Legal systems, decisionmaking, and the science of earth's systems: Procedural missing links

Ecology Law Quarterly

Volumn 27, Issue 4, 2001, Pages 1077-1159

  Robinson, Nicholas A ^a  

^a NONE

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EID: 0042907392     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (259)

1. Even where decisionmakers do seek to systematically consider scientific views, as when Congress established the Office of Technology Assessment, there is no assurance they will pay attention to the views, and the more recent decision of the House of Representatives to abolish its Office of Technology Assessment during the leadership of Speaker Newt Gingrich illustrates the hubris that elected leaders often evince. They do not need to study what they think, with untested certainty, that they know.
2. "States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." Declaration of the United Nations Conference on the Human Environment, June 16, 1972, Principle 21, 11 I.L.M. 1416.
3. See generally LOUIS HENKIN, How NATIONS BEHAVE (1979).
4. See INIS L. CLAUDE, JR., SWORDS INTO PLOWSHARES 23-28 (2d ed. 1963).
5. See U.N. CHARTER, 59 Stat. 1031, T.S. 993, 3 Bevans 1153.
6. See U.N. CHARTER, 59 Stat. 1031, T.S. 993, 3 Bevans 1153.
7. See U.N. CHARTER, 59 Stat. 1031, T.S. 993, 3 Bevans 1153.
8. Under international law, a state is defined as having a territory and a people. Despite occasional border disputes, the geographic focus of national governments is settled. Government's primary concern is within the environmental conditions within its borders, and not with global trends or geographically remote conditions. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 201 (1987).
9. The phenomenon of desertification illustrates this point. While areas across central Africa erode and deserts spread across national borders, no regional approach is taken; the Convention to Combat Desertification, while in force, is weakly financed and little implemented.
10. See generally, Agenda 21, June 13, 1992, ch. 35, U.N. Doc. A/Conf. 151/26 (Vol. D III) [hereinafter Agenda 21].
11. See, e.g., INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SECOND ASSESSMENT REPORT: CLIMATE CHANGE 1995 (1995), available at http://www.ipcc.ch/pub/reports.htm.
12. For a collection of the scientific evaluations regarding environmental policy, see U.S. POLICY AND THE GLOBAL ENVIRONMENT: MEMOS TO THE PRESIDENT (Donald Kennedy & John A. Riggs eds., 2000).
13. CHARLES DARWIN, ORIGIN OF SPECIES (Harvard Univ. Press, 1964) (1858).
14. For instance, many environmental non-governmental organizations have developed strong advocacy programs based upon their understanding of scientific findings on international environmental scientific studies, such as the reports of the Intergovernmental Panel on Climate Change.
15. See, e.g., COUNCIL ON ENVTL. QUALITY, GLOBAL 2000 REPORT TO THE PRESIDENT (1981) (an analysis of scientific aspects of global trends in environmental degradation together with their implications, prepared during the Carter Administration, which was not acted upon).
16. See generally Agenda 21, supra note 8.
17. Id. ¶ 35.1.
18. See generally BD. ON SUSTAINABLE DEV., NAT'L RESEARCH COUNCIL, OUR COMMON JOURNEY: A TRANSITION TOWARD SUSTAINABILITY (1999) [hereinafter, OUR COMMON JOURNEY].
19. William C. Clark, A Transition Toward Sustainability, 27 ECOLOGY L.Q. 1021 (2001).
20. See the recommendations of the Carter Administration contained in the "Global 2000 Report to the President" (Washington, D.C., 1979).
21. Agenda 21, supra note 8, ¶ 35.1.
22. See Tommy Thong-Bee Koh, The Earth Summit's Negotiating Process, in AGENDA 21: EARTH'S ACTION PLAN xiii (N. A. Robinson ed., 1993).
23. National reports on implementation of Agenda 21 are part of the annual deliberations of the United Nations Commission on Sustainable Development and can be reviewed at the United Nations' website. See generally http://www.un.org.
24. President George Bush and his Secretary of State, James Baker, had formulated a foreign policy in support of the United Nations Framework Convention on Climate Change known as the "No Regrets" policy. If reforms, such as coastal zone management procedures to anticipate the damage from storm surges and better protect the upland areas, could be adopted that made good sense and also anticipated climate change and sea level rise, then these measures should be adopted. Similarly, if energy efficiency measures avoid waste of energy resources and averted the introduction of more carbon dioxide as a greenhouse gas, then incentives for energy efficiency should be advanced. This policy was not advanced during the Clinton Administration's years, which favored a more aggressive approach toward reducing greenhouse gases.
25. This has been so since the earliest undertakings to define the new field of environmental law. See David Sive, Some Thoughts of an Environmental Lawyer in the Wilderness of Environmental Law, 70 COLUM. L. REV. 612 (1970).
26. Clark, supra note 17.
27. Some governments have begun to make significant changes in the institutional structures of government in order to enable more systematic consideration of the environment when decisions are made on economic, social, fiscal, energy, agricultural transportation, trade, and other policies, as well as the implications of policies in these areas for the environment. See Agenda 21, supra note 8, ¶ 8.2. Agenda 21 also recommends that states enact procedural changes in laws to advance such integration. See id. ¶ 8.4. Agenda 21 also calls for the design and use of "integrated management systems.' Id. ¶ 8.5 (d).
28. Theodore Scambos, Satellite Images Show Chunk of Broken Antactic Ice Shelf, ASSOCIATED PRESS, AP Online, April 16, 1998, at http://www.eurekalert.org/releases/brkantartice.html.
