Argentinean University Prepares Next Generation of Lawyers for Environmental Implementation
By Adriana Norma Martínez, Lawyer, Magistrate in Human Environment. Email: anmart@sinectis.com.ar and Adriana Rosenfeld, Environmental Information Specialist, Environmental Systems Manager, Environmental Auditor, Universidad Nacional de Lujan (Argentina). Email: proiap@ciudad.com.ar.

Adrianna Norma Martinez and Adrianna Rosenfeld, two professors at the University of Luján, Argentina, recently developed a program that gives law students hands-on experience in environmental policy implementation. The program draws from both the environmental law and environmental information specialization curricula and seeks to prepare the next generation of Argentina ’s environmental lawyers for the challenges of policy implementation.

Argentina has a comprehensive normative framework for environmental protection that includes detailed laws and regulations. But it is not enough to have strong rules on paper, effective implementation is also necessary. It is in the area of implementation that Argentina must make more progress. Future generations of environmental lawyers must be trained, with a focus on implementation, if Argentina is to continue its progress towards sustainable development.

• describe the nature and scope of an environmental problem, including all the relevant actors;
• discussion of the appropriate normative framework (laws, regulations, court cases, etc.) and antecedent actions taken by various actors; and the
• proposed course of action that contributes to the resolution of the problem.

• accurately describe environmental problems,
• work with different information sources,
• identify the governing normative framework,
• get in touch with all stakeholders and social actors,
• identify challenges posed by new legal dispositions, and
• propose specific mechanisms suitable to deal with these issues.

In order to guide the student's work, the program prepared a Web page that includes up-to-date information on environmental policy at the national and international level, as well as two local jurisdictions - Buenos Aires Province and Autonomical Buenos Aires City . In addition, the web page includes information on voluntary regimes.

It is hoped that students will take this training into a variety of fields, including:

Ultimately, training law students in environmental science and decision making will help promote environmental enforcement and compliance and further Argentina 's progress towards sustainable development.

The Instituto do Homem e Meio Ambiente da Amazônia (IMAZON), an non-governmental organization located near Belém at the mouth of the Amazon, recently released a report on the effectiveness of Brazil 's environmental crimes law. The new law took effect in 1998 and improves the ability of administrative agencies to apply administrative sanctions; establishes corporate liability for environmental violations and damage; criminalizes more environmental violations, such as illegal logging; and provides streamlined judicial procedures for many environmental crimes. Now, five years later, how effectively is the new law being applied?

The study, authored by Brenda Brito and Paulo Barreto of IMAZON, analyzes the effectiveness of the new environmental crimes law to protect forests in Pará, a state on the front lines of the battle to protect Amazon forests from illegal logging. Their study is based on sampling judicial actions concerning forestry crimes in the federal courts of Belém, the capital of Pará.

Illegally Logged Timber in Brazil

The authors conclude that the principal obstacles to the enforcement of the new environmental crimes law arise from the following: inadequate communication among the agencies responsible for applying the law; the disconnect between penalties and environmental damage; and the ability to use the penalties to repair environmental damage.

The study proposes concrete solutions to each of these problems. These solutions include: implementing new communication methods, already used successfully in another part of Brazil, Blumenau, Santa Catarina; improving policy to shift penalties toward environmental reparation; and investing those penalties into funds to repair environmental damage.

A summary of the study was published in the Proceedings of the 7th International Conference on Environmental Compliance and Enforcement and is available at http://inece.org/conference/7/vol1/46_Brito.pdf. A full version of the report is available at http://www.imazon.org.br/.

US Supreme Court Rules EIS Not Needed to Open Border to Mexican Trucks
By Carrie K. Thomas, law student, California Western School. Email: ckthomas@law.cwsl.edu.

In 2001, President Bush stated his intent to lift a moratorium preventing Mexican trucks from entering the United States after the Federal Motor Carrier Safety Administration (FMCSA) promulgates safety regulations for these trucks.

Trucks waiting to cross the border

Last year, the Supreme Court held, in Department of Transportation v. Public Citizen, that the FMCSA did not need to evaluate the environmental impacts of the President’s decision under National Environmental Policy Act (NEPA) or the Clean Air Act (CAA). To date, the border is still closed to Mexican trucks and the environmental impacts of opening it have not been officially addressed.

Currently, the majority of Mexican diesel trucks emit more pollution than their U.S. counterparts. In 2007, the U.S. will begin enforcing more stringent diesel fuel regulations and Mexico will likely fall further behind. This differential could exacerbate air quality problems in major non-attainment cities near the southern border, such as Houston and Los Angeles.

President Bush announced plans to lift the moratorium on the entry of Mexican trucks after a tribunal decision that the U.S. was in violation of NAFTA. However, the President ordered FMCSA to promulgate safety regulations for Mexican trucks prior to opening the border. In doing such, FMCSA conducted an environmental assessment (EA) to ensure compliance with NEPA.

The agency found that environmental impacts from emissions due to road-side inspections required by the new regulations would be minimal and a complete environmental impact statement (EIS) and CAA conformity determination were unnecessary. Several public interest groups sued on the basis that FMCSA should have conducted a more comprehensive investigation.

The Ninth Circuit Court of Appeals found that the FMCSA’s analysis was insufficient and documentation should be created for all environmental impacts of opening the southern border . On June 7, 2004 , the Supreme Court unanimously reversed the Ninth Circuit in favor of FMCSA. Succinctly, it said that FMCSA had no control over the President’s actions, and therefore, it correctly limited its inquiry to environmental impacts of FMCSA actions only.

