Sustainable Development Law & Policy Volume 3 Article 1 Issue 1 Fall/Winter 2003

Volume 3, Issue 2 Sustainable Development Law & Policy

Follow this and additional works at: http://digitalcommons.wcl.american.edu/sdlp Part of the Environmental Law Commons, and the International Law Commons

Recommended Citation Sustainable Development Law and Policy, Summer/Fall 2003, 1-36.

This Entire Issue is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. VOLUME III, ISSUE 1 FALL / WINTER 2003 SUSTAINABLE DEVELOPMENT LAW & POLICY

EXPLORING ENVIRONMENTAL LAW & POLICY ISSUES AROUND THE GLOBE

CONTENTS

EDITOR’S NOTE: GREENING U.S. FOREIGN POLICY...... 2

ARTICLE: FROM DEATH VALLEY TO SPRING VALLEY: A CASE STUDY OF CONTAMINATION IN WASHINGTON, D.C...... 3

LITIGATION UPDATE: CLIMATE CHANGE’S SIGNIFICANT IMPACT ON THE NATIONAL ENVIRONMENTAL POLICY A CT...... 10

ARTICLE: THE ENFORCEMENT OF ENVIRONMENTAL LAW FROM A HUMAN RIGHTS PERSPECTIVE...... 11

PRACTITIONER’S CORNER: A CONVERSATION WITH EARTHRIGHTS INTERNATIONAL’S RICK HERZ...... 14

WORLD NEW BITS...... 26

LOCAL CALENDAR...... 28

INTERNATIONAL CALENDAR...... 29

WRITING COMPETITION...... 31

AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW 4801 MASSACHUSSETTS A VE., N.W. WASHINGTON, D.C. 20016 EDITOR’S NOTE

he United States has come under increasing criticism The Bush Administration understands that we must for its inconsistent policies towards Iraq and North reduce our reliance on foreign sources of energy, especially TKorea. Both nations have been linked in the Axis of from countries that have been linked to terrorism. Evil and both are led by dangerous and repressive tyrants. Unfortunately, they think the only way of doing so is by However, the Bush Administration has chosen vastly disparate destroying pristine wilderness areas in places like Alaska’s Arctic policies in dealing with them: military force against Iraq and National Wildlife Refuge, Wyoming’s Powder River Basin and diplomacy and engagement with North Korea. Southern Utah’s Canyon Country. Even if the majority of Why the difference? North Korea has admitted that it Americans were willing to sacrifice these beautiful and remote is developing nuclear weapons, has pulled out of the Nuclear places – which, according to polls, they are not – there is no Nonproliferation Treaty, and has refused to back down unless way we can extract enough oil and gas domestically to the United States resumes shipping food and oil to the country. significantly reduce our dependence on imports. Iraq, on the other hand, currently has no nuclear capabilities Take the North Slope of the Arctic National Wildlife (although certainly aspires to), has been subject to U.N. sanctions Refuge. The United States Geological Survey estimates that for over a dozen years, and is now being inspected for any roughly 3.2 billion barrels of oil could be extracted economically sign of chemical, biological, or nuclear weapons. over roughly 50 years. In 2000, Americans consumed over 7 Of course, many complex factors influence U.S. foreign billion barrels of oil and consumption is projected to double policy in different parts of the world today. These include: over the next 50 years. Even if we can stabilize current regional stability and the degree to which vital U.S. interests are consumption levels over the next 50 years, the amount of oil threatened, past military confrontation, and the number of we could expect from the ANWR would amount to less than casualties that would result from a future conflict. 1 percent of U.S. consumption. But perhaps the biggest factor of all can be summed In the rush to sacrifice wild places in the name of up in just three letters: OIL. energy security, many less destructive and more sustainable Oil is one of the most important ingredients to alternatives are often overlooked. Despite incredible economic growth in today’s world. In the U.S. – the most oil technological improvements in auto efficiency, the average thirsty nation on the planet – an increasing portion of its demand automobile in the U.S. today is no more efficient than 15 years has been met from imports from the Middle East, Venezuela ago. If we increased auto efficiency to 40 miles per gallon and Africa. The U.S. has gone from importing about one- over the next decade (Toyota and Honda are already selling 5 third of its oil 15 years ago, to about two-thirds today. passenger hybrid sedans that get roughly 50 mpg), we would Following the Gulf War in 1991 and for the next five save roughly 15 times as much oil as could be extracted from years, the U.S. imported no Iraqi oil. As facilities were rebuilt ANWR over the next 50 years, according to the Natural and Iraq resumed exports through the U.N. food for oil Resources Defense Council. program, the U.S. began importing oil from Iraq once again, Not only is this a wiser path in terms of energy security, although small quantities relative to consumption. but could also help the U.S. to meet its responsibilities to the Iraq sits on top of the second largest known oil reserve world community in dealing with the looming threat of climate in the world but is constrained from increasing oil exports change. Despite being responsible for a quarter of the planet’s because Saddam Hussein refuses to comply with U.N. mandates greenhouse gas emissions, the U.S. has selfishly opted out of to disarm. As a result of his intransigence, Iraq continues to any mandatory reductions in emissions that most other nations struggle under the effects of U.N. sanctions, continual U.S. and have signed on to. If the U.S. expects other nations to continue British bombings in the no fly-zones, and a lack of foreign following its lead on issues like trade and terrorism, then it investment to modernize its dilapidated oil infrastructure. must begin showing its support for issues of global concern If national security, both in a physical sense and an like sustainable development and climate change. Only through economic one, is truly the Bush Administration’s top priority, this type of cooperative leadership will we be able to begin the best place to start is not halfway around the globe in Iraq creating a safer, fairer, and more environmentally sustainable or North Korea, but here at home. The best way to neutralize future. Saddam and pressure our friends in the Persian Gulf to stop fueling the flames of anti-Americanism is by becoming less reliant on their oil. In many cases, oil revenue is the lifeblood that keeps many of these undemocratic, repressive regimes in power. And U.S. reliance on Middle Eastern oil requires us to Dave Newman modify our policies in order to mollify those leaders who Editor-in-Chief control the oil.

2 SUSTAINABLE DEVELOPMENT LAW & POLICY From Death Valley to Spring Valley: A Case Study of Contamination in Washington, D.C.

By Marguerite E. McLamb* I. Introduction deep. A court of law found the Army Corps of Engineers pring Valley today is an enclave of well-to-do (“Corps”) guilty of failure to warn private citizens about the Washingtonians, a neighborhood of prestige and buried munitions. The court of public opinion has found the Sstateliness. Tucked away from the incessant din of traffic Corps guilty of much broader offenses throughout the Corps’ and commerce in Northwest Washington, the neighborhood responses to contamination. offers elegant, shady respite. Broad, tree-lined streets wind Throughout the controversy a central issue has been about gently rolling hills; million-dollar mansions beckon from the federal government’s refusal to fully investigate the spacious homesites. Home to ambassadors and senators, famed contamination and disclose its findings to private landowners. lawyers and doctors, and other pillars of the city, Spring Valley As a result, the Corps prolonged residents’ exposure to is one of Washington’s most affluent communities. dangerous ordnance and toxic chemicals such as arsenic. The Yet today’s Spring Valley was yesteryear’s “Death contentious investigation and cleanup has inspired widespread Valley,” the world’s second largest chemical weapons testing distrust, anxiety and fear. Residents speculate that contamination and manufacturing site during World War I. Consequences of may be the cause of rare diseases and cancers appearing in the this past have haunted Spring Valley for decades. Buried community. Public outrage over the government’s responses munitions and toxic chemicals hide in Spring Valley’s manicured to the contamination fueled two Congressional hearings in July lawns. Status exempts no resident; the home of the South 2001 and June 2002.1 Korean Ambassador is one of the most contaminated sites. The saga of Spring Valley merits attention because of Further problems increase the physical hazards of the its unique status — the site is the first known formerly used contamination. From the start of the saga, the federal defense site that involves chemical contamination and weapons government, responsible for cleaning the land, mishandled the in a residential neighborhood.2 Thus, examination of the cleanup and failed to communicate with the public. The experience at Spring Valley may be instructive for similar, future community’s resulting distrust of the federal government runs cleanups. As the nation continues to extensively develop and reuse land, more conflicts at sites involving chemicals, weapons Sustainable Development Law & Policy (SDLP) is a joint publication of and residents are likely to appear. Even for residential sites the Environmental Law Society of American University’s Washington College of Law and the Center for International Environmental Law solely involving conventional munitions, the experience offers (CIEL). CIEL is a public interest, not-for-profit environmental law lessons for federal, state and local governments and for their firm founded in 1989 to strengthen international and comparative citizens. environmental law and policy around the world. CIEL and WCL established the Joint Research Program for International and Comparative This paper examines how poor information handling Environmental Law at WCL in 1990. No portion of this publication by the federal government contributed to the chemical may be reprinted without the express written permission of SDLP. All contamination and cleanup problems in Spring Valley and how correspondence, reprinting, and subscription requests, and articles submitted for publication may be sent to: SDLP, Washington College of Law, better communication within and between federal agencies, American University, 4801 Massachusetts Ave., NW, Washington, D.C. with local governments, and with the public could have 20016. E-mail: [email protected]. Phone: 202.274.4430. Fax: produced results more quickly and with less animosity. Part I 202.274.4130. The views expressed in SDLP are those of the authors and do not necessarily reflect those of the SDLP staff, WCL, or CIEL. introduces the saga of Spring Valley. Part II discusses the history Editor-in-Chief Senior Articles Editor of the Spring Valley area, the Formerly Used Defense Sites Dave Newman Patrick Kapios program, legal controversies, and the legal framework implicated. Part III identifies problems that plagued the Articles Editors Publication Manager Tawny Bridgeford Sarah Friedman decades-long affair and resulted from the federal government’s Matt Brown mishandling of the contamination. Part IV outlines solutions Melissa Frisk Layout for these issues and discusses their importance in democratic Scott Lyons Lisa Hodes Mary Margaret McCleroy societies and Part V concludes the case study. Roxanne Sher-Skelton CIEL Advisor II. Spring Valley’s Historical and Legal Context Andrea Stover Durwood Zaelke Spring Valley’s character is deceptive from its surface; Faculty Advisor sylvan prestige lies atop pits of toxic debris. The unknown James Salzman dangers lurking in the beauty of Spring Valley have fueled fear and lawsuits. This section explores Spring Valley’s past and explains its current status as a “formerly used defense site.”  Copyright Sustainable Development Law & Policy, 2003. All rights reserved. The section then outlines tort-inspired legal controversies and

FALL / WINTER 2003 3 provides the statutory context of the cleanup and related condition as much as practicable.20 Salvage efforts included activities such as public participation. boarding up and fencing off permanent structures, such as the A. The Hidden Past concrete pits, and disposing of other structures.21 Army Residents and other users of Spring Valley’s land have regulations required burial of chemical weapons in soil at a always prized its tranquil character. A brief, and later forgotten, depth of three to three-and-one-half feet and prohibited their stint as the world’s second largest chemical weapon testing disposal in water.22 The government considered buying the facility did not initially impact the area’s attractiveness. Since AU campus to use as a permanent chemical weapons research the reemergence of the neighborhood’s past, however, infamy station but decided against the purchase.23 Little need existed and controversy mar the area’s idyllic character. to test chemical weapons since the war was over and the Army 1. Land Use believed that the property was overvalued.24 a. Early History Extensive residential development soon followed. In Spring Valley’s known history begins innocuously in the 1920s, the W.C. & A.N. Miller Company, a locally-owned the early eighteenth century, as meadow and farmland.3 During and prestigious development company, purchased the vast bulk the nineteenth century, the area was used for farming, a water of land in the area and began creating high-priced subdivisions.25 system for the District, and for Civil War fortifications.4 Earnest One of these developments, Spring Valley, featured custom- development of the area began after the Civil War, as developers built homes and preservation of the rolling topography.26 and speculators became interested in the rural area.5 Residential American University resumed its campus activities after developments, private institutions such as American University the Army “cleaned up” the chemical weapons facility.27 AU (“AU”), and a public training school for girls arose in the area.6 continued to build its campus, placing a fraternity house on the b. WWI and the AU Experimental site of an AUES former trench, which was razed and replaced Station by a child-care center in 1992. AU sold land on its borders to The government’s use of the Spring Valley area for a neighborhood developers, who then sold land to other chemical weapons facility during World War I irreversibly developers.28 Even current concern over contamination has changed the land. To support the war effort, AU offered use not stopped development; in July, 2001, the D.C. Zoning Board of its campus, with its winding paths and tree-lined streets, to approved AU’s ten-year construction plan, which starts before the federal government.7 The government also leased hundreds the ongoing remediation is complete.29 of acres of neighboring private farmland and the site of a 2. Chemical Weapons Controversy girls’ training school.8 Remarkably, AUES’ status as a major chemical On the site, the government established the American weapons production and testing facility quickly faded from University Experimental Station (“AUES”), a large-scale research, memory of those in Spring Valley. For more than sixty years, development and testing center for chemical weapons. 9 By the issue remained mostly buried. In 1986, the past surfaced, 1918, AUES housed nearly 1000 of the 1200 chemical-weapons but involved parties overlooked and hid suspicious findings. researchers in the United States10 and was the world’s second- Thus, discoveries of munitions in Spring Valley in 1993 surprised largest poison gas production facility.11 Chemists and engineers residents. These discoveries triggered a series of removal and researched and tested hundreds of toxic chemicals, such as remediation operations that are still ongoing. mustard gas, lewisite, cyanogen chloride and arsine gases, for a. 1986 Investigation and chemical warfare.12 On the property, the Army constructed Involvement of Federal Agencies facilities including laboratories, chemical storehouses and In 1986, a surprise alarmed AU officials who had underground concrete pits to explode chemical bombs, and requested a pre-construction study of potential sports complex trenches.13 The Army conducted open-air and trench testing site. Campus publications uncovered in the study referred to of toxic weapons, gas masks and explosive chemical the area’s history as a chemical weapons testing and disposal munitions.14 In their experiments, scientists remotely detonated site.30 A 1921 article in AU’s student newspaper reported the these chemical weapons and measured their effects on animals.15 burial of chemical munitions on the land and stated, Confident in the Army’s ability to contain hazards from “‘Permission was given to go far back on the university acres, the chemical munitions testing, local residents mostly kept their to dig a pit … bury the munitions there, and cover them up to homes.16 Then, as today, many of these homeowners were wait until the elements shall melt with fervent heat.’”31 A later wealthy Washingtonians.17 A few hazardous incidents occurred, AU publication reported that construction of a radio station however — portents of land use conflicts to escalate in the on campus in the early 1950s was stopped because a bomb future. In one instance, a cloud of gas escaped from a testing was unearthed.32 station across the street from the home of former Senator AU historians, commissioned to examine the Nathan Scott’s residence and gassed the Senator and his family.18 university’s World War I past, concluded that chemical and Due to this occurrence and others, the D.C. Board of explosive weapons were probably buried on campus.33 Commissioners requested that AUES conduct tests farther from Concerned, AU asked the Army to investigate reports of buried residential areas. The Army did not directly address the problem munitions.34 The Army, through the Corps, focused its search in its response to the local government.19 on the discovery of munitions, however, rather than chemical c. Land Salvage and contamination.35 AU and a division of the Army which Development specialized in dealing with hazardous materials36 reviewed Activities at Camp Leach and AUES ceased by 1920, historic records to locate and evaluate areas that contained and land salvage began. Federal agreements with the leaseholders unexploded ordnance or that were potentially hazardous.37 and AU required that the grounds be restored to their original Additionally, the Corps contracted with the Environmental

4 SUSTAINABLE DEVELOPMENT LAW & POLICY Photographic Interpretation Center (“EPIC”), a division of Operation Safe Removal Phase II, the remedial stage, EPA, to analyze historical aerial photos.38 EPIC flagged followed the immediate response action. The area officially potential chemical weapon burial spots on the AU campus designated as a formerly used defense site expanded to and in the surrounding area and informed the Corps of its encompass more than 600 acres and thousands of private findings in 1986.39 homes,54 and the Corps began an investigation to determine if The Corps, however, did not dig for munitions or explosive or chemical munitions were present and posed take soil samples, despite these flagged, potential weapons burial adverse health risks. 55 As the investigation continued into 1994, sites. To justify its decision, the Corps noted that (1) extensive residents had to temporarily evacuate 130 homes.56 development had not unearthed hazardous materials and (2) Charged with uncovering the weapons and the health documents indicated that AUES’s materials had been moved risks posed by the munitions, the Corps searched for metallic to a site in Maryland.40 The Corps officially concluded that no objects and enlisted EPA to help conduct soil sampling.57 The suspicious items were present at the AU construction site, after Corps tested for break-down products of lewisite, a highly using metal detectors with limited capabilities to scope the site.41 toxic chemical made with arsenic and produced at AUES; b. Public and Private Failures To however, the Corps did not test for arsenic, because arsenic Disclose Information About the occurs naturally, and other chemicals could more specifically Hazards indicate lewisite.58 Neither agency detected chemical or EPA and AU accepted the Corps’ position that no explosive materials, though elevated levels of several heavy munitions were present with little review or interest in publicly metals were present.59 The Corps officially found no presence disclosing the issue. Deciding that only actual discovery of of chemical warfare or explosive agents or their breakdown munitions issue would resolve the issue, the Corps stopped its compounds60 and no presence of health hazards.61 EPA did investigation in 1986.42 The Corps admitted the existence of test for arsenic and discovered some locations with high arsenic records containing information regarding the burial of some levels, but the agency decided the sites were anomalies that did toxic chemicals and conceded that the agency “could not not pose a health risk.62 EPA’s focus at the time was buried disprove the burial of some materials and … and [that] munitions, not chemicals.63 subsurface ordnance could still exist.”43 In June 1995, the Army issued its Record of Decision During the Corps’ investigation, AU informed EPA final report determining that “no further remedial action is of the University’s suspicions and investigative activities.44 In necessary … to protect human health and the environment” in response, EPA told AU that the Department of Defense Spring Valley.64 The District of Columbia did not contest the (“DOD”) was the cleanup authority at formerly used defense Army’s determination, and Operation Safe Removal ceased sites and that EPA had no first-hand knowledge of toxic on June 2, 1995.65 substances on the campus.45 EPA accepted this information, Despite the Corps’ official position that no though its own photographic department, EPIC, had marked contamination was present, the Corps possessed evidence that sites for further investigation while contracted by the Corps. called for closer scrutiny of its findings. The Corps obtained a AU deliberately chose not to disclose information to photo of an AUES soldier standing beside a trench, with the public that chemical weapons were possibly buried on and carboys known to contain chemical weapons.66 The photo’s around the campus. Despite heated argument within AU’s caption read, “Death Valley — the Hole of Hades.”67 Like leadership that the University and the Corps should reveal the EPIC’s photographically-derived suspicions in 1986, however, findings, 46 AU decided not to publicize the information and the Corps overlooked the red flags. used the “no munitions present” conclusion to justify its silence.47 d. Local Government, Federal The buried material had not vanished, though the Army Denials, and New Emphasis on had officially closed its investigation. In 1992 symptoms of Health Effects the buried problem surfaced. While grading a residential Though the District of Columbia officially approved driveway, construction workers excavated and broke a glass the Corps’ decision, the District of Columbia Department of bottle and had to receive emergency room treatment for eye Health (“D.C. Department of Health”), still not satisfied with pain and burning skin.48 Yet no one realized the nature or the investigation, spurred further and contentious studies that scope of the problem, much less the struggle that would ensue. uncovered the true nature and seriousness of the contamination. c. Operation Safe Removal Phases In its review of the Corps’ 1993-95 investigation, the D.C. I and II: No Further Action Department of Health was troubled by the Corps’ Necessary methodology, its failure to conduct a survey for health effects, Spring Valley’s chemical munitions surprise was sprung and its failure to conduct a risk assessment for arsenic despite in 1993. In January, a contractor digging a utility trench significantly elevated concentrations.68 unearthed live World War I munitions.49 Though alarmed by The Corps agreed to let the D.C. Department of Health the recovery of obvious explosives, no one present realized review the investigation of Spring Valley.69 In the review, D.C. the chemical nature of the ordnance.50 Specialists quickly Department of Health environmental scientists realized that determined the munitions’ chemical character, and Operation the Corps miscalculated the location of a significant potential Safe Removal Phase I began an initial three-week investigation burial spot and thus neglected to investigate the spot. The and removal action for the immediate area. The investigation D.C. Department of Health requested the Army to re- yielded forty-three chemical weapons,51 a sign marked “Danger investigate the suspect area in discussions that lasted from 1997 — Poison Gas,”52 and temporarily uprooted residents from to 1998. Though the Corps maintained that all bombs were seventy-two nearby homes.53 accounted for and removed, the D.C. Department of Health

