Showing papers on "Environmental law published in 2005"

The International Climate Change Regime: A Guide to Rules, Institutions and Procedures

Abstract: This book presents a comprehensive, authoritative and independent account of the rules, institutions and procedures governing the international climate change regime. Its detailed yet user-friendly description and analysis covers the UN Framework Convention on Climate Change, the Kyoto Protocol, and all decisions taken by the Conference of the Parties up to 2003, including the landmark Marrakesh Accords. Mitigation commitments, adaptation, the flexibility mechanisms, reporting and review, compliance, education and public awareness, technology transfer, financial assistance and climate research are just some of the areas that are reviewed. The book also explains how the regime works, including a discussion of its political coalitions, institutional structure, negotiation process, administrative base, and linkages with other international regimes. In short, this book is the only current work that covers all areas of the climate change regime in such depth, yet in such a uniquely accessible and objective way.

Creating Markets for Ecosystem Services: Notes from the Field

Abstract: Created by the interactions of living organisms with their environment, ecosystem services support our society in many critical ways, from providing clean air and water, decomposing waste, and pollinating flowers, to regulating climate, and pacifying floodwaters Interest in ecosystem service markets has recently exploded, with a cover article in The Economist just a few months ago Scholarship in the field, though, is still quite young Despite their immense practical value, with rare exception, ecosystem services are neither prized by markets nor explicitly protected by the law In recent years, an increasing number of initiatives around the world have sought to create markets for services, some dependent on government intervention and some created by entirely private ventures These experiences have demonstrated that investing in natural capital rather than built capital can make both economic and policy sense Informed by the author's recent experiences establishing a market for water quality in Australia, this Article fully explores the implications of an ecosystem services approach to environmental protection The piece reviews the range of current payment schemes and identifies the key requirements for instrument design Building off these insights, the piece then examines the fundamental policy challenge of payments for environmental improvements Despite their poor reputation among policy analysts as wasteful or inefficient subsidies, payment schemes are found throughout environmental law and policy, both in the US and abroad This Article takes such payments seriously, demonstrating that they should be favored over the more traditional regulatory and tax-based approaches in far more settings than commonly assumed

Creating Markets for Ecosystem Services: Notes From the Field

Abstract: Ecosystem services are created by the interactions of living organisms with their environment, and they support our society by providing clean air and water, decomposing waste, pollinating flowers, regulating climate, and supplying a host of other benefits. Yet, with rare exception, ecosystem services are neither prized by markets nor explicitly protected by the law. In recent years, an increasing number of initiatives around the world have sought to create markets for services, some dependent on government intervention and some created by entirely private ventures. These experiences have demonstrated that investing in natural capital rather than built capital can make both economic and policy sense. Informed by the author’s recent experiences establishing a market for water quality in Australia, this Article examines the challenges and opportunities of an ecosystem services approach to environmental protection. This Article reviews the range of current payment schemes and identifies the key requirements for instrument design. Building off these insights, the piece then examines the fundamental policy challenge of payments for environmental improvements. Despite their poor reputation among policy analysts as wasteful or inefficient subsidies, payment schemes are found throughout environmental law and policy, both in the U.S. and abroad. This Article takes such payments seriously, demonstrating that they should be favored over the more traditional regulatory and taxbased approaches in far more settings than commonly assumed.

China's environment and the challenge of sustainable development.

Abstract: List of Illustrative Materials Foreword, N.T. Wang Acknowledgments Introduction 1. China's Road to Sustainable Development: An Overview, Cynthia W. Cann, Michael C. Cann, and Gao Shangquan 2. Public Environmental Consciousness in China: Early Empirical Evidence, Yok-shiu F. Lee 3. Environmental Law in the People's Republic of China: An Overview Describing Challenges and Providing Insights for Good Governance, Richard J. Ferris Jr. and Hongjun Zhang 4. Environmental Enforcement in China, Elizabeth Economy 5. Beyond the Bureaucracy: Changing China's Policymaking Environment, Eric Zusman and Jennifer L. Turner 6. Emissions Trading to Improve Air Quality in an Industrial City in the People's Republic of China, Richard D. Morgenstern, Piya Abeygunawardena, Robert Anderson, Ruth Greenspan Bell, Alan Krupnick, and Jeremy Schreifels 7. Environmental Implications of China's Energy Demands: An Overview, Frank Wang and Hongfei Li 8. Reviving the Scorched Earth? A Snapshot of China's Hazardous Waste Management and Cleaner Production Programs, Dan Millison 9. Sandy Desertification in North China, Wang Tao and Wu Wei 10. China's Environment: A Bibliographic Essay, James D. Seymour About the Editor and Contributors Index

Regulation by Adaptive Management - is it Possible?

