The emergence of global environmental law

Ecology Law Quarterly

Volumn 36, Issue 3, 2009, Pages 615-664

  Yang, Tseming ^a   Percival, Robert V ^b  

^a VERMONT LAW SCHOOL   (United States)

^b UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 73149107022     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (363)

1. To facilitate the teaching of global environmental law, we are writing GLOBAL Environmental Law, the first casebook on the subject, which will be published by Aspen Publishers in 2010. The casebook will include the results of a three-year effort to gather environmental case studies from all over the world. The casebook will present cases and materials that illustrate the principal approaches to environmental law employed by countries throughout the world. We hope that it will be a vehicle for spawning a new approach to teaching environmental law that presents it in a global context.
2. Of course, globalization of law is occurring not only in the environmental law field, but also in other areas of public law such as antitrust and securities regulation. But as Professor Martin Shapiro noted some time ago, "[p]erhaps globalization is clearest and most dramatic in environmental law."
3. Martin Shapiro, The Globalization of Law, 1 Ind. J. GLOBAL LEGAL STUD. 37, 51, 64 (1993).
4. Shapiro, supra note 2, at 63.
5. One notable exception has been tort litigation against companies that expose the public to environmental risks. It has not been a prominent feature of environmental law in countries that do not share the common law tradition. Yet exceptions are emerging. In Japan, which does not have a litigation-friendly culture, a group of seven automakers settled a decade-old Tokyo air pollution case in August 2007 by agreeing to pay $1.2 billion yen ($10 million) to patients with respiratory diseases.
6. See Eri Osaka, Fighting against Air Pollution through Litigation (May 23, 2009) (unpublished manuscript), available at http://www.allacademic.com/meta/p- mla-apa-research-citation/2/3/5/8/9/p235892-index.html. After U. S. tobacco companies reached a multi-billion dollar settlement with state governments in 1998 for reimbursement of added health care costs, a spate of such lawsuits has surfaced in other parts of the world, most recently in Nigeria. Nat'l Ass'n of Attorneys Gen., Master Settlement Agreement (1998) available at http://www.naag.org/backpages/naag/tobacco/msa/msa-pdf/1109185724-1032468605- cigmsa.pdf. Judicial review also is gradually becoming an important feature of foreign legal cultures with traditions dissimilar to the common law.
7. See generally Tomas V. Ginsburg, Confucian Constitutionalism: Globalization and Judicial Review in Korea and Taiwan, ILLINOIS PUBLIC Law and Legal Theory Research Paper Series No. 00-03 (2001), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=289255.
8. U. S. Gov't Accountability Office, Rep. No. GAO/T-RCED-94-212, Toxic Substances Control Act: EPA's Limited Progress in Regulating Toxic Chemicals (1994);
9. U. S. Gov't Accountability Office, Rep. No. GAO/RCED-90-112, EPA's Chemical Testing Program Has Made Little Progress 3 (1990).
10. Envtl. Def. Fund, Toxic Ignorance: The Continuing Absence of Basic Health Testing for Top-Selling Chemicals in the United States 53 (1997), available at http://www.edf.org/documents/243-toxicignorance.pdf.
11. See EPA, High Production Volume (HPV) Challenge, Basic Information, http://www.epa.gov/hpv/pubs/general/basicinfo.htm (last visited Aug. 5, 2009).
12. See EPA, OFFICE OF POLLUTION PREVENTION & TOXICS, STATUS AND FUTURE DIRECTIONS
13. of the High Production Volume Challenge Program 10-11 (2004), available at http://www.epa.gov/hpv/pubs/general/hpvreport.pdf.
14. See id. Chemical reporting through this "Extended HPV" program is submitted by industry sponsors to the American Chemical Council, which tracks the information. As of June 2007, more than 2200 HPV chemicals have been sponsored: 1400 directly through the HPV Challenge Program and over 860 chemicals indirectly through international efforts. EPA, High Production Volume (HPV) Challenge, http://www.epa.gov/HPV/(last visited July 13, 2009);
15. Am. Chemistry Council, Extended HPV Initiative, http://www. americanchemistry.com/S-ACC/sec-policyissues.asp?CID=432&DID=1493 (last visited July 13, 2009).
16. See New Substances Program, Assessment and Management of New Substances in Canada, http://www.ec.gc.ca/Substances/nsb/eng/home-e.shtml (last visited Aug. 5, 2009).
17. Gov't of Canada, Chemical Substances: What is Categorization?, http://www.chemicalsubstanceschimiques.gc.ca/categor/what-quoi/index e.html (last visited July 13, 2009).
18. Id.
19. Id.
20. Regulation (EC) No. 1907/2006, Registration, Evaluation, Authorization, and Restriction of Chemicals, 2006 O. J. (L 396), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ. do? uri=OJ:L:2007:136:0003:0280: EN:PDF.
21. See Europa, European Comm'n on the Env't, What is REACH?, http://ec.europa.eu/environment/chemicals/reach/reach-intro.htm (last visited Aug. 5, 2009).
22. See id.
23. Env't Directorate Gen., European Comm'n, REACH in Brief 11 (2007), available at http://ec.europa.eu/environment/chemicals/reach/pdf/2007-02-reach- in-brief.pdf.
24. The program is applicable to all new chemicals as of June 2008. Pre-registration will be required by December 2008 and formal regulations for existing chemicals will be developed between 2010 and 2018.
25. Id. at 10.
26. Provisions on the Environmental Management of New Chemical Substances (issued by the State Envtl. Prot. Admin., Sept. 12 2003, effective Oct. 15, 2003), available at http://www.crcmep.org.cn/newchem/enewchem.htm [hereinafter Provisions];
27. Charles R. McElwee, China: An Introduction to Current Environmental Trends, INT'L ENVTL. LAW COMM. NEWSLETTER (ABA Section of Env't, Energy & Res.), Oct. 2007, at 39, available at http://www.abanet.org/environ/committees/ intenviron/newsletter/oct07/IELCOct07.pdf.
28. See Provisions, supra note 19.
29. Chapter III, Articles 14-18 of Provisions on the Environmental Management of New Chemical Substances (issued by the State Envtl. Prot. Admin., Sept. 12, 2003, effective Oct. 15, 2003).
30. Ministry of the Env't, Outline of Chemical Substance Control Law, http://www.env. go.jp/en/chemi/outline-CSCL.pdf (last visited Aug. 4, 2009).
31. See Rich LeNoir, Presentation, Country by Country Comparison of Chemical Control Laws and Regulations (March 7, 2007), available at http://www.socma.com/ assets/File/socmal/PDFfiles/gcrc/2007/presentations/International-Fundamentals- Lenoir.pdf.
32. UNEP, Leaded Petrol Phase-out: Global Status February 2009, http://www.unep.org/pcfv/PDF/MapWorldLead-February2009.pdf (last visited Aug. 5, 2009). In an unrelated but illuminating incident about consumer perception about product safety and lead, U. S. consumers were shocked by the recall of toys imported from China found to contain lead-based paint is because of the widespread assumption that the use of lead-based paint had long been discontinued worldwide.
33. Eric S. Lipton & David Barboza, As More Toys Are Recalled, Trail Ends in China, N. Y. TIMES, June 19, 2007 (quoting an American consumer as saying "Lead paint, in this day and age?").
34. Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991).
35. Approximately forty countries have banned the future use of asbestos, according to the Director of International Labour Office's SafeWork program. Hazards Magazine, ILO to Promote Global Asbestos Ban, http://www.hazards.org/ asbestos/ilo.htm (last visited July 13, 2009).
