Legislative Update-New Frontier in Urban Greenhouse Gas Emissions Regulation: Overview of California's Senate Bill 375

Author:Kira Hettinger
Position:J.D. Candidate, May 2013, at American University Washington College of Law
Pages:58-74
 
CONTENT
FALL 2010 58
In September 2008, California legislators passed Senate Bill
375 (“S.B. 375”),1 for the purpose of reducing greenhouse
gas (“GHG”) emissions.2 This groundbreaking bill attempts
to reduce GHG emissions by regulating land-use plann ing and
housing apportionment.3 To reach its GHG reduction goals, the
bill requires regional administrative bodies to develop sustain-
able land-use plans and creates incentives for developers to
build sustainable communities.4 Legislators drafted S.B. 37 5
to supplement the Global Warming Solutions Act of 2006, also
known as Assembly Bill 32 (“A.B. 32”).5 As a preliminary step,
A.B. 32 requires the California Air Resources Board (“CARB”)
to determine the appropriate level of GHG em issions reduction
by the year 2020;6 subsequently, S.B. 375 also requires CARB
to set corresponding regional goals.7
In accordance with A.B. 32 and S.B. 375, CARB announced
regional GHG emis sions reduction goals on September 23,
2010.8 Although these goals differ by location , most require a
seven to eight percent reduction from 2005 emissi on levels by
the year 2020, and a thirteen to sixteen percent reduction from
2005 emission levels by the year 2035.9 S.B. 375 delegates the
responsib ility for meetin g these goals to Metropolitan Plan-
ning Orga nizations (“MPOs”), which must d evelop a Sustain -
able Commun ity Strategy (“SCS”) for their respective regions
to meet the 2020 and 2035 emission reduction goals.10 Conse-
quently, the SCS be comes the ro admap for sus tainable devel-
opment in each regio n and guides implementation of efficient
modes of transportati on.11 With these requir ements, S.B. 375
tries to encourage Californians to adopt sustainable lifestyles
by favoring mixed-use develop ments that pr omote walking,
mass transit, and other alternative modes of transportation over
the ubiquitous automobile.12 S.B. 375 requires each M PO to
develop a SCS to ensure it reaches its 2020 and 2035 emission
reduction goals.13 However, developing a S CS comes with its
own set of challenges.
To develop a SCS, each MPO must predict future funding;
determine how t o fund the SCS; and still meet CARB emis-
sions reductions ta rgets and Clean Air Act requirements.14 The
legiSlative upDate
completed SCS is then submit ted for CARB ap proval.15 How-
ever, if a region is unable to att ain CARB approval, it may
satisfy its statutory requiremen ts in another fashion.16 When a
MPO determines it cannot meet mandated reduction goals within
its fiscal constraints, it can dev elop an Alternati ve Planni ng
Strategy (“APS”), which effectively eliminates the mandatory
requirement to develop a SCS.17 In contrast to the comprehen-
sive requirements in a SCS, the APS only needs to show a plan
for meeting 2020 and 2035 goals.18 Th e primary incentive to
complete a SCS is that by doing so, local projects become eligi-
ble for federal funding.19 Projects located within an APS are not
generally eligible for federal funding.20 Regardless of whether a
MPO ultimately creates a SCS or an APS, either plan must be in
place by 2014, even if only the SCS is enforceable.21 Ultimately,
both of these plans must align with an area’s housing plan, as
required by S.B. 375.22
The housing plan under S.B. 375 is designed to combat
sprawl.23 Local government s must ha ve a housi ng plan u nder
their Regional Housing Needs As sessment (“RHNA”), which
evaluates a re gion’s housin g needs.24 S.B. 375 requires each
region’s RHNA to align with the sustainable develo pment plan
laid out in th e SCS.2 5 Therefore, the RHNA addresses how
each region will m eet its housing needs through sustainable
development.26
S.B. 375 is arguably most effective in that it provides incen-
tives for sustainable development, especially when federal fund-
ing fo r urban and transportation projects are tied to SCS plan
compliance.27 For land developers, incentives include fast-track
environmental approval or e xemptions from the approval pro-
cess, if their plans meet environmental requirements.28 Addi-
tionally, if CARB accepts the SCS it could become eligible for
federal fund ing, whereas an APS cannot.29 S.B. 375’s funding
incentives are its most efficient means of promoting sustainable
development.30
* Kira Hettinger is a J.D. Candidate, May 2013, at American University Wash-
ington College of Law.
new Frontier in urban greenhouSe gaS
emiSSionS regulation:
overview oF caliForniaS Senate bill 375
by Kira Hettinger*
SUSTAINABLE DEVELOPMENT LAW & POLICY59
S.B. 375 is an importan t step towards incor porating sus-
tainable land-us e regulation into meth ods for controlling GH G
emissions.31 To promote sustainable land-use, S.B. 375 encour-
ages denser, “greener” urban development, wh ich places hous-
ing near work places and living areas developed to incorporate
natural env ironments—all of whi ch encourage people to drive
less.32 Critics are concerned that the bill is too lenient and
allows MPO s to use an APS as a loophole to circumvent S.B.
375 re quirements.33 Propon ents of S.B . 375 say its succes s is
in being the first bill of its kind to be passed.34 Thi s legislation
takes necessary first ste ps toward reducing our ur ban sprawl
and promotin g sustainable developm ent.35 CARB’s announce-
ment of regional GHG emission go als on September 23, 2010,
is therefore a critical step forward and S.B. 375 may yet become
the catalyst that changes the approach to urban development in
the United States.36
Endnotes: Legislative Update: New Frontier in Urban Greenhouse
Gas Emissions Regulation: Overview of California's Senate
Bill 375
1 S. 375, 2007-2008 Leg., Reg. Sess. (Cal. 2008), 2008 Cal. Stat. 728 (2008)
(Codified in part into cal. coDe regS. tit. 2 §14522.11 (2010)).
2 See Press Release, Office of the Governor, Governor Schwarzenegger
Signs Sweeping Legislation to Reduce Greenhouse Gas Emissions through
Land-Use (Sept. 30, 2008), available at http://gov.ca.gov/index.php?/press-
release/10697/.
3 See id.
4 See S. 375, supra note 1.
5 See California Global Warming Solutions Act of 2006, cal. health &
SaFety coDe § 38560 (West 2010); see also S. 375, supra note 1 (achieving
climate goals by reducing Vehicle Miles Traveled for automobiles and light
trucks, which account for thirty percent of California’s GHG emissions).
6 See Assembly Bill 32: Global Warming Solutions Act, cal. envtl. prot.
agency, air reS. bD., http://www.arb.ca.gov/cc/ab32/ab32.htm (last visited
Oct. 8, 2010).
7 See S. 375, supra note 1.
8 See regional targetS aDviSory comm., cal. air reS. bD., recommenDa-
tionS oF the regional targetS aDviSory committee (rtac) purSuant to Sen-
ate bill 375, http://www.arb.ca.gov/cc/sb375/rtac/report/092909/finalreport.
pdf.
9 See id.
10 See S. 375, supra note 1.
11 See id.
12 See Press Release, supra note 2.
13 See S. 375, supra note 1.
14 See id.
15 See Senate Bill 375 – Regional Targets, cal. envtl. prot. agency, air reS.
bD, http://www.arb.ca.gov/cc/sb375/sb375.htm (last visited Oct. 8, 2010).
16 See S. 375, supra note 1.
17 See id.
18 See id. at 10.
19 Senate Bill 375 – Regional Targets, supra note 15 (noting that a Regional
Transportation Plan is a document used by the federal government to allocate
transportation funds, so if a SCS is adopted into a RTP the SCS is now eligible
for funds through the RTP).