FALL / WINTER 2003 5 by that time had obtained suspicious aerial photos70 and The need for outside involvement was clear. To assess discovered that the Corps possessed the “Death Valley” photo the contamination threat, Washington Mayor Anthony Williams since 1994 71 — evidence that supported the D.C. Department created an independent group, the Mayor’s Spring Valley of Health’s call for a re-investigation.72 Scientific Advisory Panel, in 2001.96 The Panel comprises Controversy heightened when landscapers working at epidemiologists, toxicologists, specialists in environmental health, AU President Ladner’s Spring Valley home broke bottles and and a scientifically-oriented community representative appointed were burned by fumes escaping from the soil.73 An by the Chairperson of the Panel.97 The Panel holds an advisory environmental consultant found that the laboratory glassware role to the D.C. Department of Health, though it offers contained chemical agents.74 Soil samples revealed extremely recommendations to all involved agencies.98 elevated arsenic levels, as high as 1200 parts per million (“ppm”) Simultaneously, Spring Valley citizens formed a — nearly thirty times the EPA’s emergency removal limit of Residential Advisory Board (“RAB”), sponsored by the DOD.99 forty-three ppm.75 The Corps, however, alleged that the The RAB serves an advisory function and provides an outlet chemicals came from a photo or science lab or were pesticides for community concerns.100 Spring Valley’s RAB consists of under the EPA’s jurisdiction.76 fourteen community members and representatives from the The D.C. Department of Health also requested Corps, EPA, AU, a local school, and the business community, additional human-health studies. EPA conducted these and and other parties are often present, such as representatives from focused its analysis on carcinogens, concluding that no exposure the D.C. Department of Health and ATSDR.101 to unacceptable levels of carcinogenic or noncarcinogenic Meanwhile, EPA conducted a criminal investigation substances occurred.77 The Agency for Toxic Substances and of the Corps’ 1986 failure to disclose information about the Disease Registry (“ATSDR”) also participated and found no hazards; the agency planned to conclude that investigation in adverse health effects.78 ATSDR did note that the Corps failed May 2002, though results are not yet known.102 Additionally, to include in its analysis chemicals that would result from recent discovery of additional historical records and increased degradation of chemical weapons.79 review of old records have located new points of interest and The Corps finally conceded in 1998 that it had expanded the operation.103 The Corps plans further intrusive miscalculated the contested point of interest, the backyard of investigations of sites showing anomalies.104 the South Korean Ambassador’s residence.80 Preliminary Concerned by the stunted progress and finger-pointing, investigation revealed two large metallic areas, presumably in July 2001 the Subcommittee on the District of Columbia, weapons burial pits, and soil samples yielded elevated levels of Committee on Government Reform, held a congressional arsenic.81 Both discoveries accelerated community anxiety. hearing and requested a General Accounting Office (“GAO”) e. Operation Safe Removal Phase investigation to examine the past conduct of the Army, EPA, III: Expanded Geography and and other agencies and to assess the current contamination Distrust threat.105 The GAO presented its report to Congress on June In March 1999, the Corps began Operation Safe 26, 2002.106 The report did not allocate blame for the past but Removal Phase III, excavation of the backyard of the South instead focused on the current status of the restoration and Korean Ambassador’s home. The site appeared to be a changes implemented to assist the cleanup.107 Uncertainty about dumping ground for AUES’s chemical laboratories.82 After total safety and costs, however, characterized the proceedings. finding two burial pits, the Corps removed glass and metal When asked if residents are safe, a senior GAO official testified, scraps including bomb parts, metal drums, contaminated debris “I don’t have an answer.”108 Indeed, as one congresswoman and glassware.83 In July, excavators reached soil that smoked stated, “We are still in search of many answers.”109 for two days.84 In all, the Corps removed more than 600 B. Formerly Used Defense Sites items, almost half of which were munitions and a small fraction Spring Valley’s status as a Formerly Used Defense Site of which still contained chemical agents.85 Some bombs were (“FUDS”) determines significant aspects of its remediation intact and still had fuses.86 — the parties responsible for the cleanup and the funding it The Corps found elevated levels of arsenic at the site receives.110 FUDS are properties that belong to private parties and adjacent properties,87 though it maintained AUES was not or local governments but were once under the control and definitively the source of contamination.88 The Corps decided jurisdiction of the DOD.111 As such, they are subject to DOD to expand its investigation to include sixty-one private residences cleanup authority.112 FUDS range from weapons testing areas, and fourteen acres of AU — possibly the area known at AUES such as Spring Valley, to former airfields and missile sites.113 In as “Arsenic Valley.”89 Throughout this period, the Army held spring 2002, total known FUDS in the United States numbered public meetings to address the contamination hazards.90 9,184.114 Properties with hidden pasts whose nature as a FUDS On a reporter’s tip, the D.C. Department of Health emerges to community surprise, such as Spring Valley, are not requested the Corps to conduct soil sampling at AU’s Child entirely rare. A similar situation occurred near Marietta, Georgia Development Center, located in possible “Arsenic Valley.”91 at a former artillery range abandoned after World War I.115 The sampling yielded significantly elevated levels of arsenic92 The area, now occupied by residences, highways, and a landfill, and triggered great community concern.93 Excavation began was not a concern because no documented incidents involving at the Child Development Center and two other campus sites. ordnance had occurred despite extensive construction.116 Under pressure from residents, the Corps began community- Acquisition and disposal records and other documentation were wide soil testing, which yielded a small number of homesites lost or destroyed, and knowledge of the site’s past was limited with elevated arsenic levels.94 These properties are currently to community rumor about an ammunition round unearthed undergoing time-critical removal actions.95 years ago.117 The Corps conducted an archives search and

6 SUSTAINABLE DEVELOPMENT LAW & POLICY produced a recommendation of “no further action.”118 Spring students and workers for toxic exposure; environmental testing; Valley’s tale started similarly and includes a similar public relations; and legal counsel. These claims also include recommendation, yet the story did not end at that point. less quantifiable costs, such as loss of use of the athletic field; Though Spring Valley’s situation is unique in that it is the first damage to AU’s reputation; and potential loss of donations. known residential FUDS involving chemical weapons; The amount also includes anticipated payments in potential hopefully its complete story will not be one that repeats. lawsuits naming AU a defendant.129 C. Cases and Controversies 3. Residents In Spring Valley, the hazardous nature of the Outraged residents have also joined the courtroom contaminants, the values of the affected properties, and the controversies. In February 1997, three homeowners filed claims dangers to human life have sparked legal disputes that are still against Miller Companies and the Army and alleged negligence, ongoing. These controversies illustrate the multiple types of breach of duty and other torts. The court dismissed these impacts and concerns — physical, financial and emotional — suits, however, because the statute of limitations had expired caused by the Spring Valley fiasco. and because the court declined to exercise supplemental 1. W.C. & A.N. Miller Companies jurisdiction.130 During the second phase of the remediation caused In January 2001, former Spring Valley residents by the construction workers’ munitions discovery, the W.C. & Thomas and Kathi Loughlin, outraged over the long-term A.N. Miller Companies (“Miller Companies”) submitted an handling of the contamination, began an ongoing series of Administrative Tort Claim to the Department of the Army, legal complaints. Prior to and during the Loughlins’ ownership seeking over $15 million in damages.119 Miller Companies, the of their home, construction and excavation teams unearthed major developer of the Spring Valley area, claimed the laboratory equipment containing chemicals, projectiles contamination delayed closings on Spring Valley sales and containing mustard gas, and other hazardous items from land triggered a chain of negative financial effects.120 The Army’s near their property, and studies revealed high levels of arsenic.131 audit agency reviewed both Miller Companies’ administrative During their residence in the home, Ms. Loughlin was diagnosed claim against the Army and the remedial actions taken by the with a brain tumor, and the family’s live-in nanny was diagnosed Army. Though the audit agency initially thought the Army with actinic keratosis, which may indicate arsenic exposure and acted illegally by failing to notify local authorities and third increased risk of cancer.132 The Loughlins filed an unsuccessful parties about the potentially buried chemical munitions, the administrative claim with the Army in 2001, requesting over audit agency reversed its position.121 The agency concluded $2 million in damages.133 One year later, the Loughlins filed a that that the Army had no legal or regulatory requirement to claim in United States District Court against the Army, AU, disclose because the presence of chemical weapons in Spring and the developers of their former homesite. The Loughlins Valley could not be conclusively determined.122 As a result, the charged negligence, failure to warn, deceit and Army denied Miller Companies’ claim.123 misrepresentation, outrageous conduct, and fraud, for selling a Miller Companies then brought its grievance to court private home to them on an extremely toxic chemical and and charged the Army with public and private nuisance, munitions dump.134 negligence and trespass.124 Miller Companies alleged wrongful By the end of February 2002, two additional former disposal of chemical and explosive weapons and glassware; residents had filed suits against the Army, AU, and the developers failure to warn of buried munitions and glassware; negligence and alleged negligent failure to warn of the contamination.135 in the Army’s 1986 investigation; and failure to remove the The Laughlins’ former nanny brought one of these suits.136 A weapons and glassware prior to 1993.125 Though the claim childhood resident of Spring Valley, who lived there from 1947 was later settled, the court ruled that the Army had breached to 1964, brought the other suit.137 Autoimmune and blood- its duty to warn subsequent occupiers of the property about related illnesses have afflicted her since childhood, including buried munitions in 1986.126 pernicious anemia, renal stenosis, multiple myelona, aplastic “When it buried live munitions, the Army had in effect anemia and actinic keratosis.138 These residents are all awaiting ‘booby-trapped’ the land.…It had to be obvious to resolution of their cases. the Army…that any subsequent user of the land may D. Statutory Framework well need to excavate below the surface for subsequent Federal laws, such as the Comprehensive construction. It should have been recognized that such Environmental Response, Compensation, and Liability Act of a reasonable use of the land obviously would have 1980 (“CERCLA”) and the Defense Environmental Restoration exposed the subsequent user to serious bodily harm Program (“DERP”), require DOD to perform the response or possibly even death if one of the unexploded and remediation activities at Spring Valley. Under these laws, munitions was discharged inadvertently.127 the federal government interacts with states and localities regarding funding and review of cleanup plans. These laws 2. American University also affected citizens’ abilities to participate in the restoration American University, which has been acutely affected process. by the contamination and cleanup, also harbors grievances 1. CERCLA against the Army. In July 2001, AU filed an Administrative As Spring Valley’s toxic legacy illustrates, careless Tort Claim with the Army.128 AU requested $86.6 million to disposal of hazardous materials produced unforeseen or cover expenses related to the contamination. AU claimed overlooked consequences. To address this growing, grave and expenses including reimbursement for costs of relocation of national problem, Congress enacted CERCLA.139 CERCLA its admissions center, child care facility, and classes; tests of is a liability and financing scheme intended to ensure that cleanups

FALL / WINTER 2003 7 occur.140 The statute imposes joint and several “strict” liability of changes made while the cleanup occurs.165 To fully participate for cleanup costs on public or private parties responsible for in such cleanup decisions communities must be able to creating hazardous waste sites.141 Under CERCLA, owners understand technical issues involved in cleanup decisions and and operators of storage, treatment or disposal facilities must processes. CERCLA thus incorporates Technical Assistance report the presence and releases of designated hazardous Grants (“TAGs”), which allow communities to hire qualified substances to EPA.142 When releases occur, federal authorities outside technical assistance.166 These grants are only available may respond through both immediate removal actions and at National Priorities List (“NPL”) sites,167 and are generally long-term remedial actions.143 limited to $50,000, of which the receiving community must CERCLA applies to the Spring Valley cleanup, because pay 20%.168 the weapons and chemicals present at Spring Valley constitute DERP emphasizes citizen participation more a “release” of a “hazardous substance” from a “facility.”144 vigorously with specific, statutory structures organized around AUES, as the disposal site of the hazardous substances, is a citizens. DERP strongly encourages DOD to establish facility,145 and the disposal and abandonment of the munitions Technical Review Committees (“TRCs”)169 or Residential and chemicals qualify as releases.146 Because of their reactivity, Advisory Boards (“RABs”) to review and comment on DOD the munitions at Spring Valley are considered a hazardous restoration activities.170 The primary purpose of TRCs, to review waste.147 Articles that contain mustard gas or lewisite are deemed restoration plans, is more limited than the main thrust of RABs, hazardous substances on account of their toxic contents.148 to provide a forum for stakeholders representing diverse Thus, CERCLA governs cleanup activities at Spring Valley.149 community interests to communicate and review cleanup Spring Valley is not on the National Priorities List (“NPL”).150 strategies with DOD, EPA and other decision-making 2. DERP and DERA governmental agencies.171 These groups can request technical Under CERCLA, DOD, not EPA, assumes cleanup assistance to understand issues involved in the restoration responsibility and liability at defense sites.151 Congress squarely process.172 Funding for assistance is available through Technical addressed contamination related to defense activities by Assistance for Public Participation (“TAPP”) grants and covers implementing the DERP152 in the 1986 amendments to activities such as document interpretation, technology CERCLA.153 DOD must comply with CERCLA and DERP assessment, risk evaluation participation, understanding health in all immediate responses to releases of hazardous substances risks and technical training.173 These grants come from the from military facilities or facilities that were owned or leased same DERA funds that finance other restoration activities, and by the United States at the time of the release.154 Further, DOD thus may affect the amount of funding available for study, must handle responses to incidents involving DOD military cleanup and other activities of the RAB.174 weapons and munitions or weapons and munitions under the III. Problems Preventing Successful Cleanup at Spring jurisdiction, custody or control of DOD.155 Each branch of Valley the armed services is responsible for cleanup of their facilities.156 Various problems beset Spring Valley and prolonged The Army designates the Corps to assume cleanup tasks.157 the cleanup fiasco. Failures to communicate both within and Under DERP, DOD must interact with EPA, states between government agencies, due to statutory deference, and localities regarding cleanup plans.158 DOD must notify posturing and lack of accountability, contributed to the delay. EPA about proposed plans and each time a cleanup phase These breakdowns in communication aggravated an endeavor begins, with enough time for EPA to review the plan if that is intrinsically difficult to handle, due to the hazardous nature desired.159 States and localities can participate in remedial of the material and its unique ability to inspire fear and distrust. cleanup plans by reviewing data used by the DOD.160 Poor handling of information by the government, bias of the Funding is also a source of interaction between DOD, media, and lack of early public participation in the restoration states and localities. As part of DERP, Congress established process exacerbated the public’s fear and distrust. As a result, funding to enable DOD to pursue cleanups — the Defense regulators at Spring Valley must confront two challenges: Environmental Restoration Account.161 The District of physical cleanup and public suspicion. Columbia received a grant via this special account in 1993 to A. Agencies’ Failures and Refusals to Effectively pay for its removal expenses related to Spring Valley.162 The Coordinate and Communicate DOD and a state may sign an agreement under the Defense 1. Intra-Agency: EPA/EPIC State Memorandum of Agreement program (“DSMOA”), Within the federal government, critically involved which allows the state to act and be paid as a regulator, while agencies, such as EPA, did not share information within their DOD takes cleanup actions and hires contractors.163 Under own operations. These failures to communicate information the DSMOA program, DC and the Corps signed a Defense prevented EPA from fully addressing the scope of the munitions District Memorandum of Agreement for Spring Valley’s and chemical contamination in Spring Valley and thus from remediation.164 protecting the community. 3. Public Participation in CERCLA EPA’s complete deferral of responsibility for Spring and DERP Valley to DOD in 1986 enabled a major communication failure CERCLA and DERP also provide opportunities for within EPA. EPA surrendered cleanup responsibility;175 with citizen education and participation. For cleanup plans, that deferral, however, EPA washed its hands of the problem. CERCLA requires publication of advance notice and analysis Though EPA’s photographic division, EPIC, had flagged in a major area newspaper, a comment period, a public meeting, potential sites of concern, EPA surrendered cleanup publication of the final plan with explanations for changes and responsibility to the Corps and thus did not review EPIC’s responses to significant comments, and notice and explanations findings. When AU notified EPA of the contamination situation,

8 SUSTAINABLE DEVELOPMENT LAW & POLICY EPA deferred to the Corps’ efforts. EPA did not pursue entrenched posturing frustrated effective solutions, damaged investigation beyond the Corps’ findings or significantly review the possibility of a consensus-based solution that would generate those findings. Years later, EPA defended its lack of internal overall acceptance, and destroyed community trust in public communication by analogizing EPIC to a party contracting institutions. Broad scientific input should have dominated the with another separate party in a private agreement; this Corps’ actions. Situations involving contamination are extremely arrangement, by EPA’s logic, did not require EPIC’s findings complex; they pose problems for experts trying to determine to be communicated within EPA.176 hazards and appropriate responses. Because of the Corps’ 2. Inter-Agency: EPA, Corps, posturing, the Corps and the D.C. Department of Health were ATSDR, and D.C. Department of unable to effectively share experts’ information and work Health toward solutions. Meetings held over two years were necessary Inter-agency communication occurred but had little to persuade the Corps to act on the Department’s concerns. effect. Communication between the Corps and EPA failed to Less focus on who had control and more focus on solutions identify Spring Valley as a serious problem. Though the Corps would have increased the rate and success of cleanup at Spring provided results to EPA, this communication was more of a Valley. “check-box” requirement than a serious review and discussion. 5. Lack of Accountability In other inter-agency failures to effectively The Corps’ lack of accountability for cleanup actions communicate, agencies that questioned the review failed to raise before a stringent oversight authority allowed ineffective self- red flags. For example, the Agency for Toxic Substances and monitoring at Spring Valley. Allowing the agency that caused Disease Registry (“ATSDR”) performed human health analyses the problem to dictate cleanup prevents an objective third party at the request of the D.C. Department of Health, who was from ensuring the action is conducted thoroughly and suspicious of the Corps’ 1995 declaration that no chemical effectively. Fear of liability may drive the responsible agency contamination existed. ATSDR also found no presence of to minimally investigate the problem and thus perform an adverse health effects. ATSDR, however, used the Corps’ inadequate cleanup. The agency lacks incentive to go beyond samples — the very samples that the D.C. Department of necessary actions. Health questioned — and remarked that the Corps did not DOD oversees cleanup of contamination that the test for the range of potentially degraded chemicals. ATSDR’s Department caused through AUES.178 With only itself as a communication was ineffective for the ultimate goal, protecting monitor, the Corps did not fully investigate contamination issues human health, because the agency merely communicated in a at Spring Valley in both 1986 and 1995. In both situations, the cursory manner rather than require more inquiry about questions Corps concluded its reviews prematurely despite lingering raised. suspicions of AU in 1986 and the D.C. Department of Health Inter-agency communication was also often in 1995. contentious. The Corps’ refusal to listen to another Lack of self-monitoring also allowed EPA to defer governmental agency, the D.C. Department of Health, extended responsibility. When EPIC located possible contamination sites the cleanup process by years. The Corps repeatedly dismissed and raised concerns to the Corps in 1986, the Corps chose to the suspicions of the D.C. Department of Health and its calls ignore the findings. Told then of the findings, EPA had no for expanded testing with different methodologies. The lack reaction. Years later, EPA defended its lack of internal of formal means for communication between the experts from communication by arguing that EPA was not required to the Corps, EPA, local government and the public regarding monitor actions of its departments contracted to other the cleanup effort extended the contamination problem agencies.179 EPA’s intra-departmental lack of accountability unnecessarily. partially allowed this failure of communication. 3. Statutory Deference Lack of accountability also contributed to information Federal law allowed EPA to cede responsibility to the mismanagement; mediocre searching by officials and losses of Corps for cleanup efforts and thus not scrutinize the Corps’ records have affected the physical success of and the public’s findings and methodologies or EPA’s internal departmental trust in the cleanup. Competent management of historical warnings.177 Because of statutory deference, EPA lightly records is crucial in situations such as Spring Valley, where reviewed the Corps’ decision that no hazards were present in contamination occurred eighty years ago. Recently, a small group 1986, though EPIC had flagged sites as potential burial sites of RAB members located records and photographs that have and communicated these to the Corps. dramatically expanded the scope of the investigation and Similar statutory deference allowed the Corps to use cleanup and altered the conceptual approach to the project, the hierarchy of authority as a shield for its decisions. For from searching for pits to new types of searches.180 These example, in 1996 the Corps, as the lead agency, was able to amateurs found the records at the National Archives during refuse to investigate the D.C. Department of Health’s legitimate their spare time, when expert Corps and Army archivists, whose concerns — and did so for two years, thus prolonging the full-time charge has been finding AUES information, had not contamination. located the documents. Meanwhile, records about Spring Valley 4. Posturing that the Corps possessed five years ago are now lost181 or Focus on positions, rather than solutions, impeded inaccessible.182 earlier and more successful results in Spring Valley. The Spring Valley cleanup suffered from repeated, defensive posturing by the Corps in reaction to accusations from the D.C. Department of Health and to potential liability to other parties. This CONTINUED ON PAGE 16