Abstract: The history of environmental law provides as good an example as any other field in regulatory law of how successful prescriptive regulation has been at meeting public policy objectives, but how difficult it will be to extend that experience much farther into the future. For decades so-called "command and control" regulation has picked the low-hanging fruit - in environmental law, for example, it has gone after emissions from smokestacks and discharge pipes, disposal of wastes in landfills, transportation of hazardous chemicals, and similar discrete, easily-identified sources of environmental harm.The future that lies ahead for most fields of regulation, however, is filled with problems of unwieldy dimensions and intractable causes. In environmental law, for example, the problems that are foremost to many observers include the invasion of non-native species into ecosystems, the depletion of estuarine resources by fertilizer runoff from countless agricultural operations hundreds to thousands of miles inland, the degradation of habitat from suburban "sprawl," and the evidence of climate change, which itself is irrefutable even if its causes are not. In this brand of environmental policy challenge, there are no discrete sources or clearly traced lines of causation. Rather, problems such as these exhibit the hallmark characteristics of complex adaptive systems. Their behavior emanates from a multitude of diverse, dispersed sources responding to co-evolving interactions, feedback loops, and nonlinear cause-and-effect properties. They are, to put it simply, excruciatingly hard for researchers to understand, and thus even harder for law to wrestle under control.This kind of policy problem thus confounds the prescriptive regulation model, because there are no readily available targets for the prescriptions and, even worse, we have no idea what response the system would exhibit to any particular command. Even if legislatures armed them with unlimited powers, administrative agencies could not simply command away invasive species, or farm runoff, or new rooftops, or global climate change. There is almost universal agreement that problems of this sort demand new approaches to regulation. Agencies thus have experimented with many alternatives to prescriptive regulation, including market-based programs, information-based programs, negotiated project-specific licensing, ecosystem-scaled land management programs, multi-party collaborative planning efforts, and government-private quasi-partnerships.To take advantage of their inherently adaptive qualities, however, these regulatory instruments must themselves be managed adaptively. It will do no good, in other words, to hand an agency a market-based program only to have the agency administer the program through centralized decision making. Nor is likely that the now dominant public land use theme of ecosystem management, which focuses on landscapes and ecosystem dynamics rather than discrete media or species, can successfully be implemented through decision making that relies on reductionist, linear models of how "parts" of ecosystems function. Not only must the instruments of regulation be transformed, therefore, but so too must the methods of regulation. Hence it is almost universally the case that advocates of regulatory innovations also advance the method of implementation known generally as adaptive management.The voluminous literature that exists today to describe what adaptive management means traces its roots to Professor C.S. Holling's seminal work in the field, "Adaptive Environmental Assessment and Management." Although almost 30 years have passed since he and his colleagues first described the adaptive management methodology, no work on the topic since then has improved on their core theory, and far be it from me to try where so many others have failed. Its essence is an iterative, incremental decision-making process built around a continuous process of monitoring the effects of decisions and adjusting decisions accordingly. It is, in other words, far more suited to the needs of future regulatory challenges than is prescriptive regulation.On the one hand, nothing about this is startlingly new or unusual as a general means of decision making - businesses implement adaptive management all the time, or they perish. Ironically, however, the puzzle is whether administrative agencies can behave adaptively and survive. As a leading proponent of adaptive management once observed, agencies "have not often been rewarded for flexibility, openness, and their willingness to experiment, monitor, and adapt." The deterrents to these core attributes of adaptive management come from three fronts: legislatures, the public, and the courts. In short, in order for adaptive management to flourish in administrative agencies, legislatures must empower them to do it, interest groups must let them do it, and the courts must resist the temptation to second-guess when they do in fact do it. The track record of administrative law from the era of prescriptive regulation suggests that none of these three institutional constraints will yield easily. Quite simply, there is good reason to doubt whether regulation by adaptive management is possible without substantial change in the administrative law system.In this Article I explore the concern just raised using the example of the Endangered Species Act's (ESA) Habitat Conservation Plan (HCP) program. Part I of this Article briefly provides the general background of interest - the potential for collision between adaptive management theory and administrative law institutions - to more firmly illustrate the nature of the problem. Part II then grounds the topic in a real-world context through the story of the HCP program. Although Congress appears to have hoped that the HCP program would promote adaptive management of imperiled species, its delegation of authority to FWS was an imprint of prescriptive regulation. Nevertheless, during the 1990s, while Congress was functionally inert on reform of the ESA despite much reform rhetoric, FWS essentially reinvented the program through administrative reform in the mold of adaptive management. Soon, however, citizen groups representing environmental protection interests responded with vociferous and litigious opposition to reform, ultimately bearing down on the agency's injection of "flexibility" in the program through repeated lawsuits challenging HCP permits. With few (but notable) exceptions, the courts were all too quick to pounce as well, stifling the agency's willingness to experiment. The result could be one of the tragedies of environmental and administrative law - today, the HCP program increasingly resembles a plain vanilla regulatory program, functional on that level but increasingly stripped of its once promising adaptive qualities. One can only hope this is not a harbinger for the future of adaptive management in general, for if it is, regulation by adaptive management will not be possible.

