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Ealr, Volume 33, Number 3 Boston College Environmental Affairs Law Review Volume 33 Number 3 Environmental Law’s Path Through the 4th Estate: Environmental Law and the Media SYMPOSIUM ARTICLES BEHIND THE CURVE: THE NATIONAL MEDIA’S |REPORTING ON GLOBAL WARMING Matthew F. Pawa & Benjamin A. Krass [pages 485–510] Abstract: In July 2004, eight States, the City of New York and three land trusts ªled suit against ªve electric power corporations for contributing to global warming. The complaints allege that the defendants are the largest global warming polluters in the United States. The plaintiffs seek an injunction under the federal common law of public nuisance, or in the alternative, under state nuisance law, to require the power compa- nies to reduce their emissions of carbon dioxide. Press coverage of the plaintiffs’ global warming case so far has been mixed. The press has generally failed to understand several of the important legal principles involved, including the legal doctrine of public nuisance. The legal case takes place against a backdrop of a long campaign of distortion by in- dustry relating to the science of global warming that has affected the reporting on global warming generally. Historically, the press has unwit- tingly distorted coverage of global warming science by uncritically ac- cepting the industry view that the science is in dispute. LAW, MEDIA, & ENVIRONMENTAL POLICY: A FUNDAMENTAL LINKAGE IN SUSTAINABLE DEMOCRATIC GOVERNANCE Zygmunt J.B. Plater [pages 511–550] Abstract: The functional linkages between law and media have long been signiªcant in shaping American democratic governance. Over the past thirty-ªve years, environmental analysis has similarly become essen- tial to shaping international and domestic governmental policy. Envi- ronmentalism—focusing as it does on realistic interconnected account- ing of the full potential negative consequences as well as beneªts of proposed actions, policies, and programs, over the long term as well as the short term, with careful consideration of all realistic alternatives— provides a legal perspective important for societal sustainability. Because environmental values and norms are often in tension with established industrial interests that resist public interest accountability, they are in- evitably forced to play on political battleªelds dominated by lobbyists’ spin and corporate stratagems for manipulating public perceptions. The press, to which Thomas Jefferson entrusted the critical task of “inform- ing the discretion” of the populace, is a crucially important and often disappointing resource of democratic governance, not least in the area of environmental law. This Essay surveys these problems and explores the potential for environmental lawyers to improve the relationships among environmental analysis, media, and societal governance at both the “micro” level of daily practice and “macro” level of national policy and law-making. MODERN MEDIA’S ENVIRONMENTAL COVERAGE: WHAT WE DON’T KNOW CAN HURT US Jane Akre & Steve Wilson [pages 551–562] Abstract: Jane Akre and Steve Wilson had more than ªfty years experi- ence as broadcast journalists before becoming Whistleblowers against Rupert Murdoch’s News Corporation, Fox. Steve has worked as an in- vestigative reporter on the network and local level, a program syndica- tor and currently is at WXYZ in Detroit as Chief Investigative Reporter. Jane has been an anchor at CNN and at various local stations from Cali- fornia to Atlanta as well as consumer, crime, health and investigative re- porter. Together they were the ªrst journalists to blow the whistle on the internal workings of a newsroom. “REFRAMING” THE PRESENTATION OF ENVIRONMENTAL LAW AND POLICY Charlotte Ryan & Samuel Alexander [pages 563–592] Abstract: In 1995, Congress, with the support of the Clinton admini- stration, passed the Personal Responsibility and Work Opportunity Rec- onciliation Act, a sweeping welfare reform designed to appease conser- vative critics of 1960s War on Poverty programs. In the last decade, con- servatives have intensiªed a comparable campaign to dismantle envi- ronmental programs and regulatory agencies established during the 1970s through the efforts of the environmental movement. Conserva- tives’ calls for market forces to replace governmental environmental protection programs echo the arguments of conservative opponents of welfare. Similarly, contemporary battles over environmental policy are being waged in the mass media arena. Therefore, it behooves environ- mental advocates to review the public discourse that surrounded the welfare debates of the 1990s. Using frame analysis, this Essay describes the evolution of media discourse in Massachusetts from 1990 through 1994 regarding the role of government and its