FALL / WINTER 2003 9 LITIGATION UPDATE Climate Change’s Significant Impact on the National Environmental Policy Act

By Dave Newman * he United States government has spent billions of dollars negative environmental consequences of such actions financing the construction of fossil fuel power plants, throughout the world. Toil fields and transmission pipelines across the globe NEPA recognizes “the worldwide and long-range through the Overseas Private Investment Corporation character of environmental problems” and encourages the U.S. (“OPIC”) and the Export Import Bank (“Ex-Im”). These to “lend appropriate support to initiatives, resolutions, and projects have an enormous impact on the global environment, programs designed to maximize international cooperation in as well as the local communities in which they are built. Some anticipating and preventing a decline in the quality of mankind’s of these effects, such as climate change, are already having a world environment” to the extent that it does not conflict with significant impact on the environment in the United States. U.S. foreign policy.7 Courts have interpreted NEPA’s Despite the significant domestic impact of federal actions extraterritorial application narrowly by limiting it to situations abroad, the OPIC and Ex-Im do not perform environmental where the action caused or was likely to cause direct impact on assessments mandated by the National Environmental Policy the United States or on the global commons.8 Act (“NEPA”) prior to funding a project. In a case filed recently In Environmental Defense Fund v. Massey9, NEPA was held in the Federal District Court for the Northern District of to apply to the National Science Foundation’s plans to incinerate California, Friends of the Earth, Greenpeace and the cities of garbage in Antarctica. By contrast, in NEPA Coalition of Japan Boulder, Colorado and Oakland, California are seeking to v. Aspin10, the court refused to extend the extraterritorial rule require them to conduct the mandated environmental developed in Massey to include actions at U.S. military bases in assessments.1 Japan. In 1969, Congress passed the NEPA in recognition Friends of the Earth, Greenpeace and the City of of “the profound impact of man’s activity on the interrelations Boulder, Colorado are now testing the limits of these decisions of all components of the natural environment.”2 NEPA regarding NEPA’s extraterritorial application. They are seeking declares that environmental health must be an “essential declaratory and injunctive relief that would require OPIC and consideration” of federal policy.3 It requires that federal agencies Ex-Im to draft EIS for projects that they are considering study the environmental impact of proposed actions, consider funding. possible alternatives and publicize their findings before the OPIC and Ex-Im have approved over $32 billion of project is allowed to commence. This precautionary step, fossil-fuel projects throughout the world over the past ten embodied in the process of drafting environmental impact years.11 These projects will emit significantly more carbon statements (“EIS”), enables decision makers, environmentalists dioxide emissions through their lives than that released by the and the general public to thoughtfully consider the impact of worldwide consumption of petroleum, natural gas and coal in major actions undertaken by the federal government before the year 2000.12 they become reality. Over the past three decades, twenty-six states and Examples of these projects include: eighty-six countries have adopted laws similar to NEPA requiring some form of environmental impact assessment.4 • Chad-Cameroon Pipeline: 650-mile petroleum pipeline In addition, the United Nations Environment Programme has through Chad and Cameroon that is expected to adopted the principle of conducting environmental impact deliver approximately one billion barrels of oil and assessments for major governmental actions and the European will directly lead to estimated emissions of 424.7 million 5 13 Union has made it a requirement of state membership. The metric tons of CO2. practice of drafting an EIS is also endorsed in international • Hamaca Oil Project: $627 million loan guarantee by environmental agreements and declarations.6 However, U.S. the Ex-Im Bank for the development of Venezuelan government actions abroad generally have not been subject to oil fields that will result in the extraction of 2.1 billion NEPA’s environmental assessment requirement, despite the barrels of oil releasing an estimated 891.2 million 14 metric tons of CO2.

10 SUSTAINABLE DEVELOPMENT LAW & POLICY • Dezhou Coal-Fired Power Plant: loan guarantees by the Ex-Im Bank to expand this Chinese power plant will lead to an additional 177.5 million metric tons of CO over its twenty-year life.15 2 The Enforcement of None of these projects complied with NEPA despite imposing a significant impact on the global climate and, in turn, the United States. The complaint alleges that the Ex-Im Environmental Law Bank and OPIC are in continual violation of NEPA for not conducting environmental assessments to determine if any of From a Human these individual projects, or their energy programs as a whole, have a significant impact on the human environment of the United States.16 The complaint also alleges violations of the Rights Perspective Administrative Procedures Act17 for failing to comply with NEPA.18 By Romina Picolotti*and Sofia Bordenave** FOR MORE INFO: Introduction WWW.CLIMATELAWSUIT.ORG The objective of this article is to link the environment and human rights at the level of domestic enforcement on the part of States. We start from the basis that human rights law CONTACTS: provides substantive and procedural elements as well as • MARK HELM, FRIENDS OF THE EARTH, DIRECTOR, MEDIA institutional mechanisms that can be incorporated by RELATIONS, 202-783-7400 X102, 202-270-3650 (CELL) environmental law with a view to achieving effective • LEGAL EXPERT FOR COMMENT: JOHN ECHEVERRIA, environmental protection. GEORGETOWN UNIVERSITY ENVIRONMENTAL LAW INSTITUTE Even though the protection of the environment has EXECUTIVE DIRECTOR, 202-662-9850 X3 been consecrated in a number of international instruments and universal recognition has been achieved concerning the need to act in certain areas to prevent the destruction of the Earth, this protection has been based more on rhetoric and good will (Footnotes) rather than on enforceability. International environmental law * Dave Newman is a J.D. Candidate (‘04) at American University’s Washington has not provided the mechanisms necessary for individuals to College of Law and Editor-in-Chief of SDLP. legally claim the fulfillment of the obligations assumed by States 1 Plaintiff ’s Complaint, Friends of the Earth v. Overseas Private Investment Corporation in environmental treaties. We understand by environmental (NDC August 26, 2002), available at http://www.climatelawsuit.org/2002-08- 26_Complaint.pdf. enforcement, the ability to claim before a judge the fulfillment 2 National Environmental Policy Act of 1969, 42 U.S.C. § 4331(a) (2002). of obligations and the realization of rights that concern the 3 42 U.S.C. § 4331(b). protection of the environment. 4 DINAH BEAR, The National Environmental Policy Act: its Origins and Evolutions, Nat. Resources & Env’t, 71 (1995). For its part, international human rights law has made 5 Id. significant advances with respect to enforcement. International 6 See Rio Declaration on Environmental and Development, June 14, 1992, Principle justice forums have been created where individuals may demand 17, 31 I.L.M. 874, 879. 7 42 § 4332(2)(F). that States fulfil their obligations and achieve realize rights found 8 See Bosire Maragia, Defining the Jurisdictional Reach of NEPA: An Analysis of the in human rights treaties. Likewise, international human rights Extraterritorial Application of NEPA in Environmental Defense Fund, Inc. v. law has succeded in penetrating the domestic legislation of Massey, (Journal Volume) Widener J. Pub. L, (page article begins), (Page cited) (1994). States through legislative reforms that recognize and promote 9 Environmental Defense Fund v. Massey, 986 F.2d 528, 529 (2d Cir. 1993) (limiting its application by local tribunals. NEPA’s extraterritorial application to the continent of Antarctica because it is Environmental and human rights law have essential “without a sovereign, and an area over which the United States has a great points in common that enable the creation of a field of measure of legislative control.”) 1 10 NEPA Coalition of Japan v. Aspin, 837 F. Supp. 466, 468 (D.C. Cir. 1993) cooperation between the two : (denying a call to extend NEPA’s extraterritorial application beyond the unique - Both disciplines have deep social roots; even “international” region of Antarctica, the court reaffirmed the notion that NEPA though human rights law is more rooted within does not apply in cases with “clear foreign policy and treaty concerns involving a security relationship between the United States and a sovereign power.”) the collective consciousness, the accelerated process 11 Complaint ¶ 92 at 28, Friends (funding for fossil fuel projects was 25 times of environmental degradation is generating a new more than that for renewable energy projects; see Complaint ¶ 94 at 29. “environmental consciousness”. 12 Complaint ¶ 95 at 29, id. 13 Complaint ¶ 107-13 at 32-4, id. - Both are purposeful legal systems with objectives 14 Complaint ¶ 121-25 at 36-7, id. of universal consent and of variable content, open 15 Complaint ¶ 143-47 at 39-40, id. to reality and social changes. The contents of both 16 Complaint ¶ 157-58 at 42, id. 17 See generally 5 U.S.C.A. § 500 disciplines need be adapted to dynamic social 18 Complaint ¶ 159, id. processes, their normative corpus must meet the needs of each social era, with the objective of fulfilling its protective ends.2

FALL / WINTER 2003 11 - Internationalization. The international community The second is the general consent with regard to these has assumed the commitment to observe the rights, which crystallize legally on an international scale through realization of human rights and respect for the treaties and declarations with universal vocation and their environment. Since the Second World War3, the hierarchical constitutional incorporation into the domestic relationship beteween the State and individual has judicial systems of States. become pertinent to the international community. The third element resides in the possibility given On the other hand, the phenomena brought on individuals to access justice and seek enforcement of human by environmental degradation trascends political rights norms and the application of specific substantive and boundaries and is of critical importance to the procedural human rights principles in concrete cases. This access preservation of world peace and security. The to justice is in itself a human right, of which people cannot be protection of the environment is internationalized, deprived. while the State-Planet Earth relationship becomes When these elements of enforcement are applied to a concern of the international community. the scope of environmental law, it is possible to sustain, with - Universalization. Both areas of law tend to regard to the first of these elements, that the environmental universalize their object of protection. Human crisis threatens the viability and quality of life on the planet. Rights are presented as universal and the protection The fundamental nature of this problem is irrefutable. This of the environment appears as everyone’s has generated the universal consent necessary to elevate the responsibility. protection of the environment before international public law. The advancement of the relationship between human Hence, the right to a healthy environment is beginning to be rights and the environment would enable the incorporation of recognized as a human right.7 human rights priciples within an environmental scope, such as The second element pertaining to enforcement of anti-discrimination standards, the need for social participation, human rights appears in environmental law in the sense that, protection of vulnerable groups, etc. At the same time, the most constitutions that have been recently reformed incorporate human rights system would be stregthened by the incorporation the protection of the environment, hence, assigning this of environmental concerns, enabling the expansion of the scope protection constitutional hierarchy. 8 of human rights protection and generation of concrete solutions It is the third element, dealing with access to justice for cases of abuse.4 Finally, one of the most important that has not yet been completed in the area of environmental consequences, is to provide victims of environmental law; it prevents its enforcement, and thus, the full force and degradation the possibility to access to justice. Given the present effectiveness of environmental law. absolute helplessness felt by victims of environmental The Role Played by the Individual in the Enforcement degradation, linking human rights and the environment brings of Environmental Law these victims closer to the mechanisms of protection that are The protection of the environment exceeds in many provided for by human rights law. instances, the capability of States’ administrative structure, which Enforcement of International Environmental Law and is why it requires that individuals assume the role of monitoring Enforcement of International Human Rights Law and protecting rights as well as duties. In actuality, the linkage between human rights and the The essential role of the individual resides in their ability environment reveals itself clearly and irrefutably. Environmental to make environmental law enforceable. This not only degradation severely affects the use and enjoyment of most promotes but also realizes protective legal action. Given the internationally recognized human rights. Thus, for example, the destruction or the imminent destruction of the environment right to life and to health, are critically affected by problems of that surrounds the individual, the individual aware of the environmental degradation,5 the right to equality before the vertiable force that he/she posseses finds himself/herself law is affected by the disproportionate way in which certain compelled and motivated to take action. elements of the population bear environmental burdens, and It is no small task to clarify the role of the individual, environmental discrimination. The right to work is also affected therefore we will analyse what is the object of protection and by environmental conditions in the work place. In addition, what is the practical implication of the exercise of this role. the right to property is affected by environmental degradation, The protection of the environment can be the product etc.6 of actions that are aimed at preventing or repairng damages Experience in the human rights arena has shown that caused to an individual or group, or actions that are intended the way to make rights effective is to promote their to safeguard collective interests based on the right to a healthy enforcement. It is timely to consider what elements made environment. possible advances in human rights enforcement and whether In the first case, there are directly affected persons these can be applied to environmental law. suffering a detriment to their rights due to environmental The first element stems from the recognition that problems; in the second, the environment is protected as a human rights are fundamental rights: the possibility of social public good, and because it is of social interest. cohabitation is given by the existence of norms and principles Therefore, when we refer to environmental protection, that imply the conception of immutable values, of limits that we face two legal objects that are interdependent: on the one cannot be transgressed, of norms that are internalized within hand, the environment as an autonomous legal object that can the collective consciousness as unyielding pillars not subject to be protected, and on the other, the scope of human rights that controversies. Human rights are the trustees of this solid are affected by environmental damage or degradation9. As normative nucleus. individuals we have two objects to protect: the environment as

12 SUSTAINABLE DEVELOPMENT LAW & POLICY an autonomous legal object and the human being10. The States, namley international and regional systems of human interdependence is clear, since the final object of protection is rights protection. always the human person, environmental law naturally integrates with human rights law. Translated by Maria-Candela Conforti We now seek to elucidate the second question, that is, what is the practical implication of exercising the individual’s For more information on the Center for Human Rights and role of protecting the environment? the Environment see: www.cedha.org.ar It is impossible for the individual to perform his/her role if he/she is not complemented by specific duties imposed (Footnotes) on persons or agents to ensure their execution. If there are no * Romina Picolotti is co- founder and director of the Access to Justice Program of the Center for Human Rights and Environment (CEDHA), an international non-governmental organization defined duties imposed on specific persons to ensure access to located in Argentina dedicated to the development and strengthening of the linkages between justice in environmental matters, then the individual’s role human rights and the environment. CEDHA works with representatives of civil society, public and private actors, and academic institutions. Dr. Picolotti graduated from the National University dissipates. of Cordoba, and obtained her Masters degree at American University. She has worked extensively The individual’s task will not be fulfilled if the State in the area of human rights with multilateral bodies and non-governmental organizations in Asia, Latin America, and the United States. Dr. Picolotti is Joint Professor at the American University, does not implement appropriate and effective mechanisms to Washington College of Law in the LLM program. access justice. This is what Kant defined as “the perfect duty”, ** Sofía Bordenave has a Masters degree in International Public Law. A graduated from the contrary to “the imperfect duty” which is general, ambiguous National University of Cordoba and CIDOB, Barcelona, she obtained professional experience in and non-compulsive. The current vision of environmental law criminal law and children’s law. She worked as Legal Advisor of the Secretariat of Human Development of the Municipality of Cordoba focusing on development programs and generates imperfect duties. An integral vision that links these strengthening the relationship between NGOs and the local government. Today, she is Legal duties with the concept of access to justice contained in human Advisor for the Center for Human Rights and Environment (CEDHA) and heads CEDHA rights law is what will enable us to move from imperfection to headquarters in Patagonia. perfection or, in other words, from the lack of enforcement 1 See A.A. Cancado Trindade, The Parallel Evolutions of International Human Rights Protection and 11 Environmental Protection and the Absence of Restrictions upon the Exercise of Recognized Human Rights, Inter- to the achievement of enforcement. American Institute of Human Rights Magazine, January-June 1991. Conclusion 2 Alexandre Kiss, Définition et nature juridique d’un droit de l’homme à l’environnement, en Environnement et droits de l’homme, Pascal Kromarek, directrice de publication, 1987. The effectiveness of environmental law treaties 3 Michael J. Kane, Promoting Political Rights to protect the Environment, 18 Yale J. Int’l L., 389,389-390 depends to a large extent on the impact that they have on the (1992). 4 Michael R. Anderson, Human Rights Approaches to Environmental Protection: An Overview domestic law of the party States. The party States have the in .Alan E. Boyle & Michael R. Anderson, Eds., Human Rights Approaches to Environmental obligation, emanating from a general principle of international Protection 1-4, 21-23 (1996). 5 It has been estimated that roughly 60 per cent of the global burden of disease from acute law, to take all measures necessary to ensure the effective respiratory infections, 90 per cent from diarrhea disease, 50 per cent from chronic respiratory protection of the rights consecrated in these treaties. conditions and 90 per cent from malaria could be avoided by simple environmental interventions. World Health Organization., Health and Environment in Sustainable Development: Five Years Yet, the fulfillment of the individual’s role of protecting after the Earth Summit (1997). the environment depends not only on already existing 6 Judge Weeremantry from the International Court of Justice makes a reflection in this vain:The protection of the environment is ... a vital part of contemporary human rights doctrine, for it is constitutional or legislative provisions, but also requires that a sine qua non for numerous human rights such as the right to health and the right to life itself. It States train individuals under their jurisdiction on the exercise is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments. of this role, and take legislative and administrative measures in Gabcikovo-Nagymaros Case (Hungary-Slovakia), ICJ, Judgment of Sept. 25, 1997 (Sep. Op. Judge ways to eliminate obstacles, gaps, and facilitate access to justice. Weermantry) at 4. 7 The Additional Protocol to the American Convention on the matter of Economic, Social, and Limited enforcement action at the local level and a Cultural Rights “Protocol of San Salvador “in force since December 16th of 1999, in its article 11 lack of effectiveness puts us on the alert with regard to the recognizes: “1.Every person has the right to live in a healthy environment and to be provided with basic public services. 2. The State parties will promote the protection, preservation, and utilization of existing procedural tools on the part of the improvement of the environment.” The African Charter of Human Rights, in force since 1986, individual and highlights the need to create new tools. Proper, in its article 24 recognizes: “every person has the right to a satisfactory and favourable environment for his development” la traducción nos pertenece. adequate, efficient, and innovative procedural instruments 8 This is reflected in most of the constitutions in the region that recognize the importance of the suitable for preserving the environment, sanctioning abusive environment: constitution of Bolivia of 1967 (article 137), constitution of Brazil of 1988 (article 225), constitution of Chile of 1980 (article 19), constitution of Colombia of 1991 (articles 8,49, attitudes concerning the environment, and imposing an integral 79,80,86, and 88), constitution of Cuba of 1992 (articles 11 and 27), constitution of El Salvador remedy for damage caused are required. There is a need for of 1983 (article 69), constitution of Ecuador of 1983 (article 19), constitution of Guatemala of 1985 (article 97), constitution of Guyana of 1980 ( articles 25 and 36), constitution of Haiti of 1987 tools that will be used against inoperative, negligent or (articles 253 and 258), constitution of Honduras of 1982 (article 145), constitution of Mexico of accomplice States and against particular irresponsable 1917, (article 25), constitution of Nicaragua of 1987 (articles 60 and 102), constitution of Panama of 1980 (article 110), constitution of Paraguay of 1967 (article 132), constitution of Peru of 1993 contaminators. We must make available prompt, simple actions (article 2 inc. 22), constitution of Uruguay of 1997(article 47), constitution of Costa Rica (articles that will work to prevent environmentally destructive behavior. 46 and 50). 9 In this last object of protection, the concept of traditional victim acquires greater strength. These mechanisms must incorporate the principles of active 10 When he refers to the expression ‘green men’ Jury Moisset Iturraspe states: “it is one of the many legitimacy (legal capacity), burden of proof, and the manichean expressions referred to further. The green man, advocate of a healthy environment –and fighter on behalf of this cause -, consisted initially of only a few, who fell into extremisms precautionary principle, etc. In short, actions are needed that and were accused of unrest; today, intelligent persons from all over the world comprise a new ensure the human right of the individual to access justice in legion of green men” J. Mosset Iturraspe, T. Hutchinson, E.A. Donna, Daño Ambiental, Tomo I, Eds. Rubinzal-Culzoni, Introduction, page. 13, note 1. [translated from Spanish] environmental cases. 11 The particular characteristics of environmental problems make clarification necessary: Finally, we recall that the fulfilment of the State enforcement does not only imply the creation of procedural paths but also the application of obligation to provide adequate and effective procedural tools principles of environmental law that will make protection effective. in the environmental field generates the liability of the State for the violation of human rights that compose the concept of access to justice at an international level. This opens a new field of enforcement in environmental law and its victims against