Social and Environmental Justice in South African Cities: Including ‘Invisible Stakeholders’ in Environmental Assessment Procedures

Abstract: In South Africa an intensive reform process to democratize policy, legislation and related institutions in the country commenced after the first democratic elections in 1994. While environmental law reform includes active public participation and equity principles, it is proposed in this paper that ecological modernization dominates current environmental assessment practice. This paper presents a Social Impact Assessment (SIA) of a proposed landfill on the periphery of Durban, where large informal settlements and peri-urban areas exist as a relic of apartheid planning. The methodology of the SIA was explicitly designed within a framework of social justice to include poor and marginalized people, who remain excluded from environmental decision making despite the promise of democratic equality. The study claims to deepen democratic practice by demonstrating that alternative methodologies can be designed to include the interests of ‘invisible stakeholders’ in environmental assessments despite the dominance o...

The Implications of Formulating a Human Right to Water

Abstract: This Comment explores the content, legal forms, and implications of recognizing an international human right to water. The concept of water as a human right developed from the recognition that treating the right to water as an economic good may result in an affordability problem for some communities, depriving them of access to water. To counter these effects, a human right to water is being developed. This human right to water, though not fully defined by existing international law or practice, has been protected as necessary to secure other human rights, such as those to health, well being, and life. Given the structure of international law, State obligations depend upon which human right a right to water is found to support or whether such a human right to water is ultimately found to be a separate and independent human right from other recognized human rights.Whether a human right to water is ultimately established as a right subordinate to other human rights or as an independent human right, recognition of a human right to water will have far-reaching effects. This Comment analyzes legal developments in South Africa, India, and Argentina to illustrate some of the ways in which States have implemented a legal right to water. The Comment then identifies some of the key challenges and development constraints in ensuring a right to safe water within reasonable distance for all persons. These challenges include modifying riparian and prior-appropriation systems of water rights, defining and limiting impacts upon other legal doctrines, and making economic adjustments associated with providing water to meet the "basic needs" of all persons. The Comment concludes that while recognition of a human right to water is necessary, its implementation is fraught with difficulties.

At a Watershed: Ecological Governance and Sustainable Water Management in Canada

Abstract: At a Watershed is a collaborative project involving both The POLIS Project on Ecological Governance and the Environmental Law Centre at the University of Victoria. This report examines sustainable water management in the broader context of governance and provides a blueprint for a national water management strategy.