36. Panel Report, European Communities-Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R (Sept. 18, 2000).
37. Verordnung uber die Vermeidung von Verpackungsabfallen, Bundesgesetzblatt 1991, Part I, p. 1234 (June 20, 1991) (English language translation unavailable).
38. Bette Fishbein, Extended Producer Responsibility: A New Concept Spreads Around the World, Rutgers University Demanufacturing Partnership Program Newsletter (New Brunswick, New Jersey) Winter 1996, available at http://www.grrn.org/resources/Fishbein.html.
39. Council Directive 2003/108/EC, 2003 O. J. (L 345) (EC), amending Council Directive 2002/96/EC, 2002 O. J. (L 037) (EC) and Council Directive 2002/95/EC, 2003 O. J. (L 037) (EC) on the restriction of the use of certain hazardous substances in electrical and electronic equipment.
40. Ministry of Information Industry, Measures for the Control of Pollution from Electronic Information Products ("China RoHS"'), Feb. 28, 2006 (on file with author).
41. Id. at arts. 11, 13.
42. Id. at arts. 3, 13.
43. See generally Ministry of Industry and Information Technology, Procedures for Creating the List of Major Electronic Information Products Subject to Pollution Control, arts. 2, 5 (Oct. 9, 2008) (on file with author).
44. China RoHS, supra note 31, at art. 13.
45. See Jonathan B. Wiener, Something Borrowed for Something Blue: Legal Transplants and the Evolution of Global Environmental Law, 27 ECOLOGY L. Q. 1295, 1309-1312 (2001).
46. However, like any regulatory and legal regime, there are bound to be significant, even fundamental, disagreements about other goals, especially the role of economic development and how precautionary regulatory policy should be.
47. See generally NOGA MORAG-Levine, CHASING THE Wind: Regulating Air Pollution in the Common Law State (2003).
48. In that sense, the community of interests that environmental law concerns itself with is not purely a psychological construct but is significantly based on physical relationships and an external reality.
49. See, e.g., Paul Schiff Berman, From International Law to Law and Globalization, 43 COLUM. J. transnat'l l. 485, 517 (2005).
50. See, e.g., Philip Shabecoff, A New Name for Peace: International Environmentalism, Sustainable Development, and Democracy (1996).
51. See generally discussion infra Part II. C.3.
52. Under the REACH program, companies must register, report, test, and reformulate their products to reduce their environmental impact.
53. See discussion supra Part I. A.
54. Harold Koh, The Globalization of Freedom, 26 YALE J. INT'L L. 305, 305 (2001) ("The most striking change in the law [in the last two decades] is the rise of a body of law that is genuinely transnational-neither fish nor fowl, in the sense that it is neither traditionally domestic nor traditionally international.").
55. Mark Tushnet, Globalization and Federalism in a Post-Printz World, 36 TULSA L. J. 11, 15 (2000)
56. (quoting David Thelen, Mexico, the Latin North American Nation: A Conversation with Carlos Rico Ferrat, 86 J. AM. HIST. 467, 473 (1999)).
57. See Berraan, supra note 38, at 485.
58. Id. at 489. This ultimately may somewhat expand the conception of what counts as law. According to Berman, in this new "transnational century" there are "networks of governmental and nongovernmental organizations" (including terrorist networks) that can "disseminate alternative normative systems across a diffuse and constantly shifting global landscape."
59. Id. at 492.
60. See generally Alan Watson, Legal Transplants: An Approach to Comparative Law (2d ed. 1993).
61. Harold Koh, On Law and Globalization, Address at the American Law Institute 83d Annual Meeting, (May 17, 2006), available at http://www.law.yale. edu/documents/pdf/Law-and-Globalization.pdf.
62. See, e.g., Madhavi Sunder, IP3, 59 STAN. L. REV. 257, 263 (2006);
63. EINER ELHAUGE & Damien Geradin, Global Antitrust Law and Economics (2007);
64. Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 GEO. L. J. 439, 468 (2001); (Pubitemid 33651523)
65. Benedict Kingsbury et al., The Emergence of Global Administrative Law: Foreword: Global Governance as Administration-National and Transnational Approaches to Global Administrative Law, 68 LAW & CONTEMP. PROBS. 1 (2005);
66. Beverley McLachlin, Criminal Law: Towards an International Legal Order, 29 HONG KONG L. J. 448 (1999).
67. Wiener, supra note 36.
68. Id. at 1308.
69. Id. at 1321.
70. Id. at 1298.
71. WATSON, supra note 46, at 22-24.
72. For an example discussing convergence in the corporate law context, see Hansmann & Kraakman, supra note 48, at 448-459.
73. Wiener, supra note 36, at 1327.
74. National Environmental Policy Act of 1969, Pub. L. 91-190, 83 Stat. 852 (1969) (codified at 42 U. S. C. §§ 4321-4327.
75. See generally JOHN GLASSON et al., INTRODUCTION TO ENVIRONMENTAL Impact Assessment 28 (3d ed. 2005).
76. See Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 350 (1989) ("NEPA itself does not mandate particular results, but simply prescribes the necessary process."
77. (citing Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U. S. 223, 227-28 (1980);
78. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U. S. 519, 558 (1978))).
79. Strycker's Bay, 444 U. S. 223 (1980).
80. A preponderance of the literature highlights the ubiquity of environmental impact assessment requirements around the world, while noting that they vary in effectiveness.
81. See John H. Knox, The Myth and Reality of Transboundary Environmental Impact Assessment, 96 AM. J. INT'L L. 291 (2002);
82. Alan D. Levy, A Review of Environmental Impact Assessment in Ontario, 11 J. ENV. L. & Prac. 173;
83. Jane Holder & Donald McGillivray, Taking Stock of Environmental Assessment: Law, Policy and Practice (2007).
84. NEPAnet, Environmental Impact Statements Filed 1973 through 2007, http://www.nepa.gov/nepa/EISs-by-Year-1970-2007.pdf (last visited Aug. 5, 2009). Because NEPA only applies to federal actions, many states and some local governments soon followed suit with their own "little NEPAs" or state environmental policy acts that addressed activities covered by state law. Most were enacted by 1975.
85. Daniel P. Selmi, Themes In The Evolution Of The State Environmental Policy Acts, 38 Urb. Law. 949, 954 (2006). As of 2007, twenty states, the District of Columbia, Puerto Rico, Guam, and the city of New York had environmental planning requirements similar to NEPA.
86. See NEPAnet, State Environmental Planning Information, http://ceq.hss.doe.gov/NEPA/regs/states/states.cfm (last visited Aug. 5, 2009).
87. Ley General del Equilibrio Ecológico y la Protección al Ambiente [General Law of Ecological Equilibrium and Environmental Protection], last amended 2008, Diario Oficial de la Federación, 28 de Enero de 1988 (Mex.).
88. Zhong guo ren min gong he guo huan jing yin xiang ping jia fa [The Law of the People's Republic of China on Appraising Environmental Impacts] (adopted October 28, 2002, effective September 1, 2003).
89. Ministry of Env't & Forests, Environmental Impact Assessment Notification S. O.60 (E) (1994) (India), available at http://envfor.nic.in/ legis/eia/so-60 (e).html.
90. NEPAnet, International Environmental Impact Assessment (EIA) Agencies, http://www.nepa.gov/nepa/eia.html (last visited June 17, 2009).
