The Current Controversy Regarding TMDLs: Contemporary Perspectives TMDLs and Pollutant Trading

The article first summarizes CWA requirements relevant to TMDLs and outlines elements of an effective trading program. It then examines the program recently established by the State of Connecticut to allow trading of nitrogen credits among sewage treatment plants on Long Island Sound to achieve an established TMDL, and the CWA issues presented. Finally, it gives a brief comparison to the program being designed for the Chesapeake Bay, for which no TMDL has been established. Current brief descriptive summaries of several often cited programs are appended

Justice Denied? The Adjudication of Extradition Applications

This article was prompted when a well-regarded LL.M. candidate at Pace Law School\u27s Center for Environmental Legal Studies was arrested and subjected to extradition proceedings. Faculty, staff, and students became embroiled in efforts, ultimately successful, to challenge the extradition request. In doing so, they confronted the substantive and procedural barriers faced by an accused in current extradition processes and the significant potential for human rights abuses. Thus, this article, which analyzes current extradition law, updates what has been a slowly developing area of the law and proposes changes to address some of the shortfalls. Part II presents a brief history of extradition law, focusing on both the national and international conditions that prevailed when the law developed as well as the ensuing changes in those conditions and laws. Part III explains contemporary extradition law and practice, while Part IV explores the statutory, judicial, constitutional, and international human rights issues related to a party\u27s attempt to resist extradition. Part V focuses on one case, In re Extradition of Victor Manuel Tafur-Dominguez, to illustrate the substantive and procedural issues in current practice and argues that some of the limitations typically placed on the individual are unfair, unwise, unconstitutional, and, even if individually supportable, may in the aggregate violate international human rights norms. Part VI concludes with suggestions for changes to U.S. extradition law and practices that would comport with modern conceptions of individual rights and liberties

The Rio+20 Process: Forward Movement for the Environment?

This commentary summarizes the events at the recent UN Conference on Sustainable Development, commonly referred to as Rio+20, noting both the role of official national delegations and the diversity of non-state parties that were involved in a variety of venues at and around Rio+20. It sketches the background of sustainable development efforts, maps the road from the original 1992 Rio Earth Summit to the 20th anniversary gathering, and comments on the Conference’s outcomes and their implications for international law and legal institutions. In answer to the much debated question of whether the Rio+20 was a success or a failure, or something in between, the author concludes that the Conference, while disappointing to many, may have furthered the cause of sustainable development by producing a document which reflects a baseline of international norms and by fostering the increasingly important role of civil society action, commitments and partnerships, and of transnational governance

Gwaltney of Smithfield Revisited

This article returns to the earlier Gwaltney decision, looking both to the text of the Gwaltney opinion, and to internal memoranda demonstrating the debate which occurred among the justices themselves over the nature of the beast with which they were dealing: a confusing mixture of subject matter jurisdiction, substantive cause of action and constitutionally based standing requirements. This review leads to the conclusion that the opinion\u27s lack of analytical clarity, which created substantial confusion for courts and litigants, could have been avoided by a more carefully reasoned work based on the Court\u27s internal discussions. Further, the Court\u27s decision in Steel Company demonstrates a debate within the Court regarding the import of Gwaltney, raising questions as to its future application, as well as the eventual fate of citizen suits under federal environmental statutes

Farming the Ocean

Was that salmon you ate for lunch caught in the wild, chill waters of the North Atlantic? What about the mussels you had last night? Did they arrive on your table through traditional capture techniques, or were they a product of the fish-farming industry? And if so, does it matter? What else in your daily life might be a result of deliberate culture of once wild species? Protein in your pet\u27s food, gel in your toothpaste and cosmetics, thickener in your pasta sauce, the seaweed in your sushi? For the most part we pay little attention to where our foods and other products originate, although that is beginning to change as we strive to eat more healthily and to minimize our carbon footprint by buying local produce and other environmentally friendly products. As part of our healthier diet, we are reducing our consumption of meats and increasingly finding our protein in fish and other seafood. This trend toward increased use of fish and fish products is not only in developed countries. As countries with developing economies raise their standards of living, increased incomes fuel the demand for additional sources of protein, particularly for fish

Reducing Nitrogen Pollution on Long Island Sound: Is There a Place for Pollutant Trading?