Jurisdictional Mismatch in Environmental Federalism

Abstract: Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. At the same time, state intervention seeps into areas where a dominant federal role would be more defensible. This jurisdictional mismatch produces sub-optimal levels of environmental protection, wastes regulatory resources, discourages innovation, and inhibits the adoption and evolution of more effective environmental protection measures. Environmental protections would be more successful were responsibility divided between the federal and state governments in a more justifiable manner. To address the current mismatch, the federal government should reorient its efforts toward those areas in which the federal government possesses an institutional advantage, due to economies of scale, or where state and local governments are incapable of addressing environmental problems, such as where there are substantial interstate spillovers.

Regulation by Adaptive Management—Is It Possible?

Abstract: The history of environmental law provides as good of an example as any other field in regulatory law of how successful prescriptive regulation has been at meeting public policy objectives and how difficult it will be to extend that experience much further into the future. For decades so-called “commandand-control” regulation has picked the low-hanging fruit—in environmental law, for example, it has targeted emissions from smokestacks and discharge pipes, disposal of wastes in landfills, transportation of hazardous chemicals, and similar discrete, easily-identified sources of environmental harm. Even the most conservative cost-benefit analyses confirm that many of these initiatives were smashing successes.1 Our nation’s air

The Progression Towards Ecological Quality Standards

Abstract: Environmental law still lacks coherence in many respects. Two key areas of UK and EC law—water pollution control and biodiversity protection—are examined to see whether it is possible to adopt more common approaches. A key development in pollution control law was its redirection in the last twenty years from a largely reactive instrument towards one embedded in the realisation of environmental quality objectives through precisely stated quality standards. On closer inspection, many of these standards, though, are anthropocentric in origin. The approach of using the law purposively to achieve defined objectives is much better developed in pollution legislation as compared to the law on biodiversity protection. The latter area now needs to see a similar development in ecological quality standards, while recognising that their formulation is a significantly different exercise from that of establishing environmental quality standards. The use of ecological quality standards in the Water Framework Directive is commendable, but there remain substantial reservations about the criteria adopted and the underlying basis for ecological valuation.

The Equator Principles: The Voluntary Approach to Environmentally Sustainable Finance

Abstract: This article considers the Equator Principles, a voluntary code for environmentally responsible project financing by commercial and investment banks. The value of voluntary environmental approaches is increasingly recognised in the European Union, and in its Sixth Environment Action Programme, the European Commission advocated a voluntary initiative with the financial sector to promote harmonised standards for green lending and investing. The article begins by explaining the broader relevance of financial institutions to sustainable development. The nature and effectiveness of voluntary environmental measures to engage the private sector is canvassed before looking at the Equator Principles in detail. The article explains what the Principles demand of lenders, assesses their implementation, and makes some observations on their adequacy for the promotion of environmentally sustainable finance.

Environmental Federalism in the European Union and the United States

Abstract: This chapter describes how the United States (US) and the European Union (EU) are federal systems in which the responsibility for environmental policy-making is divided or shared between the central government and the (member) states. The attribution of decision-making power has important policy implications. This chapter compares the role of central and local authorities in the US and the EU in formulating environmental regulations in three areas: (1) automotive emissions; (2) packaging waste; and (3) global climate change. Automotive emissions are relatively centralized in both political systems. In the case of packaging waste and global climate change, regulatory policy-making is shared in the EU, but is primarily the responsibility of local governments in the US. Thus, in some important areas, regulatory policy-making is relatively centralized in the EU. The most important role local governments play in the regulatory process is to help diffuse stringent local standards through centralized regulations, a dynamic which has become more common in the EU than in the US.

Minding our business : What the united states government has done and can do to ensure that U.S. multinationals act responsibly in foreign markets

Abstract: The United States Government does not mandate that US based firms follow US social and environmental law in foreign markets. However, because many developing countries do not have strong human rights, labor, and environmental laws, many multinationals have adopted voluntary corporate responsibility initiatives to self-regulate their overseas social and environmental practices. This article argues that voluntary actions, while important, are insufficient to address the magnitude of problems companies confront as they operate in developing countries where governance is often inadequate. The United States can do more to ensure that its multinationals act responsibly everywhere they operate. First, policymakers should define the social and environmental responsibilities of global companies. They must consistently make their expectations for global business clear – and underscore that this objective can often be accomplished without mandates. Second, the US should closely examine the policies that undermine global Corporate Social Responsibility (CSR) and address the many conflicting signals sent by policymakers. Third, the President should make the US government a CSR model by examining how to use its purchasing power to promote human rights. Finally, the US government should require pension funds to report on the social and environmental consequences of their investments. In these ways, Americans can mind our business – and thus make sure that US based firms do not undermine social and environmental progress when they operate in the developing world.

