Articles
Reflections on an Environmental Struggle: P&O, Dahanu, and the Regulation of Multinational Enterprises, by Oren Perez
Notes
Numbers Never Lie, But What Do They Say? A Comparative Look at Municipal Solid Waste Recycling in the United States and Germany, by James E. Donnelly
The Struggle Among the States, the Federal Government, and Federally Recognized Indian Tribes to Establish Water Quality Standards for Waters Located on Reservations, by Kathleen A. Kaanler
An Organization for the World Environment: Three Models and Analysis, by Dena Marshal
Safe Harbors: Crafting an International Solution to Cruise Ship Pollution, by Andrew Schulkin
Article
Reflections on an Environmental Struggle: P&O, Dahanu, and the Regulation of Multinational Enterprises
By Oren Perez
Perez’s article analyzes the struggle to prevent the construction of a national port in a small fishing village at the Dahanu region north of Bombay, India. The story of Dahanu reflects the disjuncture between Indian’s progressive environmental jurisprudence and the deteriorating environmental conditions of India. Recognizing that the proposed port was likely to have an adverse affect on the social and environmental conditions, India’s Supreme Court developed a highly innovative institutional structure for monitoring the “ecologically fragile” Dahanu region. The Court’s concern with protecting Dahanu reflects a commitment to upholding environmental values. However, the author points out that several studies have found high levels of non-compliance with India’s judicial orders. In short, business and political systems have resisted the Supreme Court’s radical jurisprudence and both systems have acted indifferently towards the social and ecological side-effects of India’s rapidly growing economy. The struggle over the port at Dahanu in many ways illustrates a deep social disjuncture.
The author concludes by explaining how the Dahanu story reflects various shortcomings in the international legal framework respecting regulation of multinational enterprises (MNEs). Legal instruments such as the Law of the Sea Convention and the OECD Guidelines for Multinational Enterprises failed to provide effective remedies in the case of Dahanu. Weaknesses in the international regime reflect an unwillingness of international law to intervene in what is perceived as state prerogatives. Ultimately, the author argues that deference to sovereignty might be unjustified in today’s world where regulatory weaknesses in many developing countries have led to environmental degradation.
Note
Numbers Never Lie, But What Do They Say? A Comparative Look at Municipal Solid Waste Recycling in the United States and Germany
By James E. Donnelly
This note compares and contrasts efforts to address the issue of municipal waste in the United States and Germany. The author suggests that various lessons can be learned from the German model for dealing with municipal waste. Part II of the note analyzes German municipal waste laws. Under Germany’s Waste Act, Packaging Ordinance of 1991, and Circulation Act, Germany has developed a comprehensive national waste management program, which includes incentives for producers and owners of waste to recycle. In contrast, the United States model, discussed in Part III of the note, is described as a patchwork of local laws with little to no coordination of efforts or comprehensive programs. The author analyzes various practices by states respecting recycling of used oil, landfill bans, and state packaging regulations, including minimum content laws, labeling requirements, and collection programs. A comparison of the recycling rates in the United States and Germany reveals that the United States falls behind Germany in overall recycling.
The author attempts to explain the disparity in recycling rates between the United States and Germany and offers recommendations for improving recycling rates in the United States. In particular, the author points out that the United States could reduce transport and secondary packaging by prioritizing recycling of transport packaging or developing a scheme of national tax credits for such recycling. Although there is little else in the Germany model that can be directly applied to the United States, the United States federal government can learn from various best practices at the state level. The author recommends the California system as the best overall program because it reduces costs and would have the best chance of gaining nationwide acceptance.
Note
The Struggle Among the States, the Federal Government, and Federally Recognized Indian Tribes to Establish Water Quality Standards for Waters Located on Reservations
By Kathleen A. Kaanler
This note explores a provision of the Clean Water Act (CWA) which grants federally recognized tribes meeting certain requirements treatment as states (TAS) status. As a result of their TAS status, certain tribes can set their own water quality standards. In Part II, the note discusses the authority of the tribes to set their own water quality standards. Although tribes have maintained their sovereign status, the author explains that various federal legislation had diminished the tribes’ power to exclude the federal and state governments from certain civil and criminal matters. In the case of environmental matters, however, Congress has recognized that tribal management of the environment furthers the federal governments’ Native American policy of self-determination. Various cases have also recognized the inherent sovereign powers of the tribes’ to create their own water quality programs. But, because the tribes lack the necessary resources to develop their own water quality programs, the author determines that if may be in the tribes’ best interest to allow the federal government to set water quality standards under the CWA.
Part III of the note takes a closer look at the conflicts in environmental regulations arising between the tribes’ and neighboring states when each claims jurisdiction over the same water bodies. States have brought legal challenges of the EPA’s grant of TAS status to the tribes where shared water bodies are involved. However, under current case laws, States are prohibited from arguing that the federal government cannot set standards for waters within the reservation because the federal government as opposed to the states, have the ultimate authority to regulate navigable waters, including reservation waters. The note concludes that potential for litigation over water quality stands may be minimal.
Note
An Organization for the World Environment: Three Models and Analysis
By Dena Marshall
This note examines proposals for a world organization for the environment. The author first discusses why a world organization for the environment is necessary and then considers what purposes such an organization would serve. Part II of the note explores existing organizations that deal with global environmental governance. The United Nations Environmental Programme (UNEP) and the United Nations Commission for Sustainable Development (CSD) are examples of organizations working to promote a global environmental agenda. The UNEP has played a critical role in negotiating environmental treaties and the CSD has provided guidance to global environmental governance through its mission to monitor and report on implementation of Agenda 21, the action plan for the 1992 Earth Summit in Rio de Janeiro, Brazil. An analysis of the key functions of these organizations reveals two key problems: limited effectiveness due to a lack of binding enforcement mechanisms and institutional fragmentation. The author proposes that an effective world organization for the environment must change human perception of the global environment, enjoy widespread legitimacy, promote consensus-building between developing and developed countries, and address issues of its own funding. Any new global environment organization must reflect these ideals and address the problems facing existing organizations promoting a global environmental agenda.
The author explores models for global environmental governance proposed by Daniel C. Esty of the Global Environmental Project at Yale University, The German Advisory Council on Global Change, and John Whalley and Ben Zissimos of the University of Warwick. Part III of the note explores the benefits and drawbacks of each proposed model. For instance, the Council’s model addresses the problem of disparate communities, but the proposal might also result in recurrent free-rider problems. The model proposed by the Global Environment Project
consolidates existing regimes, promotes a general sense of collaboration, and mutual exchange of information among parties, but might face challenges in trying to balance contradictory missions and overcoming the shortcomings of existing regimes. All of the proposed organizations are challenged with developing funding schemes that avoid the problem of competing for resources. The author concludes in Part IV by emphasizing the strong possibility that a world organization for the environment will come into existence. Support from all segments of the world will ensure that the goal of a cohesive organization dedicated to the global environment is realized.
