enacted the Growth Management Act (GMA) intending to reduce urban sprawl and manage development throughout the state. In 1991, the GMA was amended to include an administrative dispute resolution system, involving three independent regional Growth Management Hearings Boards ("Boards") empowered to hear petitions and to determine whether a county or city is complying with the GMA. The breadth of discretion given to the Boards to scrutinize local government land use policies has prompted a barrage of criticism from both local governments and the regulated community. The tension is attributable to factors within the control of …

Environmental Protection Agreements In Japan And The United States, Susan Ridgley

Washington International Law Journal

In an environmental protection agreement, local government regulatory authorities and the regulated industry enter into a binding written agreement that specifies limits on pollution and supplements the applicable regulatory requirements. They have been utilized in Japan for over twenty years. This Comment discusses the content and practical uses of these agreements as they have been used in Japan, and postulates their legal status under three theories: that such agreements are relational social contracts; that they are informal administrative guidance; and that they are civil contracts. The legal character of environmental protection agreements in Japan has never been well-defined, primarily because …

The Federal Advisory Committee Act: An Obstacle To Ecosystem Management By Federal Agencies, Sheila Lynch

Washington Law Review

Ecosystem management, the new guiding concept for federal land management, requires collaboration and information sharing across ownership boundaries, facilitation of changes in social values, and adaptation to new scientific and social information. Particularly in the western states, the federal land management agencies have been involved to varying degrees in innovative collaborative processes with the goal of implementing ecosystem management. However, the Federal Advisory Committee Act (FACA), which places numerous procedural requirements on certain federal interactions with non-federal parties, has been cited as an obstacle to federal participation in these efforts. This Comment presents an analytic framework for determining when FACA …

Russian Dumping Of Radioactive Wastes In The Sea Of Japan: An Opportunity To Evaluate The Effectiveness Of The London Convention 1972, James R. Mccullagh

Washington International Law Journal

By dumping 900 tons of radioactive waste into the Sea of Japan on October, 13, 1993, the Russian navy violated the moratorium on low-level radioactive waste dumping of the London Convention (the international treaty controlling ocean dumping). However, legal liability under the London Convention, the 1982 United Nations Convention on the Law of the Sea, and international customary law arguably does not attach to this activity. Indeed, even though the London Convention was amended in November of 1993 to prohibit all ocean dumping of radioactive waste, Russia remains legally entitled to use the ocean as a disposal site for low-level …

Deforestation In Cambodia And Malaysia: The Case For An International Legal Solution, Heather A. Wolf

Washington International Law Journal

The logging of tropical timber for the export market is the primary cause of deforestation in Southeast Asia. The problem of controlling the tropical timber trade has been addressed on both the national and international level. The existing legal mechanisms, however, have proven to be inadequate. A new multilateral agreement based on the import and export permit system of the Basel Agreement is necessary to control the timber trade and to aid in halting deforestation.

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

Articles

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 …

Tribal Water Quality Standards Under The Clean Water Act: Protecting Traditional Cultural Uses, William C. Galloway

Washington Law Review

Since 1987, the Clean Water Act has allowed Indian tribes to be treated as states for various purposes under the Act. Among the regulatory powers of states under the Clean Water Act is the ability to set water quality standards, subject to approval by the Environmental Protection Agency (EPA). Upstream pollution dischargers must comply with a downstream state's water quality standards once it is established that an upstream discharge demonstrably impacts downstream water quality. The power to set water quality standards represents a new and potentially powerful tool to protect traditional uses and enhance reservation environments, but only if tribes …

The Environmental Laws And Policies Of Taiwan: A Comparative Law Perspective, Dennis Te-Chung Tang

Washington International Law Journal

This Article discusses the development of environmental regulation and preservation in Taiwan in light of United States environmental law. The Article begins with a discussion of how few measures have been enacted to protect the Taiwanese environment. It then illuminates some of the problems with the Taiwanese environmental regulations that do exist. According to the author, some of these problems include: ambiguous and conflicting goals enunciated in the legislation; political pressures on the authorities influencing environmental policies; poor enforcement mechanisms; a legislative bias in favor of regulating new sources of pollution and against enforcing regulations in the case of old …

Environmental Impact Assessments For Major Construction Projects In Taiwan: Problems And Solutions, Ming-Shen Wang, Gow-Liang Huang

Washington International Law Journal

Taiwan's environmental impact assessment (EIA) process offers little opportunity for genuine public participation, lacks systematic decision-making procedures, and inadequately evaluates and communicates perceptions of risk. This article examines EIA models emphasizing public participation, as well as contemporary theories of conflict management and risk communication, in terms of their potential application towards a restructuring of Taiwan's EIA process.