Sustainable development in world trade law

Abstract: This remarkable collection of papers, sponsored by the Centre for International Sustainable Development Law (CISDL), demonstrates that sustainable development serves as a unifying concept with the potential to facilitate much-needed respect for international law and timely implementation of diverse and overlapping international commitments. It builds on the substance of a rich and complex debate at the intersections among economic, social, and environmental law, bringing together a broad cross-section of viewpoints and voices. The authors review recent developments in WTO discussions and negotiations, and in the recent decisions of the WTO Appellate Body, from a sustainable development law perspective. They also survey relevant new developments in trade and economic agreements at regional, inter-regional and bi-lateral levels. The various essays focus on sustainable development aspects of key issues in recent trade negotiations such as the "Singapore Issues" (investment, competition, trade facilitation, and government procurement), intellectual property rights, investment arbitration and the linkage between the WTO and multilateral environmental accords (MEAs). Among the specific topics covered are the following: emerging areas of law and policy in trade and sustainable development; the underlying development agendas in global trade law negotiations; cooperation and potential negotiation on international competition law; overlaps between multilateral environmental accords (MEAs) and the WTO; recent developments in WTO dispute settlement procedures and proceedings; human rights and environmental opportunities from trade liberalisation and increased market access; human rights and environment impact assessment techniques used to analyse trade agreements; and, recent developments in bi-lateral and regional trade agreements. Trade, investment, and competition law practitioners and negotiators in developed and developing countries will find this book of great value, as will development and environment law professionals with responsibility for trade and WTO law related matters.

Environment and Trade: A Guide to WTO Jurisprudence

Abstract: International trade rules have significant impacts on environmental law and policy, at the domestic, regional and global levels. At the World Trade Organization (WTO), dispute settlement tribunals are increasingly called to decide on environment- and health-related questions. Can governments treat products differently based on environmental considerations? Can they block the import of highly carcinogenic asbestos-containing products or genetically modified crops? Does the WTO allow governments to protect dolphins or endangered sea turtles through the use of import restrictions on certain products? How can civil society participate in WTO dispute settlement? This guide is an accessible, comprehensive, one-of-a-kind compendium of environment and trade jurisprudence under the WTO. Providing an overview for both experts and non-experts of the major themes relevant to environment and trade, it also analyses how WTO tribunals have approached these themes in concrete disputes and provides selected excerpts of the most significant cases.

Desenvolvimento sustentável e química verde

Abstract: The world is in a process of awakening with respect to the environment. Our society has started to recognize that the environment is one of our largest resources and has begun legally enforce its protection. In Brazil, the environmental law is constitutionally guaranteed. International treaties have been signed, amongst them the Agenda 21 which is a commitment to sustainable development. Green Chemistry is a strategy that helps make this commitment. The literature presents many examples of studies of the application of Green Chemistry philosophy. In this paper we will present some points that we believe to be important and promising.

Sustainable Development Law: Principles, Practices, and Prospects

Abstract: Foreword Biographies of the Authors and Contributors Acknowledgements About the CISDL Introduction I: THE FOUNDATIONS 1. Origins of the Sustainable Development Concept 2. Results of the 2002 World Summit for Sustainable Development 3. Sustainable Development in Policy and in Law 4. The Intersections of International Economic, Social and Environmental Law II: THE PRINCIPLES 5. Principles of International Law Relating to Sustainable Development III: THE PRACTICES 6. Case Studies of Innovative Instruments 7. General Observations from the Case Studies 8. Addressing Implementation Challenges IV: THE PROSPECTS 9. Sustainable International Trade, Investment, and Competition Law 10. ustainable International Natural Resources Law 11. International Human Rights and Poverty Law in Sustainable Development 12. International health and Sustainable Development Law 13. Sustainable International Biodiversity Law 14. Sustainable International Climate Change Law 15. Crosscutting Issues in Sustainable Development Law Conclusions Tale of Treaties Table of Declarations Table of Cases Recommended Resources Index