91. The Rio Declaration on Environment and Development, U. N. Doc. A/CONF.151/26 (June 14, 1992).
92. Qin Chuan, All 30 Law-breaking Projects Building Stopped, CHINA DAILY, Feb. 3, 2005, available at http://www.chinadaily.com.cn/english/doc/2005-02/03/ content-414637.htm. The State Environmental Protection Administration also ordered a controversial restoration project at the Yuanminyuan Park to be halted because of environmental impact concerns that same spring.
93. Jane Cai, Restoration of Palace Lake Hangs in Balance, S. CHINA MORNING POST, Apr. 5, 2005, at 5.
94. Three Gorges Co. Faces Fines, CHINA Daily, Feb. 2, 2005, available at http://english. peopledaily.com.cn/200502/02/eng20050202-172738.html
95. Id.
96. Ray Cheung, Watchdog is Still a Paper Tiger, Green Bodies Claim Environmentalists Say Administration is Putting on a Show to Placate the Public, S. CHINA MORNING POST, May 6, 2005, at 8.
97. The 1972 Stockholm Declaration on the Human Environment implied the need for environmental impact assessments in calling for more rational and integrated development planning that is compatible with environmental protection. Declaration of the U. N. Conference on the Human Environment, U. N. Doc. A/CONF.48/14, 11 I. L. M. 1416 (June 16, 1972);
98. Declaration of the U. N. Conference on the Human Env't (Stockholm), arts. 13-15, U. N. Doc. A/Conf.48/14/Rev. 1 (1972) [hereinafter Stockholm Declaration].
99. Even the Law of the Sea Convention calls for environmental impact assessments. U. N. Convention on the Law of the Sea, arts. 204-206, Dec. 10, 1982, 1833 U. N. T. S. 397 [hereinafter UNCLOS].
100. U. N. Framework Convention on Climate Change, arts. 2, 4 (1) (f), May 9, 1982, 1771 U. N. T. S. 107, 165 [hereafter UNFCCC].
101. Convention on Biological Diversity, art. 14, June 15, 1982, 1760 U. N. T. S. 79.
102. Stockholm Convention on Persistent Organic Pollutants, Annex E, May 22, 2001, 40 I. L. M. 532, available at http://www.pops.int/documents/convtext/ convtext-en.pdf.
103. Comm'n for Envtl. Cooperation, North American Agreement on Environmental Cooperation, arts. 2 (1) (e), 10 (7), 1993, 32 I. L. M. 1480.
104. Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 1989 U. N. T. S. 310 (1997)
105. I. L. M. 800 (1991).
106. See U. N. Econ. Comm'n for Eur., Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 1991)-the "Espoo (EIA) Convention," http://www.unece.org/env/eia/eia.htm (last visited Aug. 5, 2009). In 2003, the parties adopted a Protocol on Strategic Environmental Assessment "to provide for a high level of protection of the environment, including health...." U. N. Econ. Comm'n for Eur., Protocol on Strategic Environmental Assessment (Kiev, 2003), http://www.unece.org/env/eia/sea- protocol.htm (last visited Aug. 5, 2009). "Strategic environmental assessment (SEA) is undertaken much earlier in the decision-making process than project environmental impact assessment (EIA), and it is therefore seen as a key tool for sustainable development. The Protocol also provides for extensive public participation in government decisionmaking in numerous U. S. development sectors."
107. Id.
108. Thomas Fuller, Breathing Easier as the Battle for Blue Skies Pays Off, N. Y. TIMES, March 6, 2007.
109. Id.
110. Id.
111. Shi Jiangtao, Capital Sets Tougher Emissions Standards, S. CHINA MORNING POST, Feb. 18, 2008.
112. We define convergence here as unintended similarities as opposed to purposeful copying.
113. See, e.g., Christine Overdevest & Brian Mayer, Harnessing The Power Of Information Through Community Monitoring: Insights From Social Science, 86 TEX. L. REV. 1493 (2008).
114. See, e.g., Ann Carlson, Recycling Norms, 89 Cal. L. Rev. 1231 (2001).
115. See generally Mancur Olson, The Logic of Collective Action (1971).
116. Joel A. Mintz et al., Environmental Enforcement: Cases and Materials 258 (2007).
117. With the Obama Administration's support for greater regulation of greenhouse gas emissions, however, climate change politics has changed significantly. On June 26, 2009, the House of Representatives passed H. R. 2454, the American Clean Energy and Security Act of 2009, which is designed to address climate change in part through a carbon cap-arid-trade scheme.
118. Australia was in a similar position with respect to non-ratification of the Kyoto Protocol, yet involvement by Australian provinces has resulted in high-visibility efforts on climate change. See, e.g., Declaration of the Federated States and Regional Governments on Climate Change (Dec. 6, 2005), available at http://www.gov. mb.ca/stem/climate/pdf/montreal-summit.pdf.
119. A. B. 1493, Cal. HEALTH & SAFETY Code § 43018.5 (West 2009) (also referred to as the "Pavley Bill").
120. See Central Valley Chrysler-Jeep, Inc. v. Goldstone, 529 F. Supp. 2d 1151 (E. D. Cal. 2007).
121. California Global Wanning Solutions Act of 2006, CAL. HEALTH & SAFETY § 38500-38599 (West 2007), available at http://www.arb.ca.gov/cc/docs/ ab32text.pdf.
122. See Anthony DePalma, Seven States Agree on a Regional Program to Reduce Emissions from Power Plants, N. Y. TIMES, Dec. 21, 2005.
123. See generally Regional Greenhouse Gas Initiative: Memorandum of Understanding 2 (December 20, 2005), available at http://www.rggi.org/docs/mou- 12-20-05.pdf
124. ICLEI-Local Governments for Sustainability, Our Members, http://www.iclei.org/index. php?id=global-members (last visited July 14, 2009). ICLEI "provides technical consulting, training, and information services to build capacity, share knowledge, and support local government in the implementation of sustainable development at the local level." ICLEI-Local Governments for Sustainability, About ICLEI, http://www.iclei.org/index.php?id= global-about-iclei (last visited July 14, 2009). The association's "basic premise is that locally designed initiatives can provide an effective and cost-efficient way to achieve local, national, and global sustainability objectives."
125. Id.
126. Green Mountain Chrysler-Plymouth-Dodge Jeep v. Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007).
127. Some of these initiatives are described in Erik Assadourian, The State of Corporate Responsibility and the Environment, 18 GEO. INT'L ENVTL. L. REV. 571, 583-586 (2006).
128. For example, since 2000, RAN's Global Finance campaign has successfully challenged the world's largest banks-including Citibank, Bank of America, JP Morgan Chase, Goldman Sachs, and Toronto Dominion-to stop funding environmentally-damaging projects. In 2007, Toronto Dominion became the first Canadian bank to adopt a comprehensive environmental policy to guide its financing and operations. RAN, Banking on Climate Change, http://ran.org/ campaigns/global-finance/about-the-campaign/(last visited June 18, 2009).
129. See generally Andrew Hardenbrook, The Equator Principles: The Private Financial Sector's Attempt at Environmental Responsibility, 40 Vand. J. Transnat'l L. 197 (2007).
130. See The Equator Principles, http://www.equator-principles.com (last visited July 28, 2009).
131. For a critical appraisal of voluntary business initiatives to protect the environment, see David Barnhizer, Waking from Sustainability's "Impossible Dream": The Decisionmaking Realities of Business and Government, 18 GEO. INT'L Envtl. L. Rev. 595, 600-604 (2006).
132. Zygmunt J. B. Plater, Dealing With Dumb and Dumber: The Continuing Mission of Citizen Environmentalism, 20 J. ENVTL. L. & LITIG. 9, 27 (2005).