29. See Walter Gibbs, Research Predicts Summer Doom for Northern Icecap, N.Y. TIMES, July 11, 2000, at F2.
30. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE: THE IPCC SCIENTIFIC ASSESSMENT (J. Houghton et al. eds., 1990).
31. Environmental impact assessment, discussed infra, provides such a process, and some local authorities use it well to cope with changing environmental conditions. New York City adopted the first municipal environmental impact assessment (EIA) ordinance in 1969 and has systematically refined it since. The NEW YORK CITY, CITY ENVIRONMENTAL QUALITY REVIEW TECHNICAL MANUAL (Dec. 1993, Mayor's Office of Envtl. Coord.) provides professional, non-regulatory best management practices for the scientific data gathering and assessment of projects and actions planned to take place in New York City. Few municipalities have followed the example of New York City in this respect.
32. Louisiana currently loses some 65 square miles of its State into the Gulf of Mexico each year. In 50 years, New Orleans could look rather like Venice, a walled island along the Mississippi River channel, surrounded with shallow waters.
33. See Convention on the International Trade in Endangered Species of Wild Flora and Fauna, Mar. 3, 1973, T.I.A.S. No. 8249, 993 U.N.T.S. 243 [hereinafter CITES]; see also Fish and Wildlife Coordination Act, 16 U.S.C. §§ 663-668dd (1994); Endangered Species Act, 16 U.S.C. §§ 1531-1544 (1994) (both Acts seek to protect species from extinction and to maintain habitat). Despite procedures toward these objectives, rates of extinction grow for many species and habitat continues to be lost.
34. For an illustration of growing global concern about the environment, see the Rio de Janeiro Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 [hereinafter CBD].
35. See, for instance, the critique in opposition to the Kyoto Protocol in TERRY L. ANDERSON & J. BISHOP GREWELL, THE GREENING OF FOREIGN POLICY 14-17 (2000).
36. See PAUL BROOKS, THE HOUSE OF LIFE (1972); see also FRANK GRAHAM JR., SINCE SILENT SPRING (1970); Frank Graham, Jr., The Witch-Hunt of Rachael Carson, 10 ECOLOGIST 3 (1980).
37. See PAUL BROOKS, THE HOUSE OF LIFE (1972); see also FRANK GRAHAM JR., SINCE SILENT SPRING (1970); Frank Graham, Jr., The Witch-Hunt of Rachael Carson, 10 ECOLOGIST 3 (1980).
38. See PAUL BROOKS, THE HOUSE OF LIFE (1972); see also FRANK GRAHAM JR., SINCE SILENT SPRING (1970); Frank Graham, Jr., The Witch-Hunt of Rachael Carson, 10 ECOLOGIST 3 (1980).
39. See generally RACHEL CARSON, SILENT SPRING (1962).
40. See LYDIA DOTT & HAROLD SCHIFF, THE OZONE WAR (1978).
41. See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243, 1243-48 (1968).
42. The collapse of salmon runs in the Pacific Northwest and of the Atlantic Cod are dramatic examples of the consequences of both the failure of commercial interests to protect the fisheries voluntarily or of government to establish regulatory systems to do so at an early enough point in time to have a salutary effect. On the Cod, see Nicholas Foulkes, So Farewell to Cod, FIN. TIMES (London), at xxvi, col. 1-7 (Jan. 6-7, 2001).
43. See Declaration on Environment and Development, June 13, 1992, Principle 15, 31 I.L.M. 874.
44. Id.
45. The precautionary principle is contained in the Cartegena Biosafety Protocol to the Convention on Biological Diversity (signed in 1979, not yet in force). Several decisions of state courts in Australia have accepted the precautionary principle as a rule of decision. Notwithstanding these developments, the U.S. Department of State routinely continues to oppose the recognition that the principle should be a rule of law and prefers to recognize it only as an "approach" to consider in making policy. Paul E. Hagen & John Barlow Weiner, The Cartagena Protocol on Biosafety: New Rules for International Trade in Living Modified Organisms, 12 GEO. INT'L ENVTL. L. REV. 696 (2000).
46. See generally DONELLA MEADOWS ET AL., LIMITS TO GROWTH (1972).
47. See, e.g., RON ARNOLD, AT THE EYE OF THE STORM: JAMES WATT AND THE ENVIRONMENTALISTS (1982); DIXY LEE RAY, ENVIRONMENTAL OVERKILL (1993); GREGG ESTERBROOK, A MOMENT ON THE EARTH (1995).
48. See, e.g., RON ARNOLD, AT THE EYE OF THE STORM: JAMES WATT AND THE ENVIRONMENTALISTS (1982); DIXY LEE RAY, ENVIRONMENTAL OVERKILL (1993); GREGG ESTERBROOK, A MOMENT ON THE EARTH (1995).
49. See, e.g., RON ARNOLD, AT THE EYE OF THE STORM: JAMES WATT AND THE ENVIRONMENTALISTS (1982); DIXY LEE RAY, ENVIRONMENTAL OVERKILL (1993); GREGG ESTERBROOK, A MOMENT ON THE EARTH (1995).
50. Programme for the Further Implementation of Agenda 21, U.N. Earth Summit +5, Special Session, June 23-28, 1997. For instance, no action was prioritized on science for sustainable development.
51. For an illustration of the United States' progression through these stages, see, e.g., RICHARD N. L. ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY (1999).