20 See id.
21 See S. 375, supra note 1.
22 See id.
23 Senate Bill 375: Legislating our way out of sprawl, tranSbay blog, http://
transbayblog.com/sb375/ (last visited Oct. 8, 2010).
24 See id.
25 See id.
26 See id.
27 The Myth of SB 375, legal planet, http://legalplanet.wordpress.
com/2010/09/23/the-myth-of-sb-375/#more-8113 (last visited Oct. 15, 2010).
28 Id.
29 Senate Bill 375 – Regional Targets, supra note 15.
30 The Myth of SB 375, supra note 27.
31 See Press Release, supra note 2.
32 See id.
33 See The Myth of SB 375, supra note 27.
34 See Heather Haney, Implementing SB 375: Promises and Pitfalls, 37 ecol-
ogy l. currentS 46 (2010).
35 See Press Release, supra note 2.
36 See id.
FALL 2010 60
1 pierS ForSter et al., intergovernmental panel on climate change
(“IPCC”), Changes in Atmospheric Constituents and in Radiative Forcing, in
climate change 2007: the phySical Science baSiS 136 (Susan Solomon et
al. eds., 2007), http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-
chapter2.pdf (explaining that radiative forcing refers to the influence of factors
on the balance between the solar radiation entering and the infared radiation
exiting the atmosphere).
2 United Nations Framework Convention on Climate Change art. 2, May 9,
1992, 1771 U.N.T.S. 107, 165.
3 Veerabhadran Ram anathan & Yan Feng, On Avoid ing Dangerous Anthro -
pogenic Interference with the Climate System: Formidable Chall enges Ahead,
105 proc. natl acaD. Sci. uSa 14245, 14247 (2 008) (“Ab out 8% of the
committed warming (0.2°C) is compensated by increases in the surface albedo
because of land-use changes; ~20% (0.5°C) is delayed by the thermal inertia of
the oceans and it is onl y the balance o f ~25%, i.e., 0 .6°C, that should by now
have manifested as observed warming. This algebraic exercise demonstrates that
the observed surface warming of 0.76°C (since t he latter half of 1800s) is n ot
inconsistent with the committed warming of 2.4°C. The fundamental deduction
(subject to the assumption of IPCC climate sensitivity) is that if we get rid of the
ABCs today the Earth could warm another 1.6°C (which includes the delayed
warming cause d by ocean thermal inertia) unless we act now to reduce GHG
concentrations.”).
4 James Hansen et al., Target Atmospheric CO2: Whe re Should Humanity
Aim? 2 open atmoSpheric Sci. J. 217, 217 (2008) (recounting that although the
United Nations Framework Convention on Climate Change aims to stabilize lev-
els of greenhouse gases in the atmosphere to prevent “dangerous anthropogenic
interference with the climate system . . . the present global mean CO2, 385 ppm,
is already in the dangerous zone”).
5 ForSter et al., supra note 1, at 136.
6 geralD a. meehl et al., I PCC, Global Climate Projections, in climate
change 2007: the phySical Science baSiS 824 (S. Solomon et al. eds., 2007),
http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-chapter10.pdf.
7 Susan Solomon et al., Irreversible Climate Change Due to Carbon Dioxide
Emissions, 106 proc. natl acaD. USA 1704, 1704 (2 009), http://www.pnas.
org/content/early/2009/01/28/0812721106.full.pdf.
8 See Mario Molina, Durwood Zaelke, K. Madhava Sarma, Stephen O. Ander-
sen, Veerabhadr an Ramanathan & Donald Kaniaru, Reducing Abrupt Climate
Change Risk Using the Montreal Pro tocol and Other Regulatory Ac tions to
Complement Cuts in CO2 Emissions, 106 proc. natl acaD. Sci. USA 20616
(2009).
9 ipcc, Glossary, in climate change 2007: the phySical Science baSiS 941
(Alphonsus P. M. Baede ed., 2007), http://www.i pcc.ch/pdf/assessment-report/
ar4/wg1/ar4-wg1-annexes.pdf.
10 ForSter et al., supra note 1, at 132 (explaining that land cover cha nges,
largely due to net defore station, have incre ased the surface albedo, producing
radiative forcing of –0.2 [±0.2]W m–2).
11 Surab i Meno n, et al., Radiative Forcin g and Tempera ture Re sponse to
Changes in Urban Albedos and Associated CO2 Offsets, 5 envtl. reS. letterS
014005 (2010) (“The global radiative forcing associated with land use and land
cover change from pre-industrial times to present day due to land albedo modi-
fications is about −0.2 ± 0.2 Wm−2 . . . . This value is small but of opposite sign
compared to the 1.6 Wm−2 forcing from CO2.” (citing ForSter et al., supra note
1, at 136)).
12 Id. (“Over 60% of typical US urban surfa ces are pavements and roofs . . .
and roofs and paved surfaces constitute about 20-25% to 29-44%, respectively
of typical metropolitan US urban surfaces . . . . Thus the potential modification
to albedos of urban surface s can have a strong effect on radiative for cing and
it becom es useful to quantify this effect since i t can to some ex tent mitigate
or delay some of the consequences of warming from CO2 emi ssions.” (citing
Hashem Akbari et al., Analyzing the Land Cover of an Urban Environment
Using High-resolution Orthoph otos, 63 LanDScape & Urb. Plan. 1 (2003) and
Leanna Shea RoS e et al., CharacteriZ ing the Fabric oF the Urb an Environ-
ment: A CaSe StuDy oF Greater HouSton, TeXaS (2003)).
13 Id.
14 internationa l en ergy agency, worlD ener gy ou tlooK 2009 168, n. 1
(2009) (“Carbon di oxide equivale nt (CO2-eq) is a measure used to compare
and combi ne the em issions from various greenho use gases, and is c alculated
according to global-warming potential of each gas.”); id. at 44 (“The Reference
Scenario sees a continued rapid rise in energy-related CO2 emissions through to
2030, resulting from increased global demand for fossil energy. Having already
increased from 20.9 [gigatonnes (“Gt”) ] in 1990 to 28.8 Gt in 2007, energy-
related C O2 emissions are projected to reach 34.5 Gt in 2020 a nd 40.2 Gt in
2030—an average rate of growth of 1.5% per year over the full projection period
(Figure 2.1).”); id. at 169 (“Total emissions of greenhouse gases, across all sec-
tors, were 42.4 gigatonnes (Gt) of CO2-eq in 2005 (Figure 4.1).”).
15 Menon et al., supra note 11 (“Based on the radiative flux changes we obtained
from the CLSM we now examine the CO2 offsets that may be expected. We use
RF01A to define the radiative forcing obtained for a 0.01 change in albedo . . .
. The atmospheric CO2 equivalence for a 0.01 increase in u rban albedo is then
obtained from the ratio of RF01A (1.63W m−2) to the radiative change per tonne
of atmospheric CO2. This value is −1.79 kg CO2 m−2 urban area.”); id. (“These
averages represent all global land areas where data were available from the land
surface model used and are for the boreal summer (June–July–August).”); id.
(“If roof areas are 25% of urban areas (~3.8 × 1011 m2) and paved areas are 35%
of urban areas (~5.3 × 1011 m2), we then estimate 31 and 26 Gt CO2 offsets for
cool roofs and pavements, respectively.”).
