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JULY/AUGUST 2011 ❧ Page 23
Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, July/August 2011
noTice & commenT
NEW ThAT’S FIT TO REPRINT
So what changed? A few things. e
backlash to the Civil Rights Act and
President Nixon’s Southern Strategy
realigned the two parties. It took twen-
ty years but after that interval liberal
Republicans and conservative Demo-
crats were rare, and the parties stood in
sharp relief to each other, particularly
in environmental policy. In Congress,
members of resource-rich states gained
control of key committees, stalling
progress. Other conservative stalwarts
elevated the filibuster to its state of the
art and used the nominations process
to control the White House. President
Reagan also called into question the
role of the federal government, an-
nouncing during his first inauguration
that government is the problem, not
the solution to society’s problems. e
Republican takeover of the Congress in
1995 solidified the anti-environmental
sentiment in the legislative branch.
But the biggest change may have
come with the last major environ-
mental act to be passed by Congress,
the 1990 amendments to the Clean
Air Act. A few things distinguished
that law, one of which was the first
major cap-and-trade system. Ever
since, “market mechanisms” has been
the mantra to sell any environmental
measure — it was front and center
in the House-passed climate change
legislation in the last term — but cap-
and-trade systems only work for some
kinds of pollutants, chiefly those that
are less toxic and whose effects are dis-
persed. Cap-and-trade doesn’t work
for Superfund liability and is difficult
to apply to water pollutants or toxic
chemicals. So the two parties are left
with a favored mechanism that only
works in certain instances.
But all is not lost. For the last two
decades, EPA and other agencies have
been making rules creatively imple-
menting the statutes underlying their
missions, backed by the Supreme
Court, and the Executive Branch has
been applying its commerce powers to
new problems as they arise.
Notice & Comment is written by the
editor and represents his views.
Damned Dam: Just as envi-
ronmentalists predicted, China’s
ree Gorges Dam “is troubled
by urgent pollution and geo-
logic problems,” according to
the Times.
e world’s largest hydro-
electric project “and a symbol of
China’s confidence in risky tech-
nological solutions” is replete
with “floating archipelagoes of
garbage, carpets of algae and
landslides on the banks along
the vast expanse of still water
since the 600-foot-tall dam on
the Yangtze River was complet-
ed in 2006.”
According to the newspa-
per, critics have also been right
about the government’s failure
to relocate 1.4 million people
displaced by the dam’s rising
waters.
China’s State Council, the
equivalent of the U.S. Cabinet,
“said in a vague statement that
the project suffered from a wide
range of serious problems.”
According to the Council, “Al-
though the ree Gorges proj-
ect provides huge comprehen-
sive benefits, urgent problems
must be resolved regarding the
smooth relocation of residents,
ecological protection, and geo-
logical disaster prevention.”
e government said the dam
has met expectations in power
generation, producing 84 bil-
lion kilowatt-hours of electricity
last year. “But critics say the
sheer weight of water backed up
in the 410-mile-long reservoir
behind the dam has increased
the danger of earthquakes and
landslides.” e government
denied, however, that the 2008
earthquake in Sichuan Province
was a result of the reservoir’s
weight.
Light Pollution: “ere is no
Border Patrol in space,” opines
the New York Times. “But the
very earthly cat-and-mouse game
between smugglers and America’s
border agents is affecting the
exploration of space, lighting up
the nighttime sky in southern
Arizona and making astronomers
strain even harder to figure out
the mysteries of the universe.”
Arizona is an “astronomy
haven,” according to the Times,
“with an array of prestigious ob-
servatories taking advantage of
the state’s dry weather, minimal
cloud cover and dark skies.” Now
Border Patrol agents are affecting
the pristine conditions “that have
allowed them to discover new
planets, gain important insights
into how the universe functions,
and generate hundreds of mil-
lions of dollars annually in eco-
nomic return.”
e problem is that drug
smugglers and illegal immigrants
making their way north “are
sometimes visible to astronomers”
at the Fred Lawrence Whipple
Observatory in Mount Hopkins.
“But it is not the outlaws that
affect their work as much as the
authorities who are after them.”
It turns out that a Border Pa-
trol helicopter shining a beam of
light on a group of suspects runs
the risk of interfering with valu-
able machinery. at includes the
Very Energetic Radiation Tele-
scope Array System, or VERI-
TAS, which measures gamma
rays. “It’s happened,” the paper
quotes Dan Brocious, spokesman
for the observatory. For its part
the patrol says that “it tries to
steer its helicopters clear of the
observatories, but that frequent
staff turnover occasionally result-
ed in missteps.”
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