52. The fact that the patterns are shared is predictable, despite varied cultures and legal regimes. First, natural systems are the same around the world. Varying more by location than by human impact. Second, the technology is rarely indigenous, and designs are developed in North America or Europe and replicated around the world causing the same types of environmental pollution and problems. Third, human nature is much the same everywhere, and the same mistakes about misuse of resources recur around the world. Fourth, through the United Nations' systems of international cooperation, policy approaches to resolve environmental problems tend to be homogenized and prevailing approaches are legitimized. Finally, legal systems have a long tradition, studied through comparative law techniques, of studying each other and of copying and then adapting and adopting prevailing legal reforms. Environmental Law, as a relatively new field everywhere, tends to have the same format and approaches. For a description of the parallel elements of environmental legal regimes, see COMPARATIVE ENVIRONMENTAL LAW AND REGULATION (N. A. Robinson ed., forthcoming 2001).
53. N.Y. CONST, art. XIV.
54. 1911 N.Y. LAWS ch. 647 (July 12, 1911).
55. See Theodore Roosevelt, Opening Address by the President, reprinted in PROCEEDINGS OF A CONFERENCE OF GOVERNORS IN THE WHITE HOUSE, WASHINGTON, D.C. MAY 13-15, 1908 3-14 (1909).
56. For a statutory history of the establishment of the National Forest Service, see GLEN O. ROBINSON, THE FOREST SERVICE 21-54 (1975).
57. See FREDERICK R. STEINER, SOIL CONSERVATION IN THE UNITED STATES (1990).
58. See 16 U.S.C. § 590 (a - q) (1982) (the "Soil Conservation Act of 1935").
59. See Clean Water Act, 33 U.S.C. §§ 1251-1387 (1994).
60. ERIC ASHBY, RECONCILING MAN WITH THE ENVIRONMENT 14 (1977).
61. Id. at 14-15.
62. See id. at 23-25.
63. Id. at 19-21.
64. Id. at 21.
65. "The Stages of Environmental Awareness" is a model used by environmental international non-governmental organizations. This version was presented at a consultation on the draft of an Earth Charter, convened by the Earth Council (an international NGO based in Costa Rica) at the Rockefeller Brothers Foundation's Pocantico Conference Center (Pocantico Hills, Sleepy Hollow, N.Y.) in 1999.
66. I came across this maxim during my meetings in Russia as a participant in the U.S.A.-U.S.S.R. Joint Committee on Cooperation in the Field of Environmental Protection (1973-92). As of the spring of 2000, President Putin of the Russian Federation has abolished Russia's distinguished Forest Administration and its newer but important State Committee on the Environment (Goskomecologia), and merged them into the Ministry on Natural Resources. This is a bit like putting the fox in charge of the chicken coop and is a good illustration of Stage IV on the Model of the Four Stages of Environmental Awareness. Russsia has forgotten why it needs forest stewardship and environmental protection and slips back into allowing unsustainable exploitation without regard to the problems that will probably emerge in the future again, as they have in the past. See generally N. A. Robinson & G. Waxmonsky, U.S.A. - U.S.S.R. Agreement to Protect the Environment: 15 Years of Cooperation, 18 ENVTL. L. 403 (1988).
67. The draw-down of the Ogallala Aquifer under Kansas and much of the Midwest is a good example. Scientists are aware it is a finite resource, for the extraction continues and land development expands in the Midwest with no serious action to provide alternative sources of water.
68. 42 U.S.C. §§ 4321-4327 (1994).
69. Section 102 states: The Congress authorizes and directs that, to the fullest extent possible . . . all agencies of the Federal Government shall (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking [emphasis added] which may have an impact on man's environment; (B) identify and develop methods and procedures . . . which will ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking [emphasis added] along with economic and technical considerations; (C) include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment . . . a detailed [environmental impact] statement. NEPA § 102(A)-(C), 42 U.S.C. § 4332(A)-(C) (1994). Only Section 102(C) has been seriously implemented (see 40 C.F.R. pt. 1500). Sections 102(A) and (B) authorize systematic enhancements to decisionmaking that could go far toward inducing governmental agencies to cope with how human actions affect gradual and global environmental change.
70. See SERGE TAYLOR, MAKING BUREAUCRACIES THINK: THE ENVIRONMENTAL IMPACT STATEMENT STRATEGY OF ADMINISTRATIVE REFORM (1984).
71. NEPA § 201, 42 U.S.C. § 4321 (1994).
72. NEPA § 202, 42 U.S.C. § 4342 (1994).
73. For an overview of measures taken to enhance the operations of NEPA and the CEQ, see COUNCIL ON ENVTL. QUALITY, THE NATIONAL ENVIRONMENTAL POLICY ACT: A STUDY OF ITS EFFECTIVENESS AFTER 25 YEARS (1997).
74. Prof. Clark's article in this symposium notes that President William J. Clinton named no scientist or environmental engineer to his National Commission on Sustainability, a sort of blue-ribbon advisory body that was to follow-up on UNCED. It appears to have made little lasting impact on decisionmaking. President Clinton made less use of the Council on Environmental Quality than did President Bush, who enhanced it beyond the level of staffing of President Reagan. President Clinton's neglect of the CEQ, and his lack of interest in science in the realm of the National Commission on Sustainability, both suggest that reliance on well-intended political leadership is not enough. Legal standards should require such integration of the scientific view together with the political considerations. The failure of successive administrations to continue a three person Council of Environmental Quality, with scientists as members, illustrates that this is a bipartisan lacuna. At the State level, this pattern recurs. For instance, Governor Mario Cuomo of New York named Dr. Gene Likens, a renowned ecologist, to his non-statutory Environmental Advisory Board, and because of Dr. Likens, basic state policies on soil protection and acid rain prevention were debated and advanced at the highest level, from an informed scientific perspective. Despite the strong environmental credentials of his successor, Governor George Pataki, the Executive Chamber has discontinued it, and has not appointed any Environmental Advisory Board and has no science advice in shaping New York State executive environmental policy. It is significant that neither Governors Cuomo, nor Pataki, nor Gov. Hugh Carey before them, chose to appoint the statutory Council of Environmental Advisors, a sort of state-level CEQ that was first established in the Environmental Conservation Law under Governor Nelson Rockefeller's leadership in 1972. See N.Y. ENVTL. CONSERV. LAW § 7-101, 17 1/2, N.Y. ENVTL. LAW ch. 664 § 2 (McKinney 1972). Thus, merely authorizing the use of environmental science advice in statutes is not enough.