The environmental impact of allowing Mexican trucks to cross the border is still unknown. While awaiting Supreme Court review, FMCSA began a comprehensive EIS and CAA conformity determination as required by the Ninth circuit. However, after winning at the Supreme Court, FMCSA halted this process and has never released the partial documents to the public.

It is possible that the impact on the environment will be minimal if the majority of Mexican trucks crossing the border are relatively new and have pollution control devices installed. However, as the U.S. regulations become more stringent in the near future, and Mexico lags further behind, the trucks’ impact on U.S. cities could be more pronounced.

Even if Mexico wants to adopt the U.S. air standards it lacks the resources to do so. The 2007 U.S. regulations will require refineries to begin producing ultra-low sulfur fuel (ULSF) which contains only 15 ppm (parts per million) of sulfur. All diesel fuel produced in the U.S. must be ULSF by 2012. These regulations will enable new diesel engines to efficiently filter particulate matter and nitrogen oxides, dramatically reducing diesel truck emissions. Mexican refineries can currently produce 250 ppm fuel and would like to reduce this to 50 ppm by 2008. However, that goal will only be met with $2 billion in United States subsidies, and it will still fall short of U.S. requirements.

The U.S. is also requiring all diesel engines to have high quality filters for particulate matter and nitrogen oxides by 2010. U.S. manufacturers are well on their way to meeting that goal, and Mexican manufacturers could potentially meet it as well. Additionally, the Mexican government is currently partnering with U.S. EPA to experiment with retrofitting old diesel engines with the new technology. However, the engine filters do not function with, and can even be damaged by, repeated exposure to high sulfur fuel. So, for the technology to work, Mexico must either import ULSF or produce its own.

The southern border of the U.S. remains closed to Mexican trucks, but the administrator of FMCSA recently stated that the delay is based solely on an application back-log and once Mexican applications can be processed, the trucks will begin to enter. A copy of the Court's decision is available at http://supremecourtus.gov/opinions/03pdf/03-358.pdf.

US Appeals Court Rejects Extraterritorial Application of Superfund
By Mini Kaur, Law Clerk, Office of Site Remediation Enforcement, US EPA; Law Student, Washington and Lee University School of Law. Email: kaurm@wlu.edu.

In Arc Ecology v. Department of Air Force the United States Court of Appeals for the Ninth Circuit rejected arguments that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as Superfund, should apply extraterritorially to sites of former United States ’ military bases in The Philippines.

The appellants, non-profit environmental organizations and individual Philippine residents, brought the CERCLA citizens’ suit charging that they have been or were likely to be exposed to contamination, at the former sites of the Clark Air Force Base and Subic Naval Base. They sought to compel the United States Government to conduct a preliminary assessment and clean-up of the alleged contamination. The United States operated the bases from the early twentieth century until 1992, when it withdrew all personnel and gave the Philippine government control of the bases.

The case had previously been dismissed by the district court for failure to state a claim upon which relief can be granted ( Rule 12(b)(6)). In affirming the district court’s decision, the Ninth Circuit relied on the statutory presumption that United States legislation applies only within the boundaries of the United States unless Congress exhibits a clear intent to the contrary. This “longstanding principle of American law” requires that courts construe ambiguous provisions in CERCLA with the presumption that Congress had domestic concerns in mind.

The court looked to the plain language of the statute and determined that CERCLA is “silent as to the locations it covers and who may petition for a preliminary assessment.” Regardless of whether or not CERCLA applied to the Clark and Subic sites while the United States controlled them, the court concluded that the statute could not have applied when the appellants filed their case. By the time appellants filed their case, the Philippine government, a foreign sovereign, had exclusively controlled the sites for ten years. When the litigation began, the United States had no control over or possession of the sites and therefore had no authority to perform preliminary assessments or cleanups at the sites.

Section 111(l) of CERCLA expressly allows for some types of actions brought by foreign claimants. For example, that section allows a cause of action where the release occurred in navigable waters, where the claimant is not otherwise compensated for his loss, or where recovery is authorized by a treaty or executive agreement. The court found that the Philippine appellants did not fall under any of these narrowly-defined classes of foreign claimants.

The court also relied on the fact that many of CERCLA’s provisions are written under the assumption that actions taken under the statute will be domestic in nature. For example, the citizen suit provision states that a case shall be brought “in a district court for the district in which the alleged violation occurred” but does not describe the appropriate venue for suits involving violations in foreign countries. Similarly, CERCLA does not contain any provisions authorizing the placement of foreign sites on the National Priorities List. The court cautioned against the intrusion upon foreign sovereignty that could arise through interpreting CERCLA to apply in disputes that were probably unforeseen by Congress.

As the first case examining CERCLA in the context of foreign plaintiffs suing the United States for alleged violations on foreign property, the Arc Ecologycase has important implications. The opinion, released on 15 June 2005 , has set a significant limitation on the extraterritorial application of CERCLA.

Another key case pending before the same court, Joseph A. Pakootas v Teck Cominco Metals, also involves the extraterritorial application of CERCLA. However, that case differs from Arc Ecology because the defendant, Teck Cominco, is a foreign corporation and the effects of its alleged violations were felt in the United States . A District Court ruling in 2004 found that Teck Cominco allowed for the extraterritorial application of CERCLA. Teck Cominco’s appeal to the Ninth Circuit is pending.

A copy of the Arc Ecology opinion is available at: http://ca9.uscourts.gov/.