The Quest for Global Sustainability: International Efforts on Linking Environment and Development

Abstract: The Quest for Global Sustainability : International Efforts on Linking Environment and Development

EU Environmental Law: Challenges, Change and Decision-Making

Abstract: Introduction 1. Environmental Regulation in the European Union INTRODUCTION WHY REGULATE? WHY EC REGULATION? LEGAL AND POLITICAL EVOLUTION THE FUTURE CONCLUSIONS 2. Sustainable Development INTRODUCTION ELEMENTS OF SUSTAINABLE DEVELOPMENT IMPLEMENTING SUSTAINABLE DEVELOPMENT CONCLUSIONS 3. The Implementation Gap INTRODUCTION: THE CHALLENGE NATIONAL RESPONSIBILITIES FORMAL TREATY ENFORCEMENT INNOVATIONS IN IMPLEMENTATION CONCLUSIONS 4. Perils,Politics, Precaution: Risk Regulation in the EU INTRODUCTION RISK AND THE EU SCIENCE AND POLITICS IN THE EU THE PRECAUTIONARY PRINCIPLE THE WTO, RISK AND SCIENCE CONCLUSIONS 5. European Environmental Governance and Public Participation INTRODUCTION EXPLAINING PARTICIPATION PUBLIC PARTICIPATION IN DECISION-MAKING AND THE EU THE PROBLEMS OF ACCESS CONCLUSIONS 6. Procedure, Integration and Assessment INTRODUCTION THE ACCESS PRINCIPLES PROCEDURALISATION PROCEDURALISING DIRECTIVES CONCLUSIONS 7. The Challenge from the Market INTRODUCTION:COMMAND AND CONTROL IN ENVIRONMENTAL POLICY THE CHALLENGE FROM THE MARKET NEW REGULATORY INSTRUMENTS IN THE EU GREEN CONSUMERISM CONCLUSIONS 8. Waste: Diversity in Regulation INTRODUCTION LAWYERS AND 'WASTE' THE WASTE HIERARCHY SELF SUFFICIENCY, WASTE AND FREE MOVEMENT BEYOND COMMAND AND CONTROL: ALTERNATIVE REGULATORY MECHANISMS CONCLUSIONS 9. Law, Risk and Genetically Modified Organisms INTRODUCTION MULTI-LEVEL GOVERNANCE AND RISK ASSESSMENT PROCEDURALISATION GREEN CONSUMERISM, LABELLING AND GMOS GMOS AND TRADE CONCLUSIONS Conclusions Index