FALL / WINTER 2003 13 PRACTITIONER’S CORNER A Conversation With Earth Rights International’s Rick Herz

Interview by Roxanne Sher-Skelton ick Herz is an international environmental and human Herz: ERI has a multifaceted and creative plan of attack. rights advocate and the author of the widely read and For example, we are co-counsel in several major lawsuits, we much acclaimed article “Litigating Environmental Abuses R do human rights monitoring of development projects in Under the Alien Tort Claims Act: A Practical Assessment” (40 Burma, we run a school in Thailand where we train indigenous Va. J. Int’l L. 545). He is the Litigation Director of Earth people to be human rights and environmental activists and we Rights International (ERI) where he divides his time between have replicated the school in the Amazon. groundbreaking litigation and providing advice to human rights and environmental activists on international law. He is an expert SDLP: What lawsuits are you involved with? on using the Alien Torts Claim Act to bring cases in United States’ courts when transnational corporations abuse the Herz: Currently, ERI is co-counsel in four lawsuits. In Doe v. environment abroad. Unocal Corp., ERI represents Burmese peasants who suffered human rights abuses by Burmese army units that were securing SDLP: Who founded ERI? a Unocal gas pipeline. The abuses were egregious, including forced relocation, forced labor, rape, torture, and murder. In Herz: ERI was founded by Tyler Giannini, Ka Hsaw Wa, September of this year, we received a landmark ruling from and Katie Redford. Tyler and Katie went to the University of the U.S. Court of Appeals for the Ninth Circuit. The Court Virginia School of Law with me and focused on human rights concluded that corporations can be held legally responsible law. Katie had spent some time teaching in Burmese refugee under the Alien Tort Claims Act if they aid and abet violations camps in Thailand before attending law school. Ka Hsaw Wa of international human rights norms in foreign countries. The is a member of the Karen ethnic nationality in Burma, and has Court also found that we had presented enough evidence that been a human rights activist since he fled Burma in 1988. He is Unocal aided and abetted the Burmese military’s abuses to a recipient of the highly esteemed Goldman Environmental survive summary judgment. Prize. He has also won both the Reebok Human Rights Award This ruling follows on the heels of a June 11, 2002 and the Conde Nast Environmental Award. ruling in our companion state case against Unocal, in which a California Superior Court held that we had submitted enough SDLP: What are the goals of ERI? evidence that Unocal’s project hired the military to survive summary judgment. The state case is now headed for trial in Herz: ERI is committed to the idea that human rights and February 2003. The state court’s decision makes the case against environmental protection are fundamentally interrelated and Unocal the first in U.S. history in which a corporation will stand works to promote links between both fields. Repression of trial for human rights abuses committed abroad. indigenous people during development projects has allowed polluters to harm the environment without dissent and the SDLP: Tell us about the other three cases. resulting environmental degradation has caused terrible human suffering. Herz: In Wiwa v. Royal Dutch Petroleum Co., the plaintiffs are charging that Royal Dutch/Shell oil group was complicit in SDLP: Do you think that there is a human right to a healthy human rights abuses in Nigeria. The particular abuses at issue environment? are the November 10, 1995 hangings of environmental and community leaders Ken Saro-Wiwa and John Kpuinen, the Herz: Yes. International law has come to recognize a right to arbitrary detention of Owens Wiwa, and the shooting of a a minimally adequate environment. When environmental woman who was peacefully protesting the bulldozing of her degradation is so severe that the environment can no longer crops in preparation for a Shell pipeline by Nigerian troops sustain the people who live in the area, their resulting loss of called in by Shell. health and life amounts to human rights abuse. In Bowoto v. ChevronTexaco Corp. the plaintiffs are also indigenous to the Niger Delta region of Nigeria. They seek SDLP: Tell us about what ERI is doing to advocate for the redress for the shooting of peaceful protestors at Chevron’s environment and human rights.

14 SUSTAINABLE DEVELOPMENT LAW & POLICY Parabe offshore platform and the destruction of two villages strong deterrent effect. It is important to note though that by soldiers in Chevron helicopters and boats. Bowoto and Wiwa litigation, is not the only tool for pressuring corporations. Public are good examples of one particular way in which human pressure, both here and abroad, plays an important role. Shell rights and environmental protection are inextricably intertwined. and Chevron for example are facing serious protests from the In both cases, the Nigerian military committed abuses ethnic groups in the regions that they have chosen to develop. specifically to suppress peaceful protests against Chevron and Shell’s destruction of the environment. SDLP: What is the biggest problem you face in your work? In Bano v. Union Carbide Corp., residents of Bhopal, India, have filed suit against Union Carbide for toxic pollution Herz: I think the biggest problem is aa corporate culture and contamination from a Union Carbide pesticide plant. This that assumes the corporation can act with impunity, and that is is the same infamous plant that leaked poisonous gas, killing willing to give a higher priority to its project than the lives of over 5,000 people in 1984. local people. ERI has also submitted amicus briefs in several cases including Beanal v. Freeport-McMoRan, in which victims of human SDLP: Tell us about ERI’s work in Burma. rights and environmental abuses associated with a massive mine in Indonesia filed suit against the U.S. company that operated Herz: ERI has an incredible program on the Thai-Burma the mines; Arias v. DynCorp, in which thousands of Ecuadorian border monitoring abuses and training human rights and villagers harmed by the spraying of toxic herbicides by a environmental activists. For years, he military regime in Burma contractor for the U.S. government’s anti-narcotics program in has used the forced labor of its indigenous people to help Colombia sued the contractor; and Jota v. Texaco and Aguinda v. build development projects that destroy Burma’s natural Texaco, a suit filed by residents of the Ecuadorian and Peruvian resources. Citizens are also often forced to relocate without Amazon who were harmed by massive pollution from compensation, and they have suffered rape, torture and death Texaco’s oil operations. at the hands of the soldiers forcing them to work or relocate. ERI trains local activists to go into Burma and monitor human SDLP: Your article, “Litigating Environmental Abuses Under rights and environmental abuses. ERI distributes the the Alien Tort Claims Act: A Practical Assessment” maps out information that activists gather around the world. Hopefully how to bring these types of cases, can you give a quick summary international attention will someday bring democracy to Burma. for our readers? SDLP: What are your thoughts on the recent World Summit on Sustainable Development? Do you think it was an effective Herz: This article demonstrates that some victims of conference? environmental abuses caused by transnational corporations may have strong claims in U.S. courts under the Alien Tort Claims Herz: I really don’t know. Act. The article reviews voluminous sources of international law and shows how they establish norms of customary SDLP: Many of the corporations being sued by ERI and international law that plaintiffs can rely on to bring ATCA claims others for human rights and environmental abuses abroad are for redress of egregious environmental devastation. It explains household names in the U.S. Why do so few Americans seem that plaintiffs in appropriate circumstances may have claims outraged about the things that some of our most familiar asserting the right to life, the right to a healthy environment, corporations are doing to people throughout the world? crimes against humanity, race discrimination, genocide and cultural genocide. The article also discusses many of the Herz: Largely because I think most Americans simply don’t arguments corporate defendants have used to try to dismiss know about the kind of human rights abuses and environmental ATCA environmental and human rights cases. devastation these companies are inflicting. If they did, I have no doubt they would be appalled. I don’t think most Americans SDLP: Almost every case you mentioned involves an oil want their gasoline to be produced from the blood and tears company. Are they all bad? of villagers in the developing world.

Herz: I don’t know if they are ALL bad, but it is SDLP: How can students get involved? unfortunately, true that here are lots of examples of oil companies being complicit in human rights abuses and harming Herz: Here in Washington we have law student interns every the environment and a number of lawsuits have been filed. semester and in the summer. We also have legal interns in our Thailand office. SDLP: What effects are these cases having on corporate behavior?

Herz: It is difficult to know what effect these lawsuits are FOR MORE INFORMATION ON EARTHRIGHTS having in boardrooms. We know corporations follow these INTERNATIONAL: cases closely, but will it affect their actions? We don’t know if they are passing up opportunities or being more careful about WWW.EARTHRIGHTS.ORG the way they implement projects because of human rights and environmental concerns. But I would have to believe there is a

FALL / WINTER 2003 15 CONTINUED FROM PAGE 9 vegetables — usually the epitome of health.198 Spring Valley “[p]arents wonder if their gardens are safe for their children to play in and if their home-grown vegetables are safe to eat.”199 B. Nature and Handling of the Hazard Some residents may pay thousands of dollars for soil testing.200 Toxic contamination sparks intense public fear and Findings of elevated arsenic levels at AU’s Child Development distrust in institutions.183 Residents of Spring Valley suffer from Center, where children play outside in the soil, added to these this fear and distrust, caused by the nature of the hazard, its fears. Indeed, children may be at greater risk because their resulting effects on risk perception, and the way agencies and bodies are less efficient at converting arsenic into less harmful the media have addressed the situation. organic forms.201 AU students share the sense of fear as well.202 1. Toxic Contamination, Fear, and “Mostly, people worry: When will it all be over? When will we Perceived Risk feel secure again?”203 Toxic substances trigger fear because they are a “new 2. Distrust in Institutions species of trouble”; they are not natural but rather are manmade, A related feature of toxic incidents is a loss of trust in often technological, and thus preventable.184 Toxins contaminate institutions. Toxic contamination may cause loss of confidence and infiltrate; they usually act insidiously rather than directly.185 in officials and experts, who may either not tell the truth or The dread they create remains long after an incident is declared who may not be scientifically able to tell the truth.204 Trust is over by an official, for contamination incidents have no fragile; it is difficult to achieve yet easy to lose.205 Several factors demarcated beginnings and endings — for victims, the incident lead to this fragility: (1) negative incidents have a greater impact may never be “over.”186 The damage may continue, invisible than positive occurrences because negative incidents are usually and unknown.187 Contaminated land becomes “alive with more discrete and visible; (2) negative news events have a greater, dangers, a terrain in which fresh air and sunshine and all the negative impact on public trust than positive events;206 (3) sources other benevolences of creation are to be feared as sources of of negative news are perceived as more credible than positive toxic infection.”188 Toxic invasion of homes, whose security news; and (4) distrust reinforces distrust, by causing the public has been integral to American culture, has violative effect.189 to avoid interaction with those they distrust and by affecting Laypeople often differ from experts in their evaluation the publics’ views of events.207 of risks in toxic contamination situations.190 Though experts Such loss has occurred in Spring Valley. Trust in criticize the public as perceiving risk under the influence of government’s ability to act eroded quickly after the start of cognitive errors, heuristics and factual misunderstandings, the Operation Safe Removal. In the initial phase, the head of a public often derives its perceptions from a legitimate, though local real estate company stated, “‘I think it’s temporary, and different, framework of values.191 Experts and government they’ll correct it.… It will be gone and forgotten within a agencies are more likely to employ risk assessment and month.’”208 Two years later, however, residents were asking, characterize risks in terms of annual mortality and morbidity, “‘Will we ever be sure this place is totally clear of munitions?’”209 whereas laypeople base their perceptions on a range of features Trust has not returned. This stems from the which focus on the nature of the harm.192 Perceived risk government’s inability to solve the problem and from the increases if the danger is involuntary, is unobservable, is new, public’s realization that the government concealed the problem. inspires dread, inequitably distributes risks and benefits among Even a district court found that “[t]he Army in this case created generations, has catastrophic potential, has fatal consequences, the hazard and literally ‘covered it up.’”210 An outraged RAB has delayed harmful effects or allows unknowing exposure.193 member recently professed he “has suspicions about the Corps’ Toxic and nuclear hazards, which particularly possess these integrity and honesty — that’s not expected from an arm of features, register the greatest differences on the layperson’s versus the U.S. government, and I don’t think the Corps is trying to the expert’s perceptions of risk. remedy the distrust.”211 In 2001, residents testified to Congress Spring Valley residents suffer this dread and fear, caused about their distrust in the Army’s ability to fully disclose by buried explosives and chemicals, substances which for the contamination problems and to detect buried munitions and residents are invisible, involuntary and seemingly random. chemical material.212 The suspicion is so deeply rooted that Adding to the residents’ fear is outrage that this harm was Spring Valley residents are requesting both an official government preventable, and now a remedy is not in citizens’ control. certificate of clearance of hazards that would convey with the Homeowners’ attitudes have changed since 1993, when residents deed to each property and provide indemnification for each trusted the Corps and possessed greater concern for their property owner and insurance for liability for the work of property values than for the cleanup process.194 Now residents government contractors.213 cycle between a “creeping fear,” marked by hypochondria and Ironically, though trust in the Corps has faltered, trust concern for the soil and water, and “reality checks,” instigated in other institutions such as the judicial system remains. This by the fact that residents have no tangible evidence to cause faith harks back to the expert/lay distinction. Residents of fear or reassurance.195 Spring Valley are largely familiar with and comfortable assuming Rather than a place of refuge, homes in Spring Valley control of situations; they are expert politicians, lawyers, doctors have become a source of fear. Residents voice concerns about and other powerful figures. The plethora of past and pending the health and safety for themselves and their children.196 These lawsuits can be attributed to an odd combination of “expertise” worries grow as the Corps requests homeowners not to blow and thus trust in their realms, plus a layperson’s desire to obtain leaves or mow grass and to avoid stirring up dust,197 while the control over an involuntary situation, the contamination. Department of Health advises residents to minimize contact Bringing suits enables residents to use their expertise to seize with soil, avoid wading in creeks, and avoid eating home-grown

16 SUSTAINABLE DEVELOPMENT LAW & POLICY control over a situation they feel violated by and powerless to Budgets for FUDS restoration, already meager, will be reduced effect. as defense spending priorities shift to counter-terrorism 3. Biased Media measures.229 FUDS often pose dual threats, toxic chemicals The media play an important role in the public’s and unexploded ordnance (“UXO”), munitions that fail to perception of risk.214 The media tend to report more negative, detonate on firing ranges and pose hazards to later users of trust-destroying news than positive events.215 Bias, combined the land. Both threats are present in Spring Valley. with the greater impact of negative news over positive news, Approximately 2000 formerly used defense sites require UXO the increased credibility of negative news sources, the greater remediation, and treatment is necessary at many active ranges ability of interest groups to manipulate the media, and the as well. Costs for remediation are prohibitive, making the inherent fragility of trust, is likely to breed distrust.216 process delayed and uncertain.230 Most funds go to cleaning or Multiple media have covered the affairs at Spring closing active bases, rather than remediating former defense Valley. National and local newspapers, television broadcasts sites; of the $1.5 billion that the DOD spends to clean up and magazines have informed the public about the ongoing defense sites, only $200 million is designated to FUDS.231 The hazards and cleanup efforts, often with a sensationalist slant.217 quality of remediation is uncertain as well. Though advanced Until 2001, this bias may have been warranted, for the federal technology to locate UXO is available, lack of funding prevents agencies involved were ineffective in handling the the Corps from employing such technology.232 Additionally, contamination. Since then, the bias has increased the atmosphere unexpected discoveries, such as those being unearthed at Spring of distrust. Some members of the community are dismayed Valley, can significantly escalate costs; since 1997, the Corps’ about the negative bias of national newspaper coverage now estimate for the Spring Valley cleanup has increased by nearly that cleanup is in a new phase;218 they feel that many articles 600%, from $21 million to $125.1 million.233 In spring 2002, emphasize views of residents who are not representative of the Army designated an additional allocation of $5.2 million the community, omit positive information about the cleanup, to the Corps’ Spring Valley effort.234 Spring Valley, however, and focus on more pessimistic aspects.219 Such negative press already receives more funding than other sites in its region. may be detrimental to residents who have concern about Spring Valley receives 86% of its region’s funds — 8% of the property values and who focus on the future rather than the national FUDS budget.235 Other projects are on hold or shut past.220 down because funds have been diverted to Spring Valley.236 C. Lack of Empowered Public Still, the Spring Valley cleanup will take years and require more Participation funding. Other sources of funding are not viable. EPA does Inability to participate in cleanup decisions, which affect not typically contribute funds to cleanups already receiving present and future health and property, exacerbates affected money designated by Congress to the Army,237 and the D.C. citizens’ senses of fear and distrust. Thus, authorities handling Department of Health, whose budget is minimal, already relies toxic contamination must consider impact on the public. on funds from DOD to perform some functions.238 Though Unfortunately, Spring Valley residents long lacked a formal a shorter timeline increases the amount of funding needed, voice in the Corps’ handling of the remediation, an absence Spring Valley citizens’ motto is “Finish in four years.”239 that eroded trust in the Corps and its efforts. In the 1993 to The problems at Spring Valley — the government’s 1995 cleanup, a technical review committee (“TRC”) existed failures and refusals to interact and communicate on various but included only one member of the community.221 Not until levels; the public fear and distrust created by the nature of the April 2001, eight years after the public became aware of the danger, the government’s and media’s handling of the situation, contamination, did the Corps institute a RAB for the area.222 the lack of public participation, and inadequate funding — are Though the RAB included more members of the community, complex. These problems, however, are endemic to the group was not empowering. Participating residents felt bureaucracies and hazardous contamination situations. New that it functioned as a retroactive sounding board, rather than a approaches and solutions may help communities such as Spring heeded forum for opinions of appointed neighborhood Valley achieve more timely and successful results in the representatives.223 For example, the Corps completed soil restoration process. sampling before the RAB could discuss the plan and offer IV. Approaches to Break the Cycle input.224 The RAB itself has been uncertain about its role; New approaches and structures may alleviate some members cite their lack of experts and wonder if it should of the problems that have continually plagued Spring Valley’s function as an independent overseer or should bring in outside cleanup. To increase interaction and oversight both within expert overseers.225 Some of the RAB’s uncertainty stems from agencies and between agencies, statutory provisions and formal its advisory status.226 The Corps has told the RAB that “the communication forums may be effective. Emphasis on the Corps has no obligation to … respond to a RAB request.”227 role of local governments may also boost successful cleanup The RAB’s powerless status in the Spring Valley cleanup erodes endeavors, because local governments are privy to both citizens’ confidence about its role. Repeated failure by the Army to concerns and special community knowledge such as health cure the contamination problem, compounded by the Army’s effects. Employing a group of experts to work together and false reassurances of successful remediation, caused citizens’ make consensus-based decisions may reduce posturing and distrust of government.228 The RAB, with its lack of proactive increase communication, thus producing effective cleanup power, cannot cure this distrust. strategies. Finally, cleanup strategies must embrace early and D. Funding empowered public participation. Financing cleanup is a major problem confronting remediation at all formerly used defense sites (“FUDS”).

