Volume
29, Issue 3
Fall 1999
ARTICLES
An Overview of Korean Environmental Law
Hong Sik Cho
Many developing nations pursuing rapid
industrialization and economic prosperity look to Korea as a model. As this
Article discusses, however, Korea's economic advancement came with a price.
While Korea realized tremendous economic expansion in a relatively short period
of time, the pressure placed on the environment as a result of this expansion
revealed the importance of balancing industrialization with environmental
protection. This Article describes how a number of severe environmental harms
forced the Korean people to reevaluate their "faster and faster"
motto, a slogan used by the Koreans in promoting industrialization and one of
the main causes of environmental degradation. As a result, both the people of
Korea and the Korean government, prompted by increasing social awareness of the
importance of a healthy environment, have rallied to change Korea's approach in
this area. As people reach a certain point in economic prosperity, the Article
argues, they begin to evaluate their surroundings and quality of life as
affected by the environment. Korea has reached this point, and its people are
addressing these quality of life issues. The Article recommends that as other
developing nations focus their energy on achieving industrial advancement like
Korea, they should also take a serious look at Korea's current challenge of
balancing economic prosperity with environmental protection.
REMARK
Beyond the APA: Rulemaking in the Real World
Robin Kundis Craig
In her Essay, Professor Craig reviews Cornelius M.
Kerwin's updated exposition, Rulemaking: How Government Agencies Write Law and
Make Policy. The 1999 edition provides practical insights into the real process
of agency rulemaking and takes practitioners far beyond the basics of the
federal Administrative Procedure Act (APA). However, the public's contribution
to rulemaking remains a murky aspect of the rulemaking process, undermining
some of Kerwin's conclusions.
1998 NINTH CIRCUIT ENVIRONMENTAL REVIEW
Water, Water, Everywhere, and at Last a Drop for Salmon? NRDC v.
Houston Heralds New Prospects Under Section 7 of the Endangered Species Act
Nathan Baker
Section 7 of the Endangered Species Act requires federal
agencies proposing an action that may affect an endangered or threatened
species to consult with the appropriate federal fish or wildlife agency in
order to ensure that the action will not jeopardize a protected species. The
Ninth Circuit Court of Appeals recently held in Natural Resources Defense
Council v. Houston (NRDC v. Houston) that routine renewals of federal water
delivery contracts constitute "agency actions" under the ESA, thereby
triggering the procedural and substantive obligations of section 7. This
Chapter discusses NRDC v. Houston's potential to revolutionize federal
water delivery programs in the Pacific Northwest. The Chapter concludes that NRDC
v. Houston will lead to greater protection of imperiled salmon and other
listed species in the Pacific Northwest, because the Bureau of Reclamation will
be required to increase consultation with the fish and wildlife agencies on the
effects of its various projects in the region.
Striking the Balance: The Tale of Eight Ninth Circuit Timber Sales Cases
Susan Jane M. Brown
March 4, 1998 was a day that went from bad to worse
for the United States Forest Service. On that day, the Ninth Circuit Court of
Appeals handed down two precedential decisions against the Forest Service and
in favor of environmental groups. This Chapter asserts that Neighbors of
Cuddy Mountain v. United States Forest Service and Idaho Sporting
Congress v. Thomas are unique in Ninth Circuit environmental case law
because they halted, albeit perhaps only temporarily, the backward slide that
is taking place in the Ninth Circuit with regard to environmental protection.
These two opinions are distinctive because the court rigorously held the Forest
Service to the standards established by law, in contrast to previous decisions
in timber sale litigation. This Chapter argues that this development has
important consequences for future environmental plaintiffs who may try to
discern just what is the law in the Ninth Circuit Court of Appeals.
United States v. Washington: The Boldt Decision Reincarnated
Mariel J. Combs
Native Americans have only recently begun asserting
their treaty rights to Washington State's shellfishery. Shellfish growers,
private property owners, and the State of Washington vehemently oppose tribal
access to shellfish beds affecting their respective interests. This Chapter
explores the Ninth Circuit's recent decision imposing time, place, and manner
restrictions on tribal harvests, and rejecting the idea that Washington State
is a 'citizen.' It concludes that the Ninth Circuit erred in its allocation of
Washington's shellfish resources because it did not correctly adhere to case
law, canons of treaty interpretation, and cannons of statutory construction.
To Clear the Muddy Waters: Tribal Regulatory Authority Under Section 518
of the Clean Water Act
Regina Cutler
Under section 518 of the Clean Water Act (CWA),
qualified tribes may assume regulatory authority over various CWA programs.
Despite the demonstrated benefits to tribal interests, many tribes have as yet
to take on the full mantle of regulatory authority. This is due in part to the
jurisdictional conflicts that arise when tribal regulation of reservation water
resources affects nontribal members who own land or live within reservation
boundaries. In an effort to mediate between these competing interests, the
Environmental Protection Agency (EPA) has determined that prior to asserting
regulatory authority over reservation waters, a tribe must demonstrate that
such authority falls within the scope of its inherent sovereign power. This
interpretation of the force and intended operation of section 518 was recently
upheld by the Ninth Circuit in Montana v. Environmental Protection Agency.
In so doing, the court resolved a decade long controversy over the Confederated
Kootenai and Salish Tribes' authority to set water quality standards within the
Flathead Reservation in western Montana. However, in summarily deferring to
EPA's legal interpretation, the court did little to resolve the jurisdictional
conflicts that have historically undermined tribal authority. This Chapter
assesses both the Ninth Circuit's approach to the doctrine of inherent
sovereignty as it relates to water quality regulation and the court's failure
to recognize section 518 as a direct delegation of tribal regulatory authority.
Ms. Cutler concludes that the Ninth Circuit avoided an invaluable opportunity
to substantiate the legal basis of tribal authority over environmental programs
on reservation lands. Continued tribal advancement in the area of environmental
regulation will thus depend not on law, but rather on the extent to which EPA
continues to advance an Indian policy favoring tribal regulatory authority and
self-determination.
Inadequate Analysis Leading to an Accurate Conclusion: The Ninth
Circuit's Cursory Treatment of the Constitutionality of the Lacey Act in United
States v. Senchenko
Timothy M. Sullivan
Under the Lacey Act, violation of a state law or
regulation governing the taking of wildlife can form the basis for a federal
criminal conviction. By prohibiting the movement in interstate commerce of
wildlife taken in violation of federal, state, foreign, or tribal laws or
regulations, the Act incorporates state criminal law as a basis for federal
wildlife protection. In 1998, the Ninth Circuit affirmed the conviction of
Nikolay Senchenko under the Lacey Act for violating Washington State's
prohibition on the use of snares to capture black bears. In United States v.
Senchenko, the court upheld the constitutionality of the Lacey Act,
dismissing without analysis Senchenko's claim that a federal prosecution based
on a state criminal offense violated Article I of the United States
Constitution. This Chapter provides the analysis left out of the Ninth
Circuit's opinion, assessing the constitutionality and wisdom of the Act. This
analysis concludes that not only is the Lacey Act constitutional, but it also
embodies good public policy by providing a powerful tool for the protection of
wildlife.