Volume
29, Issue 1
Spring 1999
ARTICLES
Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause
Jurisprudence and the Limits of Federal Water Regulation
Jonathan H. Adler
Federal wetlands regulation under section 404 of the
Clean Water Act has been one of the most contentious areas of federal
environmental policy for the past several years. The author assess the extent
to which the Commerce Clause doctrine explicit and implicit in United States
v. Lopez limits the federal government's authority to regulate wetlands.
Currently the circuits are split on the question of whether Congress can
regulate isolated wetlands. The author concludes that limiting the federal
government's ability to regulate wetlands need not have dire consequences for
wetland protection and there is substantial reason to believe that reimposing
constitutional limits on federal regulatory authority may improve environmental
protection efforts.
1998-The Year in Review
Craig N. Johnston
This Article discusses several troubling
environmental case-law developments of 1998. Part II contains an analysis of
significant decisions regarding standing and mootness as applied to citizen
suits, the invalidation of the Tulloch rule, and operator liability under the
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Part III addresses other notable decisions affecting the Clean Water Act,
CERCLA, the Endangered Species Act, and environmental enforcement.
INTERNATIONAL
ENVIRONMENTAL SYMPOSIUM
The Environmental Impacts of International Finance Corporation Lending
and Proposals for Reform: A Case Study of Conservation and Oil Development in
the Guatemalen Petén
Ian A. Bowles, Amy B. Rosenfeld, Cyril F. Kormos, Conrad C.S. Reining,
James D. Nations, and Thomas Ankersen
This Article presents a case study of lending by the
International Finance Corporation (IFC), the private-sector lending arm of the
World Bank Group, in the oil and gas sector in Guatemala. The case study
emphasizes the need for additional environmental reform at IFC. With two
separate loans in 1994 and 1996, IFC supported the activities of a small
international oil company that was operating within a national park in the
northern Guatemalan Peten, an area of rich tropical forests and globally
important wetlands. The company's operations had been "grandfathered"
into the park upon its creation in 1990. Funding from IFC was used to construct
a pipeline from the oil field in the park to a refinery outside of the park.
The crux of the authors' findings is that the pipeline should have been
constructed to follow the path of an existing road, rather than along the
chosen route that crosses significant stretches of primary tropical forest and
that opened a new right- of-way into a park already facing continued pressure
from colonization. The authors conclude that a stronger set of IFC lending
policies, combined with a better environmental impact assessment and more
extensive public consultation, would have led to a less environmentally damaging
outcome. Although the authors acknowledge the complex questions about the role
of governments, development agencies, the private sector, conservation
organizations, and local communities raised by this issue, they focus on the
narrow subject of IFC's role in this matter, stressing the need for a reform
agenda at that institution.
Environmental Controls in Vietnam
Tannetje Bryant and Keith Akers
This Article provides a critique of the post-1992
Vietnamese legislative regime on environmental protection. In particular, it
outlines the policy background and governmental administrative framework behind
this regime; gives a detailed analysis of the environmental impact evaluation
procedures; analyzes various compliance mechanisms such as warnings, fines,
compensation, and rectification; and examines preventative mechanisms of a
nonlegal kind, such as training, manpower, and public education. In addition to
examining the logic, coverage, and clarity of the legislation itself, there is
an attempt to use several nonlegal criteria--such as relative pollution
levels--to critically evaluate the efficacy, or otherwise, of this legislative
regime. Various nonlegal issues--like the after effects of various Vietnam
wars--are cited as impediments to any potential efficacy of this regime.
Despite the ambitious nature of these environmental controls, the authors are
guarded in their prognosis of the likely future success of these controls due
to factors such as a past culture of nepotism and excessive bureaucracy, plus a
lack of adequate funding, expertise, training, and manpower.
World Trade Organization Caught in the Middle: Are TEDs the Only Way Out?
Corinne Sam
The United States implementation of section 609 of
the Endangered Species Act created much controversy between the rules of
international trade and the need for global environmental conservation.
Pursuant to section 609, the United States prohibited several nations from
importing into the United States shrimp that were caught in a manner affecting
endangered sea turtles. These nations filed a dispute with the World Trade
Organization (WTO). In order to be consistent with its preamble, which
expresses the commitment to protect and preserve the environment, the WTO must
begin to reconcile the dual goals of environmental conservation and free trade.
In addition, the WTO should recognize that although environmental conservation
measures may inhibit trade to some extent, conservation of the environment may
be the best way to ensure the continued existence of the resources upon which
trade depends.
COMMENTS
The National Grasslands and Disappearing Biodiversity: Can the Prairie
Dog Save Us From an Ecological Desert?
Coby C. Dolan
Prairie dogs once populated over 100 million acres
of uninterrupted grasslands across the Great Plains of the United States.
However, they, and other species of the plains, have been pushed to the brink
of extinction by human encroachment. This Comment examines the historical
decline of the prairie dog and other grassland species, which has resulted in a
near ecological desert on once biologically diverse national grasslands.
Despite this trend, mass extinction of grassland species is not inevitable. The
Forest Service manages large sections of open grasslands under the National
Forest Management Act, supplemented by requirements under the National
Environmental Policy Act and the Endangered Species Act. However, while the
Forest Service has promulgated planning criteria regulations to ensure
diversity and viability of species, it frequently circumvents true ecosystem
planning by ignoring species like the prairie dog, which is often considered a
pest to be exterminated by powerful ranching interests. This Comment argues
that the scientific evidence supports the elevation of the prairie dog to the
role of keystone species because of its role in providing habitat for dozens of
other grassland species. The tools are in place for the Forest Service to take
an active role in restoring the grasslands ecosystem, but it will require
political will, not judicial enforcement. A recent Supreme Court case makes
legal challenges to inadequate forest plans difficult or impossible to bring.
Growing a Greener Future? USDA and Natural Resource Conservation
Jason Waanders
From fairly modest beginnings, the United States Department
of Agriculture (USDA) has grown into a giant cluster of federal agencies with a
large amount of control over some of the nation's key natural resources. Due to
flawed legal mandates and organizational problems, USDA has all too often paid
insufficient attention to protecting and conserving the natural resources
within its power. This Comment examines the USDA farm support programs, which
have had serious impacts upon soil and water resources, and the United States
Forest Service's management of the nation's forests, which often has paid
insufficient attention to resources other than timber. Despite the serious
impacts that these programs have had in the past, this Comment concludes that
there is a reason to believe that USDA may be ready to take on a more positive
role in natural resource conservation. It discusses both the recent
reorganization of USDA and the phase-out of the major farm support programs,
viewing these as events that could fundamentally change the agency. This
Comment concludes that USDA can and should retain its relevance by striving to
become a natural resource agency with the mission of conserving the soil and
water resources of the nation's rural areas.