16 Hashem Akbari et al., Global Cooling: Increasing Worldwide Urban Albe-
dos to Offset CO2, 94 climatic change 275, 284 (2009), ht tp://www.energy.
ca.gov/2008publications/CEC-999-2008-020/CEC-999-2008-020.PDF (“Using
cool roofs and cool pavements i n urban areas, on an average, can increase the
albedo of urban areas by 0.1. We estimate that increasing the albedo of urba n
roofs and pavements [on a global scale] will induce a negative radiative forcing
of 4.4x10-2 Wm-2 equivalent to offsetting 44 Gt of emitted CO2.”).
17 Timothy Lenton & Naomi Vaughan, The Radiati ve Forcing Potential of
Different Climate Geoengineering Options, 9 atmoSpheric chemiStry & phyS-
icS DiScuSSionS 5539, 5550 (2009), available at http://w ww.atmos-chem-phys.
net/9/553 9/2009/acp-9- 5539-2009.pdf (“ Assuming 1% of the land surfa ce
(1.5×1012 m2) is urban this has been estimated to induce a radiative forcing of
−0.044Wm−2 . . . we estimate RF=−0.047Wm−2 (Table 1). However, satellite
observations suggest the actual global urban area may be far less than assumed
. . . at 2.6×1011 m2 . . . or 0.051% of the Earth’s surface, which . . . would give
RF=−0.0081Wm−2.” (citing Akbari et al., supra note 16; Matthew C. Hansen et
al., Global La nd Cover Classification a t 1km Spatial Resolution Using a Clas-
sification Tree Approach, 21 Intl. J. Remote SenSing 1331 (2000); Thomas R.
Loveland et al., Development of a Global Land Cover Characteristics Database
and IGBP DISCover from 1 km AVHRR Data, 21 Intl. J. Remote SenSing 1303
(2000)).
18 Id.
19 Menon et al., supra note 11.
20 Akbari et al., supra note 16, at 284.
21 Menon et al., supra note 11 (explaining that increasin g albe do in turn
increases the outgoing radiation and reduces heat and by extension the demand
for energy for air conditioning; if that energy were supplied by fossil fuels, the
increase in albedo would then reduce CO2 emissions).
22 Akbari et al., supra note 16, at 275; Menon et al., supra note 11, at 279 (not-
ing that reflective surfaces gener ally lead to coo ler urban temperatures, which
slow smog formation).
23 Id. at 275 (“[M]any studies have demonstrated reductions of more than 20%
in coolin g costs fo r buildings whose rooftop albedo has been increase d from
about 10-20% to about 60% (in the US, potential savings exceed 1 billion per
year).”).
24 Id. at 276.
25 Keith Oleson et al., Effects of White Roofs on Urban Temperature in a Global
Climate Model, 37 geophySical reS. letterS L03701 (2010) (“Here, the effects
of globally installing white roofs are assessed using an urban canyon model cou-
pled to a global climate model. Averaged over all urban areas, the annual mean
heat island decreased by 33%. Urban daily maximum temperature decreased by
0.6ºC and daily minimum temperature by 0.3ºC.”).
26 Id.
27 Press Release, U. S. Dep’t of Energy (July 19, 2010), available at http://
energy.gov/news/9225.htm.
28 Id.
29 U.S. Dept of Energy, GuiDelineS for Selecting Cool RooFS (2010).
30 cal. coDe regS. tit. 24 § 118 (2010).
31 See, e.g., Fla. Stat. § 553.9061 (2010).
32 Press Release, U.S. Dep’t of Energy, supra note 27.
33 ipcc, Glossary, in climate change 2007: mit igation oF climate change
815 (Aviel Verbruggen ed., 2007) (defining geo-engineering as “[e]fforts to sta-
ENDNOTES: enhancing urban albeDo to Fight climate change anD Save energy from page 6
61 SUSTAINABLE DEVELOPMENT LAW & POLICY
bilise the climate system by directly managing the energy balance of the earth ,
thereby overcoming the enhanced greenhouse effect.”).
34 See, e.g., Samuel Thernstrom, White Makes Right? Steven Chu’s Help-
ful Idea, the american, Jun. 5, 2009, availa ble at http://ww w.american.com/
archive/2009/june/white-makes-right-steven-chu2019s-helpful-idea/.
35 See, e.g., Takayuki Toyama & Alan Stainer, Cosmic Heat Emission concept
to ‘stop’ global warming, 9 intl. J. global envtl. iSSueS 151-153 (2009) (urg-
ing the use of the Heat Reflecting Sheet (“HRS”) on Ea rth’s surface); see also
Alvia Gaskill, Summary of Meeting with US DOE to Discus s Geoengineering
Options to Prevent Abrupt and Long-Term Climate Change, available at http://
www.global-warming-geo-engineering.org/3/contents.html.
36 Robert M. Hamwey, Active Amplification of the Terrestrial Albedo to Miti-
gate Clim ate Change: An Exploratory Study, 12 mitigation anD a Daptation
StrategieS For glo bal change 419, 435 (2007) (explai ning that “[t]errestr ial
albedo amplification may stall climate change for about twenty-five years,” dur-
ing which humans can develop and implement long-term mitigation efforts such
as low-emissions energy conversion); see also Andy Ridgwell et al., Tackling
Regional Climate Change By Leaf Albedo Bio-geoengineeri ng, 19 current
biology 1, 1 (2009) (“We quantify this by modifying the canopy albedo of veg-
etation in prescribed cropland areas in a global-climate model, and thereby esti-
mate the near-term potential for bio-geoengineering to be a summertime cooling
of more than 1°C throug hout much of central North America and midla titude
Eurasia, equivalent to seasonally offsetting approximately one-fifth of regional
warming due to doubling of atmospheric CO2. Ultimatel y, genetic modifica-
tion of plant leaf waxes or canopy structure could achieve greater temperature
reductions, although better characterization of existing intraspecies variability is
needed first.”).
37 Lenton & Vaughan, supra note 17, at 5556.
ENDNOTES: traFFic Jam equality: evaluating the conStitutionality oF congeStion pricing continued from page 11
ENDNOTES: reDiScovering the tranSportation Frontier: improving SuStainability in the uniteD StateS
through paSSeinger rail continued from page 16
1 Christian Iaione, The Tragedy of Urban Roads: Saving Cities From Chok-
ing, Calling on Citizens to Combat Climate Change, 37 ForDham urb. l. J.
889, 891-96 (2010).
2 Id. at 919-22.
3 Id. at 908, 917-24.
4 Id. at 911. But see Kiran bhatt, thomaS higginS, & John berg, u.S. Dept
oF tranSp., FeD. highway aDmin., leSSonS learneD From international eXpe-
rience in congeStion pricing, at 4-1, 4-3 (2008), http://www.ops.fhwa.dot.gov/
publications/fhwahop08047/Intl_CPLessons.pdf (noting the positive environ-
mental effects of congestion pricing in London, Singapore, and Stockholm).
5 Iaione, supra note 1, at 911.
6 See city oF new yorK, planyc: a greener, greater new yorK 88-90
(2007), http://www.nyc.gov/html/planyc2030/downloads/pdf/full_report.
pdf. But see, Mireya Navarro, Mayor’s Environmental Record: Grand Plans
and Small Steps Forward, n.y. timeS, Oct. 22, 2009, http://www.nytimes.
com/2009/10/23/nyregion/23green.html?pagewanted=2&_r=3 (noting that
Mayor Bloomberg’s congestion pricing initiative did not advance out of the
New York State Legislature).
7 Navarro, supra note 6.
8 In this case, the essence of the legal complaint against Mayor Bloomberg’s
tax scheme would be grounded in the basis of the Commerce Clause; however,
because the policy constitutes a state action, the petitioner may also raise the
issue under 42 U.S.C. Section 1983. Specifically, 42 U.S.C. Section 1983
provides that “[e]very person who, under color of any statute, ordinance, regu-
lation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other per-
son within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress
. . . .” 42 U.S.C. § 1983 (2010). Under this section, because the Commerce
Clause violation occurred as a result of a state action, the state itself may face
legal action under Section 1983.