133. See generally Japan Envtl. Council, The State OF THE Environment IN Asia: 1999/2000 41 (Rick Davis, trans., 2000), available at http://www.popline.org/ docs/1385/159999.html (describing situation in Asia);
134. Peter G. Veit & Deanna M. Wolfire, Participatory Policy-making and the Role of Local Non-governmental Organizations, in Africa's Valuable Assets, in A READER IN NATURAL RESOURCE MANAGEMENT 155, 156 (Peter Veit ed., 1998) (describing situation in Africa);
135. Allan Hoben, Pauline Peters & Dianne Rocheleau, Participation, Civil Society, and Foreign Assistance to Africa, in Africa's Valuable Assets, in A READER IN NATURAL RESOURCE MANAGEMENT 109, 118 (Peter Veit ed., 1998) (same).
136. Philippe Sands, Turtles and Torturers: The Transformation of International Law, 33 N. Y. U. J. INT'L L. & POL. 527, 541-45 (2001).
137. In July 2009 Wal-Mart also announced plans to create its own universal sustainability index for every product it sells. See Wal-Mart Stores, Inc., Sustainability Index, http://walmartstores.com/Sustainability/9292.aspx (last visited on July 28, 2009).
138. Fiona Harvey & Jonathan Brichall, Wal-Mart Maps Out Grand Plan to Go Greener, Financial Times, Sept. 24, 2007, at A1.
139. See, e.g., S. P. Gupta v. Union of India, A. I. R. 1982 S. C. 149;
140. M. C. Mehta v. Union of India (Taj Trapezium Case), A. I. R. 1997 S. C. 734;
141. M. C. Mehta v. Union of India (Kanpur Tanneries), A. I. R. 1988 S. C. 1037;
142. M. C. Mehta v. Union of India (Municipalities), A. I. R. 1988 S. C. 1115;
143. M. C. Mehta v. Union of India (Shriram Gas Leak Case), A. I. R. 1987 S. C. 965;
144. M. C. Mehta v. Union of India, A. I. R. 1987 S. C. 1086;
145. M. C. Mehta v. Union of India (Calcutta Tanneries), (1997) 2 S. C. C. 411;
146. M. C. Mehta v. Kamal Nath, (1997) 1 S. C. C. 388.
147. M. C. Mehta v. Union of India, July 28, 1998, WP 13029/1985, available at http://www.elaw.org/node/2638.
148. See also Armin Rosencranz & Michael Jackson, The Delhi Pollution Case: The Supreme Court Of India And The Limits Of Judicial Power, 28 COLUM. J. ENVTL. L. 223 (2003). However, a subsequent study claimed that despite the mandate, soaring vehicle ownership caused air quality to deteriorate in the next two years.
149. Amelia Gentleman, New Delhi Air Quality Is Worsening, Group Says, N. Y. TIMES, Nov. 6, 2007.
150. Corte Suprema de Justicia [CSJN], 20/6/2006, "Mendoza v. National State," Case No. M. 1569. XL (2006) (Arg.).
151. Id.
152. Marcela Valente, Argentina: Riachuelo Factories Must Clean Up or Close Down, INTER PRESS SERVICE, Sept. 6, 2006, available at http://ipsnews.net/news. asp?idnews=34610.
153. Id.
154. Mario Wainfeld & Irina Hauser, La Funcion de la Corte es Poner Ruido, EL Pais, June 25, 2006, available at http://www.pagina12.com.ar/diario/elpais/ 1-69025-2006-06-25.html.
155. Id.
156. CONSTITUCIÓN ARGENTINIA, art. 41 ("All inhabitants are entitled to the right to a healthy and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it. As a first priority, environmental damage shall bring about the obligation to repair it according to law. The authorities shall provide for the protection of this right, the rational use of natural resources, the preservation of the natural and cultural heritage and of the biological diversity, and shall also provide for environmental information and education. The Federal Government shall regulate the minimum protection standard, and the provinces those necessary to reinforce them, without altering their local jurisdictions), translated in http://www.argentina.gov. ar/argentina/portal/documentos/ constitucion-ingles.pdf.
157. Richard Stewart, The Global Regulatory Challenge to U. S. Administrative Law, 37 N. Y. U. J. Int'l L. & POL. 695, 699 (2005).
158. See UNFCCC, supra note 71.
159. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, UN Doc FCCC/CP/1997/7/Add.1, 2303 U. N. T. S. 148 (entered into force 16 February 2005) [hereinafter Kyoto Protocol].
160. Id. at arts. 6, 12, 17, 18.112.
161. Clare Breidenich et al., The Kyoto Protocol to the United Nations Framework Convention on Climate Change, 92 AM. J. INT'L L. 315, 320 (1998).
162. Australia is allowed to increase emissions to 108 percent of 1990 levels, Iceland to 110 percent, and Norway to 101 percent. Kyoto Protocol, supra note 112, at Annex B.
163. Id.
164. Douglas Jehl, U. S. Going Empty-Handed to Meeting on Global Warming, N. Y. TIMES, March 28, 2001, at A22.
165. UNFCCC, Report on the Conference of the Parties on its Thirteenth Session, held in Bali, from 3 to 15 December 2007, 3, U. N. Doc. FCCC/CP/2007/6/Add.1, available at http://unfccc.int/resource/docs/2007/cop13/ eng/06a01.pdfage=3.
166. See generally Wiener, supra note 36.
167. UNFCCC, Emission Trading, http://unfccc.int/kyoto-protocol/mechanisms/ emissions-trading/items/2731.php (last visited June 20, 2009).
168. Kyoto Protocol, supra note 112, at art. 17.
169. UNFCCC Secretariat, Checks to be Performed by the International Transaction Log, U. N. Doc. FCCC/SBSTA/2005/1NF.3 (May 13, 2005), available at http://unfccc.int/resource/docs/2005/sbsta/eng/inf03.pdf.
170. Kyoto Protocol, supra note 112, at art. 12.
171. See generally UNFCCC, Modalities and Procedures for the CDM: Role of the Executive Board, Decision 17/CP. 7, available at http://unfccc.int/essential- background/convention/convention-bodies/constituted-bodies/items/2790.php.
172. See, e.g., David Hunter, James Salzman, & Durwood Zaelke, International Environmental Law and Policy 286 (2007).
173. See IMO, Marine Environment, http://www.imo.org (follow "Marine Environment" hyperlink) (last visited July 16, 2009).
174. Int'l Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 34 U. S. T. 3407, 1340 U. N. T. S. 184 (entered into force Oct. 2, 1983).
175. International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC), 30 I. L. M. 733, available at http://www.imo.org/ Conventions/contents.asp?topic-id=258&doc-id=682.
176. Protocol of 1996 to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, Nov. 7, 1996, 36 I. L. M. 1, available at http://www.imo.org/Conventions/contents.asp?topic-id=258&doc- id=681.
177. IMO, supra note 126.
178. Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 1522 U. N. T. S. 29, 26 ILM 1541.
179. See generally RICHARD ELLIOT BENEDICK, OZONE DIPLOMACY: NEW DIRECTIONS IN Safeguarding the Planet (1998).
180. Richard B. Stewart, U. S. Administrative Law: A Model for Global Administrative Law?, 68 Law & CONTEMP. PROBS. 63, 67 (2005).
181. Id. at 68.
182. Id. at 65-66.
183. The growing need for domestic regulatory agencies to harmonize disparate systems of regulation applicable to multinational corporations can also be seen in the securities regulation context. The U. S. Securities and Exchange Commission has been involved in intensive contacts with foreign regulators to determine whether to allow multinational corporations to file financial statements in accordance with the international financial reporting standards (IFRS) used since 2005 by the European Union and now recognized in more than 100 countries.