Resolving Treaty Conflicts

Abstract: INTRODUCTION Should the rules of the World Trade Organization trump international environmental agreements? How are treaties between the United States and its European partners affected by the construction of the European Union? What can be done to avert conflict among Russia, Iran, and certain central Asian states over the control of the oil beneath the Caspian Sea? Although seemingly disparate topics, all of these dilemmas are, in part, disputes over whether certain treaties should be given preference over other treaties. These conflicts are fueled by many different political and economic concerns. Regardless of the source of concern, however, as a matter of international law, the question remains the same: Is there a principled method by which sovereign states in the international system can resolve conflicting obligations between treaties? Due to treaty proliferation in recent years, this question is more important than ever. The viability of international law, as a legal system, rests largely on the viability of treaties as a source of law. In the second half of the twentieth century, the international state system was supported by the development of treaties.1 States focused the majority of their regime-building efforts on three sets of concerns: restraining interstate conflict, securing human rights, and managing the economic system. States used treaties as the primary tool in the construction of these international institutions and in the codification of these norms.2 Moreover, treaties shift issues from the political arena into a juridical, rule-based, forum. As of 2005, there were approximately 50,000 treaties on file in the U.N. Treaty System.3 The very success of treaties as a policy tool has caused a new dilemma: a surfeit of treaties that often overlap and, with increasing frequency, conflict with one another. For the treaty partners of states that have adopted conflicting treaties, this results in a lack of certainty as to which-if either-treaty would be honored.4 After the successes of the last fifty years, international law may become increasingly dysfunctional in the first decades of the twenty-first century due to the sheer number of these treaties and the lack of useful, principled, methods to resolve conflicts between them. The International Law Commission (ILC) has turned its attention to the problem of treaty conflicts and the potential fragmentation of international law more broadly with the organization of the Study Group on Fragmentation of International Law (Fragmentation Study Group) in 2002.5 The Fragmentation Study Group will consider fragmentation as a consequence of the expansion and diversification of international law.6 Its initial view is that while fragmentation in and of itself is not new, it is increasing.7 This increase in fragmentation underlies recent concerns about friction between trade law, on one side, and environmental law and human rights law, on the other,8 as well as the overlapping and competing jurisdictions of international tribunals,9 and the general coherence of the international legal system. This Article addresses a particular cause of fragmentationunresolved conflicts between treaties-and considers how lawyers and policymakers may respond to the challenges posed by treaty proliferation and conflict. I argue that treaty conflicts are a key underlying cause of fragmentation and that the current rules are inadequate to provide clear, systematic solutions to treaty conflicts. An initial problem is that there is no generally accepted definition of what constitutes a conflict between treaties.10 A conflict in the strict sense occurs when a party to two treaties cannot simultaneously honor its obligations under both. A divergence between treaties, however, need not always be a conflict.11 Consider the following: State A forms a treaty (Treaty I) with State B promising that B will have access to A's markets at terms no worse than any other state. …

Cooperative Federalism and Natural Resources Law

Abstract: Cooperative federalism describes an arrangement under which a national government induces coordination from subordinate jurisdictions, such as states and tribes, through incentives rather than requirements. In environmental law, cooperative federalism highlights the divide between pollution control and resource management. This article examines the divide from both sides.Even though almost all of the environmental law commentary on cooperative federalism focuses exclusively on the pollution control side, the basic elements of cooperative federalism can be combined in a wider variety of forms than are recognized by most pollution control programs or scholarship. This article reviews the ways in which resource management law has brokered the state-federal relationship to expand the otherwise cramped spectrum of arrangements that might fairly be called cooperative federalism. The narrow, pollution control model entails the fostering of state administrative programs that can receive authorization to tailor and implement federal standards. Natural resources law demonstrates three broader categories of cooperative federalism: place-based collaboration, state favoritism in federal process, and federal deference to state process.Conversely, natural resources law can benefit from adaptation of the narrow, pollution control model of the cooperative federalism. This article applies some of those tools to the Endangered Species Act (ESA) and discusses recent developments that modify my previous work in this area. There is an acute need in the ESA program for federal coordination with state and local jurisdictions because land use is such an important determinant of habitat quality for biodiversity. Federal certification of local programs for the purpose of meeting national standards can spur more effective grass roots conservation while eliminating awkward duplication. However, the problem of inadequate inducements highlights important limitations. In particular, experimentation with narrow cooperative federalism through ESA's 4(d) rules modifying strict prohibitions on adverse habitat modification illustrates a kind of Gresham's Law of regulatory choice: lax standards drive stringent standards out of circulation.

From Smokestack to SUV: The Individual as Regulated Entity in the New Era of Environmental Law

Abstract: A debate between advocates of command and control regulation and advocates of economic incentives has dominated environmental legal scholarship over the last three decades Both sides in the debate implicitly embrace the premise that regulatory measures should be directed almost exclusively at large industrial polluters This Article asserts that for many pollutants the premise is no longer supportable, and that much of the focus of regulation in the future should turn to individuals and households Examining a wide range of empirical data, the Article presents the first profile of individual behavior as a source of pollution The profile demonstrates that individuals constitute a surprisingly large source and that the resulting environmental harms may be substantial Reconceptualizing individuals as targets of regulatory action will require corresponding changes in regulatory theories and methods, and agency management The Article suggests that although traditional command and control and economic measures have limited prospects for changing individual behavior, innovative uses of informational regulation and norm management, both alone and in combination with the traditional measures, are potentially powerful tools The Article also proposes agency management reforms, including development of agency expertise on the social influences of agency actions and a reexamination of the administrative procedures needed for informational regulatory measures The new view of the individual as polluter presented in this Article thus not only challenges a fundamental premise of the environmental regulatory debate but offers an agenda for the evolution of the regulatory state