FALL / WINTER 2003 17 A. Increasing Interaction the Corps’ 1986 “issue closed” finding. As seen in Spring Valley, 1. EPA Oversight for Residential land use over time can be multiple, unforeseen, and forgotten. FUDS Expansion of residential communities, however, is certain; as A system intended to protect the environment and populations increase and suburbs expand, conflicts in land uses public health would require levels of close review by an outside will increase. Though Spring Valley is the first known chemically and more experienced agency. Currently, the law only requires contaminated FUDS in a residential area, other similar sites DOD to consult with EPA and to notify EPA of final plans may either be created unknowingly or currently exist. Moreover, and work action in a timely manner.240 No requirement of current, non-residential, chemically contaminated FUDS need review is specified. Because EPA has more expertise restoring to be properly remediated for future community use. In such the environment and contaminated residential communities, community-oriented remediation plans, close EPA review EPA should be required to exercise oversight in DOD cleanup would help achieve successful results for protecting human actions. This could be accomplished by a change in the health and the environment. requirements of CERCLA and DERP or by formal 2. Formal Inter-Agency and Intra- agreements.241 Agency Communication Forums At residential FUDS such as Spring Valley, a In addition to formal agreements, formal partnerships relationship that designates DOD as the lead authority and or communication forums between and within agencies could gives EPA more stringent oversight would allow each agency foster successful cleanups through more communication, less to exercise its expertise. Spring Valley’s remediation involves posturing and more accountability. Agencies involved in a two particular aspects: community health and munitions residential FUDS cleanup could be required by law to meet on recovery. For sites involving ordnance cleanup, DOD, through a regular basis to exchange information and ideas. These agencies such as the Corps, should propose and undertake meetings, which would involve all parties early in the process, cleanup; the Corps is more qualified to review munitions and may also reduce the posturing that becomes entrenched by related concerns than EPA. EPA, however, draws from time. Such forums would encourage accountability to other broader experience regarding community cleanups and is more agencies; agencies would find it more difficult to deflect skilled at investigating chemical hazards and interacting with responsibility to another party or ignore findings when that the public. This expertise is particularly pertinent regarding agency must report regularly to others. A requirement for contamination in communities, where human health is at risk consensual decisions prior to action would strengthen the and fear may be prevalent. The human element is often absent respect of the agencies for each other’s positions and the public’s in DOD-driven cleanups, which primarily involve land with respect for the agencies. no specified future residential use or FUDS that do not contain At Spring Valley, this requirement may have reduced chemical weapons. EPA can draw on its community cleanup the Corps’ posturing and refusal to heed the D.C. Department experience to help DOD formulate successful approaches to of Health’s concerns. Similarly, EPA would not have been such situations, from developing non-disruptive logistical plans able to ignore the findings of EPIC, either within its own to maintaining public trust. organization or before the other agencies. Closer EPA review of DOD-sponsored cleanup B. Emphasizing the Role of Local Governments actions could also help prevent ineffective self-monitoring by Local governments have a particular role to play in those DOD agencies. Outside, attentive review of cleanup such partnerships and should not be omitted. Local plans and progress would motivate DOD to fully investigate governments often hear citizens’ concerns first. Thus, local and address the range of possible contamination and the public’s governments can voice concerns about which federal agencies concerns. lack knowledge or interest. Because they are better positioned Amending the language of CERCLA and DERP to to perceive their citizens’ interests, local governments are better incorporate a requirement that EPA fully review and approve able to protect those concerns, such as contamination or DOD cleanup actions in residential communities, while still property values. allowing DOD primary cleanup and decision-making authority, Similarly, local communities and governments may could address this problem. Statutory changes, however, are possess special knowledge, such as colloquial information about subject to the inertia of Congress and may be difficult to achieve health problems, that federal agencies lack. Without receiving in a timely fashion. input from local governments and seriously considering that A less onerous approach to EPA oversight is necessary. information, federal agencies compromise their ability to create Formal agreements between EPA and DOD for cleanups of efficient and comprehensive solutions. Though local residential communities may create effective EPA review. These governments often can contribute positively to the cleanup agreements would allow parties to have flexibility regarding process, they also often lack funding or stature to make their the level of oversight and thus devise effective cleanup plans voices heard. Thus, agencies must ensure an active role for more quickly.242 Such agreements could be similar to those in local governments in the decision-making process. the DSMOA program that states sign with the DOD or EPA Increased, mandatory attention to local concerns and for funding in cleanup situations.243 information would have assisted the timely and efficient cleanup The failed inter- and intra-agency interactions at Spring of Spring Valley. The Corps now admits that the “D.C. Valley strengthen this proposition of close EPA review. At Department of Health has a little bit better perspective on Spring Valley, a statutory requirement for EPA examination of [information],” because “[t]hey’ve received more anecdotal Corps’ actions in residential defense sites may have prevented information from the community than we have.”244 In Spring EPA’s deference to the DOD and the resulting approval of Valley, the community and local government possessed

18 SUSTAINABLE DEVELOPMENT LAW & POLICY information that seemed suspicious but no formal notably in the Massachusetts Military Reservation (“MMR”) communication forum existed to share these concerns. Though remediation efforts in the 1990s.248 At this contaminated former the D.C. Department of Health questioned human health effects military base seventy miles south of Boston, a group of based partly on its awareness of mysterious illnesses in the detached experts developed a workable cleanup plan in two area, the federal government ignored these concerns. For months, when DOD could not do so for years.249 For more example, though family members who formerly lived at one than fifty years, the military disposed of hazardous wastes such of the most highly contaminated sites died of cancers and as toxic fuels, acids and laboratory chemicals at MMR by suffered from debilitating rashes, the Corps treated the situation pouring them on the ground or into unlined pits.250 Though as an isolated incident and told the family that the site contained these disposal methods were acceptable at the time, the wastes no elevated levels of chemicals.245 If the federal government leached into the water supplies of surrounding communities.251 had treated local government more seriously and considered Eventually, EPA placed the site on the National Priorities List.252 its information about local health problems, the Corps may DOD generated multiple cleanup plans which were have detected the arsenic problem that it found years later — plagued by new discoveries of contamination and intense public notably, a discovery prompted by repeated prodding of a local disapproval.253 As a result, the local government and citizens, government agency, the D.C. Department of Health. Likewise, who had participated in advisory boards and waited over a the Corps’ refusal to acknowledge the concerns of and decade for a solution, lost trust in the federal government’s information possessed by the D.C. Department of Health ability to solve the problem.254 To develop an acceptable regarding the Corps’ 1995 investigation and conclusion delayed cleanup plan, DOD, EPA, and the Massachusetts Department cleanup. Giving local governments more active roles and taking of Environmental Protection created the Technical Review and municipalities’ concerns and knowledge seriously could aid Evaluation Team (“TRET”), an “ad hoc think tank” composed successful results. of scientists from various agencies and from disciplines absent A local government’s obligation and ability to perceive in the original plan, such as ecology and risk assessment.255 citizens’ concerns depends on how successfully citizens make Though its focus was science-based solutions, the TRET sought those concerns known. In these respects, Spring Valley’s protests input from public representatives, regulatory agencies, the and the subsequent local and federal government responses military, the public, contractors, and local government may be anomalous. Spring Valley’s upper-class status makes its throughout the evaluation and analysis process.256 This inclusion residents a politically powerful population. One of D.C.’s major in the decision-making process increased the decision’s employers and taxpayers, AU, also has a stake in the action. legitimacy.257 The ability of each member to interact personally These citizens, well-educated and comfortable with institutions, within the group also minimized position-staking and helped are fully able to voice their concerns, and the D.C. government resolve inter-group conflicts.258 As a result, the TRET’s solutions has great incentive to represent these citizens’ interests. Even were comprehensive, accepted by all parties, and achieved the federal government responded to AU; President Reagan quickly.259 and the Secretary of Defense granted the university a private In the Spring Valley cleanup effort, a neutral expert audience and granted its request that the Army bear remediation group that required consensus and included scientists from costs despite waivers for liability and indemnification in the involved agencies and outside experts could have positively 1917 and 1918 leases.246 impacted the cleanup effort. Pooling experts from the Corps, Situations involving less affluent residents, however, EPA and local government, and involving the public and may not yield the same result. Communities suffering from contractors could have produced more efficient results by toxic contamination are often poor and composed of increasing available information, reducing posturing and minorities, who usually have minimal political clout.247 A encouraging public acceptance. The group could have requirement for local governments to be more active in addressed concerns, such as those of the D.C. Department of developing cleanup solutions could force unresponsive local Health, from a scientific perspective rather than adversarial governments to consider citizens’ concerns in order to present political or legal standpoints. By interacting on the same level them to federal agencies. and sharing the same goal, the group’s members would not be C. Implementing Consensus-Based Expert able to avoid issues by referring to hierarchical schemes of Groups authority. Tasking these experts with the same goal of Formal creation of a neutral group of experts charged determining a solution as a group rather than defending their with reaching consensus may help achieve successful cleanups institutions’ agendas could unite these experts and thus yield and alleviate the public’s loss of trust. To be sure experts address better results. all angles of the problem and that the solution receives general D. Empowering Community Participation support, federal agencies with primary authority could employ Communities should be integrally involved in such working groups of experts. This group of experts would remediation processes to ensure acceptance of outcomes, foster focus on science, and their scope would include community trust in the results, and avoid later costs spent defending concerns. Such a group, with an emphasis on solutions rather decisions.260 Our nation’s history and spirit support this notion. than agency agendas, could also introduce additional expertise Our country was founded as a participatory democracy, and and prevent posturing. Such a group may actually achieve our culture emphasizes our ability to influence law and cleanup solutions and rebuild residents’ trust in the government’s outcomes.261 Charges of “democratic elitism” may afflict ability to solve the problem. bureaucracies that make decisions without considering the This consensus-based, group approach has been affected citizens.262 Decision-making structures that circumvent successfully employed in other contamination cleanup situations, democratic processes and fail to consider concerns and risks

FALL / WINTER 2003 19 held by stakeholders are likely to fail,263 while structures that solutions. By enabling citizens’ shifts in risk perception through empower citizens with decision-making power and educate exposure to other, more objective views of risk, education the public about present hazards enable successful outcomes. may change residents’ requirements for a “successful” Such strategies are more likely to produce results that the public remediation; local citizens may decide that a zero-contamination accepts, that increase trust in officials, and that increase overall level of remediation is not necessary. Thus, a timelier and more cultural well-being. Effective participation returns to the public economically efficient, yet acceptable, outcome is possible. some sense of control over their destinies that toxic Spring Valley residents want to be educated and contamination strips away.264 Moreover, long-term cultural involved in the cleanup proceedings.285 Increased interaction costs from toxic incidents when the public does not accept the with scientists, such as in the TRET, could shift local residents’ outcome may far exceed monetary amounts for damages and understanding of risk. Education of scientists, government numbers of immediate deaths.265 Thus, groups who seek to representatives and local citizens about each groups’ views of devise and implement cleanup strategies for hazardous the problem would aid understanding of each position and contamination situations should seek extensive public assist creation of outcomes that are agreeable to all. participation, ideally through both structural inclusion and Government grants for outside technical assistance for educational programs. education are another avenue to increase public participation.286 The experience at MMR provides some examples of Such grants allow objective review of data that may be public participation, which could be expanded and provided by self-interested industries yet used by agencies in supplemented by other solutions. The TRET, the expert group deciding their cleanup plans.287 Thus, outside scientific assistance at MMR, employed strategies of citizen participation and can help counteract past secrecy or distrust by providing citizens education in its search for a cleanup solution.266 While focusing with objective views.288 on a science-based solution that would ultimately solve the From a statutory stance, funding for outside technical public’s frustrations, the TRET incorporated significant public assistance should be simplified and expanded. Applications participation and education.267 The TRET sought community for federal grants such as TAPP or TAG289 should be made opinion in weekly outreach meetings, allowing the group to easier to complete and understand, so all communities — not consider and incorporate local citizens’ concerns and special just well-educated neighborhoods — can receive grants. Limits knowledge into feasible solutions.268 In public hearings, experts on the grants’ monetary ceilings should be raised as well. For sought to both learn from and educate the public.269 This TAPP grants, available funds should be increased from the interaction altered the public’s conventional views of scientists current $25,000 limit or the requirement that the funding come as unapproachable authorities270 and perhaps also the public’s from the same pool as that for other RAB activities eliminated.290 perception of risk, by narrowing the expert/layperson gap.271 TAG grants are particularly restrictive, and their waivers should 1. Democratic Decision-Making thus be emphasized. These grants have a ceiling of $50,000, Structures and the community must bear 20% of the cost of assistance.291 The TRET recognized that input from the public is Achieving these grants may be particularly challenging to low- crucial to acceptance of outcomes.272 Public participation in income communities, who may not understand how to apply decisions about risk should be more expansive and include for waivers of these requirements. Moreover, the grants are more decision-making authority. For successful democratic limited to residents of sites on the National Priority List; these participation, the group should: (1) share power in the decision- funds would not apply to Spring Valley, which is not listed. making process;273 (2) encompass a diverse set of viewpoints;274 3. Other Avenues (3) be open;275 (4) employ fair procedures;276 and (5) possess a United States citizens have other avenues for active clear mission.277 Selection criteria should be statutory, relevant participation, such as directly lobbying legislators, conducting to the cleanup at issue, and publicly known.278 The RAB at grassroots campaigns and pursuing litigation. Spring Valley Spring Valley possesses several of these characteristics279 but citizens have pursued most of these options. In addition to lacks decision-making power. Even the RAB’s name indicates lobbying that has generated two congressional hearings, the its mere advisory function.280 For the RAB to feel truly RAB is seeking additional congressional funding to reduce the empowered and like a full participant, it should share decision- restoration time through292 actions such as numerous visits to making authority, at least on a consensus-oriented basis.281 Congress and individual letters, targeted lobbying of select 2. Educational Strategies committees and their chairpersons, and a press event.293 At the Citizens cannot fully participate in democratic structures grass-roots level, the RAB is currently planning community unless they understand the issues before them.282 Education outreach activities, such as targeting sympathetic non-profit reduces the threat of decisions based on factual organizations.294 misunderstandings, faulty heuristics, cognitive errors or other The last option, litigation, creates social friction, distrust factors that affect the public’s perception of risk.283 Instituting and transaction costs and should be avoided. Citizens who a program that seeks to educate private citizens could boost feel they have an informed and heeded voice in democratic democratic participation and enable local citizens’ trust in decision-making structures may accept outcomes as legitimate solutions. For educational endeavors to be effective, the public without resort to the judicial system. must trust the information provider; thus, risk communication Overall, an active role for citizens in learning about and by government entities who the public already distrusts may developing future outcomes, rather than merely assessing fail.284 On the other hand, providing educational opportunities proposed solutions, gives local residents a more active stake in to citizens may empower them and increase trust in government. remediation. This role could help legitimize outcomes and Moreover, education can increase timeliness and efficiency of increase citizens’ trust in government.

20 SUSTAINABLE DEVELOPMENT LAW & POLICY E. Assessing Implemented Solutions knowledge, obtain additional funds, and lobby Capital Hill.308 Since the 2001 congressional hearing, agencies involved The RAB is currently requesting a TAPP grant for outside advice in Spring Valley have created several organizations to jointly regarding sampled contaminants, the geophysical investigation share information and devise solutions, and the parties have and health issues related to arsenic.309 As the RAB has become bolstered the roles of older organizations such as the RAB. A more organized, the group has become more respected; the formal partnership now exists between the main players in the Panel’s executive director cites the RAB’s “loud voice” and cleanup, the Corps, EPA and the D.C. Department of Health.295 “influential” input.310 Representatives actively involved in Spring Valley’s remediation However, the Panel and RAB still lack power-sharing from each partner agency generally meet monthly to confront authority with decision makers. Both organizations still perform issues together,296 and their decisions require consensus. The solely an advisory role. For citizen participation, such as in the partners also hear and respect opinions of non-members, such RAB, such authority lends legitimacy to and acceptance of as the Mayor’s Scientific Advisory Panel and the RAB. The outcomes.311 In his written testimony, the chairperson of the agencies and the community are very positive about the Panel stated that involved agencies “have ‘complied’ with its partnership. DOD sees it as a “model for regulatory recommendations” effectively — using “complied” in relationships” at site cleanups,297 and the RAB supports the quotations, for the agencies have no duty to comply at all. 312 partnership’s cooperation, openness and consensus. “What Allowing too many parties to share decision-making power matters most to residents,” according to the RAB, “is that plans may hinder timeliness of results, but granting that power when have the unanimous endorsement of the three partners.”298 appropriate aids success of those results. Agency relationships have been clarified and The cleanup at Spring Valley has long suffered from coordination improved. EPA now proclaims oversight of refusals and failures to effectively communicate at and within the Corps’ data pertaining to Spring Valley.299 EPA also has multiple levels of pertinent government agencies. Statutory declared oversight of its own division, EPIC.300 EPA testified deference, posturing and lack of accountability contributed to that the “obvious failure to communicate within EPA offices these failures. These issues, coupled with the fear and distrust has been rectified,” by refusing to allow EPIC to perform triggered by toxic contamination and aggravated by contract work and by requiring EPIC to report on its projects information mishandling and late, powerless public forums, to EPA headquarters offices.301 resulted in failed cleanups, suspicion and lack of public The Agency for Toxic Substances and Disease Registry confidence in any resolution. New approaches may assist (“ATSDR”) and the D.C. Department of Health have started cleanup plans’ success in the realms of both science and public collaborating closely to produce health analyses.302 In another opinion. Increasing interaction and oversight within agencies collaboration, the D.C. Department of Health is responding and between agencies is crucial. Statutory provisions and formal to the Mayor’s Scientific Advisory Panel’s request to implement communication forums are two routes to ensuring increased a data reporting system to track illnesses that may be related to and effective interaction. Increasing the role of local contamination and evaluate new and existing data geographically governments may also aid successful plans, by providing a closer against known hazards.303 link to local concerns and unique knowledge that federal agencies Many of the changes implemented, however, such as may lack. Creation of a consensus-based group of experts the creation of the partnership, EPA’s new relationship with may reduce posturing, increase communication and derive solid the Corps regarding data, and EPA’s relationship with EPIC, and informed cleanup strategies. Finally, community are ad hoc responses. Such partnerships need to be required at participation must be emphasized early, increased and the start of a cleanup, regardless of scale. As seen in Spring empowered, whether through statutory programs, educational Valley, the initial determination of a project’s scale does not strategies or other avenues. always match reality. V. Conclusion EPA oversight needs to be further clarified. EPA has The spotlight Congress placed on Spring Valley in the not addressed whether its oversight of the Corps is site- 2001 congressional hearing focused attention on problems and specific.304 It should not be; such oversight should be required solutions. Agencies have implemented positive changes, but for reasons discussed earlier, such as self-monitoring.305 many problems still exist. Moreover, issues that caused or Similarly, EPA oversight of its contractor-type divisions is contributed to the contamination problem in Spring Valley and unclear. EPA only addressed control over EPIC.306 All divisions other sites are still outstanding, such as inadequate funding for within EPA with the ability to contract out services should the cleanup of FUDS and ignorance of other potentially meet the same reporting requirements, to prevent analogs of contaminated sites. the miscommunication at Spring Valley between EPA and EPIC. Though Spring Valley is the first discovered residential Other organizations that promote interaction gained FUDS with chemical and explosive hazards in the United States, louder voices within the year. The Mayor’s Scientific Advisory other such sites are likely to surface in coming years. Increasing Panel provides a forum for exchanging information and ideas populations, suburban expansion and absence of land-use and is well respected; the D.C. Department of Health follows records are contributing factors. Cleanup of FUDS exhausts the Panel’s recommendations, while the Corps and ATSDR significant time and monetary resources,313 and the addition of report developments to the Panel and seek its approval for a residential element increases the complexity and urgency of their actions.307 the cleanup. The RAB has also increased its presence and activity. Implementation of measures outlined earlier can Recent meetings reveal the growing knowledge and power of reduce costs of time, money and social goodwill, and this the RAB; its members have seized opportunities to gain opportunity is present in the Washington, D.C. area. Experts