9 Navarro, supra note 6.
10 n.y. State aSSem., interim report: an inquiry into congeStion pricing aS
propoSeD in planyc 2030 anD S.6068 11 (2007).
11 Id.
12 Phila. & S. Steamship Co. v. Pennsylvania, 122 U.S. 326, 335 (1887).
13 Id. at 336.
14 Id.
15 Dennis v. Higgins, 498 U.S. 439, 440-41 (1991).
16 Id. at 441.
17 Id. at 446.
18 Id. at 441-42.
19 n.y. State aSSem., supra note 10, at 11.
20 Jeremy Elton Jacquot, Is Congestion Pricing Right for Car-Happy Los Ange-
les?, treehugger (Apr. 30, 2008), http://www.treehugger.com/files/2008/04/
congestion-pricing-los-angeles.php.
21 N.Y. State ASSem., supra note 10, at 11.
22 Id.
23 Id.
24 Id. In the New York State Assembly Committee on Corporations, Authori-
ties and Commissions Report, the authors note that the real motivation for
the taxation scheme is behavior modification, with the hope that an $8 fee on
commuters will encourage those commuters to change their habits in favor of
environmentally friendly alternatives such as public transportation. However, as
the study goes on to note, the likelihood that an $8 fee will affect the habits of
the wealthy commuters traveling into Manhattan is improbable, with the likely
result being an additional burden on middle to low income families. Id. at 8.
25 Richard C. Feiock & Christopher Stream, Environmental Protection versus
Economic Development: A False Trade-Off?, 61 Pub. ADmin. rev. 313, 318 (2001).
report/2008/pdf/entire.pdf [hereinafter tranSportation StatiSticS annual
report 2008]; see also Bradley W. Lane, The Relationship Between Recent
Gasoline Price Fluctuations and Transit Ridership in Major US Cities, 18 J. oF
tranSport geography 214, 214-25 (2010).
33 James V. DeLong, Myths of Light Rail Transit, reaSon FounDation, 7-11
(Sept. 1, 1998), http://commonsenseamericans.org/images/mythsoflightrail.pdf.
34 Randal O’Toole, Defining Success: The Case against Rail Transit, cato
inSt., 2 (Mar. 24, 2010), http://www.cato.org/pubs/pas/pa663.pdf.
35 toDD littman, victoria tranSp. inSt., rail tranSit in america: a compre-
henSive evaluation oF beneFitS 2 (2010), http://www.vtpi.org/railben.pdf.
36 national tranSportation StatiSticS 2010, supra 13 note at Table 4-20:
Energy Intensity of Passenger Modes.
37 See linDa bailey, icF intl, public tranSportation anD petroleum Sav-
ingS in the u.S.: reDucing DepenDence on Foreign oil 9, 11 (2007), http://
www.publictransportation.org/reports/documents/apta_public_transportation_
fuel_savings_final_010807.pdf.
38 tranSportation StatiSticS annual report 2008, supra note 32, at 7.
39 John bennett et al., the paSSenger rail worKing group, viSion For the
Future: u.S. intercity paSSenger rail networK through 2050 15 (2007),
http://www.dot.wisconsin.gov/projects/state/docs/prwg-report.pdf.
40 marK Delluchi et al., inSt. oF tranp. StuDieS, u. cal. DaviS, emiSSionS oF
criteria pollutantS, toXic air pollutantS, anD greenhouSe gaSeS, From the
uSe oF alternative tranSportation moDeS anD FuelS 47 (1996), http://pubs.
its.ucdavis.edu/download_pdf.php?id=617.
41 littman, supra note 35, at 32.
42 ctr. For neighborhooD tech. & ctr. For clean air tech., high SpeeD
rail anD greenhouSe gaS emiSSionS in the u.S. 1 (2006), http://www.cnt.org/
repository/HighSpeedRailEmissions.pdf.
43 Locomotives, U.S. envtl. prot. agency, http://epa.gov/otaq/locomotives.
htm (last visited Sept. 4, 2010).
44 Id.
45 The Benefits of Intercity Passenger Rail: Hearing Before the H. Subcomm.
on Railroads, Pipelines, and Hazardous Materials, 110th Cong. 120 (2007).
46 benJamin r. Sperry & curtiS a. morgan, Sw. region univ. tranSp. ctr.,
meaSuring the beneFitS oF paSSenger rail: a StuDy oF the heartlanD
Flyer corriDor 102 (2010), http://swutc.tamu.edu/publications/technicalre-
ports/169116-1.pdf.
47 Id. at 117.
62FALL 2010
48 littman, supra note 35, at 16.
49 AASHTO Study: Highway Capacity Crisis Looming in Rural America,
aaShto Journal (Sept. 03, 2010), http://www.aashtojournal.org/
Pages/090310rural.aspx.
50 littman, supra note 35, at 7; see generally Antonio M. Bento et al., The
Effects of Urban Spatial Structure on Travel Demand in the United States, 87
rev. oF econ. & Stat. 466, 466-78 (2005).
51 cliFForD winSton & aShley langer, aei-brooKingS Joint ctr. For
regulatory StuDieS, the eFFect oF government highway SpenDing on roaD
uSerS’ congeStion coStS 13 (2006), http://www.brookings.edu/views/papers/
winston/200605-aeijc.pdf.
52 Table 1-67: Amtrak On-Time Performance Trends and Hours of Delay by
Cause, bureau oF tranSp. Stat. http://www.bts.gov/publications/national_
transportation_statistics/html/table_01_67.html (last visited Sept. 8, 2010).
53 Id.
54 DaviD SchranK & tim lomaX, teXaS tranSp. inSt., 2009 urban mobility report
B-63 (2009), http://tti.tamu.edu/documents/mobility_report_2009_wappx.pdf.
55 Id. at 1.
56 Id.
57 Table 1-67: Amtrak On-Time Performance Trends and Hours of Delay by
Cause, supra note 52.
58 Georgina Santos et al., Part II: Policy Instruments for Sustainable Road
Transport, 28 reS. in tranSp. econ. 46, 64 (2010). On average, one dollar of
highway spending in a given year reduces congestion costs to road users by
only eleven cents in that same year. winSton, supra note 51, at 2.
59 Sperry, supra note 46, at 106.
60 Daniel Stokols et al., Traffic Congestion, Type A Behavior, and Stress, 63 J.
oF applieD pSychol. 467, 477-78 (1978).
61 Mary B. Geisz & Robert Wood Johnson Found., Study Shows Commuting
From New Jersey to New York by Train Instead of by Car Ups Physical Activ-
ity, Reduces Stress, robert wooD JohnSon FounDation (Feb. 2007), http://
www.rwjf.org/reports/grr/044743.htm.
62 peterman, supra note 23, at 1.
63 American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123
Stat. 115 (2009).
1 See UNEP: urban environment unit, citieS anD green builDingS: in the
tranSition to a green economy a unep brieF, 1 (2009), http://www.unep.
org/urban_environment/PDFs/CitiesAndBuildingFactsheet_20091105.pdf
[hereinafter citieS anD green builDingS].
2 See id.
3 See About the Urban Environment, eur. envt agency, http://www.eea.
europa.eu/themes/urban/about-the-urban-environment (last visited Oct. 17,
2010) [hereinafter EEA].
4 See Victoria Broadus, UNEP:BRT Key to Sustainable Urban Development
in Latin America and the Caribbean, the city FiX (Jul. 19, 2010), http://the-
cityfix.com/unep-brt-key-to-sustainable-urban-development-in-latin-america-
and-the-caribbean/.