The Current Status Of Environmental Protection In Taiwan, Lung-Sheng Chang

Washington International Law Journal

Presented by the author as the Keynote Speech of the ROC/US Environmental Law and Management Conference, this piece outlines the formal approaches to environmental control being taken by the Republic of China. It presents in sequence the objectives, strategies, principles, current measures and future emphases of environmental protection efforts—all of which are applicable in varying degrees to government, private enterprise, and the general public. This piece, in presenting an administrative perspective, establishes a context for the analytical articles in this issue.

A Comparative Study Of The Formation And Development Of Air & Water Pollution Control Laws In Taiwan And Japan, Chao-Chan Cheng

Washington International Law Journal

Taiwan and Japan have faced similar environmental problems at comparable stages in their economic development, and have passed through similar stages in the development of their systems of environmental law. Three phases in the development of environmental law making are distinguished: preparatory, formative and developed. This article compares the relative progress of Taiwan and Japan through these stages, and suggests that Taiwan may benefit by studying Japan's analogous prior experiences with pollution prevention and environmental law.

The Development Of China's Environmental Diplomacy, Cai Shouqiu, Mark Voigts

Washington International Law Journal

Over the past decade, activities in the area of international environmental diplomacy have increased. China in particular has increased its efforts to help the global environmental situation, in conjunction with its role as a leader among the rest of the developing world. This essay examines China's historical environmental situation, and presents some of the factors that have influenced, and will continue to motivate, China's environmental decision making.

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

Articles

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 …

A New Paradign For Protection: First Amendment Principles And The Environment, Jennifer D. Jones

Washington Law Review

Currently, environmental plaintiffs pursue protection for the ancient forests of the Pacific Northwest by litigating procedural violations of environmental statutes. This method, however, will not provide the long-term protection these plaintiffs desire. This Comment proposes a new model for protection using the First Amendment of the United States Constitution.

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

Articles

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 Public Trust Doctrine And Coastal Zone Management In Washington State, Ralph W. Johnson, Craighton Goeppele, David Jansen, Rachael Paschal

Washington Law Review

The public trust doctrine is an ancient doctrine that has recently emerged as a powerful tool to protect the public interest in tidelands and shorelands. Created and developed by the judiciary, the doctrine's principles have found their way into several of Washington's regulatory statutes, such as the Shoreline Management Act and the Aquatic Lands Act. This Article traces the development of the doctrine in Washington, and explains the relation between the state's police power and the public trust doctrine. This Article also sets forth the current contours of the public trust doctrine in Washington, and charts potential future developments of …

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

Articles

No abstract provided.

The Agency For International Development And Nepa: A Duty Unfulfilled, Gary M. Ernsdorff

Washington Law Review

The National Environmental Policy Act (NEPA) establishes the Nation's environmental policy and creates a set of procedures necessary to fulfill that policy. The Agency for International Development (A.I.D.) narrowly interprets the application of NEPA's procedures and has adopted a less rigorous set of environmental evaluation procedures. This Comment examines A.I.D.'s procedures, notes their deficiencies, and suggests that Congress should amend NEPA to require A.I.D. and all agencies to utilize NEPA procedures.

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

Articles

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.

Misusing Procedural Devices To Dismiss An Environmental Lawsuit—Lugan V. National Wildlife Federation, 110 S. Ct. 3177 (1990), Michael J. Shinn

Washington Law Review

In Lujan v. National Wildlife Federation, the Supreme Court upheld a grant of summary judgment against the National Wildlife Federation for lack of standing. The Court held that the federation failed to sufficiently claim specific injury to federation members. The Court also stated in dicta that the federation's claims were not ripe for review. The opinion does not apply precedent regarding summary judgment to the standing inquiry, and fails to apply precedent regarding ripeness to the facts of the case. This Note examines the reasoning of the Lujan Court, and compares the results reached with those suggested by unapplied precedents. …

The Monkey's Paw: Regulating The Deliberate Environmental Release Of Genetically Engineered Organisms, Robert Saperstein

Washington Law Review

The deliberate release of genetically engineered organisms poses uncertain but potentially grave risks to the environment. The governing federal and state environmental regulations are inefficient and do not protect environmental integrity. This Comment examines the deliberate release of genetically engineered organisms in the context of federal and state environmental laws. It concludes that the current regulatory schemes are inadequate and proposes changes to meet the goals of effective environmental regulation.

Protecting The Environment With Salvage Law: Risks, Rewards, And The 1989 Salvage Convention, Brian F. Binney

Washington Law Review

Current marine salvage law often provides only limited incentives for salvors to prevent pollution. In many cases, it also inadequately compensates them for the risks they must assume when they assist a ship that threatens the environment. This Comment analyzes possible solutions to these problems under current salvage law, and then discusses the reforms offered by the 1989 Convention on Salvage. It concludes that current salvage law is inadequate to protect the public from the threat of pollution, and that the Convention on Salvage, if adopted, could greatly improve incentives for marine salvors to protect the environment.