75. At the time this was justified on the basis that the Open Meetings law applied to the CEQ, and it was not sound to have the public attending meetings of a Council advising the President. Of course, the White House could have sought legislation exempting CEQ from this obligation, but chose not to do so.
76. See COUNCIL ON ENVTL. QUALITY, ENVIRONMENTAL TRENDS (U.S. Gov't Printing Off., July, 1981). This report anticipates the need for indicators based on ongoing data collection for environmental trends, an idea that is re-emphasized in OUR COMMON JOURNEY, supra note 16.
77. See COUNCIL ON ENVTL. QUALITY, ENVIRONMENTAL TRENDS (U.S. Gov't Printing Off., July, 1981). This report anticipates the need for indicators based on ongoing data collection for environmental trends, an idea that is re-emphasized in OUR COMMON JOURNEY, supra note 16.
78. U.N. Res. 47/191 (22 Dec. 1992), on report, U.N. Doc. A/47/719, requesting that the U.N. Economic and Social Council (ECOSOC) set up the Commission on Sustainable Development.
79. See http://www.un.org/esa/sustdev/.
80. Under the auspices of the U.N. Environment Programme, negotiations for a convention on persistent organic pollutants were concluded in South Africa in 2000. The scientific and policy considerations leading to the convention are discussed in ANNE PLATT MCGINN, WORLDWATCH PAPER NO. 153, WHY POISON OURSELVES? A PRECAUTIONARTY APPROACH TO SYNTHETIC CHEMICALS (Nov. 2000).
81. In Sweden, decisionmakers and the public became alarmed about POPs, and in 1990 they decided to reduce the use of all pesticides in Swedish agricultural and industrial uses by 50%, in order to reduce the exposure to humans by the residues. Sweden reached the 50% reduction level by 1996, and then decided to reduce uses by another 25%. By the year 2000, Sweden had stabilized its pesticides uses at only 25% of what was being used in 1990. Swedish decisionmakers understood the science and took action. The Swedish Chemicals Inspectorate is the agency responsible for maintaining this Stage Four of environmental awareness.
82. S. Hernberg, Lead Poisoning in an Historical Perspective, 38 AM. J. IND. MED. 244, 244-54 (2000).
83. See Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 104 Stat. 2399, 42 U.S.C. §§ 7651-7651o.
84. See 42 U.S.C. § 7553 (1994).
85. See Federal Water Pollution Control Act, June 30, 1948, ch. 758; 62 Stat. 1155, incorporated in 33 U.S.C. §§ 1251-1387 For a treatment of the evolution of these water pollution laws, see also FRANK GRAD, TREATISE ON ENVIRONMENTAL LAW (1999).
86. See Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, incorporated in 33 U.S.C. §§ 1251-1387.
87. See Federal Water Pollution Control Act Amendments of 1977, Pub. L. No. 95-217.
88. See Clean Water Act § 304, 33 U.S.C. § 1313 (1994).
89. See ENVTL. PROT. AGENCY, QUALITY CRITERIA FOR WATER (1986).
90. See Clean Water Act § 402, 33 U.S.C. § 1342 (1994).
91. Id. § 505, 33 U.S.C. § 1365 (1994).
92. Id. § 101, 33 U.S.C. § 1251 (1994).
93. See M. C. Mehta v. Union of India, A.I.R. 1988 S.C. 1037; M. C. Mehta v. Union of India, A.I.R. 1991 S.C. 1332.
94. See Patrick E. Tyler, A Tide of Pollution Threatening China's Prosperity, N.Y. TIMES, Sept. 25, 1994, at A3.
95. See generally William P. Alford & Yuanyuan Shen, Limits of the Law in Addressing China's Environmental Dilemma, 16 STAN. ENVTL. L.J. 125 (1997).
96. See generally Convention for the Protection of the Ozone Layer, Mar. 22, 1985, 26 I.L.M. 1529 [hereinafter Vienna Convention].
97. See generally Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, art. 9(2), 26 I.L.M. 1541 [hereinafter Montreal Protocol].
98. Adopted at London at the Second Meeting of Parties to the Montreal Protocol, 29 June 1990, U.N. Doc. UNEP/Oz.L.Pro2/3 (Annex II).
99. Cynthia Pollock Shea, Protecting the Ozone Layer, in STATE OF THE WORLD 77-96 (Lester R. Brown et al. eds., 1989).
100. Hilary F. French, Ozone Response Accelerates, in VITAL SIGNS 102-03 (Linda Starke ed., 1997).
101. See generally Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, T.I.A.S. 10541, 1302 U.N.T.S. 217, 18 I.L.M. 1442 [hereinafter Geneva Convention].
102. See generally Protocol Concerning the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes, Oct. 31, 1988, 28 I.L.M. 212. The U.S. Environmental Protection Agency provided much of the methodology and scientific process for this Protocol, drawing on the EPA's experience under the Clean Air Act.
103. See Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2399, 42 U.S.C. § 7651.
104. See Subchapter IV-A, Acid Deposition Control, 42 U.S.C. §§ 7651-7661f, added in Pub. L. 101-549, Title IV, 104 Stat. 2584.