The purpose of this article is to examine the legal adequacy of proposals now under consideration for a nitrogen trading program on Long Island Sound, and to assess the likelihood of success in light of the experience with other trading programs, both for water and air pollution. Part I outlines the current environmental condition of Long Island Sound and explains the factors which have led proponents of trading to believe such a program could be effective. In Part II we consider the essential elements of a trading program, and the lessons to be learned from the Clean Air Act programs. Part III examines the federal policy framework within which water pollutant trading may take place, while Part IV analyzes the legal framework and explains the ways by which a trading program may be crafted to fit within it. Part V reviews existing water trading programs and the lessons to be learned from their successes and failures. Part VI undertakes a rigorous analysis of the specific proposal under consideration for Long Island Sound, evaluating both its legal adequacy and the likelihood that a sufficient market driver would be created to provide economically efficient environmental results. Part VII concludes that although a Long Island Sound pollutant trading program can be accommodated within the framework of the Clean Water Act, the factual predicates for such a program have yet to be established, and practical and policy concerns make such a trading program problematic

Connecticut Nitrogen Credit Exchange Program

Long Island Sound is a cherished national natural resource, surrounded by some of the most densely populated land in the country. It has long provided sustenance, economic opportunities and comfort to the spirit for those who inhabit or visit its shores and waters. Like many of our Nation\u27s water bodies, it drains a substantial and diverse watershed, and suffers a broad range of environmental insults. The problem of most concern is the severe shortage of oxygen in the deep waters of the western part of the Sound during summer months. This hypoxia is attributable to excess nitrogen that fuels the growth of algae in which, when decomposing, draw oxygen from the water, denying it to other aquatic life. While a considerable amount of nitrogen derives from surface runoff and atmospheric deposition, the main contributors are the many sewage treatment plants that pour thousands of pounds of nitrogen into the Sound and its tributaries each day. To address this problem, the two states primarily encompassing the Sound, New York and Connecticut, have taken measures to upgrade their sewage plants with nitrogen removal technologies. Connecticut has gone further, devising a program under which sewage plants may create, sell and purchase credits in order to meet their nitrogen effluent limitations

The Protection of the Marine Environment from Land-Based Pollution and Activities: Gauging the Tides of Global and Regional Governance

After providing an introductory overview of the major land-based threats to the marine environment, this article focuses upon the specific global and regional efforts to address land-based marine pollution and activities through a four-part survey. The main international initiative is first described, namely, the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA). Progress in GPA implementation is next assessed with an emphasis on the documentation and results from the Second Intergovernmental Review Meeting on Implementation of the GPA held in October 2006. Major challenges constraining GPA implementation are then summarized, including limited national participation, limited financing, and limits of a non-legally binding approach. Finally, regional agreements and initiatives to counter land-based marine pollution and activities are reviewed. Progress and challenges in GPA implementation at the regional seas level are highlighted

Teaching the Art of Environmental Diplomacy

International Environmental Law is a framework of obligations, measurable norms, and consultative procedures associated with elaborating these norms and facilitating their implementation. It is through the practice of multilateral environmental diplomacy that Nations primarily establish international environmental law. These multilateral negotiations take place in the General Assembly or the Economic & Social Council of the United Nations or in other treaty organizations, such as the Conference of the Parties of the Convention on Biological Diversity or the World Conservation Congress of the International Union for the Conservation of Nature and Natural Resources (IUCN). Such environmental diplomatic negotiations are on-going and reiterative, and shape specific international law instruments, such as policy documents (“soft law” such as Resolutions or Declarations) and new international agreements (“hard law” such as treaties or protocols), or decisions made by treaty organizations (such as decisions of a competent international body, binding on the organizations and its members states). Although it is difficult for students to find employment in environmental diplomacy related positions immediately after graduation it does occur, and others work their way into such positions. Because few international governmental and non-governmental organizations, or multi-national companies, hire directly out of law school it is especially important for students to demonstrate practical experience in the field. This is difficult to do, since for the most part law schools offer doctrinal courses which provide a base of knowledge, but no practical experience. For this reason Pace Law School developed among its experiential learning courses an experiential learning opportunity for law students to study environmental diplomacy and to participate in the process of intergovernmental, multilateral environmental decision-making, and to consciously reflect upon and evaluate those experiences in a United Nations Environmental Diplomacy Practicum. The Practicum comprises a seminar taught by Pace faculty with extensive UN experience, and placement with a country diplomatic Mission at the UN. For the most part these are Missions of Small Island Developing States, or other Less Developed Countries, which benefit greatly from the work of the law student interns. Students learn first-hand how environmental diplomacy shapes the laws which they study in their public international law or international environmental law courses, and they garner unique knowledge from being inside the UN, which is useful in employment with the many international nongovernmental environmental organizations that work at and with the UN, or for law practices that must understand how decision-making functions within the multilateral environmental agreements that affect their clients. The UN Diplomacy course is often a transformative experience for students, providing experiential learning at a deeper level than most such courses. This presentation will examine both the doctrinal and experiential aspects of teaching such an experiential course. While the unusual issues raised by the unique forum will be considered, the transferability of pedagogical strategies to other teaching situations will be explored