5 See citieS anD green builDingS, supra note 1, at 1.
6 See id.
7 EEA, supra note 3, at 1.
8 See Green Economy Success Stories: Sustainable Urban Planning in Brazil,
unep: envt For Dev. (2009), http://www.unep.org/greeneconomy/SuccessSto-
ries/SustainableUrbanPlanninginBrazil/tabid/4656/language/en-US/Default.aspx.
9 See id.
10 Id.
11 See id.
12 These sustainable development goals include, but are not limited to: Agenda
21, Rio Declaration, Johannesburg Declaration, Johannesburg Plan of Imple-
mentation, Monterrey Consensus. For more information refer to: Major Agree-
ments & Conventions Overriding Issues on Sustainable Development, Div. For
SuStainable Dev., http://www.un.org/esa/dsd/resources/res_majoagreconvover.
shtml.
13 See Secretary-General Sha Zukang, UNCSD 2012, Green Economy and
Trade, blog on rio+20 (Oct. 8, 2010, 9:11 AM), http://www.uncsd2012.org/
index.php?option=com_content&view=article&id=119:blog-on-rio20-green-
economy-and-trade&catid=36:blog&Itemid=73 [hereinafter blog on rio].
14 See G.A. Res 64/236, ¶ 20, U.N. Doc. A/RES/64/236 (Mar. 31, 2010).
15 Id. at ¶ 20(a).
16 See id.
17 See id.
18 See id.
19 UNEP, green economy report: a preview 5 (2010), http://www.unep.ch/
etb/publications/Green%20Economy/GER%20Preview%20v2.0.pdf [hereinaf-
ter green economy report].
20 See Summary of the First PrepCom for the UN Conference on Sustainable
Development: 17-19 May 2010, earth negotiationS bull. (Int’l Inst. for Sus-
tainable Dev., New York, N.Y.), May 21, 2010, at 8, http://www.iisd.ca/down-
load/pdf/enb2701e.pdf [hereinafter CSD PrepCom1].
21 See id. at 11.
22 See id. at 8, 11.
23 See id. at 8.
24 green economy report, supra note 19, at 9.
25 See id. at 2-3.
26 citieS anD green builDingS, supra note 1, at 2.
27 Id.
28 See id. at 2.
29 Id.
30 Id.
31 See id. at 2.
32 See blog on rio, supra note 13.
33 See id.; CSD PrepCom1, supra note 20, at 8.
34 citieS anD green builDingS, supra note 1, at 3.
35 Id.
ENDNOTES: urban Development: a viable option aFter rio 2012? continued from page 17
ENDNOTES: time-oF-uSe pricing coulD help china manage DemanD continued from page 18
1 barbara Finamore, et al., natural reS. DeF. council, DemanD-SiDe man-
agement in china 4 (2003), www.nrdc.org/air/energy/chinadocs/dsm.pdf.
2 Xinhua News, China Leads the World in Urbanization: Blue Paper, china
Daily (July 30, 2010), http://www.chinadaily.com.cn/china/2010-07/30/con-
tent_11069784.htm.
3 Finamore, supra note 1, at 51; JameS h. williamS & FreDrich Kahrl, Elec-
tricity Reform and Sustainable Development in China, 3 envtl. reS. letterS
044009, 8 (2008), http://iopscience.iop.org/1748-9326/3/4/044009/pdf/1748-
9326_3_4_044009.pdf.
4 Finamore, supra note 1, at 4-5.
5 FeD. energy reg. commn, DocKet no. aD-06-2-00, aSSeSSment oF
DemanD reSponSe & aDvanceD metering 51-57 (2006); Junqiao Han & Mary
Ann Piette, Earnest Orlando Lawrence Berkley Nat’l Lab., Solutions for Sum-
mer Electric Power Shortages: Demand Response and its Applications in Air
Conditioning and Refrigeration Systems, reFrigeration, air conDitioning, &
electric power machinery, Jan. 2008 § 3.2, http://drrc.lbl.gov/pubs/63806.pdf.
6 FeD. energy reg. commn, supra note 5, at 51-57.
7 Id. at 54.
8 Finamore, supra note 1, at iv (advocating for energy efficiency to address
power shortages).
9 Patrick McGeehan & Fernanda Santos, New York Wilts Under Record-
Breaking Heat Wave, n.y. timeS, July 6, 2010, at A1 (describing power fail-
ures in 2010 in Staten Island, N.Y., New Jersey, and in 2006, Queens, N.Y.);
see also Kevin liu, china envt Forum, wooDrow wilSon intl ctr. For
ScholarS, wiSing up: Smart griD aS new opening For u.S. china energy
cooperation (2009), http://www.wilsoncenter.org/topics/docs/wising_up1.pdf.
10 liu, supra note 9.
11 Id.
12 Id.
13 Finamore, supra note 1, at 19-20.
14 Graduated Tariffs Feature in Energy Price Reform, Shanghai Daily, Oct. 10, 2010,
http://english.eastday.com/e/101010/u1a5485791.html; Finamore, supra note 1, at 22.
SUSTAINABLE DEVELOPMENT LAW & POLICY63
15 Finamore, supra note 1, at 19-20.
16 Karen Howlett, Ontario Hydro’s Smart Meters Give Dumb Results: Critics,
the globe anD mail, Sept. 14, 2010, http://www.bradfordtimes.ca/Article-
Display.aspx?e=2708342; Miriam King, “Perfect Storm” Hits Ontario Hydro
Users, braDForD-weSt gillimbury timeS, http://www.bradfordtimes.ca/
ArticleDisplay.aspx?e=2708342 (last visited Nov. 7, 2010).
17 See Howlett, supra note 16; King, supra note 16.
18 Ted Kendell, Letter to the Editor, My Bill’s Still Rising, the ottawa citiZen,
Sept. 28, 2010, http://www.ottawacitizen.com/news/bill+still+rising/3588684/
story.html (shifting 70% of energy use still resulted in higher bills); Randy
Richmond, Ontario Residents Brace for Power Bill Hike, cnewS, http://cnews.
canoe.ca/CNEWS/Canada/2010/07/29/14862356.html (last visited Nov. 7,
2010) (explaining that low-income and elderly will not be able to offset their
energy use to compensate for increases); Lee Greenberg, Ontario May Adjust a
Time-Of-Use Power Use, McGinty Says, ottawa citiZen, Sept. 15, 2010, http://
www.ottawacitizen.com/technology/Ontario+adjust+time+power+McGuinty
+says/3522557/story.html (stating that sixty-eight percent of users under TOU
have higher bills).
19 Ontario Time-of-Use Electricity Rates, ontario hyDro, http://www.ontario-
hydro.com/index.php?page=current_rates (last visited Nov. 2, 2010) (showing
an off-peak rate of 5.3 cents/kWh, a mid-peak rate of 8.0 cents/kWh, and an
on-peak rate of 9.9 cents/kWh, with normal meter pricing at 6.5 cents/kWh up
to 600 kWh/month).
20 Time of Use Rate, orange & rocKlanD, http://www.oru.com/programsand-
services/incentivesandrebates/timeofuse.html (last visited Nov. 2, 2010) (peak
to off-peak difference of approximately 550%); National Grid Time-of-Use,
maSSelectric, http://www.nationalgridus.com/Masselectric/home/rates/4_tou.
asp (last visited Nov. 2, 2010) (peak to off-peak difference of approximately
600%); Time-of-Use Billing, ctr. huDSon gaS & elec., http://www.cenhud.
com/residential/time_use.html (last visited Nov. 2, 2010) (peak to off-peak dif-
ference of approximately 240%).