105. See Isabel Rauch, Developing a German and International Emissions Trading System-Lessons from U.S. Experiences with the Acid Rain Program, 11 FORDHAM ENVTL. L.J. 307 (Spring 2000).
106. Since the enactment of the 1990 amendments to the Clean Air Act, which contained some measures intended to further abate acid rain, the news media rarely report about the problem. Because the detrimental effects of acidic precipitation are not immediately evident in many places, most of the public assumes that the 1990 Clean Air Act has solved the acid rain problem. Smug satisfaction has caused the reforms to slip back toward Stages One or Two. Society is ignoring the ongoing scientific study about acid rain demonstrating that the problem persists.
107. In Asia, where acid rain is an acute problem, there are neither international nor national systems to eliminate acid rain. Similar conditions exist in South America and Africa where the problem is just emerging. Although acid rain has been a significant issue in Western Europe and North America for four decades, and may be deemed to have entered Stage Three in those two regions, the problem of acid rain is at Stage One or Two in most of the world.
108. For a critique of New York City's shortcomings in the Report of the Reservoir Keeper, see Robert F. Kennedy, Jr., A Culture of Mismanagement: Environmental Protection and Enforcement at the New York City Department of Environmental Protection, 15 PACE ENVTL. L. REV. 223 (1997).
109. See STEPHAN SCHMIDHEINY, ECO-EFFICIENCY (1992).
110. See Comprehensive Environmental Response, Compensation, and Liability Act § 107, 42 U.S.C. § 9607 (1994).
111. CONTRACT WITH AMERICA (Newt Gingrich & Bob Schellhas eds., 1994).
112. F. Sherwood Rowland, Atmospheric Changes Caused by Human Activities: From Science to Regulation, 27 ECOLOGY L.Q. 1261 (2001).
113. See DOTTO & SCHIFF, supra note 36, at 153 (quoting Robert Abplanalp, President of Precision Valve Corporation, who wrote in Harper's Weekly magazine that the science was inadequate and that the media reporting the scientists' findings "merely wrote what they were told and perhaps, as witlessly as Henny Penny, proceeded to inform everyone that the sky was falling.").
114. See DOTTO & SCHIFF, supra note 36, at 153 (quoting Robert Abplanalp, President of Precision Valve Corporation, who wrote in Harper's Weekly magazine that the science was inadequate and that the media reporting the scientists' findings "merely wrote what they were told and perhaps, as witlessly as Henny Penny, proceeded to inform everyone that the sky was falling.").
115. See generally Vienna Convention, supra note 89.
116. Id. art. 2(1).
117. While some 150 nations have ratified the UNFCCC, only some 90 have ratified the Vienna Ozone Convention and some 70 the Montreal Protocol. This is a measure of how seriously decisionmakers in different states regard the chemistry and physics of stratospheric ozone layer and either their stake in its protection or their capacity to act to protect it. The foreign policy decisionmakers in roughly half the states have not chosen to move beyond Environmental Awareness Stages One or Two, and into Stage Three.
118. See RICHARD E. BENEDICK, OZONE DIPLOMACY (1991).
119. See Vienna Convention, supra note 89, art. 4(2)(d).
120. See Clean Air Act Amendments of 1990, Pub. L. No. 101-549, 104 Stat. 2568, 42 U.S.C. §§ 7671-7671q.
121. For the Fish and Wildlife Service's history of the refuges, see http://refuges.fws.gov/history/index.html.
122. See MARTIN HOLDGATE, THE GREEN WEB (1999). Sir Martin is a former Director General of IUCN and prepared this history for IUCN's fiftieth anniversary.
123. Id.
124. Current membership figures are available on the IUCN web site, http://www.iucn.org/2000/about/content/memberstate.html.
125. IUCN's Statute is reproduced on the IUCN web site, http://www.iucn.org/2000/about/content/memberstate.html.
126. See 2000 IUCN RED LIST OF THREATENED SPECIES (Craig Hilton-Taylor ed., 2000).
127. For instance, IUCN was instrumental in establishing the World Wildlife Fund (WWF), which has become far better known popularly than its progenitor.
128. See CITES, supra note 31.
129. See generally Endangered Species Act, 16 U.S.C. §§ 1531-1544 (1994).
130. See Terry L. Anderson & J. Bishop Grewell, Property Rights Solutions for the Global Commons: Bottom-Up or Top-Down?, 10 DUKE ENVTL. L. & POL'Y F. 73 (1999); see also THE GREENING OF U.S. FOREIGN POLICY (Terry L. Anderson & Henry I. Miller eds., 2000).
131. See Terry L. Anderson & J. Bishop Grewell, Property Rights Solutions for the Global Commons: Bottom-Up or Top-Down?, 10 DUKE ENVTL. L. & POL'Y F. 73 (1999); see also THE GREENING OF U.S. FOREIGN POLICY (Terry L. Anderson & Henry I. Miller eds., 2000).
132. See, e.g., RAY, supra note 43; JULIAN L. SIMON & HERMAN KAHN, THE RESOURCEFUL EARTH (1984).
133. See, e.g., RAY, supra note 43; JULIAN L. SIMON & HERMAN KAHN, THE RESOURCEFUL EARTH (1984).
134. For instance, Congressman Thomas DeLay in 1995 introduced legislation to repeal the 1990 Clean Air Act Amendments and their protection of the stratospheric ozone through the ban on CFC use. The bill recited that "Public Law 101-549 is hereby repealed." As the Financial Times notes, the bill had no chance of adoption, but reflected its sponsor's views. "He commonly refers to the environmental protection agency (EPA) as the 'Gestapo of government.'" Deborah McGregor, Republican Zealots May Test Nerve of Conciliatory Bush, FIN. TIMES, Dec. 8, 2000, at 4.