Order without Social Norms: How Personal Norm Activation Can Protect the Environment

Abstract: I. INTRODUCTION One of the greatest problems facing norms theorists and regulators is how to induce individuals to act who will not benefit personally and who are not subject to legal or social sanctions. Since the 1991 publication of Order Without Law, Robert Ellickson's path-breaking study of Shasta County ranchers, it has been clear to legal theorists that informal social norms have important influences on behavior. Ellickson and others have demonstrated the remarkable effects of social norms when the material benefits of cooperation to the individual are large and the behavior occurs in close-knit groups.1 Yet in an increasingly crowded society, individuals face numerous situations in which acting in their personal interest will harm the collective interest, but their large numbers undermine the influence of legal and social sanctions. These social dilemmas arise on freeways, on city streets and subways, on the Internet, and even in increasingly populated rural areas.2 At the core, these situations force us to confront whether the law can induce us to act because we believe we should, rather than because we fear legal or social sanctions. In this Article, I suggest that the law can do so, but I also suggest that understanding how it can will require legal theorists to wade into the muddy waters of social psychology. I use a leading problem in environmental law both to develop a richer understanding of how beliefs activate norms and to demonstrate how norm activation theory can generate innovative solutions to the most challenging social dilemmas. The problem confronted by environmental law arises because the largest remaining contributor to many kinds of pollution today is the individual.3 Not a sole individual, of course, but the aggregate of all individuals acting independently, each making a minute contribution to the overall problem. This surprising development results from the success of the regulatory campaign to reduce industrial pollution over the past three decades, combined with the inability of regulators to reduce the environmental impacts of a population that is increasing both in size and in per-capita consumption.4 Individual behaviors account for a remarkable percentage of many toxic emissions. Dioxin, one of the most toxic, persistent, and widespread pollutants in the world, provides a stark example.5 Federal Environmental Protection Agency (EPA) regulations have reduced dioxin emissions from large industrial sources by over 90% since 1987.6 As a result, the largest remaining source of dioxin emissions is a startling one: backyard burning of garbage, which now accounts for roughly 60% of all dioxin emissions in the United States-and is wholly unregulated at the federal level.7 Other pollutants, ranging from climate change gases to smog-forming compounds, also owe a large portion of their genesis to individual behavior.8 For example, the EPA has concluded that motor vehicles, consumer products, and other small, non-industrial sources now contribute 76% of all air toxics.9 Similarly, in the Los Angeles area, motor vehicles, consumer products, and other small sources release 80% of all smog-forming compounds.10 The relative importance of individual behavior can only be expected to increase in the future if regulators continue the traditional approach of targeting industrial sources while the population grows at a rate of 38% every thirty years.11 Yet experience shows that individual behavior is exceedingly hard to change. Command and control regulations-the instrument of choice since the inception of environmental regulation-have bleak prospects for success against individuals. Regulations that seek to direct personal behavior by fiat are exceedingly unpopular, and they are often inefficient and costly to enforce.12 For example, efforts in 1990 by the Los Angeles-area air quality authority to reduce the smog caused by backyard grilling led to a backlash, with critics quipping "use a barbecue, go to jail. …

Globalisation and Environmental Protection: A Global Governance Perspective

Abstract: This chapter disaggregates the globalization on the environment into economic, regulatory, information, and pluralization effects. It complements this structure with an analysis of how national and global environmental policies affect globalization. It then argues that there is a need for revitalized governance regime in order to organize and sustain environmental cooperation at the global level. Such a global environmental mechanism (GEM) would provide a new model for collaboration, overcoming the shortcoming of existing bodies. The GEM’s core elements would be a global information clearing-house to highlight tools and strategies, and a global environmental bargaining forum. The chapter concludes that the GEM approach with a “light” institutional architecture that relies on global public policy networks and modern information technologies offers the potential of improved results and greater institutional legitimacy because of its response speed, flexibility, cost-effectiveness, and potential for broader public participation.