21 New Electricity Price Policy has Limited Impact on Commodity Prices,
peopleS Daily online (Oct. 12, 2010), http://english.peopledaily.com.
cn/90001/90778/90862/7163061.html.
22 Id.
23 Id.
6 42 U.S.C. § 9604 (2006).
7 § 9605.
8 40 C.F.R. § 300, app. B (2006). The NPL must be revised annually. EPA’s
usual procedure for this is to, propose placing a group of sites on the NPL
through publication in the Federal Register; then, after a public comment
period, issue a final rule in the Federal Register formally adding sites to the
NPL. The listings of a site on the NPL may be challenged only in the Court
of Appeals for the District of Columbia and must be filed within 90 days of
the final notice to list the site on the NPL. (42 U.S.C. § 9613(a)). EPA will
defer listing a site on the NPL or may delete a site from the NPL if the site
can be fully remediated under the Resource Conservation and Recovery Act
(“RCRA”) corrective action program. However, EPA may decline to defer a
site if the RCRA corrective action may not apply to all of the contamination at
a site.
9 40 CFR § 300, app. A. The HRS is a scoring system that is used to assess
the relative threat associated with actual or potential releases of hazardous
substances.
10 § 300.425(c).
11 Id.
12 epa: the cercliS inFormation SyStem (“cercliS”) public acceSS
DatabaSe, http://cfpub.epa.gov/supercpad/cursites/srchsites.cfm (last visited
Oct. 6, 2010).
13 40 C.F.R. § 300.5 (2010).
14 § 300.66(c)(2).
15 § 300.420.
16 § 300.5.
17 42 U.S.C. § 9605(h)(1)(2006).
18 There are two types of response actions. “Removal Actions” are interim
or short-term measures designed to contain or stabilize releases of hazardous
substances but not eliminate all contamination at a site. Removal actions are
to be used when a prompt response is necessary to minimize the immediate
effects of a release of hazardous substances. 42 U.S.C. § 9601(23). “Remedial
Actions” consist of long-term work designed to permanently eliminate the risk
posed by the release or threatened release such as soil excavation, groundwater
treatment, offsite disposal of contaminated materials, and permanent relocation
of residents and businesses affected by the hazardous substances. 42 U.S.C. §
9601(24).
19 42 U.S.C. § 9607 (2001).
20 § 9606.
21 § 9607(a)(4)(A)-(D).
22 § 9613(f).
23 § 9607(a)(1).
24 Id.
25 § 9607(a)(3).
26 § 9607(a)(4).
27 § 9607(b)(3).
28 § 9601(35)(A).
29 § 9601(40).
30 § 9607(q).
31 § 9607(b)(3).
32 h.r. rep. no. 253, at 187 (1986).
33 New York v. Lashins Arcade, 91 F.3d 353 (2d Cir. 1992).
34 Foster v. United States, 922 F. Supp. 642 (D.D.C. 1996); Lashins, 91 F.3d at
353.
35 Lashins, 91 F.3d at 353. For other examples of owners who were held to
have exercised due care, see Lincoln Properties, 823 F. Supp. 1528 (E.D. Cal.
1992); In re Sterling Steel Treating, Inc., 94 B.R. 924 (Bankr. E.D. Mich.
1989).
36 See Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321 (7th
Cir. 1994); United States v. DiBase Salem Realty Trust, No. 91-11028, 1993
U.S. Dist. WESTLAW 729662 (D. Mass. Nov. 19, 1993).
37 See A&N Cleaners & Launderers, Inc. v. St. Paul Fire & Marine Ins. Co.,
842 F. Supp. 1543 (S.D.N.Y. 1994) (discussing the failure to inquire about past
use of floor drain, not communicating with local environmental authorities or
inquiring about environmental compliance of commercial tenants).
38 Westfarm Assocs. v. Wash. Suburban Sanitary Comm’n, 66 F.3d 669 (4th
Cir. 1995); United States v. Monsanto, 858 F.2d. 160 (4th Cir. 1988); New
York v. Shore Realty, 759 F.2d 1032 (2d Cir. 1985).
39 42 U.S.C. § 9601(35)(A).
40 .§ 9601(35)(B). EPA promulgated its “all appropriate inquiries” (“AAI”) rule
on November 1, 2005. Standards and Practices for All Appropriate Inquiries, 70
Fed. Reg. 66,069 (Nov. 1, 2005) (to be codified at 40 C.F.R. pt. 312).
41 Kerr-McGee, 14 F.3d at 321.
42 42 U.S.C. § 9601(35)(B)(i)(II).
43 § 9601(40).
44 § 9601(40)(D).
45 § 9607(q).
46 Memorandum from Susan E. Bromm, Director of Site Remediation
Enforcement, U.S. EPA, (Mar. 6, 2003) “Interim Guidance Regarding Criteria
Landowners Must Meet In Order to Qualify for the Bona Fide Prospective
Purchaser, Contiguous Property Owner or Innocent Landowner Limitations on
CERCLA Liability, (‘Common Elements’)” http://www.epa.gov/compliance/
resources/policies/cleanup/superfund/common-elem-guide.pdf.
47 Id. at 4-7.
48 Id. at 19.
49 § 9603(a). The RQ only pertains to the reporting obligation of section 103
and does not determine whether there has been a CERCLA release that must be
remediated.
50 Notification Requirements; Reportable Quantity Adjustments, 50 Fed. Reg.
13,456, 13,466 (Apr. 4, 1985) (to be codified at 40 C.F.R. pts. 117 and 302).
When a substance is released that is not a CERCLA hazardous substance but
reacts after the release with other chemicals to produce a CERCLA hazardous
substance, the release must be reported if the subsequent reaction produces a
CERCLA hazardous substance that equals or exceeds the RQ for that particular
substance. 54 Fed. Reg. 3,390. While the statutory notification obligation only
requires that federal authorities be contacted, state authorities are usually con-
tacted as well.
ENDNOTES: how the cercla notiFication requirementS Facilitate the creation oF brownFielDS anD what
epa can Do to aDDreSS thiS problem continued from page 26
FALL 2010 64
51 50 Fed. Reg. 13,463 (Apr. 4, 1985) (clarifying that the 24-hour period is the
period in which a reportable quantity of a hazardous substance must be released
for EPA to consider the release “reportable” rather than the timeframe for the
knowledgeable party to report the release, since reports must be made “immedi-
ately”).
52 Clean Water Act, 33 U.S.C. § 1321(2006).
53 Daniel Schlesinger, Note, Revisiting New York’s Brownfield Cleanup Pro-
gram: An Analysis of a Voluntary Cleanup Program that Lost its Way, 3 alb.
govt l. rev. 403, 407 (2010) (arguing that the New York statute, which uses
the same definition of Brownfield as CERCLA, encourages property owners to
abandon the property rather than risk the expense associated with remediating
and redeveloping the property, and citing N.Y. State Department of Environ-
mental Conservation, Brownfields FAQ’s, available at http://www.dec.ny.gov/
chemical/8642.html (last visited Jan. 9, 2010), which states that high cleanup
costs can result from Brownfield sites). See also Oni N. Harton, Note, Indiana’s
Brownfields Initiatives: A Vehicle for Pursuing Environmental Justice or Just
Blowing Smoke?, 41 inD. l. rev. 215, 218 (2008) (claiming uncertainty of exis-
tence or extent of contamination, and presumably corresponding liability, as a
primary factor in abandonment and underutilization of Brownfield lands) (cit-
ing Bradford C. Mank, Public Participation in the Cleanup and Redevelopment
Process, in Brownfields Law and Practice in 1 brownFielDS law anD practice:
the cleanup anD reDevelopment oF contaminateD lanD, ch. 31 (Michael B.