184. See Christopher Cox, International Financial Reporting Standards: The Promise of Transparency and the Comparability for the Benefit of Investors Around the Globe, Address to the Annual Conference of the International Organization of Securities Commissions (May 28, 2008), available at http://www.sec.gov/news/speech/2008/spch052808cc.htm.
185. Int'l Org. for Standardization, ISO 14000 Essentials, http://www.iso.org/iso/iso-catalogue/management-standards/iso-9000-iso-14000/ iso-14000-essentials.htm (last visited July 28, 2009).
186. Int'l Org. for Standardization, About ISO, http://www.iso.org/about.htm (last visited July 28, 2009).
187. Naomi Roht-Arriaza, Shifting the Point of Regulation: The International Organization for Standardization and Global Lawmaking on Trade and the Environment, 22 ECOLOGY L. Q. 479, 489-490 (1995).
188. Int'l Org. for Standardization, supra note 136.
189. Roht-Arriaza, supra note 138, at 488.
190. The growing acceptance of public-private partnerships is reflected in the immediate response of U. S. Companies to the discovery that many imported products contained dangerous substances, such as lead-based paint. Fearful of tightened government regulation, these companies proposed the creation of a public-private system to monitor imported food and products that should require testing and inspections of foreign suppliers.
191. Jane Zhang, Food Makers Get Appetite for Regulation, Wall St. J., Sept. 17, 2007. The ultimate objective of these efforts is not complete harmonization of global environmental law. Rather, it is the development of a transparent system that can easily be navigated by lawyers steeped in diverse regulatory traditions.
192. Id.
193. The reference here is to the economic form of globalization, which is the subject of most globalization controversies. See, e.g., JAGDISH BHAGWATI, In DEFENSE OF GLOBALIZATION 3 (2004).
194. See, e.g., JOSEPH STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 4-5 (2002).
195. Id. at 5-6.
196. See generally Vandana SHIVA, BIOPIRACY: THE PLUNDER OF NATURE AND KNOWLEDGE (1999).
197. See generally Carmen Gonzalez, Beyond Eco-Imperialism: An Environmental Justice Critique Of Free Trade, 78 DENV. U. L. Rev. 979 (2001).
198. For a general discussion of the negative labor, health and safety, and environmental consequences associated with shifting manufacturing activity to China
199. see generally ALEXANDRA Harney, The China Price (2008).
200. National Center for Atmospheric Research, Trade Imbalance Shifts U. S. Carbon Emissions To China, Boosts Global Total, SCIENCEDAILY, Dec. 1, 2005, available at http://www.sciencedaily.com/releases/2005/12/051201223809.htm. Thus, U. S. greenhouse gas emissions in 2003 would have been 6 percent higher if goods imported from China had been manufactured domestically.
201. Id;
202. see also Shui Bin and Robert Hariss, Talking Carbon: Implications of U. S.-China Trade, in INTERNATIONAL CENTRE FOR Trade and Sustainable Development, Climate, Equity and Global Trade: Selected Issue Briefs No. 2, 6 (2007).
203. Tao Wang & Jim Watson, Who Owns China's Carbon Emissions?, in Tyndall Centre FOR Climate Research, Tyndall Briefing Note No. 23 (2007), available at http://tyndall.webappl.uea. ac.uk/publications/briefing-notes/bn23.pdf.
204. David A. Wirth, Globalization and the Environment: Why All the Fuss?, in BOSTON COLLEGE Law SCHOOL FACULTY Papers 2007, available at http://lsr.nellco. org/cgi/viewcontent.cgi?article=1190&context=bc/bclsfp.
205. Petra Christmann & Glen Taylor, Globalization and the Environment:
206. Id. at 439.
207. Often, it is not clear whether such corporate policies are the result of an improved corporate sense of good citizenship and responsibility to society. They may simply be "good business" because they contribute to a better bottom-line or can blunt negative publicity and help keep regulators at bay.
208. Christmann & Taylor, supra note 151, at 453. Trade officials have expressed some concern that the proliferation of private agreements on green product standards between consumer groups and Western companies ultimately may harm developing countries, as WTO Director General Pascal Lamy has opined.
209. Raphael Minder, Trade Dispute Warning over 'Green' Product Standards, FINANCIAL TIMES, Sept. 23, 2007, available at http://www.ft.com/cras/s/0/ 8ddbfe24-68a5-11dc-M75-0000779fd2 ac.html.
210. Scott C. Fulton & Lawrence I. Sperling, The Network of Environmental Enforcement and Compliance Cooperation in North America and the Western Hemisphere, 30 INT'L Law. 111, 119-120 (1996). As another example, China translated its environmental laws into English in 2003 as part of increased transparency conditions for China's entry into the WTO.
211. See STATE ENVTL. PROT. ADMIN., Environmental Laws & Regulations in China and Rules of WTO, Preface (2002).
212. See generally North American Agreement on Environmental Cooperation, supra note 74.
213. See, e.g., United States-Peru Free Trade Agreement, Chapter Eighteen: Environment, U. S.-Peru, Apr. 12, 2006, available at http://www.ustr.gov/Trade- Agreements/Bilateral/Section-Index.html.
214. Berman, supra note 38, at 552. "[T]he destruction of distance is the difference that makes all the difference... [and] is the single most important catalyst for deciding the global vision children today will be living under tomorrow."
215. HISHAM M. NAZER, Power OF A THIRD KIND: The Western Attempt to Colonize the Global Village 7 (1999).
216. For example, the documentary "An Inconvenient Truth," starring former Vice President and environmentalist A1 Gore, won an academy award for best documentary in 2007 and is generally thought to have significantly enhanced the knowledge of many about global climate change.
217. Globalization has given rise to what Dean Anne-Marie Slaughter of the Woodrow Wilson School of Public and International Affairs at Princeton University has described as a "globalization paradox." While people increasingly need global institutions to respond to problems that are collective in dimension and can only be addressed on a global scale, they also fear centralization of power and any notion of global government modeled on the existing idea of a sovereign state.
218. Anne-Marie SLAUGHTER, A NEW World ORDER 8 (2004). As a result, despite the seemingly inexorable advance of globalization, it is not laying the foundation for any future world government. Instead, it is fostering the development of "government networks"-relatively loose, cross-border, cooperative efforts that are becoming the core of a new order of world governance.
219. Id. at 14. Slaughter argues that a "new sovereignty" is emerging centered around "the capacity to participate in international institutions of all types-in collective efforts to steer the international system and address global and regional problems together with their national and supranational counterparts."
220. Id. at 267.
221. For example, in September 2008, Ecuador adopted a new constitution designed to grant inalienable rights to nature, including "the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution." Constitution of Ecuador, Title II, Chapter 1, Art. 1, available at http://www.celdf.org/Default.aspx?tabid=538.
222. James R. May, Constituting Fundamental Environmental Rights Worldwide, 23 PACE Envtl. L. REV. 113, 129 (2005-06).
223. One example of this is the Climate Action Network (CAN). See Asher Alkoby, Global Networks and International Environmental Lawmaking: A Discourse Approach, 8 CHI. J. INT'L. L. 377, 389-390 (2008).
224. See Int'l Network for Envtl. Compliance and Enforcement, Overview, http://www.inece.org/overview (last visited July 28, 2009);
225. Parliamentarians for Global Action, http://www.pgaction.org (last visited July 28, 2009). The global judiciary also is involved in informal cooperative networks
226. see Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. 1103, 1104 (2000), though not without criticism.