responsibility in provid- ing public welfare programs. The Essay then draws lessons from welfare reform that are relevant to current environmental debate. ENVIRONMENTAL ATTORNEYS AND THE MEDIA: GUIDELINES FOR EFFECTIVENESS John M. Stanton [pages 593–600] Abstract: It is often difªcult for a public interest advocate to compete with wealthy interests that have vastly greater resources at their disposal and opposing policy preferences. In order to level this playing ªeld, ad- vocates can effectively employ media strategies that allow the public to participate in the public policy debate. This public awareness can often be very effective in inºuencing the course of the debate and sensitizing policy makers to the competing interests at stake. Accordingly, media tools and goals should be considered at the outset of strategy develop- ment, and should inform everything from a project’s title to its budget. Public involvement, made possible through media coverage, can play a pivotal role in inºuencing policymaking proceedings in the judicial, ex- ecutive, and legislative branches of government. ESSAY NEPA AND ENVIRONMENTAL JUSTICE: INTEGRATION, IMPLEMENTATION, AND JUDICIAL REVIEW Uma Outka [pages 601–626] Abstract: The purpose of the National Environmental Policy Act (NEPA) is to assure “for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings,” a goal that is essential to environ- mental justice. Although NEPA provides the structure for federal envi- ronmental decisionmaking, is it effective as a tool for addressing envi- ronmental justice concerns? This Essay addresses NEPA’s limitations and potential for this purpose, and assesses the role of case law and judicial review in shaping this integrative process. To do so, it considers the envi- ronmental justice implications of NEPA’s structural gaps—including ex- emptions, categorical exclusions, and so-called “functional equivalents”— and evaluates judicial review of agencies’ environmental justice analyses to date. NOTES ATTORNEYS’ FEES AND THE CONFLICT BETWEEN RULE 68 AND THE CLEAN WATER ACT’S CITIZEN SUIT PROVISION Daniel E. Burgoyne [pages 627–660] Abstract: Environmental “citizen suit” statutes provide incentives for citizens to bring enforcement actions by awarding successful plaintiffs reasonable attorneys’ fees. Defendants have attempted to use Federal Rule of Civil Procedure 68 to block a successful plaintiff’s recovery of at- torneys’ fees. Under Rule 68, defendants may offer to allow a judgment to be issued against them for a ªxed dollar amount. Plaintiffs may either accept this judgment offer or proceed to trial. If plaintiffs proceed to trial, however, they must receive a judgment more favorable than the of- fer or pay the defendants’ litigation costs. Defendants argue that the word “costs” as used in Rule 68 applies to attorneys’ fees in addition to other litigation costs. If so, the use of Rule 68 can have a great inºuence on the economics of citizen suit litigation. This Note explores whether or not Rule 68 should be read to apply to attorneys’ fees in citizen suits under the Clean Water Act and other environmental statutes. SHIFTING THE BURDEN: POTENTIAL APPLICABILITY OF BUSH V. GORE TO HAZARDOUS WASTE FACILITY SITING Alison E. Hickey [pages 661–694] Abstract: Since its inception in the 1980s, advocates of the environmental justice movement have attempted to remedy the disproportionate siting of hazardous waste facilities in minority neighborhoods by employing the Equal Protection Clause. These lawsuits have thus far been largely unsuc- cessful because of litigants’ inability to prove intentional discrimination by government actors in such siting decisions. However, in the 2000 deci- sion issued by the U.S. Supreme Court in Bush v. Gore, the mere potential for discriminate impact of a decision made by government actors was suf- ªcient to trigger a strict scrutiny analysis under the Equal Protection Clause. While the decision was declared to have little precedential value outside the voting rights context, this Note examines the potential for application of this novel approach to the Equal Protection Clause in fu- ture environmental justice claims arising under the Fourteenth Amend- ment. THE PROJECT BIOSHIELD PRISONER’S DILEMMA: AN IMPETUS FOR THE MODERNIZATION OF PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENTS David M. Shea [pages 695–737] Abstract: Passage of the Project BioShield Act of 2004 evinced an execu- tive and legislative desire to increase government-controlled laboratory space dedicated to studying dangerous pathogens. Pursuant to this Act, the National Institutes of Health (NIH) awarded generous construction grants to research universities nationwide. Unsurprisingly, siting disputes have subsequently arisen over the placement
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