135. Bill Holmes, a former member of the California State Board of Forestry, has said: In California we continue to plunge toward new ill-fated experiments in socialized timber management. The Hollywood crowd and other people in the U.S. who hate America while worshipping Russia and its totalitarian system have jumped into bed with their environmental friends who welcomed them with open arms. They already had a great deal in common because, although not all left-wing radicals are environmentalists, certainly all environmentalists embrace some form of left-wing radical collectivism. As a result, the greatest threat to you, to me, to our communities, to our state and to our nation is no longer communism, it is not drugs, not AIDS, not crime, not poverty, not even liberal democrats, but radical environmentalism. Bill Holmes, Presentation to the 1991 Redwood Region Logging Conference, reprinted in GLOBAL ECOLOGY: A NEW ARENA OF POLITICAL CONFLICT (W. Sachs ed., 1993).
136. See, e.g., DAVID FOREMAN, ECODEFENSE: A FIELD GUIDE TO MONKEYWRENCHING (3rd ed. 1985).
137. For instance, both the Carter and Clinton administrations entertained proposals to abolish the Council on Environmental Quality in the White House and remove the crucial presidential oversight of the government-wide National Environmental Policy Act's environmental impact statement process, which integrates science into decisionmaking. Virtually none of the major conservation organizations sought to contest these proposals.
138. In this regard, the reforms discussed in this Article share the fate of "good government" reforms generally. Because they are procedural in nature, they are not dramatic and their value is not immediately apparent to many members of the public, media, or decisionmakers.
139. See generally RALPH WALDO EMERSON, NATURE (1836).
140. See generally PAUL BROOKS, SPEAKING FOR NATURE (1980).
141. OLIVER WENDELL HOLMES, RALPH WALDO EMERSON 70 (Daniel Aaron ed., 1980).
142. Id.
143. Agenda 21, supra note 8, ¶ 35.5.
144. Id. ¶ 35.7(c).
145. Id. ¶ 35.7(d)(1).
146. See id. ¶ 35.12(I).
147. Id. ¶ 35.17(b).
148. Id. ¶ 8.14.
149. One important example of such empirical research has been the research on the effectiveness of international environmental agreements, undertaken through The International Institute for Applies Systems Analysis (IIASA) in Vienna. See ENVIRONMENTAL CHANGE AND INTERNATIONAL LAW (Edith Brown-Weiss ed., 1992). This sort of study is needed for national legislative frameworks, for instance on managing surface water quality, aquifers, migratory species habitat, maintaining ambient air quality, minimizing wastes, and other areas addressed by Environmental Law.
150. See Atomic Energy Act of 1954, ch. 4, 42 U.S.C. §§ 2051-2053 (1994).
151. See National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (1994).
152. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 2(1)(a), 1155 U.N.T.S. 331.
153. See id. art. 26.
154. Adopted by the United Nations General Assembly on October 29, 1982, by 111 to 1 (the USA voting no); U.N. General Assembly Resolution 37/7, U.N. GAOR, 37th Sess., reprinted at 22 I.L.M. 455 (1983).
155. Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980, T.I.A.S. No. 10240, 1329 U.N.T.S. 48 (1980).
156. Id. art. IX(1)(f).
157. Id. art. XIV(1).
158. Id. art. XIII(6).
159. See CITES, supra note 31.
160. See id. art. I(f) (including by reference arts. IX & IV (2)).
161. For a description of the role of the Conference of Parties (COP), see id. art. XI.
162. For a list of species regulated under the convention, see id. arts. II, XV, XVI, & apps. I, II, III.
163. Whether a species is "threatened with extinction" has been determined to be based on biological scientific assessment. Id. art. II.
164. Id. art. XI (7).
165. Id. art. XII (2)(c).
166. CBD, supra note 32.
167. Id. art. 12(b).
168. See id. art. 25.
169. Id. art. 10(a).
170. Id. art. 10(b).
171. Id. art. 25(1).
172. See id. art. 25(2)(a).
173. Id. art. 25(f)(3).
174. United Nations Framework Convention on Climate Change, May 9, 1992, art. 9, 31 I.L.M. 849 [hereinafter UNFCCC].
175. CBD, supra note 32, art. 23(4)(c). The COP is also authorized to "establish such subsidiary bodies, particularly to provide scientific and technical advice, as are deemed necessary for the implementation of this Convention." Id. art. 23(4)(g).
176. UNFCCC, supra note 164, art. 7(2)(j).
177. See generally Vienna Convention, supra note 89.
178. See id. art. 3(1).
179. Id. art. 3(2).
180. See id. art. 4.
181. See id. art. 6(2)(b).
182. Montreal Protocol, supra note 90, art. 9(2).
183. For provisions governing the operation of the COP, see id. art. 11(3).
184. See id. art. 12.
185. See generally Geneva Convention, supra note 94.
186. See id. art. 7.
187. See id. art. 8.
188. Id. art. 9.
189. See id. art. 10.
190. Id. art. 10(3).
191. Since the European Union, and its accession states, plus the rest of the economies in transition in Central Europe, domestically have relegated acid rain abatement to a relatively low level of priority vis à vis other priorities, the environmental awareness of the decisionmakers is not advanced to the level in Stage Three where the support exists to competently implement the Geneva Convention, even with its sensible system for integrating science with the decisionmaking. Here it is the decisionmaking at the international and national levels that is not adequately integrated. The example does show that the integration of science must also be at the national levels.