227. See John O. McGinnis & Mark L. Movsesian, Against Global Governance in the WTO, 45 Harv. Int'l L. J. 353, 355 (2004) (arguing that global regulatory "deals" could serve as vehicles for interest group transfers).
228. See IUCN Academy of Environmental Law, Home, http://www.iucnael.org (last visited June 20, 2009). The Academy's 2007 colloquium was held in Rio and Paraty, Brazil in May and June 2007; in November 2008 the colloquium was held in Mexico City; in November 2009 it will take place in Wuhan, China.
229. Id. A similar effort has occurred through efforts by the University of Maryland School of Law with respect to environmental law clinics across the world, designed to give students practical experience in the field. See Welcome to Global Environmental Law, http://www.globalenvironmentallaw.com (last visited June 20, 2009).
230. Business operations have also reacted proactively and positively to globalization. For example, the difficulty of adhering to separate product regulation standards in different jurisdictions has led some multinational companies to comply with the most stringent directive to which they are subject on a global basis. Such business practices can be cost-effective for companies by simplifying and providing a common operational standard for their worldwide activities. See supra note 153 and accompanying text.
231. See, e.g., Erik Assadourian, The State of Corporate Responsibility and the Environment, 18 Geo. Int'l Envtl. L. Rev. 571, 583 (2006).
232. These companies included the Gap, Kathie Lee Gifford/Wal-Mart, and the Walt Disney Company. See The National Labor Committee, Mission Statement, http://www.nlcnet.org/aboutus.php (last visited July 16, 2009).
233. Robert Percival et al., Environmental Regulation: Law, Science and Policy 1118 (6th ed. 2009) (noting that by "one estimate there are now more than 1, 000 international legal instruments with at least one important environmental provision").
234. See UNFCCC, supra note 71.
235. See Kyoto Protocol, supra note 112.
236. See Convention on Biological Diversity, supra note 72.
237. Basel Convention on the Transboundary Movement of Hazardous Wastes, Mar. 22, 1989, 1673 U. N. T. S. 126, 28 I. L. M. 657 (entered into force May 5, 1992).
238. Rotterdam Convention on Prior Informed Consent, Sept. 10, 1998, 2244 U. N. T. S. 393 (entered into force Feb. 24, 2004).
239. International Tropical Timber Agreement, Jan. 1, 1994, 1955 U. N. T. S. 144 (entered into for Jan. 1, 1997).
240. See Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181, 199 (1996) (arguing that once nations begin to interact, a complex process occurs whereby international legal norms seep into, are internalized, and become embedded in domestic legal and political processes).
241. For example, conclusion and implementation of the Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters (1998) has encouraged greater access to information in many European countries.
242. See European Comm'n, Inventory of EU Member States' Measures on Access to Justice in Environmental Matters (2007), http://ec.europa.eu/environment/ aarhus/study-access.htm (last visited on July 28, 2009).
243. Embraced by an English common law court in Tenant v. Goldwin, 92 Eng. Rep. 222 (1702), it is referred to as the "sic utere" principle because it evolved from the ancient Roman law maxim "sic utere tuo ut alienum non laedas," which means that everyone must use his own property so as not to harm another.
244. See Stockholm Declaration, supra note 70.
245. In the Trail Smelter arbitration a tribunal held a smelter in British Columbia liable for harm caused in Washington state by its emissions of air pollutants pursuant to the Boundary Waters Treaty between the United States and Canada. United States v. Canada (Trail Smelter Case), 3 Reps. Of Int'l Arbitral Awards 1905 (1941);
246. see also John Read, The Trail Smelter Dispute, 1 CAN. Y. B. INT'L L. 213, 213-17 (1963).
247. See U. N. Conference on Environment and Development, Declaration of Principles ("Rio Declaration"), Principle 2 (1992).
248. Another organization significant to the development of environmental law has been the World Conservation Union (IUCN) and its Environmental Law Commission.
249. See About IUCN, Commission on Environmental Law, http://www.iucn.org/ about/union/commissions/cel/(last visited Aug. 5, 2009). In more recent decades, the Intergovernmental Panel on Climate Change has taken an important leadership role in advancing public awareness about global warming, prompting the adoption of the U. N. Framework Convention on Climate Change in 1992.
250. See Intergovernmental Panel on Climate Change, http://www.ipcc.ch (last visited Aug. 5, 2009).
251. See, e.g., IMO, About IMO, http://www.imo.org (last visited June 21, 2009) (indicating that the IMO's major responsibility has focused on shipping, but that the IMO has shown more environmental concern since the late 1960s).
252. The World Bank, About Us, http://web.worldbank.org/WBSITE/EXTERNAL/ EXTABOUTUS/0contentMDK:20653660~menuPK:72312~pagePK:51123644~piPK: 329829~theSite PK:29708, 00.html (last visited June 21, 2009) (indicating a change of focus from post-war reconstruction to poverty alleviation, including environment and climate change).
253. See, e.g., FOOD & AGRIC. ORG., FAO AT WORK 2007-2008-FOOD, ENERGY, AND CLIMATE: A New EQUATION (2008), available at ftp://ftp.fao.org/docrep/fao/ 011/i0330e/i0330e00.pdf.
254. U. N. Development Program, Environment and Energy for Sustainable Development, http://www.undp.org/energyandenvironment/(last visited June 21, 2009).
255. See, e.g., John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment, 28 HARV. ENVTL. L. REV. 1 (2004);
256. Pascal Lamy, Director General of the WTO, Address at Yale University, The WTO and its Agenda for Sustainable Development (Oct. 24, 2007), available at http://www.wto.org/english/news-e/sppl-e/sppl79-e.htm.
257. See generally Tseming Yang, International Treaty Enforcement as a Public Good, 27 MICH. J. INT'L L. 1131 (2006).
258. See Kyoto Protocol, supra note 112, at art. 18;
259. UNFCCC, Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, in REPORT OF THE CONFERENCE OF THE PARTIES ON ITS SEVENTH SESSION, HELD AT MARRAKESH FROM OCT. 29 TO NOV. 10 2001, 64 (2001) [hereafter, Procedures and Mechanisms]. Two additional means of addressing noncompliance are the multilateral consultative process of the Framework Convention and the dispute settlement provisions.
260. Kyoto Protocol, supra note 112, at arts. 16, 19. These two processes are to operate unaffected by the noncompliance process.
261. Procedures and Mechanisms, supra note 189, at § XVI.
262. Yang, supra note 188, at 1150.
263. One example has been American efforts to use unilateral trade sanctions to protect marine species. See, e.g., Report of the Panel, United States-Restrictions on Imports of Tuna (Sept. 3, 1991), GATT B. I. S. D. (39th Supp.) at 155 (1993);
264. Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (October 12, 1998).
265. 28 U. S. C. § 1350 (2006).
266. See, e.g., Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999);
267. Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003).
268. See, e.g., Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998);
269. Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002).
270. Robert Percival participated in the Beijing conference that unveiled this work.
271. Heather Jarvis & Xu Wei, Comparative Analysis of Air Pollution Trading in the United States and China, 36 Envtl. L. Rep. (Envtl. Law Inst.) 10234, 10239-40 (2006).
272. Zhong hua ren min gong he guo huan jing bao hu fa [Environmental Protection Law of the People's Republic of China], art. 28 (promulgated by Standing Comm. 7th Nat'l People's Cong., Dec. 26, 1989), available at http://74.125.155.132/search?q=cache:http://www.chinaenvironmentallaw.com/ wp-content/uploads/2008/03/environmental-protection-law-of-the-people.doc.