Gerrard ed., 1998)).
54 Based on correspondence with the EPA brownfield office, it appears EPA
does not take into account the existence of such potentially viable parties when
reviewing brownfield funding applications. In fact, EPA does not seem to track
if there are any viable responsible parties for the sites that have been awarded
assessment grants or cleanup funds. In a time of constrained government
resources, it would seem that good stewardship would involve pursuing cost
recovery from firms that created the brownfield site by abandoning the proper-
ties in the first place. This would also be consistent with the “polluter pay” con-
cept that is at the heart of CERCLA.
55 Bromm, supra note 46, at 2 (explaining EPA regulation and continuing
need for use of institutional controls, even after establishing landowner liability
protection because the controls serve to minimize risks of human exposure and
limit possibility of further contamination spread).
56 See Draft Guidance For Evaluating the Vapor Intrusion To Indoor Air Path-
way From Groundwater And Soils (Subsurface Vapor Intrusion Guidance), 67
Fed. Reg. 71,169, 71,171-72 (Nov. 29, 2002) (explaining that vapor intrusion
refers to the transport of vapors from subsurface soils or groundwater into
buildings through the natural exchange of air or mechanical ventilation systems.
To develop a vapor intrusion problem, there must be a source of contamina-
tion and a pathway for entry of the contaminants into a building. The source of
the vapors can be from contamination in the soil, dissolved in groundwater, or
that exists as a separate phase with the groundwater known as a non-aqueous
phase liquid (“NAPL”) such as gasoline floating on the top of the water table.
In general, contaminated vapors want to move from areas of high concentration
(e.g., groundwater) to areas of low concentration such as soil gas or building
interiors. However, the factors that influence the movement of vapors from the
subsurface soil or groundwater into buildings can be very complex. Because
the science behind vapor intrusion is rapidly evolving and the preferred techni-
cal approaches for addressing the issue vary considerably by state, owners and
operators of contaminated sites can find themselves subject to costly delays and
uncertainty as they try to satisfy the ever-changing regulatory requirements. In
addition, responsible parties who thought they had completed remediation and
received no further action letters are now finding themselves subject to addi-
tional investigation and remedial obligations. Moreover, the potential for vapor
intrusion is creating potential exposure for third party claims for personal injury
and property damage.).
57 Id. at 71, 171-72.
58 Further complicating the issue is that vapor intrusion action levels are
expressed in terms of weight by volume (micrograms per cubic meter) rather
than mass (e.g., one pound).
59 N.Y. Envtl. Conserv. Law § 27-2403 (McKinney 2010).
60 § 27-2405.
61 Smart Growth Network, Getting to Smart Growth: 100 Policies for Imple-
mentation, 52 (2002) http://www.smartgrowth.org/pdf/gettosg.pdf#xml=http://
search.ncat.org/texis/search/pdfhi.txt?query=brownfield+remediation&pr=SGN
&prox=page&rorder=500&rprox=500&rdfreq=500&rwfreq=500&rlead=500&
rdepth=62&sufs=0&order=r&cq=&id=4cae7b3b7 (estimating 500,000 Brown-
field sites exist nationally, citing Robert A. Simons, Turning Brownfields into
Greenbacks (Washington, D.C.: Urban Land Institute, 1998)).
62 Evans Paull, The Environmental and Economic Impacts of Brownfields
Development, Working Draft for Distribution by the Northeast-Midwest Insti-
tute, (July 2008), http://cbff.lunarpages.com/conference_2008/cbf_conf_2008_
downloads/paull_eco_and_env_benefits_of_browfields_11_08.pdf.
63 S. rep. no. 96-848 (1980) .
64 Notification Requirements; Reportable Quantity Adjustments, 48 Fed. Reg.
23,552, 23566 (May 25, 1983) (to be codified at 40 C.F.R. pt 302).
65 See Mark McIntyre, How PlaNYC Will Help Facilitate Brownfield Redevel-
opment, 54 n.y.l. Sch. l. rev. 431, 435 (2009) (explaining that “self-directed”
cleanups are done by developers without regulatory oversight; this fits neatly
with the idea of a 24-hour reporting period and no reporting after that window
under the RQ, thereby allowing developers to take on these projects).
66 See Mireya Navarro, New York Tackles ‘Brownfields’ Cleanup, n.y. timeS
Blog (Aug. 5, 2010, 11:42 AM), http://green.blogs.nytimes.com/2010/08/05/
new-york-tackles-brownfields-cleanup/ (discussing the inclusion in the new
New York City brownfields cleanup plan of specific requirements establish-
ing clear guidelines for developer-driven cleanups, rather than continuing with
unregulated, and presumably problematic, “self-directed” clean-ups).
67 Ontario Ministry of the Environment: Guidance on Sampling and Analytical
Methods for Use at Contaminated Sites in Ontario (2008), http://www.ene.gov.
on.ca/envision/gp/326601.htm.
68 2004 Smart Growth in Brownfield Communities Grant Recipients, epa
(2010), http://www.epa.gov/smartgrowth/2004_sgbf_recipients.htm (listing
projects in North Carolina, Utah, Michigan, Indiana, Massachusetts, Rhode
Island, and Louisiana) (last visited Oct. 6, 2010).
69 Analysis of the New York State Brownfield Cleanup Program by the
Brownfield Committee of the Environmental Business Association of New
York State (on file with author).
70 Id.
71 Id.
72 Id.
73 Jane ambachtSheer et al., the inveStor envtl health networK, FiDu-
ciary guiDe to toXic chemical riSK 17 (2007), http://www.iehn.org/filesalt/
Fiduciary.pdf (highlighting the instance of a ten-year “no look” clause in prop-
erty sale contract in California that was litigated after the property was resold
within that timeframe and subjected the later buyer to undisclosed liabilities).
74 Mark A. Cohen, Information as a Policy Instrument in Protecting The Environ-
ment: What have We Learned?, 31 envtl. l. rep. 10425, 10425-31 (Apr. 2001).
75 Clifford Rechtschaffen & Patrick Williams, The Continued Success of Prop-
osition 65 in Reducing Toxic Exposures, 35 envtl. l. rep. 10850 (Dec. 2005).
76 Wash. Rev. Code § 64.06 (2010); 36 Md. Reg. 1782 (Oct. 23, 2009); State
of Connecticut’s Department of Environmental Protection, Proposed Regula-
tions Concerning the Reporting of Releases (Oct. 2010), http://www.ct.gov/
dep/cwp/view.asp?a=2692&Q=464770&depNav_GID=1648. See also mary-
lanD Dept oF the envt, “Facts About … Maryland’s Controlled Hazardous
Substance Reporting Notifications,” 1, http://www.mde.state.md.us/assets/
document/CHS%20Notification%20Regulations%20Questions%20and%20
Answers(1).pdf (last visited Oct. 12, 2010).
77 36 Md. Reg. 1782 (Oct. 23, 2009). See also marylanD Dept oF the envt,
supra note 76.
78 36 Md. Reg. 1782 (Oct. 23, 2009).
79 Id.
80 State of Connecticut’s Department of Environmental Protection, supra note
76.
81 Wash. Rev. Code § 64.06 (2010).
82 Compliance Incentives and Auditing, EPA http://www.epa.gov/compliance/
incentives/auditing/index.html (last visited Oct. 12, 2010).
83 42 U.S.C. § 9603(c).