FALL / WINTER 2003 21 have identified fifty-nine FUDS in the District.314 Though many 32 SR 95-774, supra note 22, at 5; Jaffe, supra note 11, at 126. 33 Record of Decision for the Operation Safe Removal Formerly Used Defense Site, Executive are known sites of Civil War forts, others are more suspicious Summary 3-8 (June 2, 1995) [hereinafter ROD]. and currently under investigation.315 Numerous other D.C. 34 SR 95-774, supra note 22, at 3; Fatz 2001, supra note 2, at 3. 35 2001 Hearing, supra note 1 (testimony of Rear Admiral Robert Williams, Director, Division of sites may be at issue as well, as renewed scrutiny of historic Health Assessment & Consultation, Agency for Toxic Substances and Disease Registry) [hereinafter aerial photographs yields indications that areas previously Williams]. 36 U.S. Army Toxic and Hazardous Materials Agency (USATHMA). considered “no risk” may actually be sites of former trenches 37 SR 95-774, supra note 22, at 3; U.S. Army Corps of Engineers, CORPS’PONDENT, at 1, July 2001, and bunkers.316 Meanwhile, surprises continue to surface in Special Issue, at http://www.nab.usace.army.mil/projects/WashingtonDC/springvalley/ newsletter.htm [hereinafter CORPS’PONDENT, July 2001]. Spring Valley. Newly discovered historical records and elevated 38 2001 Hearing, supra note 1 (statement of Thomas Voltaggio, Acting Regional Director, Mid- levels of arsenic in soil at other residential FUDS in the District Atlantic Region, EPA, at 1) [hereinafter Voltaggio 2001]. 39 Id. Voltaggio stated that EPIC’s findings about the potential burial sites went to EPA Headquarters caused the D.C. Department of Health to request expanded in Philadelphia and was not reviewed at EPA Region III headquarters in January, 1993. munitions searches and testing.317 40 CORPS’PONDENT, July 2001, supra note 37, at 1; 2001 Hearing, supra note 1 (testimony of Col. Charles Fiala, Commander, Baltimore District, U.S. Army Corps of Engineers, at 3) [hereinafter Citizens of the District of Columbia are already skittish Fiala 2001]. about the interest and ability of the federal government to 41 SR 95-774, supra note 22, at 3. 42 Id. The Corps did support AU in the construction project. Id. The Corps concluded that the solve chemical contamination situations. These potential sites student newspaper sources were not credible, that all munitions were probably moved to the are an opportunity for the federal government to revamp its Maryland site, and that any buried materials in Spring Valley would only be small amounts of laboratory or experimental materials. ROD, supra note 33, citing Memorandum for Record, Dept. approach to its responsibilities. Through improved internal of the Army, U.S. Army and Military Police Centers & Fort McClellan (Oct. 29, 1986). and external communication at all levels of government, expert 43 SR 95-774, supra note 22, at 3. 44 Ladner, supra note 30, at 1. groups with non-partisan, common interests in results, and more 45 Id. at 2. proactive and empowered roles for both local citizens and 46 Vogel, supra note 31. AU Vice President and counsel Sandra Grosso advocated disclosure of the findings. Id. governments, the federal government may be able to reduce 47 Ladner, supra note 30, at 2. costs and build its most basic wealth, public trust. 48 Spring Valley Investigation (Fox 5 WTTG-DC broadcast, May 19, 2002); Jaffe, supra note 11, at 83, 121. 49 CORPS’PONDENT, July 2001, supra note 37, at 1. (Footnotes) 50 Others had an idea, however. The next day a former AU archivist read a Washington Post article about the find and realized the potentially hazardous character of the munitions. “ ‘Oh boy, [the J.D. Candidate, Georgetown University Law Center, 2003; B.A., Yale University, 1994. The author archivist] said to his wife, ‘this is going to be big.’” Sally Acharya, Digging up the Dirt From World War thanks Professor Lisa Heinzerling for her continued support. I, What’s News at AU at http://garamond.univpubs.american.edu/weeklypast/1112800/ 1 Hearing on Spring Valley — Toxic Contamination in the Nation’s Capital Before the House Subcommittee on story_6.html. the District of Columbia, Committee on Government Reform, 107th Cong. (2001) [hereinafter 2001 Hearing]; 51 ROD, supra note 33, at 5-6. Spring Valley Revisited — The Status of the Clean-Up of Contaminated Sites in Spring Valley Before the House 52 SR 95-774, supra note 22, at 5. Subcommittee on the District of Columbia, Committee on Government Reform, 107th Cong. (2002) [hereinafter 53 ROD, supra note 33, at 6. 2002 Hearing]. 54 Id. 2 2001 Hearing, supra note 1 (statement of Raymond Fatz, Deputy Assistant Secretary, Army — 55 Id. Environment, Safety and Occupational Health, at 3) [hereinafter Fatz 2001]. 56 Id. at 5. 3 MARTIN GORDON ET AL., A BRIEF HISTORY OF THE AMERICAN UNIVERSITY EXPERIMENTAL STATION 57 The Corps employed two testing methods: geophysical surveys to detect ordnance and AND U.S. NAVY BOMB DISPOSAL SCHOOL 7 (1994). environmental sampling to identify chemical contamination.. Fiala 2001, supra note 40, at 2-4. To 4 Id. at 8. conduct the environmental sampling, the Corps and EPA worked together. Id. The Corps tested 5 Id. for unique compounds that would indicate the presence of chemical weapons agents, while EPA 6 Id. at 8-9. tested for a wider array of hazardous substances. Id. at 6-7. 7 Id. at 15, 32-38. 58 Fiala 2001, supra note 40. 8 GORDON, supra note 3, at 11, 23. 59 Voltaggio 2001, supra note 38. 9 GORDON, supra note 3, at 16-18. Two, separate government installations arose in the Spring Valley 60 ROD, supra note 33, at 9; Fiala 2001, supra note 40, at 4. area: Camp American University (later called Camp Leach), a school to train engineer officers and 61 ROD, supra note 33, at 9-10. EPA’s Risk Assessment Guidance for Superfund was the basis for the not involved in the contamination problem, and AUES, which was run by the Bureau of Mines. analysis. Id. at 15. The Corps and EPA conducted risk assessments if test samples contained Id. at 15-17. In 1918, control of AUES shifted from the Bureau of Mines to the newly-created Gas chemicals or metals that exceeded EPA’s risk-based concentrations and the area’s background Service within the War Department, which later became the Chemical Warfare Service. Id. at 19. levels. Levels of arsenic found in the samples did not meet these criteria and thus no risk assessment 10 Id. at 20. was performed for arsenic. Id. at 9; Fiala 2001, supra note 40, at 4. 11 Harry Jaffe, Ground Zero, WASHINGTONIAN, December 2000, at 83. 62 Voltaggio 2001, supra note 38, at 1-2. Elevated arsenic levels were found at three of 150 sampled 12 GORDON, supra note 3, at 21-28. locations. Id. 13 Id. at 21-23. 63 Williams, supra note 35. 14 Id. at 24-28. 64 ROD, supra note 33, at 1-2. This report excluded one property from the “no further action” 15 Jaffe, supra note 11, at 81. See also 2001 Hearing, supra note 1 (statement of Ivan C. Walks, M.D., decision, because the Army did not have data from that property. Chief Health Officer of the District of Columbia, at 6) [hereinafter Walks 2001]. 65 Id. 16 GORDON, supra note 3, at 11. 66 Jaffe, supra note 11, at 122. 17 Id. These dwellers had primary residences elsewhere and leased the property that was then 67 Id. outside the city. Id. 68 Walks 2001, supra note 15, at 9-10. The Dept. of Health alleged that the Corps (1) only tested for 18 Id. at 12. a few of the chemicals used at AUES; (2) took soil samples in isolated locations, at the surface level, 19 Id. and did not use a random grid; (3) used metal detection equipment not adequate to detect 20 Id. at 35-36. individual munitions and failed to excavate many found objects. Jaffe, supra note 11, at 121. 21 Id. 69 The D.C. Department of Health and the Corps signed a Cooperative Agreement for the D.C. 22 Memorandum from U.S. Army Audit Agency to U.S. Army Claims Service, Subject: Review of Department of Health to review the Army’s investigation of Spring Valley. Walks 2001, supra note Claim Against the U.S. Army — Spring Valley, Audit Report No. SR 95-774, at 5 (July 27, 1995) 15, at 9-10. [hereinafter SR 95-774] (citing American Expeditionary Force Regulation No. 253, Nov. 1917). 70 Id. at 11. 23 GORDON, supra note 3, at 32-33. 71 Jaffe, supra note 11, at 122. 24 Id. 72 The D.C. Department of Health requested the Corps to test for arsenic and three other heavy 25 2001 Hearing, supra note 1 (statement of Edward J. Miller, President, W.C.& A.N. Miller metals, and for EPA and ATSDR to conduct human-health-risk analyses. Id. Development Company, at 1-2) [hereinafter Miller]; GORDON, supra note 3, at 39-40. Another early 73 Id. at 83. residential subdivision offered moderately-priced, identical brick homes. Shell holes and dugouts 74 Id. initially marked yards of these popular homes built in the 1920s, according to oral tradition. 75 Walks 2001, supra note 15, at 10. GORDON, supra note 3, at 40. 76 Jaffe, supra note 11, at 83. 26 GORDON, supra note 3, at 42. 77 Id. at 122. This finding excluded the Korean ambassador’s property and the adjacent AU 27 AU’s patriotism continued; at the start of World War II, AU again offered its campus to the property. federal government, and the Navy installed facilities that conducted nominally hazardous activity. 78 Id. Id. at 39, 44-46. 79 Id. 28 2001 Hearing, supra note 1 (testimony of Dr. Benjamin Ladner, President, American University). 80 Fiala 2001, supra note 40, at 5. 29 2001 Hearing, supra note 1 (statement of William Harrop, President of Spring Valley-Wesley 81 Id. at 7. Heights Citizens Association, at 10). 82 Id. 30 2001 Hearing, supra note 1 (statement of Dr. Benjamin Ladner, President, American University) 83 Jaffe, supra note 11, at 122. [hereinafter Ladner]. 84 Id. 31 Steve Vogel, Evidence of D.C. Toxins Unheeded, WASH. POST, July 9, 2001. 85 Fiala 2001, supra note 40, at 6.

22 SUSTAINABLE DEVELOPMENT LAW & POLICY 86 Jaffe, supra note 11, at 122. 141 See 42 U.S.C. § 9607. 87 Fiala 2001, supra note 40, at 7. EPA sampled thirty areas near Spring Valley and outside the FUDS 142 § 9603. boundary to assess background arsenic levels, which were used in comparison with the point of 143 § 9604. See also 40 C.F.R. § 300.5. interest-area samples. Walks 2001, supra note 15. 144 For more discussion, see Stuart W. Risch, The National Environmental Committee: A Proposal to Relieve 88 Jaffe, supra note 11, at 123. Regulatory Gridlock at Federal Facility Superfund Sites, 151 MIL. L. REV. 1 (1996). 89 Fiala 2001, supra note 40, at 7-8. 145 See § 9601(9). 90 See Minutes, Community Meetings (1999), at http://www.nab.usace.army.mil/projects/ 146 See § 9601(22); 40 C.F.R. 300.5. A “release” includes spilling or disposing hazardous substances WashingtonDC/springvalley/Minutes/Community.htm. in the environment, abandoned hazardous materials, and the threat of a release. 91 Walks 2001, supra note 15, at 13. 147 See 40 C.F.R. § 261.23. The munitions qualify as a hazardous waste under RCRA and thus under 92 Id. In some spots at the CDC, the levels reached 498 ppm (compared to a background level of CERCLA as well. See 42 U.S.C. § 9601(14). 13 ppm and EPA’s standard for immediate soil removal at 43 ppm). Steve Vogel & Amy Argetsinger, 148 See 40 C.F.R. pt. 261. More Arsenic Found in Day Care Soil, WASH. POST, Jan. 23, 2001, at B01. 149 As a generator, storer, transporter, and disposer of a hazardous waste, the Corps also must 93 Id. comply with the Resource Conservation and Recovery Act of 1976 (“RCRA”) for the waste now 94 Fiala 2001, supra note 40, at 9; Minutes, Spring Valley Partnering Meeting, May 22, 2002, at http:/ being extracted. See 42 U.S.C. §§ 6901-6992k. /www.nab.usace.army.mil/projects/WashingtonDC/springvalley/Minutes/Partnering.htm 150 EPA, Washington, D.C. Chemical Munitions: Current Site Information, at http://www.epa.gov/ [hereinafter Partnering Meeting, May 2002]. reg3hwmd/super/DC/wash-dc-chem/pad.htm. 95 Minutes, Spring Valley Restoration Advisory Board Meeting, Apr. 9, 2002, at 151 § 9620. www.nab.usace.army.mil/projects/WashingtonDC/springvalley/RAB/minutes.htm [hereinafter 152 Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 (1986). RAB Meeting, Apr. 2002]. 153 10 U.S.C. §2701-2710 (2002). 96 Interview with Deitra Lee, Executive Director, Spring Valley Scientific Advisory Panel (June 25, 154 § 2701(c)(1). 2002) [hereinafter Lee Interview]. The Panel was created under Mayor’s Order No. 2001-32 (Mar. 155 40 C.F.R. § 300.120(c). 2001). Id. 156 10 U.S.C. § 2703(a), (b). 97 D.C. Department of Health, Environmental Health Administration, Hazardous Waste Division, 157 Fatz 2001, supra note 2, at 6. The Baltimore District of the Corps handles Spring Valley’s cleanup. Spring Valley Newsletter (Fall/Winter 2001), at http://dchealth.dc.gov/services/ Id. administration_offices/environmental/services2/waste/index.shtm; Lee Interview, supra note 158 See 10 U.S.C. § 2701(a)(3); 42 U.S.C. § 9620(f). 96. 159 See 10 U.S.C. § 2705. 98 Lee Interview, supra note 96. 160 42 U.S.C. §§ 9620(f), 9621. 99 Letter from Maj. Brian Plaisted, Project Manager for Spring Valley, Baltimore District, U.S. Corps 161 10 U.S.C. § 2703(b). Federal facilities generally cannot receive Superfund financing. See 40 C.F.R. of Engineers, to Community Members, Subject: Spring Valley Restoration Advisory Board Letter § 300.425(b). of Invitation (April 4, 2001). 162 Warren G. Foote, Operation Safe Removal: Cleanup Of World War I Era Munitions in Washington, D.C. 100 10 U.S.C. § 2705(d), (f). 1994 ARMY LAW. 34, 40. 101 Minutes, Spring Valley Restoration Advisory Board Meeting, Mar. 12, 2002, at 163 See 10 U.S.C. § 2701(d); Department of Defense Instruction No. 4715.7 (April 22, 1996), at http:// www.nab.usace.army.mil/projects/WashingtonDC/springvalley/RAB/minutes.htm [hereinafter www.dtic.mil/envirodod/Policies/DodInst/dodi47157_1.htm; Final Department of Defense State RAB Meeting, Mar. 2002]. Memorandum of Agreement (DSMOA) (July 18, 1989), at http://www.epa.gov/swerffrr/documents/ 102 Interview with Sarah Shapley, RAB Co-Chairperson (June 23, 2002) [hereinafter Shapley Interview]. swp789.htm. 103 Interview with Richard Albright, D.C. Department of Health (Aug. 7, 2001) [hereinafter Albright 164 Albright Interview, supra note 103. DC and DOD signed a separate, similar agreement in 1994 to Interview]; Fiala 2001, supra note 40, at 9. cover DC’s expenses for police, ambulance, and HAZMAT services and for personnel overtime, 104 Fiala 2001, supra note 40, at 10. which D.C. officials jokingly call the “Donut Curtain.” Id. 105 2001 Hearing, supra note 1. 165 42 U.S.C. § 9617. EPA independently implements other programs, such as Community Advisory 106 2002 Hearing, supra note 1. Groups, to allow affected citizens at Superfund sites to share their concerns in the decision- 107 Id. See also 2002 Hearing, supra note 1 (statement of Rep. Constance Morella); Steve Vogel, Arsenic making process. See U.S. EPA, OSWER Directive 9230.0-28, Guidance for Community Advisory Groups Cleanup Questions Linger, WASH. POST, June 27, 2002, at B1. at Superfund Sites, at http://www.epa.gov/superfund/tools/cag/resource/guidance/index.htm. 109 2002 Hearing, supra note 1 (statement of Rep. Constance Morella, at 1). The Superfund Reform Act, if passed, would have bolstered statutory public participation at 110 See discussion infra at Part II (D) and Part V(D)(1). Superfund sites, by implementing Citizen Working Groups. The groups would include local 111 Fatz 2001, supra note 2, at 1-2. residents comprising at least fifty percent of the group, plus certain health and technical experts. 112 See 42 U.S.C. § 9620; 10 U.S.C. § 2701(c)(1)(B). Though the group would aim for consensus-based decisions, the group had no decision-making 113 Mary Beth Thompson, Baltimore District in North Atlantic Division Manages $200 Million Program, power. See S. 1834, §103, HR 3800, 103d Cong, (1994) (proposing to amend 42 U.S.C. §961). available at http://www.hq.usace.army.mil/cepa/pubs/apr01/story7.htm. 166 42 U.S.C. § 9617. Some commentators argue the grant application’s complexity causes unfairness 114 US Army Corps of Engineers, FUDS Site Inventory, at http://hq.environmental.usace.army.mil/ in grant distribution, as better-educated communities are able to apply for and thus receive the programs/fuds/fudsinv/fudsinv.html. grants, whereas poorer communities remain disadvantaged. See Deeohn Ferris, Communities of 115 Restoration Information Management System, Formerly Used Defense Sites (FUDS) Project Fact Color and Hazardous Waste Cleanup: Expanding Public Participation in the Federal Superfund Program, 21 Sheet, at http://www.hnd.usace.army.mil/oew/factshts/factshts/gordon.pdf. FORDHAM URB. L.J. 671, 679-80 (1994); John S. Applegate, Beyond the Usual Suspects: The Use of Citizens 116 Id. Advisory Boards in Environmental Decisionmaking, 73 IND. L.J. 901, 922 (1998). 117 Id. 167 § 9617(e)(1). Other programs, such as Technical Outreach Services to Communities (TOSC), 118 Id. provide for technical assistance, not limited to NPL sites. Through TOSC, university faculty, as 119 See Complaint at 14, W.C. & A.N. Miller Cos. v. United States, 963 F. Supp. 1231 (D.D.C. 1997) part of nationwide hazardous substance research centers, provide information and training to (1:96CV00453); 2001 Hearing, supra note 1 (statement of Francis E. Reardon, Auditor General of communities and RABs. See HSRC Outreach Programs for Communities, TOSC Overview, at the Army, at 1) [hereinafter Reardon]. http://www.hsrc.org/hsrc/html/tosc/ustosc.html. 120 Miller Companies claimed it had to sell other property in Maryland at slashed prices to generate 168 § 9617(e)(2). The ceiling and community payment may be adjusted via waivers. Id. capital to cover the shortage of capital and claimed monetary losses from its potential future 169 10 U.S.C. § 2705(c) development of the sold MD land. 170 10 U.S.C. § 2705(d). 121 Reardon, supra note 119, at 4. 171 See id.; see also 32 C.F.R. Pt. 203.3. RAB selection criteria include representation from different 122 SR 95-774, supra note 22. Reardon, supra note 119, at 1. areas affected by the contamination, proximity to points of interest, socio-economic and minority 123 Reardon, supra note 119, at 1; complaint at 14, W.C. & A.N. Miller Cos. v. United States, 963 F. Supp. considerations, hobbies such as gardening, years in the neighborhood, and many others. See U.S. 1231 (D.D.C. 1997) (No. 1:96CV00453). EPA, Federal Facilities — Restoration Advisory Board Implementation Guidelines, at http://www.epa.gov/ 124 Id. at 14-17. Miller Companies claimed approximately $14 million in damages. swerffrr/documents/rab.htm. Many Spring Valley RAB members possess skills enabling their 125 Id. at 1-2. contribution to and participation in the RAB; for instance, one member is a toxicologist with 126 W.C. & A.N. Miller Cos. v. United States, 963 F. Supp. 1231 (D.D.C. 1997). training in epidemiology who has worked on Superfund sites for thirty years; another is an 127 Id. at 1243. economist who specializes in environmental , contamination, and compensation issues. RAB 128 Claim for Damage, Injury, or Death, submitted to Claims Judge Advocate, Military District of Meeting, Mar. 2002, supra note 101. Members participate in activities such as investigation of Washington, United States Army, from American University (July 13, 2001). unexploded ordnance. RAB Meeting, Apr. 2002, supra note 95. 129 In August, 2001, AU had received fifty complaints from private individuals. Albright Interview, 172 10 U.S.C. § 2705(e). supra note 103. 173 32 C.F.R. §§ 203.10, 203.3. Funding for outside assistance is available only when federal, state, 130 W.C. & A.N. Miller Companies v. United States, 1997 U.S. Dist. LEXIS 6361 (D.D.C. 1997). or local authorities lack necessary expertise or when outside assistance will aid in the efficiency, 131 Loughlin v. United States, No. 1:02CV00152, 2002 U.S. Dist. LEXIS 10100, at 5-6 (D.D.C 2002). effectiveness, or timeliness and will increase community acceptance of the activities. 132 Id. at 6-7. 174 See 10 U.S.C. § 2705(g)(1). 133 Id. at 3. 175 See 42 U.S.C. § 9620; 10 U.S.C. § 2701. 134 Id. 176 See Voltaggio 2001, supra note 38. 135 Gillum v. Am. Univ., No. 1:02CV00294; Saum v. Am. Univ., No. 1:02CV00349; see also In Brief, WASH. 177 See 42 U.S.C. § 9620; 10 U.S.C. § 2701. POST, Feb. 21, 2002, at B3. 178 42 U.S.C. § 9620. 136 Gillum, No. 1:02CV00294. 179 See Voltaggio 2001, supra note 38. 137 Saum, No. 1:02CV00349. 180 Spring Valley Residential Advisory Board Meeting, July 9, 2002, at http:// 138 Loughlin, 2002 U.S. Dist. LEXIS 10100, at 5-6; Spring Valley Investigation (Fox 5 WTTG-DC www.nab.usace.army.mil/projects/WashingtonDC/springvalley/RAB/minutes.htm [hereinafter broadcast, May 19, 2002). RAB Meeting, July 2002]. 139 42 U.S.C. §§ 9601-9675 (2002). 181 Id. 140 See id. With CERCLA, Congress created a “Superfund” to finance federal cleanup actions and 182 Id. Boxes of AUES documents have been located in an Army library in Missouri but cannot be provide reimbursement to private and public parties for qualified actions. EPA maintains a reviewed, because the electronic shelf storing system is broken and funding for repairs must be National Priorities List (“NPL”) that ranks sites by their threat to public health and environment. found. Id. Only sites on the NPL can receive Superfund money; these sites must be supervised by EPA, unless 183 See, e.g., Paul Slovic, Perceived Risk, Trust, and Democracy, 13 Risk Analysis 675, 676 (1993) [hereinafter otherwise designated. See id. Slovic, Risk, Trust, and Democracy]; Kai Erikson, Toxic Reckoning: Business Faces a New Kind of Fear,

