Chap 1: Environmental Values and
Policies
Title
VI and Section 1983
Makah
Valuing
Public Goods
ANWR
Title VI and Section 1983
Litigation of Environmental Justice Concerns (pp. 25-26)
South Camden Decision Reversed On December 17, 2001,
the decision in South Camden Citizens in Action v. New Jersey
Department of Environmental Protection, 145 F.Supp. 2d 446
(D.N.J. 2001), which is reproduced on pp. 4-28 of the 2002
Supplement, was reversed by the U.S. Court of Appeals for the Third
Circuit. 274 F.3d 771 (3d Cir. 2001). In South Camden a federal
district court had granted a preliminary injunction to block the
issuance of air pollution permits for a cement processing plant that
would be located in area where 91 percent of the population were
persons of color. After the Supreme Court decided in Alexander v.
Sandoval, 121 S.Ct. 1511 (2001), that Title VI of the Civil
Rights Act of 1964 did not create a private right of action to
enforce federal nondiscrimination regulations, the district court
had held that such regulations could be enforced under 42 U.S.C. §
1983. However, the Third Circuit held that EPA's Title VI
regulations did not create a right enforceable by 42 U.S.C. § 1983.
The Third Circuit concluded that an administrative
regulation cannot create an interest enforceable under Section 1983,
which bars federal officials from depriving anyone of rights under
color of state law, unless the interest already is implicit in the
statute authorizing the regulation. The court concluded that since
Title VI prohibits only intentional discrimination, EPA's disparate
impact regulations cannot be enforced by private parties under
Section 1983. While the Third Circuit's decision vacates the
district court decision reproduced in the 2002 Supplement, the
district court's opinion still provides an illuminating discussion
of how to prove racially disparate impact.
Problem Exercise: Should the
Makah Be Permitted to Hunt Whales? (pp. 28-30)
Whaling by the Makah has been halted by the Ninth
Circuit's decision in Metcalf v. Daley, 214 F.3d 1135 (9th
Cir. 2000), reproduced on pp. 225-238 of the 2002 Supplement, which
required the preparation of a new environmental assessment (EA) of
the whaling. As noted in the Supplement, p. 30, the new
environmental assessment was completed on July 31, 2001 and it
endorsed resumption of whaling in 2002. The National Marine
Fisheries Service (NMFS) also has issued a notice of intent to
prepare an EA for issuing a gray whale quota to the Makah for the
years 2003 through 2007. Responding to this notice, the
environmental group Sea Shepherd questions whether a hunt that takes
20-25 whales during this period can be sustainably practiced on a
resident population that ranges from only 50 to 200 whales. The EA
prepared by the NMFS for the 2002 hunt did not distinguish between
resident whales and migrating whales in making its finding of no
significant environmental impact. Sea Shepherd also argues that the
Marine Mammal Protection Act trumps any Makah treaty rights, citing
United States v. Billie, 667 F.Supp. 1485 (S.D. Fla. 1987)
and that whaling by the Makah violates the International Convention
for the Regulation of Whaling because the Makah are not a
subsistence tribe. Sea Shepherd's comments may be found at http://www.seashepherd.org/issues/whales/makah121401.html.
Economics and the Environment:
Valuing Public Goods (pp. 30-44)
In a recent paper, Philip E. Graves, an economics
professor at the University of Colorado, argues that the
conventional "willingness to pay" approach used by economists to
estimate the value of public goods substantially undervalues
environmental quality. Professor Graves notes that because
individuals cannot actually purchase public goods, those who care
about the environment will not work as hard to earn income as they
would if they actually could spend some of it purchasing
environmental quality. Thus, surveys of consumers' willingness to
pay for environmental quality systematically underestimate the true
value of this public good, perhaps by as much as 10 percent. While
others question whether this 10 percent estimate is too high, if
Professor Graves is "anywhere near right about this figure, the
implied undervaluation of environmental goods by standard methods
would be quite enormous." "Never the Twain Shall Meet," The
Economist, Feb. 2, 2002, at 74. Professor Graves's paper is
available online at http://spot.colorado.edu/~gravesp.
Problem Exercise: Should the
Arctic National Wildlife Refuge Be Opened to Oil Exploration and
Development? (pp. 62-69)
As noted in the 2002 Supplement (pp. 35-37), the
energy bill passed by the U.S. House of Representatives in August
2001 included a provision opening ANWR to oil drilling. However,
when the U.S. Senate passed its version of the energy legislation in
April 2002, it rejected efforts to open ANWR to drilling. On April
18, 2002, the Senate voted 54-46 to reject a cloture motion that
would have ended debate over drilling in ANWR. Proponents of opening
ANWR fell 14 votes short of the 60 votes that would have been needed
to permit a vote on amending the Senate bill to open ANWR to oil
drilling. Five Democrats (Akaka and Inouye of Hawaii, Breaux and
Landrieu of Louisiana, and Miller of Georgia) supported opening
ANWR, while eight Republicans (Chafee of Rhode Island, Collins and
Snowe of Maine, DeWine of Ohio, Fitzgerald of Illinois, McCain of
Arizona, Smith of New Hampshire, and Smith of Oregon) opposed it.
Senate debate over opening ANWR was intense. Senator
Ted Stevens of Alaska angrily denounced opponents of oil drilling,
accusing them of overdramatizing the beauty of ANWR, which he
described as "hell" for nearly 10 months of the year when it is
covered in snow and ice. John J. Fialka and Shailagh Murray,
Senators Link Steel Aid, Alaskan Oil, Wall St. J., April 17, 2002,
at A12. Supporters of drilling in ANWR also enlisted veterans groups
in their cause and argued that drilling was essential to national
security to reduce our dependence on oil from the Middle East. On
March 29, 2002, the U.S. Geological Survey had released a report
stating that oil drilling in ANWR could harm the caribou herd that
uses the area as a calving ground. Ten days later the U.S.
Department of the Interior issued a supplemental report from the
USGS that contradicted this conclusion, allegedly on the basis of
new data.
In a desperate effort to garner additional support for
drilling, Alaska's senators tried to tie the proposal to open ANWR
to an $8 billion package of subsidies for the ailing steel industry.
The steel industry subsidies would have been funded through
earmarking federal royalties from oil production in ANWR. The United
Steelworkers of America, which has opposed opening ANWR to drilling,
was unmoved by the tactic, which was defeated by a vote of 64 to 36.
While efforts to open ANWR to drilling will now focus
on the House-Senate conference on the energy bill, it is widely
believed that the Senate vote effectively has killed the chances for
the enactment of legislation opening ANWR in 2002.
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