273. State Envtl. Prot. Admin. of China, General Introduction to the Environmental Labeling Program in China, http://www.sepacec.com/cecen/labelling/ introduction/200406/t20040629-94143.htm (last visited June 21, 2009).
274. Zhong Hua Ren Min Gong He Guo Xun Huan Jing Ji Cu Jin Fa) [Circular Economy Promotion Law of the People's Republic of China] art. 15 (promulgated by the Standing Comm. 11th Nat'l People's Cong., Aug. 29, 2008, entered into force Jan. 1, 2009), available at http://www.fdi.gov. cn/pub/FDI-EN/Laws/ GeneralLawsandRegulations/BasicLaws/P020080919377641 716849.pdf.
275. See Provisions, supra note 19.
276. Keith Bradsher, China Vies to be World's Leader in Electric Cars, N. Y. TIMES, April 2, 2009, at A1, available at http://www.nytimes.com/2009/04/02/ busmess/global/02electric.html?scp=1&sq=china%20electric%20car&st=cse.
277. See Jiangtao, supra note 80.
278. Zhang Ya, Auto Competitiveness in China Improves Steadily, CHINA ECON. NET, Feb. 20, 2009, available at http://en. ce.cn/Insight/200902/20/t20090220- 18267245.shtml.
279. Simon Kuznets, Economic Growth and Income Inequality, 45 (1) AM. ECON. REV. 1-28 (1955).
280. See ABA, About ABA Rule of Law Initiative, http://www.abanet.org/rol/ about.shtml (last visited June 21, 2009);
281. Talbot D'Alemberte, Our Eastern European Challenge. Providing Technical Assistance to Struggling Democracies, 78 A. B. A. J. 8 (1992).
282. See ABA, Rule of Law Initiative Programs, http://www.abanet.org/rol/ programs (last visited July 28, 2009).
283. See U. S. STATE DEPT. & U. S. AGENCY FOR INT'L DEV., JOINT HIGHLIGHTS OF PERFORMANCE, Budget, and Financial Information, Fiscal Year 2007 at 17 (Feb. 2008), available at http://www.usaid.gov/policy/highlights07/;
284. see also U. S. Agency for Int'l Dev., Office of Democracy and Governance: Rule of Law, http://www.usaid.gov/our-work/democracy-and-governance/technical- areas/dg-office/rol.html (last visited June 21, 2009).
285. UNEP, Division of Law and Conventions, http://www.unep.org/delc (last visited July 28, 2009).
286. See EPA, Bilateral Programs, http://www.epa.gov/oia/about/oia-bilateral. htm (last visited June 21, 2009).
287. See, e.g., Richard Lazarus, Human Nature, the Laws of Nature, and the Nature of Environmental Law, 24 Va. ENVTL. L. J. 231, 234-240 (2005).
288. Numerous environmental problems have geographically disjointed causes and effects. For example, air pollution caused by the burning of fossil fuels can travel great distances, and sewage discharge or and fertilizer run-off can cause the eutrophication of distant lakes and water bodies.
289. See, e.g., Mark brinson, Consequences for Wetlands of a Changing Global Environment, in Ecology of Freshwater and Estuarine Wetlands 436 (2006).
290. Opportunities for environmental law experts and regulatory specialists would seem to increase with the growth of global environmental law. Of course, transferability and applicability are the very premise of law "transplantation." However, the nature of global environmental law lends enhanced legitimacy to such processes because transferability would be based on ideas of fundamental utility to managing the environment as opposed to hegemonic dominance of one (Western) legal culture.
291. See, e.g., James R. Faulconbridge et al., Global Law Firms: Globalization and Organizational Spaces of Cross-Border Legal Work, 28 Nw. J. INT'L L. & BUS. 455 (2008).
292. WATSON, supra note 46, at 13.
293. Id. at 10-11.
294. See, e.g., A. Dan Tarlock, Is There A There There in Environmental Law? 19 J. LAND USE & Envtl. L. 213, 222 (2004) (arguing that environmental law can be viewed as a radical break with the Western legal tradition);
295. RICARDO LORENZETTI, TEORIA DEL DERECHO AMBIENTAL (2008) (President of the Supreme Court of Argentina argues that environmental law should be viewed as transformative of all other areas of law).
296. Alan Boyle & Patricia Birnie, International Law and the Environment 1 (1992) ("Some legal scholars dislike the use of the term 'international environmental law', because they consider that there is no distinct 'environmental' body of law."). The three major international environmental law books currently on the market, while excellent treatments of the subject matter, focus almost exclusively on the international components of the regimes that they discuss with little or no discussion of the domestic implementing schemes.
297. See HUNTER, Salzman & ZAELKE, supra note 125;
298. Edith Brown Weiss, et al., International Environmental Law and Policy (2d ed. 2006);
299. Lakshman D. Guruswamy et al., International Environmental Law and World Order: A Problem Oriented Coursebook (2d ed. 1999).
300. For a discussion of this debate, see Yang, supra note 188, at 1134-49.
301. Of course, blind reliance on national environmental regulatory systems for implementation and enforcement of international environmental legal norms is inappropriate since many developing countries still lack regulatory and enforcement capacity. The conclusion to be drawn is that environmental regulatory regimes must be viewed in context, and solutions require reform of both international law as well as national regulatory systems. For further discussion
302. see infra text accompanying notes 235-237.
303. Yang, supra note 188, at 1160-62. As a non-environmental example, consider the pervading use of "contracting parties" in the 1947 General Agreement on Tariffs and Trade to refer to treaty parties.
304. See General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U. N. T. S. 194 [hereinafter GATT].
305. See, e.g., HUNTER, SALZMAN, & ZAELKE, supra note 217, at 248-254 (describing bureaucratic institutions within environmental treaties that have become increasingly important to treaty implementation).
306. For a discussion of the concerns raised by the rise of such institutions
307. see Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale L. J. 1490 (2006).
308. The Kyoto Protocol's Non-compliance Mechanism is of course one of the few exceptions.
309. However, there have been exceptions, such as in the North American Agreement on Environmental Cooperation. Under Part V of the agreement, a successful dispute settlement outcome may allow an aggrieved party to impose sanctions in the amount of up to "0.007 percent of total trade in goods between the Parties." North American Agreement on Environmental Cooperation, supra note 74, at art. 34 (5) & Annex 34. Unfortunately, since the NAAEC's adoption in 1994, these provisions have never been triggered.
310. See, e.g., Tseming Yang, The Effectiveness of the NAFTA Environmental Side Agreement's Citizen Submission Process: A Case Study of Metales y Derivados, 76 U. COLO. L. REV. 443, 468-69 (2005). For the most recent agreements, such mechanisms remain to be proven in their use.
311. For a discussion of the challenges of enforcement and the concerns raised by non-institutional enforcement processes
312. see Yang, supra note 188, at 1134-49.
313. Compliance, enforcement, and effectiveness of international legal norms are substantially shaped and affected by the anarchical nature of the international system. As such, relations between nations continue to be defined more by power dynamics than legal rights and obligations.
314. See THOMAS HOBBES, Leviathan ch. 13 (C. B. McPherson ed., Penguin Books 1981) (1651);
315. see also HEDLEY Bull, The Anarchical Society: A Study of Order in World Politics (1977).
316. See, e.g., Brett Frischmann, A Dynamic Institutional Theory of International Law, 51 BUFF. L. REV. 679, 775 nn. 296-97 (2003).