192. Memorandum of Intent Between Canada and the United States Concerning Transboundary Air Pollution, August 5, 1980, U.S.-Canada, 32 U.S.T. 2521, T.I.A.S. No. 9856, 20 I.L.M. 690 (1981).
193. See 42 U.S.C. § 4341 (1994).
194. See 40 C.F.R. § 1500.1 (2000).
195. See 42 U.S.C. § 4365 (1994).
196. The Atomic Energy Commission (AEC) was established to further the scientific knowledge about, as well as to advance and control the use of, atomic energy. Under President Carter, its regulatory role over control of the nuclear industry was divorced from its research and development missions. As an institution, the AEC was composed of many scientists and was receptive to scientific inquiry in its decisionmaking. See http://www.nrc.gov.
197. See generally National Environmental Policy Act of 1969, 42 U.S.C. § 4321 (1994).
198. See Calvert Cliffs' Coordinating Comin. v. U.S. AEC, 449 F.2d 1109, 1114 (D.C. Cir. 1971).
199. Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2281. See generally D. FORD, THE CULT OF THE ATOM (1982).
200. See 10 C.F.R. § 2 (1999).
201. See id. §§ 2.4, 2.6.
202. See id. § 2.1.
203. See id. § 2.721(a).
204. See id. § 2.714.
205. See id. § 2.714(b)(2)(iii).
206. See id. § 2.760.
207. Initially, the AEC had not embraced fully its duty to examine all environmental impacts as required under NEPA. See Calvert Cliffs' Coordinating Comm. v. U.S. AEC, 449 F.2d 1109, 1112 (D.C. Cir. 1971). The EIA duties of the NRC under NEPA are now well acknowledged. See, e.g., Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983).
208. See Colvert Cliffs, 449 F.2d at 1109.
209. Judge Skelley Wright criticized efforts by the AEC to avoid preparing the detailed statement that NEPA expressly required. "We believe that the Commission's crabbed interpretation of NEPA makes a mockery of the Act." Id. at 1117.
210. See, e.g., New England Coalition v. NRC, 582 F.2d 87 (1st Cir. 1978).
211. The current popular distrust of nuclear plants in the U.S.A. reflects the role of political considerations in how decisionmakers view scientific information. Despite the advanced NRC process for weighing scientific knowledge (a refined Stage Three level), environmental awareness about launching new civilian nuclear electrical power generating facilities has extended beyond the acceptance of the NRC licensing boards and (also at Stage Three) has coalescec around a position of not encouraging construction of any new facilities. Meanwhile, the lack of agreement on how to handle the radioactive waste from the existing facilities is at the second stage of environmental awareness, as the waste is stored "temporarily" at the existing licensed facilities, and permanent waste repository decisions remain to be made.
212. See N. A. Robinson, EIA Abroad: The Comparative and Transnational Experience, in ENVIRONMENTAL ANALYSIS: THE NEPA EXPERIENCE 679 (Stephen G. Hildebrand & Johnnie B. Cannon eds., 1993) [hereinafter ENVIRONMENTAL ANALYSIS].
213. CBD, supra note 32, art. 14(1)(a).
214. See NEPA § 102(C), 42 U.S.C. § 4332(C) (1994).
215. See CAL. PUB. RES. CODE § 21000 (West 2001).
216. Province of Ontario, Environmental Assessment Act of 1975. See generally Robinson, supra note 202, at 685. The Act requires a period review of the role of EIA in Ontario, and a review is scheduled for next year. Critics of the Ontario EIA process seek to weaken the law, having failed to understand its value in terms of sustainable resources use and protection of environmental quality.
217. Australia's Commonwealth government enacted the Environment Protection (Impact of Proposals) Act in 1974, followed by Acts in New South Wales and other states. See Robinson, supra note 202.
218. SEQRA, art. 8, N.Y. Envtl. Conserv. Law § 8-0101 et seq. (McKinney 1972).
219. Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment (June 27, 1985), Official Journal of the European Communities L 175/40.
220. Federal Law of Ecological Expertise, Russian Federation, enacted by State Duma July 19, 1995, approved by the Soviet of the Federation on Nov. 15, 1995, signed into law by President Boris Yeltsin.
221. The Law of the Sea states: When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205. United Nations Convention on the Law of the Sea, Dec. 10, 1982, art. 206, 21 I.L.M. 1261.
222. See Espoo Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 30 I.L.M. 800.
223. See Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, June 25, 1998, 38 I.L.M. 517, available in http://www.unece.org/env/pp.
224. L. K. CALDWELL, SCIENCE AND NEPA 150 (Univ. of Ala. Press, 1984).
225. See, e.g., Sierra Club v. U.S. Forest Service 46 F.3d 835 (8th Cir. 1995).
226. Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, supra note 213, art. 9.
227. See, e.g. B. F. Leon, Survey of Analyses in Environmental Impact Statements, in ENVIRONMENTAL ANALYSIS, supra note 202, at 657 (stating that "[t]he consequences of the prevailing lack of rigor in current EISs are numerous. An untestable prediction has no credibility except for that of its author who must now become an expert if the report is to be believed. It is easy to find an expert who disagrees, and no one can prove either to be correct. Lawyers can discredit experts much more easily than they can discredit a carefully thought-out experimental design and testing program. If an EIS does stand because experts say it should, then the experts become the true decision makers and are inextricably drawn into the political process of project approval. Environmental policy is subverted, and one suspects projects of having hidden environmental impacts.").