FALL / WINTER 2003 23 HARVARD BUS. REV. 118, 119-20 (Jan.-Feb. 1990); Paul Slovic, Perception of Risk, 236 Science 280 Norton Gets $5.2 Million for Spring Valley Cleanup, Apr.11, 2002, at http://www.house.gov.norton/ (1987) [hereinafter Slovic, Perception of Risk]. 20020411a.htm. 184 Erikson, supra note 183, at 119-20. 235 GAO Report, supra note 222, at 26. 185 Id. 236 RAB Meeting, Mar. 2002, supra note 101. 186 Id. at 121. 237 Id. 187Id. 238 Id. 188 Id. at 124. 239 Shapley 2002, supra note 220, at 2. 189 MICHAEL GERRARD, WHOSE BACKYARD, WHOSE RISK: FEAR AND FAIRNESS IN TOXIC AND NUCLEAR 240 See 10 U.S.C. § 2701(a)(3); 42 U.S.C. § 9620(f). WASTE SITING, 1994, 103, quoting U.S. C ONST. amend. IV (guaranteeing “[t]he right of people to be 241 See id. secure in their … houses”). 242 This flexibility may be a hazard if EPA abdicates the role as overseer either by allowing standards 190 See Slovic, Perception of Risk, supra note 183, at 280. to be too lax or by not checking plans and progress in a regular and timely manner. 191 Cass Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 60; see also Slovic, Perception of Risk, 243 See discussion supra at Part (II)(D)(2). supra note 183, at 285. 244 Public Meeting, Feb. 2002, supra note 200. 192 Sunstein, supra note 191, at 57; see also Slovic, Perception of Risk, supra note 183, at 280; Slovic, Risk, 245 Jaffe, supra note 11, at 15-16. Trust, and Democracy, supra note 183, at 676. 246 Albright Interview, supra note 103. 193 Slovic, Perception of Risk, supra note 183, at 283. 247 For example, a 1987 study found that three out of every five African Americans and Hispanic 194 Interview with Ginny Durrin, Spring Valley resident (Aug. 15, 2001). Americans live in communities with uncontrolled toxic contamination. See Kentucky 195 Id. Environmental Foundation, Chemical Weapons Disposal and Environmental Justice, at http:// 196 2001 Hearing, supra note 1 (statement of Sarah Shapely, Co-Chairperson, Spring Valley Restoration www.cwwg.org/EJ.html. Advisory Board) [hereinafter Shapley 2001]. 248 See Edward Scher, Negotiating Superfund Cleanup at the Massachusetts Military Reservation, in LAWRENCE 197 Steve Vogel, EPA Urges Quicker Pace in NW Probe for Arsenic, WASH. POST, Feb. 9, 2001, at B3. SUSSKIND ET AL., THE CONSENSUS BUILDING HANDBOOK: A COMPREHENSIVE GUIDE TO REACHING 198 Id. AGREEMENT 859 (Sage Publications, 1999). Though MMR remediation is still ongoing, the success 199 Id. of the TRET in quickly achieving a sound and accepted plan is notable. 200 See Minutes, U.S. Army Corps of Engineers, Baltimore District, Spring Valley Project Public 249 Id. at 876. Meeting, Feb. 19, 2002, at http://www.nab.usace.army.mil/projects/WashingtonDC/springvalley/ 250 Id. at 859. Minutes/Community.htm [hereinafter Public Meeting, Feb. 2002]. 251 Id. at 859-60. 201 ATSDR, Healthy Children – Toxic Environments: Acting on the Unique Vulnerability of Children Who 252 Id. at 860. Dwell Near Hazardous Waste Sites, at http://www.atsdr.cdc.gov/child/chw497.html. 253 Id. at 861-64. 202 “Did you know that there are bombs all over campus? Chemical bombs! Conversation overheard 254 See id. between two American University students, during 2001 Hearing, supra note 1. 255 Id. at 865-66. 203 Shapley 2001, supra note 196, at 1. 256 Id. at 865-68. 204 Erikson, supra note 183, at 123, 125. 257 See id. 205 Slovic, Risk, Trust, and Democracy, supra note 183, at 677. 258 Id. at 868. A Steering Committee addressed problems such as scientists’ uncertainty about 206 The exception Slovic notes is an increase in trust from specific news that an advisory panel of balancing their roles as agency representatives and detached experts as well as the revolving-door citizens and environmentalists was formed that would be able to monitor and shut down a nature of the panel. nuclear plant. Id. at 677-78. This positive impact of an such news, however, would not apply to 259 Id. at 866. Spring Valley, for the citizens’ advisory group there does not posses such authority. 260 See Applegate, supra note 166, at 924. 207 Sunstein, supra note 191, at 41; Slovic, Risk, Trust, and Democracy, supra note 183, at 677-79. 261 See Slovic, Risk, Trust, and Democracy, supra note 183, at 680. 208 Wesley Long, quoted in Brooke Masters, Liquids Found in Spring Valley Shells May Be Toxic, WASH. 262 Sunstein, supra note 191, at 39, 42. POST, Jan. 8, 1993, at B6. 263 See NATIONAL RESEARCH COUNCIL, UNDERSTANDING RISK: INFORMING DECISIONS IN A DEMOCRATIC 209 Edward Stevens, evacuated resident, quoted in Avis Thomas-Lester & Brooke Masters, 25 Houses SOCIETY (Paul C. Stern & Harvey V. Fineberg, eds., 1996), which uses EPA’s assessments of the Evacuated as WWI Shells Examined, WASH. POST, Jan. 7, 1993, at B1. health risks of dioxin and the use of Yucca Mountain, Nevada, as a nuclear waste repository, as 210 W.C. & A.N. Miller Cos, 963 F. Supp. at 1243. examples to illustrate the failures of risk-based decisions that omit stakeholders’ concerns. 211 RAB Meeting, supra note 180. 264 See discussion supra at Part III(B). See also Sunstein, supra note 188, at 41. 212 Shapley 2001, supra note 196; 2001 Hearing (statement of William Harrop, President, Spring- 265 See Sunstein, supra note 191, at 61-61. See also Paul Slovic’s discussion of “signal potential” and Valley-Wesley Heights Citizens Association) [hereinafter Harrop 2001]; see also Minutes, Spring associated costs, in Slovic, Perception of Risk, supra note 183, at 283. Valley Residential Advisory Board Meeting, Feb. 12, 2002, at http://www.nab.usace.army.mil/ 266 Scher, supra note 248, at 873. projects/WashingtonDC/springvalley/RAB/minutes.htm [hereinafter RAB Meeting, Feb. 2002]. 267 Id. 213 Shapley 2001, supra note 196; Harrop 2001, supra note 211; see also RAB Meeting, Feb. 2002, supra 268 Id. note 212. 269 Id. at 875. 214 Slovic, Risk, Trust, and Democracy, supra note 183, at 677-79; Slovic, Perception of Risk, supra note 183, 270 Id. at 873. at 285. 271 See discussion supra at Part III(B)(1). 215 Slovic, Risk, Trust, and Democracy, supra note 183, at 679. See also GERRARD, supra note 189, at 132. 272 Numerous scholars share this view. See, e.g., Sunstein, supra note 191, at 39-62; Slovic, Risk, Trust, 216 Slovic, Risk, Trust, and Democracy, supra note 183, at 677-79. and Democracy, supra note 183, at 680; Bradford C. Mank, Reforming State Brownfield Programs to Comply 217 See, e.g., Spring Valley Investigation (Fox 5 WTTG-DC broadcast, May 19, 2002); Steve Vogel, with Title VI, 24 HARV. ENVTL. L.REV. 115 (2000); Joel B. Eisen, Brownfields Policies for Sustainable Cities, Evidence of D.C. Toxins Unheeded, WASH. POST, July 9, 2001; Harry Jaffe, Ground Zero, WASHINGTONIAN, 9 DUKE ENVTL. L. & POL’Y F.187 (199); Applegate, supra note 166. But see Kevin M. Young, December 2000. Superfund Reform — Where Less Is More, 4 ALBANY L. ENVT’L OUTLOOK 24, 27 (1999) (arguing that 218 Shapley Interview, supra note 102. public participation should not be mandatory and allowed only where necessary). 219 Id. 273 Slovic, Risk, Trust, and Democracy, supra note 183, at 680; Mank, supra note 252, at 177; Eisen, supra 220 2002 Hearing (statement of Sarah Shapely, Co-Chairperson, Spring Valley Restoration Advisory note 252, at 225; Applegate, supra note 167, at 952. Board) [hereinafter Shapley 2002]. 274 Mank, supra note 272, at 177. 221 Fatz 2001, supra note 2, at 5. 275 Slovic, Risk, Trust, and Democracy, supra note 166, at 680; Applegate, supra note 167, at 952 222 Letter from Maj. Brian Plaisted, Project Manager for Spring Valley, Baltimore District, U.S. Corps 276 Applegate, supra note 166, at 952. But see Mank, supra note 272, at 181 (noting that fair procedural of Engineers, to Community Members, Subject: Spring Valley Restoration Advisory Board Letter may still result in unfairness, due to cultural and socioeconomic biases). of Invitation (April 4, 2001). 277 Applegate, supra note 166, at 932. 223 As discussed infra, DERP allows formation of a Residential Advisory Board (RAB), composed 278 See Mank , supra note 272, at 181. of representatives from the military, EPA, local government, and private citizens. Spring Valley’s 279 Spring Valley’s RAB consists of fourteen community members chosen by a selection committee, RAB consists of fourteen community members chosen by a selection committee, representatives representatives from the Corps, EPA, AU, Horace Mann School, and the business community, from the Corps, EPA, AU, a local school, and the business community, including Miller Companies. including Miller Companies. RAB Meeting, Mar. 2002, supra note 101. Other representatives are Minutes. Other representatives are often present, such as representatives from the D.C. Department often present, such as representatives from the D.C. Department of Health and ATSDR. RAB of Health and ATSDR. RAB Meeting, Mar. 2002, supra note 101. Meeting, Mar. 2002, supra note 101. 224 Public Meeting, Feb. 2002, supra note 200. 280 See 10 U.S.C. § 2705(d). 225 RAB Meeting, Feb. 2002, supra note 212. 281 This lack of authority was also a main criticism of the Citizens’ Working Groups featured in the 226 See 10 U.S.C. § 2705. unsuccessful 1994 CERCLA amendments. See supra note 165. 227 Public Meeting, Feb. 2002, supra note 200. 282 Mank expands the notion of education about issues; he suggests classes to teach citizens how 228 RAB Meeting, Feb. 2002, supra note 212. to publicly participate. Mank, supra note 272, at 177. Ferris, on the other hand, slightly contracts 229 RAB Meeting, Apr. 2002, supra note 95. the notion of broad public education; she discusses the possibility of a “Technologies 230 Estimates range as high as $100 billion to clean up UXO on training ranges. 2002 Hearing, supra Clearinghouse,” which would evaluate latest technologies and make proposals to citizen boards, note 1 (statement of Rep. Earl Blumenauer, at 1). No organized solution or legal requirements thus circumventing perhaps unnecessary grappling with highly technical and difficult information. exist to address this widespread issue, which is outside the scope of this paper. The Range Rule, Ferris, supra note 166, at 684. proposed to deal with munitions disposal, is not in force. To effectively handle munitions cleanup 283 See discussion supra at Part III(B)(1). situations in a non-patchwork manner and protect human safety, Congress and DOD need to 284 See Slovic, Risk, Trust, and Democracy, supra note 191, at 676-77; see also Sunstein, supra note 188, address the UXO problem facing both active and former defense sites, such as Spring Valley. at 41. 231 Sherri Goodman, The Bombs Beneath Us, WASH. POST, Aug. 5, 2001, at B07. 285 Shapley 2001, supra note 196; Harrop 2001, supra note 212; see also RAB Meeting, Feb. 2002, supra 232 Id. note 212. 233 GAO, Environmental Contamination: Many Uncertainties Affect the Progress of the Spring Valley Cleanup, 286 See discussion supra at Part II(D)(3). Report to the Subcommittee on the District of Columbia, Committee on Government Reform, 287 Mank, supra note 272, at 167. House of Representatives, GAO-02-556, at 22 (June 2002) [hereinafter GAO Report]. 288 See Applegate, supra note 166, at 927-30 (discussing a Citizens’ Advisory Board implemented at 234 2002 Hearing, supra note 1 (statement of Raymond Fatz, Deputy Assistant Secretary, Army — Fernauld, a nuclear weapons site with a history of distrust and use of an independent technical Environment, Safety and Occupational Health, at 4) [hereinafter Fatz 2002]. See also Press Release, consultant for citizen education).