317. Daniel Esty, Greening the GATT: Trade, Environment, and the Future, 78-82, 85-86 (1994).
318. See also Frank Biermann, The Case for a World Environment Organization, 42 Env't 22 (Nov. 2000).
319. For another model of a WTO-type environmental organization
320. see Biermann, supra note 228, at 28-29.
321. UNEP, Home, http://www.unep.org (last visited Aug. 5, 2009). While one might think of UNEP as the WTO's environmental counterpart, UNEP has largely served as an information clearinghouse, administrative support body, and initiator of treaty negotiations. While UNEP is an important promoter of the development of international environmental law and facilitator of multilateral treaty negotiations, it remains little more than a general administrative support body with virtually no independent substantive regulatory authority and limited influence in shaping global environmental governance.
322. See, e.g., Mark Allan Gray, The United Nations Environment Programme: An Assessment, 20 ENVTL. L. 291, 294-95 (1990). More importantly, when environmental interests have come into conflict with international trade norms, the environment is often perceived to have lost in the past.
323. See Herman Daly, From Adjustment to Sustainable Development: The Obstacle of Free Trade, 15 LOY. L. A. INT'L & COMP. L. J. 33 (1992). The resulting perception has been that the environmental regulatory system has much less clout and is much less effective than its trade counterpart.
324. See, e.g., ESTY, supra note 228, at 77. There is no doubt that UNEP's shorter existence, about 35 years compared to the WTO/GATT system's approximately 50 years and the greater international concern and commitment to promoting economic growth over environmental protection are important reasons for UNEP's relatively marginal role in shaping the international diplomatic priorities. Yet, it seems to be an unassailable conclusion that possession of coercive sanctions powers has endowed the international trading system with a powerful tool for making it more effective as a system of governance than the set of environmental regimes.
325. One of the most important examples of this trend has been the creation of various institutions within the Kyoto Protocol, such as the international emission trading system and the CDM. Unlike treaty secretariats and other subsidiary and technical support bodies, which typically perform limited secretarial, technical, and ministerial functions, these two entities have been endowed with much more authority. They carry out activities that have wide-ranging effect, engage in significant policy-making work, and enjoy a significant amount of discretionary authority.
326. See discussion supra Part I. C.3. Even though their work remains subject to the supervision of the treaty parties, their function and operation has begun to look much more like those of administrative regulatory agencies.
327. Cf. Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L. J. 795, 809-814 (2005) (discussing diffusion of regulatory authority and expertise over environment among state and federal agencies).
328. That same is true for compliance institutions. As an alternative to creating a sui generis enforcement mechanism, it would be appropriate to identify the carrot-and-stick functions fulfilled by such mechanisms and consider whether such functions can be achieved through other institutions or mechanisms. Such disaggregation of functions would allow consideration of second-best solutions as part of the tool box of solutions rather than hunting for the elusive ideal enforcement mechanism.
329. But given the sophistication of the U. S. system, it is difficult to make a general argument for the necessity of such assistance in the United States.
330. See, e.g., Tseming Yang, The Implementation Challenge of Mitigating China's Greenhouse Gas Emissions, 20 GEO. INT'L. ENV'L L. REV. 681 (2008).
331. See, e.g., Jeffrey Ball, U. N. Warming Program Draws Fire, WALL ST. J., July 11, 2008, at A1.
332. Zhong hua ren min gong he guo huan jing bao hu fa [Environmental Protection Law], art. 28 (promulgated by the Standing Comm. Nat'l People's Cong., Dec. 26, 1989, effective Dec. 26, 1989), translation available at http://www.lawinfoChina.com.
333. Xiaoying Ma & Leonard Ortolano, Environmental Regulation in China: Institutions, Enforcement and Compliance 20 (2000).
334. The double-dividend refers to the benefit of pollution taxes to create disincentives for pollution as well as generating revenue that can be used to pay for other social welfare-enhancing purposes, including affirmative pollution reduction and control efforts.
335. See, e.g., Don Fullerton & Gilbert E. Metcalf, Environmental Taxes and the Double-Dividend Hypothesis: Did You Really Expect Something for Nothing?, 73 CHI.-KENT L. Rev. 221 (1998).
336. Ma & ORTOLANO, supra note 238, at 67.
337. See S. AFR. CONST. 1996 § 24 ("Everyone has the right (a) to an environment that is not harmful to their health or well-being"), available at http://www.info.gov. za/documents/constitution/index.htm;
338. INDIA CONST. arts. 48A, 51A: amended by the Constitution (Forty-second) Act, 1976, available at http://indiacode.nic.in/;
339. TURKEY CONST. arts. 17, 56, available at http://www.hri.org/docs/turkey/;
340. CONSTITUIÇÃO FEDERAL art. 225 (Braz.), available at http://pdba.georgetown.edu/constitutions/brazil/brazil.html.
341. See generally May, supra note 162;
342. Carl Bruch et al., Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa, 26 COLUM. J. ENVTL. L. 131 (2001);
343. Megan Brynhildsen, Constitutional Provisions for Environmental Protection, 1996 COLO. J. INT'L. ENVTL. L. & POL'Y 97 (1996);
344. Emst Brandl & Hartwin Bungert, Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad, 16 HARV. ENVTL. L. REV. 1 (1992).
345. See PERCIVAL ET AL., supra note 169, at 64-66.
346. Id.
347. See generally UNEQUAL PROTECTION: ENVIRONMENTAL JUSTICE AND COMMUNITIES OF COLOR (Robert D. Bullard ed., 1994);
348. CONFRONTING ENVIRONMENTAL RACISM: VOICES FROM THE GRASSROOTS (Robert D. Bullard ed., 1993);
349. LUKE W. COLE & SHEILA R. FOSTER, FROM THE GROUND UP: ENVIRONMENTAL RACISM AND THE RISE OF THE ENVIRONMENTAL JUSTICE MOVEMENT (2001).
350. Id.
351. Shai Oster, China Seems Poised to Pass U. S. as Top Greenhouse-Gas Emitter, Wall St. J., Apr. 24, 2007;
352. see also Press Release, Neth. Envtl. Assessment Agency, China Now No. 1 in C02 Emissions, USA in Second Position (June 19, 2007), available at http://www.mnp. nl/en/service/pressreleases/2007/index.html (click on title);
353. China Overtakes U. S. in Greenhouse Gas Emissions, INT'L HERALD TRIB., June 20, 2007, available at http://www.iht.com/articles/2007/06/20/business/ emit.php.
354. Matt Pottinger, Steve Stecklow & John J. Fialka, Invisible Export-A Hidden Cost of China's Growth: Mercury Migration, Wall St. J., Dec. 17, 2004, at A1.
355. Id.
356. Id.
357. In May 2005 the U. S. EPA issued a regulation to control mercury emissions from coal-fired power plants, 70 Fed. Reg. 28, 606 (2005)
358. but the regulation was vacated by the D. C. Circuit in February 2008. New Jersey v. EPA, 517 F.3d 574 (D. C. Cir. 2008).
359. Pottinger, Stecklow & Fialka, supra note 247.
360. Press Release, UNEP, Historic Treaty to Tackle Toxic Heavy Metal Mercury Gets Green Light (Feb. 20, 2009), available at http://www.unep.org/NewsCentre/ (search for the press release title; then follow appropriate hyperlink).
361. Robert V. Percival, The Challenge of Chinese Environmental Law, 10 INT'L ENVTL. L. COMMITTEE NEWSL. 2 (Aug. 2008) (ABA Newsletter).
362. Id.
363. See, e.g., id. at 4 (suggesting that a fundamental problem facing Chinese environmental policy is the "lack[] of an independent judiciary and a tradition of respect for the rule of law").