228. For a definition of "scope," see 40 C.F.R. § 1508.25 (2000); see also 43 Fed. Reg. 55,990 (Nov. 28, 1978).
229. The World Environment Center, established at the initiative of the U.N. Environment Programme in 1974, with headquarters in New York City, has an International Environment Forum (IEF) composed of some of the world's leading multinational companies. The members of the IEF all have refined EMS systems. The process of re-examining and improving the corporate EMS process is recognized annually by the conferring of the WEC Gold Medal to the company with the most effective EMS systems. An independent jury confers the medal, for which the annual competition is always keen. The WEC periodically revises its award criteria to raise the bar in light of the advances in corporate EMS practices. For information about the World Environment Center, see generally http://www.wec.org.
230. The emergence of a corporate practice in Environmental Law was evident as early as 1970, and the growth of EMS was a maturing of management systems. See N. A. Robinson, New Dimensions of Corporate Counseling in Environmental Law, 1 COLUM. J. ENVTL. L. 7 (1974).
231. INT'L STANDARDS ORG., ISO 14000-MEET THE WHOLE FAMILY (1998), available at http://www.iso.ch/9000e/iso14000.pdf.
232. See U.S. Envtl. Prot. Agency, Environmental Auditing Policy, 51 Fed. Reg. 25,004 (July 9, 1986).
233. Allowing voluntary participation by companies in the industrial sector in a Community eco-management and audit scheme, European Union: Council Regulation (EEC) No. 1836/93 of June 29, 1993. See OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES, No, L 168/1 (10.7.93).
234. See Agenda 21, supra note 8, ¶¶ 30.2-30.4.
235. See, e.g., Int'l Chamber of Commerce, The Business Charter for Sustainable Development, available at http://www.iccwbo.org/home/environment/charter.asp.
236. An example of programs that promote corporate social responsibility are those of the organization Business for Social Responsibility, see http://www.bsr.org; it promotes a wider kind of auditing for this broader agenda. Environmental management systems, including their scientific monitoring elements, are contained within a wider set of company policy. This is well illustrated by the Social and Ethical Auditing, Accounting, and Reporting (SEAAR) procedures of the Institute of Social and Ethical Accountability based in London, U.K. See, e.g., http://www.accountability.org.uk; http://www.globalreporting.org.
237. An example of programs that promote corporate social responsibility are those of the organization Business for Social Responsibility, see http://www.bsr.org; it promotes a wider kind of auditing for this broader agenda. Environmental management systems, including their scientific monitoring elements, are contained within a wider set of company policy. This is well illustrated by the Social and Ethical Auditing, Accounting, and Reporting (SEAAR) procedures of the Institute of Social and Ethical Accountability based in London, U.K. See, e.g., http://www.accountability.org.uk; http://www.globalreporting.org.
238. The U.N. University launched in 1994 a "Zero Emissions Research Initiative" to research the systems that could be employed to eliminate all significant wastes. For information about the Initiative, see http://www.ias.unu.edu/ecology/g%5Feconomy/unu%5Fzef.htm.
239. See, e.g., CAUX ROUND TABLE, PRINCIPLES FOR BUSINESS, available at http://www.cauxroundtable.org.
240. See BRISTOL-MYERS SQUIBB, ENVIRONMENT 2000-POLLUTION PREVENTION THROUGHOUT THE PRODUCT LIFE CYCLE (1992).
241. Int'l Chamber of Commerce, supra note 225.
242. See BRISTOL-MYERS SQUIBB, 1993 REPORT ON ENVIRONMENTAL PROGRESS 12 (1993).
243. BRISTOL-MYERS SQUIBB, ENVIRONMENT WORLD 1 (1994).
244. Id.
245. BRISTOL-MYERS SQUIBB, 1995 REPORT ON ENVIRONMENTAL, HEALTH, AND SAFETY PROGRESS 12 (1995), available at http://www.bms.com/static/ehs/sideba/data/ ehsr95.pdf.
246. BRISTOL-MYERS SQUIBB, 1999 REPORT ON ENVIRONMENTAL HEALTH AND SAFETY PROGRESS 1 (1999), available at http://www.bms.com/static/ehs/sideba/data/ ehsr99.pdf.
247. See id. at 21. The company notes that "[o]ver a five-year period, we have identified over $7 million in product improvements, driven in part by the quest to minimize environmental impacts through this product life cycle (PLC) initiative." Id. at 28.
248. See id. at 34.
249. Id. at 26.
250. Agenda 21, supra note 8, ¶ 30.25.
251. See K. Jack Haugrud, Agriculture § 8.3(a), in CECELIA CAMPBELL-MOHN, BARRY BREEN & J. WILLIAM FUTRELL, SUSTAINABLE ENVIRONMENTAL LAW (1993).
252. See generally Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, June 17, 1994, 33 I.L.M. 1328.
253. See, e.g., R. M. Cushman et al., Global Climate Change and NEPA Analysis, in ENVIRONMENTAL ANALYSIS, supra note 202, at 442.
254. S. Henderson et al., Can NEPA Protect Biodiversity?, in ENVIRONMENTAL ANALYSIS, supra note 202, at 463.
255. G. E. Saul & K. W. Thornton, Environmental Monitoring and Assessment: A National Priority, in ENVIRONMENTAL ANALYSIS, supra note 202, at 494.
256. As the AEC did prior to the Calvert Cliffs decision.
257. See Clean Water Act § 402(b)(1)(B), 33 U.S.C. § 1342(b)(1)(B) (1994).
258. See Clean Water Act § 303(c)(1), 33 U.S.C. § 1313(c)(1) (1994).
259. See Clean Water Act § 505(a), 33 U.S.C. § 1365(a) (1994).