24 SUSTAINABLE DEVELOPMENT LAW & POLICY 289 See discussion supra at Part II(D)(3). 290 See 10 U.S.C. § 2705(g)(1). 291 See 42 U.S.C. § 9617(e)(2). 292 RAB Meeting, Mar. 2002, supra note 101; RAB Meeting, Apr. 2002, supra note 95. 293 RAB Meeting, Apr. 2002, supra note 95; RAB Meeting, July 2002, supra note 211. The RAB Chair expects to meet with the DOD’s senior budget official for full briefing on portions of the President’s budget. RAB Meeting, Mar. 2002, supra note 101. 294 RAB Meeting, Apr. 2002, supra note 95. 295 GAO Report, supra note 233, at 3. Additionally, executive officials of the partner agencies have formed a separate, formal group, the Senior Executive Review Group, to review information and make cleanup decisions. This group has invited the RAB chairperson to attend meetings as well. Public Meeting, Feb. 2002, supra note 200. 296 See Partnering Meeting Minutes, at http://www.nab.usace.army.mil/projects/WashingtonDC/ springvalley/Minutes/Partnering.htm. 297 Fatz 2002, supra note 234, at 6. 298 Shapley 2002, supra note 220, at 1. 299 2002 Hearing, supra note 1 (statement of Thomas Voltaggio, Regional Administrator —EPA Region III) [hereinafter Voltaggio 2002]. 300 Id, at 5. 301 Id. 302 2002 Hearing, supra note 1 (statement of James A. Buford, Interim Director, D.C. Department of Health, at 3-4, 9) [hereinafter Buford 2002]; 2002 Hearing, supra note 1 (statement of Rear Admiral Robert C. Williams, Director - Division of Health Assessment & Consultation, ATSDR, at 3-4) [hereinafter Williams 2002]. 303 Report of the District of Columbia Mayor’s Spring Valley Scientific Advisory Panel, at 4, May 29, 2002, at http://dchealth.dc.gov/services/administration_offices/environmental/services2/ waste/index.shtm; see also Steve Vogel, D.C. Arsenic Panel Wants Illness Facts, WASH. POST, May 30, 2002, at B1. 304 Voltaggio 2002, supra note 299, at 5. 305 See discussion supra at Part III(A)(5). 306 Voltaggio 2002, supra note 299, at 5. 307 U.S. Army Corps of Engineers, CORPS’PONDENT, at 3, May-June 2002, http:// www.nab.usace.army.mil/projects/WashingtonDC/springvalley/newsletter.htm. For example, the Corps waited to begin soil excavation until the Mayor’s Scientific Advisory Panel approved the final standard of twenty parts per million. Steve Vogel, D.C. Arsenic Panel Wants Illness Facts, WASH. POST, May 30, 2002, at B1. 308 See Shapley 2002, supra note 220. 309 RAB Meeting, Apr. 2002, supra note 95. See discussion supra at Part II(D)(3). 310 Lee Interview, supra note 96. 311 See discussion supra at Part IV(D). 312 2002 Hearing, supra note 1 (statement of Dr. Bailus Walker, Jr., Chairman, District of Columbia Mayor’s Spring Valley Scientific Advisory Panel, at 7) [hereinafter Walker 2002]. 313 FUDS clean-up includes removal of ordnance, hazardous waste, or building demolition and debris removal. Congress allocates funding for FUDS cleanup annually and can add funding as special projects arise, such as Spring Valley. The total cost for all FUDS cleanups is estimated at $12 billion; at current funding levels, cleanup will require fifty years to complete. Fatz 2001, supra note 2, at 2, 4. 314 2002 Hearing, supra note 1 (testimony of Col. Charles Fiala, Commander, Baltimore District, U.S. Army Corps of Engineers, at 14). 315 Voltaggio 2002, supra note 299, at 8-9. Areas to be investigated or under investigation include: Navy Yard, the sole Superfund site in D.C., Walks 2001, supra note 15; Catholic University, where researchers developed extremely toxic chemical weapons during World War I, id. ; the former site of the Bureau of Printing and Engraving, id.; Camp Simms, a site used as a small-arms target range until 1959 and now partially a park, id.; the University of D.C., the site of a fuse laboratory operated by the National Bureau of Standards and later by the Department of Defense, Steve Vogel, Expanded D.C. Toxin Searches Requested, WASH. POST, Aug. 2, 2001,p at B1; the Chain Bridge area of the C&O Canal on the Potomac River, In Brief, WASH. POST, Mar. 4, 2002, at B3; and the Carderock Division of the Naval Surface Warfare Center in nearby Bethesda, Steve Vogel, Carderock Area Eyed As WWI Chemical Test Site, WASH. POST, Mar. 21, 2002, at B3. 316 Partnering Meeting, May 2002, supra note 94. 317 Partnering Meeting, May 2002, supra note 94; Steve Vogel, D.C. Wants Expanded Tests in NW for Arsenic, WASH. POST, May 29, 2002, at B1.

FALL / WINTER 2003 25 WORLD NEWS BITS

By Melissa Frisk1 ripping” to prepare soil for the cultivation of vineyards and Americas orchards in the mid-1990’s. The rancher claimed that the he was engaged in “pure plowing” that should not be regulated under the federal Clean Water Act due to the exemption for Chile and the U.S. Finalize Bilateral Trade Agreement 13 On December 12, 2002, the U.S. and Chile signed a bilateral “normal farming activities.” However, the Ninth Circuit held trade agreement that has been under negotiation for over a that that a federal permit was required for “deep ripping,” and that the exemption does not apply when “land is converted to decade and arguably was largely made possible because of 14 President Bush’s recently approved “fast track” authority.2 The a different use.” trade agreement is applauded for its plan to phase out tariffs over the next 12 years, but concern by environmentalists exists Europe regarding Chile’s dependence on natural resource based exports.3 Fallout after Oil Tanker Disaster Means Stricter Canada Ratifies the Kyoto Protocol Regulations The Canadian Senate followed the “Commons” (Canadian On November 19, 2002 the oil tanker “Prestige” went down House of Representatives) in endorsing the Kyoto Protocol.4 off the coast of Galicia, Spain spilling tens of thousands of Prime Minister Jean Chretien, formalized the ratification of tons of oil.15 In response to the disaster, Spain and France the greenhouse gas agreement made by the U.N. in 1997.5 have made a bilateral agreement to impose more stringent Canada is the runner-up behind the U.S. for being the worst inspections on ships.16 The agreement allows for increased polluting country per capita, so their ratification of the Kyoto access to information for government authorities in regards to Protocol will help serve as a model for the U.S. on how to tankers traveling in the exclusive economic zones (EEZ’s) of address global climate change. both countries.17 Additionally, the agreement allows for on- the-spot inspections and expulsion of un-seaworthy ships.18 What will NEPA look like after the Bush administration Spanish Prime Minister Jose Maria Aznar is looking to other is finished with it? European Union governments to improve maritime safety rules Recent initiatives by the Bush administration seek to reduce at the Copenhagen European Union summit meeting in regulations under the nation’s “Magna Carta” of environmental December. 19 law, the National Environmental Policy Act.6 Bush’s “Healthy Forest Initiative” sets it sights on exempting offshore military Africa activities in the U.S. Exclusive Economic zone, shortcutting the environmental review process for certain transportation African Elephants Lose, Latin American Mahogany Gains projects.7 Also, on the day before Thanksgiving, the Bush at CITES Conference Administration announced forest planning rules that reduce While mahogany was added to the Convention on International the public comment period from 135 to 60 days, and remove Trade in Endangered Species’ (CITES) Appendix II, increasing a provision that helps ensure the survival of species.8 regulation by requiring certain states to obtain CITES export permits and ensure export sustainability, a ban was lifted on Clean Air Takes Back Seat, and States Sue the sale of ivory to the international market in Botswana, The U.S. Environmental Protection Agency (EPA) recently Namibia, and South Africa.20 The sale of ivory will be limited weakened new source review under Clean Air Act, by allowing to ivory stockpiles (“legal stocks that have been collected from for modernization of industrial facilities without proper elephants that died of natural causes or as a result of controls on emissions.9 The changes to the Clean Air Act are governments-regulated problem-animal control.”)21 Under the the most significant under the Bush administration, but rather new consensus on ivory, however, the CITES Secretariat and than improve the quality of the air, they ease regulations on Standing Committee may suspend trade for non-compliance pollution control.10 Nine states have filed suit against the Bush in exporting and importing countries and if it is found that the Administration rules, saying that rule-making authority used trade is having harmful effects on elephant populations in other exceeded that allowed under their legislative authority.11 African countries. This decision ended a 1989 ban by the United Nations on international trade in ivory.22 Supreme Court Decision on “Deep Ripping” The U.S. Supreme Court’s tie vote on federal penalties for deep ripping in wetlands leaves open the dispute over the “normal farming activities” exemption to the federal Clean Water Act.12 The case concerned a California rancher and his use of “deep

26 SUSTAINABLE DEVELOPMENT LAW & POLICY 4 Peter Calamai, Senators Approve Kyoto Protocol, TORONTO STAR, December 13, 2002. Middle East 5 Cold Leap on Global Warming, CHRISTIAN SCIENCE MONITOR, December 18, 2002, at 8. 6 Elizabeth Shogren, Wildlife Protections Lost in New Forest Rules; Industry Hails “Responsible Care” and Hazardous-Waste in Israel Changes as Being Long Overdue, But Environmentalists Charge the White House is Doing the Bidding of the Timber Companies, U.S. FOREST SERVICE, available at . The stench around Ramat Hovav Industrial Zone in Israel has 7 Id. local residents worried about their health and standard of 8 Id. living.23 The Ramat Hovav Industrial Zone includes the Israeli 9 Dina Cappiello and Karen Masterson, Critics: Federal Clean-Air Plan Recycles State’s, THE HOUSTON CHRONICLE, November 23, 2002. national hazardous-waste disposal plant in addition to 16 10 Editorial, Christie Whitman’s Tribulations, THE NEW YORK TIMES, November 27, chemical factories. In an area that suffers from unemployment, 2002. the Industrial Zone provides jobs to around 4,000 people.24 11 Eric Planin, New Pollution Standards Prompt Suit, THE WASHINGTON POST, January 1, 2003. In question are the long-term and cumulative effects from 12 Bob Egelko, Wetlands Penalty is Upheld by Supreme Court, THE SAN FRANCISCO exposure to the “polluting materials emitted by the plants,” CHRONICLE, December 17, 2002, at A5 (stating that the wetlands decision is only especially considering the interactions of the various chemicals.25 binding in the Ninth Circuit). See also Borden Ranch Partnership v. U.S. Army Corps of Engineers, 01-1243. While the Israeli Ministry of the Environment has released 13 Id. information on the concentration of pollutants released from 14 Big Agriculture v. Wetlands, THE NEW YORK TIMES, December 16, 2002, at A26. the plants, and the hazardous-waste disposal plant has begun 15 Friends of the Earth International, Press Release, Prestige Oil Tanker Sinking Today: Make Oil Companies Liable for Damage, Says Friends of the Earth, November 19, instituting a project similar to the “responsible care” program 2002, (calling for tougher liability laws for oil companies in the wake of the adopted by companies worldwide after the Bhopal disaster, sinking) available at (last visited local and international activists are concerned that the program November 29, 2002). 16 will not adequately address health and safety concerns.26 Emma Daly, After Oil Spill, Spain and France Impose Strict Tanker Inspections, THE NEW YORK TIMES, November 27, 2002. 17 Id. 18 Id. Asia 19 Id. 20 CITES, Press Release, CITES Conference Ends with Strong Decisions on Wildlife Land-use Landslides in Malaysia Conservation, available at (last visited November 29, 2002). Four serious landslides in Selangor, Malaysia in the past decade 21 Id. have some Malaysians outraged by inadequately regulated 22 James Reynolds, US Support Tips Balance As Ivory Trade Resumes After 13-Years, THE development projects on landslide-prone hilltops. Local SCOTSMAN, November 13, 2002. 23 Patricia Golan, Causing a Stink, THE JERUSALEM POST, December 6, 2002, Pg. 10 lawmakers and activists in Malaysia are seeking a constitutional (citing the “revolting stench” that surrounds the Ramat Hovav Industrial Zone). amendment that would allow federal authorities to monitor 24 Id. (also explaining that the population around the Industrial Zone is an local development projects through various means, including a estimated 400,000). 25 27 Id. (stating that the artificial ponds used to evaporation of the ponds receive mandatory environmental impact assessment. more chemicals than they can handle). 26 Id. Development in the Hong Kong Harbor 27 Shelia Singam, The Finger of Blame, NEW STRAITS TIMES (Malaysia), November 30, 2002, at 4 (explaining that residents are calling for action to protect communities The Wan Chai reclamation, a project recently approved by the from deadly and destructive landslides). local Town Planning Board, allows for development in the 28 Philip Bowring, Don’t Let Bureaucrats Ruin the Harbour, SOUTH CHINA MORNING POST Hong Kong Harbor, and is controversial because of the LTD., December 18, 2002 (explaining that the development project will allow for the building of roads, commercial buildings and non-green area focused consequences for esthetic enjoyment and environmental damage parks). 28 in the harbor. Some are claiming that the approval of this 29 Cheung Chi-fai, Ecological Fears Over Bridge Dismissed, SOUTH CHINA MORNING POST development project violates the Protection of the Harbour LTD, December 10, 2002 (stating that the new law will not necessarily effect the development of a new bridge over the Pearl River). Ordinance, which was enacted in 1997. The Ordinance requires 30 Id. that development projects in the harbor must be considered in light all reasonable alternatives and whether they are for the public benefit and essential.

New Law Requiring Environmental Assessment on Development Projects in China The National People’s Congress of China passed an environmental protection law in October.29 The law, to take effect on September 1, 2003, requires an environmental impact assessment for major planning and projects.30

(Footnotes) 1 Melissa Frisk is a second year law student at American University Washington College of Law. 2 Paul Blustein, U.S., Chile Agree on Free Trade; Bilateral Pacts Are Special Focus of Bush Administration, THE WASHINGTON POST, December 12, 2002; Elizabeth Becker and Larry Rohter, U.S. and Chile Reach Free Trade Accord, THE NEW YORK TIMES, December, 12, 2002. 3 Mark Mulligan, Chile Hails Trade Deal as Finest Moment: A Bilateral Agreement With the US Should Spur Much Needed Foreign Investment and Modernization, FINANCIAL TIMES, December 17, 2002. Elizabeth Becker and Larry Rohter, U.S. and Chile Reach Free Trade Accord, THE NEW YORK TIMES, December, 12, 2002.

FALL / WINTER 2003 27 LOCAL CALENDAR

JANUARY

30-31 22-24 Washington D.C. Washington D.C. Education for a Sustainable and Secure Future Organized by: The Earth Technologies Forum Organized by: National Council for Science and the The Conference on Climate Change and Ozone Protection Environment Web: http://www.earthforum.com Web: http://www.ncseonline.org/NCSEconference/ 2003conference 30- May 2 Washington D.C. MARCH EnvironDesign 7 Organized by: EnvironDesign Web: http://www.isdesignet.com/ED/index.html 13-14 Washington D.C. Sustainable Enterprise Summit Organized by: World Resources Institute Web: http://www.wri.org/sep

28 Washington, D.C. Communities & Commodities: Linking International Trade & Sustainable Development Organized by: American University’s International Law Review APRIL

5 Washington D.C. Conference on the Politics of the Environment Organized by: Global Communications for Conservation, Inc. Web: http://www.gcci.org/conference/politicsenv_dc.html

14-15 Washington D.C. 7th National Symposium on Market Transformation Organized by: American Council for an Energy Efficient Economy & Consortium for Energy Efficiency Web: http://www.aceee.org

28 SUSTAINABLE DEVELOPMENT LAW & POLICY INTERNATIONAL CALENDAR

JANUARY 10-12 Montreal, Canada Expert Group meeting on Indicators of Biological Diversity 13-15 Organized by: Secretariat of the Convention on Biological Leuven, Belgium Diversity Symposium on History and Forest Biodiversity: Challenge Web: http://www.biodiv.org for Conservation Organized by: International Union of Forest Research 17-21 Organization Ubon Ratchathani, Thailand Web: http://iufro.boku.ac.at/iufro ITTO/IUCN International Workshop on Increasing the Effectiveness of FEBRUARY Transboundary Conservation Areas in Tropical Forests Organized by: World Conservation Union – IUCN 3-7 Web: http://www.iucn.org/themes/fcp/activities/ Nairobi, Kenya transboundary1.htm 22nd Session of the UNEP Governing Council Organized by: United Nations Environment Programme MARCH Web: http://www.unep.org 10-14 3-7 Rome, Italy Chiang Mai, Thailand Collaborative Partnership of Forests 3rd World Congress on Medicinal and Aromatic Plants for Organized by: U.N. Food and Agriculture Organization Human Welfare: From Web: http://www.fao.org Biodiversity through Science and Technology, Trade and Industry to Sustainable Use 16-23 Organized by: Wocmap III Kyoto, Japan Web: http://www.wocmap3.org Third World Water Forum Organized by: Forum Secretariat 5-6 Web: http://www.worldwaterforum.org Montreal, Canada Workshop on Transboundary Impacts: Impact Assessment 23-27 without Borders Zurich, Switzerland Organized by: Association quèbècoise pour l’èvaluation Fifth International Conference on Environmental Future: d’impacts Environmental Future of Aquatic Ecosystems Web: http://www.cam.org Organized by: Swiss Federal Institute for Environmental Science and Technology 6-9 Web: http://www.icef.eawag.ch/ New Dehli, India Dehli Sustainable Development 2003 24-27 Organized by: The Summit Secretariat Manila, Philippines Web: http://www.terlin.org/dsds/ Second International Tropical Marine Ecosystem Management Symposium Organized by: International Coral Reef Initiative Web: http://www.icgeb.org/biosafety

FALL / WINTER 2003 29 INTERNATIONAL CALENDAR

31- April 2 Beijing, China Third Session of the United Nations Forum on Forests International Symposium on Climate Change Organized by: Secretariat Intergovernmental Forum on Organized by: China Meteorological Administration Forests Email: [email protected] Web: http://www.un.org/ese/sustdev/forests.htm APRIL

SOURCE: CONVENTION ON BIOLOGICAL DIVERSITY’S CALENDAR 28-30 OF EVENTS Vienna, Austria WWW.BIODIV.ORG/EVENTS Fourth Ministerial Conference on the Protection of Forests in Europe Organized by: Ministerial Conference on the Protection of Forests in Europe, Liaison Unit Vienna Web: http://www.mcpfe.org

MAY

6-8 Addis Ababa, Ethiopia Fourth Workshop on Sustainable Use Organized by: Secretariat of the Convention on Biological Diversity Web: http://www.biodiv.org

12-24 New York, USA 2nd Session of the Permanent Forum on Indigenous Issues Organized by: United Nations High Commissioner for Human Rights

19-23 Bonn, Germany International Conference on “Rural Livelihoods, Forests and Biodiversity” Organized by: Centre for International Forestry Research Web: http://www.cifor.cgiar.org/shared/template/ events.asp

26- June 6 Geneva, Switzerland

30 SUSTAINABLE DEVELOPMENT LAW & POLICY WRITING COMPETITION

Sustainable Development Law & Policy Writing Competition

SDLP is hosting their first Sustainable Development Writing Competition and is inviting all law students to submit articles for consideration. Judges include SDLP staff and faculty of American University – Washington College of Law. The author of the winning article will receive a $250 prize and have their article published in SDLP’s next issue.

TOPIC

Sustainable development has been defined as “development which meets the needs of the present without compromising the ability of future generations to meet their own needs” (Report of the World Commission on Environment and Development, 1987). Write an article analyzing issues of law and policy pertaining to the struggle between environmental protection or natural resource use and economic development.

REQUIREMENTS

Papers must be a minimum of twenty double spaced pages in twelve-point font and one-inch margins. Documents should be submitted in Microsoft Word format by March 15th to [email protected]. Include contact information including name, institution, and e-mail address and phone number. The winner will be notified by May, 2003.

FOR ADDITIONAL INFORMATION PLEASE CONTACT US AT: [email protected]

FALL / WINTER 2003 31 THE AMERICAN UNIVERSITY’S INTERNATIONAL LAW REVIEW PRESENTS: COMMUNITIES & COMMODITIES: LINKING INTERNATIONAL TRADE & SUSTAINABLE DEVELOPMENT

A CONFERENCE BRINGING TOGETHER PERSPECTIVES FROM THE INTERNATIONAL TRADE AND THE SUSTAINABLE DEVELOPMENT COMMUNITIES THROUGH A SERIES OF PANELS ENGAGING WELL-KNOWN REPRESENTATIVES FROM BOTH FIELDS. IN ADDITION, A KEYNOTE LUNCHEON AND NETWORKING RECEPTION WILL TAKE PLACE THE SAME DAY.

WHERE:WASHINGTON COLLEGE OF LAW WHEN:MARCH 28, 2003 INFO:KEVIN FANDL [email protected] 202-274-4467

SDLP Non-Profit Org. AMERICAN UNIVERSITY U.S. Postage WASHINGTON COLLEGE OF LAW 4801 MASSACHUSSETTS A VENUE, NW PAID WASHINGTON, DC 20016 Permit No. 1158

RETURN POSTAGE GUARANTEED Washington, D.C. FORWARDING SERVICE REQUESTED