84 Id.
85 Id.
86 Hazardous Substances: Notification of Treatment, Storage and Disposal
Facilities, 46 Fed. Reg. 22,144, 22,149 (Apr. 15, 1981).
87 See Memorandum from Thea McManus and Hubert Watters (June 9, 1988);
Memorandum from Carolyn Barley and Barbara Hostage (Dec. 15, 1985); Let-
ter from Lisa K. Friedman to Barry R. Bedride, (Dec. 28, 1984).
88 City of Toledo v. Beazer Materials & Servs., Inc., 833 F. Supp. 646 (N.D.
Ohio 1993).
89 Id. at 658-59.
90 Id. at 659-61.
91 Id. at 661.
92 See 46 Fed. Reg. at 22, 145.
93 42 U.S.C. § 9611(g).
SUSTAINABLE DEVELOPMENT LAW & POLICY65
94 Id.
95 Notification Requirements; Reportable Quantity Adjustments, 50 Fed. Reg.
13,456, 13,464 (Apr. 4, 1985) (to be codified at 40 C.F.R. pts. 117 and 302).
96 42 U.S.C. § 9608.
97 § 9607(b).
98 Id.
99 § 9601(35)(B).
100 The thinking in these cases seems to follow the old aphorism: “You cant
manage what you don’t measure.”
101 § 9607(b)
102 Compare 42 U.S.C. § 9601(35)(B)(iii) with 42 U.S.C. § 9601(35)(B)(iv).
103 Standards and Practices for All Appropriate Inquiries, 70 Fed. Reg. 66,070,
66,089 (Nov. 1, 2005) (to be codified at 40 C.F.R. pt. 312).
104 Id.
105 § 66,089.
106 § 66,101.
107 See 42 U.S.C. § 9601(35)(B)(i). See also 42 U.S.C. § 9601(40)(adding
BFPP liability protection) and 42 U.S.C. § 9607(q)(adding CPO liability pro-
tection)
108 42 U.S.C. § 9604(d) does authorize EPA to enter into cooperation agree-
ments with states and local governments to carry out response actions. How-
ever, the agency has not used this authority much since the mid-1980s.
109 § 9628.
110 § 9601(41)(C).
111 § 9628(a)(2).
112 § 9601(41)(C)(i).
113 § 9601(41)(C)(ii).
114 § 9628(b)(1)(C)
115 § 9628(b)(1)(C).
116 Id.
117 Id.
118 § 9629(b)(1)(C).
119 § 9628.
120 Id.
121 See Bromm, supra note 46.
122 Standards and Practices for All Appropriate Inquiries, 70 Fed. Reg. at
66,070; 40 CFR § 312 (2010).
123 louiS D. branDeiS, other peopleS money anD how the banKerS uSe it 92
(1914).
124 Michael Moss, The Burger That Shattered Her Life, n.y. timeS, Oct. 4,
2009, at A1, available at http://www.nytimes.com/2009/10/04/health/04meat.
html.
125 Id.
126 Michael Moss, E. Coli Outbreak Traced to Company That Halted Testing of
Ground Beef Trimmings, n.y. timeS, Nov. 13, 2009, at A16, available at http://
www.nytimes.com/2009/11/13/us/13ecoli.html.
1 Mark Haggerty & Stephanie A. Welcomer, Superfund: The Ascendance of
Enabling Myths, 37 J. econ. iSSueS 451, 451 (2003).
2 See generally Anthony Quincy Vale, Reform and Renewal: A Look at the
Link Between Superfund and Urban Blight, 2 alb. l. envtl. outlooK 57
(1995) (describing problems associated with unfunded urban superfund site
cleanups).
3 American Reinvestment and Recovery Act of 2009, Pub. L. No. 111-5, 123
Stat. 115.
4 See Superfund National Accomplishments Summary Fiscal Year 2009, epa,
http://www.epa.gov/superfund/accomp/numbers09.html (last updated Oct. 1,
2010) (reporting increased cleanup activity following ARRA stimulus passage).
5 Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C. §§ 9631-9633 (2006).
6 Jonathan l. ramSeur & marK reiSch, cong. reSearch Serv., rl33426,
SuperFunD: overview anD SelecteD iSSueS 12 (2006).
7 Id. at 2; Meline MacCurdy, Reinstatement of Superfund Tax Proposed in
Congress, Presumed in President Obama’s Budget, marten law (Apr. 22,
2009), http://www.martenlaw.com/newsletter/20090422-superfund-tax-rein-
stated#.
8 Superfund, earl blumenauer: repreSenting oregonS 3rD DiStrict, http://
blumenauer.house.gov/index.php?option=com_content&view=article&id=1664
&catid=50 (last visited Nov. 4, 2010).
9 U.S. govt accountability oFFice, GAO-05-746R, haZarDouS waSte
programS: inFormation on appropriationS anD eXpenDitureS For SuperFunD,
brownFielDS, anD relateD programS (2005) (showing a steady decline of
funding from between 1993 and 2005); Major Garrett, White House Won’t Tax
Corporations For Superfund Cleanup, cnn (Feb. 24, 2002), http://articles.cnn.
com/2002-02-24/politics/bush.superfund_1_toxic-waste-cleanups-superfund-
program-superfund-taxes?_s=PM:ALLPOLITICS; Jennifer 8. Lee, Drop in
Budget Slows Superfund Program, n.y. timeS, Mar. 9, 2004, http://www.
nytimes.com/2004/03/09/us/drop-in-budget-slows-superfund-program.html.
10 Lee, supra note 9.
11 Oversight of the Environmental Protection Agency’s Superfund Program
Before the Subcomm. On Superfund, Toxics and Env’t. Health of the Sen.
Comm. on Env’t. & Pub. Works, 109th Cong. (2010) (statement of Sen. Frank
Lautenberg).
12 Juliet Eliperin, Obama, EPA to Push for Restoration of Superfund Tax on
Oil, Chemical Companies, waSh. poSt, June 21, 2010, http://www.washington-
post.com/wp-dyn/content/article/2010/06/20/AR2010062001789.html.
13 Jessica Reaves, Superfund Gets the Super Shaft, time (Feb. 25, 2002), http://
www.time.com/time/nation/article/0,8599,213010,00.html.
14 Federal Register Notices for NPL Updates, epa, http://www.epa.gov/
superfund/sites/npl/frlist.htm (last updated October 21, 2010) (demonstrating a
decreasing trend in annual number of sites listed to the National Priorities List
each year from 1982 until the present).
15 truDy ann cameron & graham D. crawForD, SuperFunD taint anD neighbor-
hooD change: ethnicity, age DiStributionS, anD houSeholD Structure 23 (2003).
16 Lois J. Schiffer & Timothy J. Dowling, Reflection on the Role of the Courts
in Environmental Law, 27 envtl. l. 151, 163 (1997).
17 Philip J. Landrigan et al., Chemical Wastes, Children’s Health, and the Super-
fund Basic Research Program, 107 envtl. health perSp. 423, 423 (1999).
18 James T. O’Reilly, Environmental Racism, Site Cleanup and Inner City
Jobs: Indiana’s Urban In-Fill Incentives, 11 yale J. on reg. 43, 45 (1994).
19 Id. at 54.
20 Vale, supra note 2, at 62.
21 Julia A. Solo, Urban Decay and the Role of Superfund: Legal Barriers to Rede-
velopment and Prospects for Change, 43 buFF. l. rev. 285, 297, 304 (1995).
22 Vale, supra note 2, at 60.
23 Solo, supra note 21, at 287.
24 environmental protection agency, environmental protection agency
recovery act program plan: SuperFunD remeDial program (2009), http://
www.epa.gov/recovery/plans/superfund.pdf.
25 EPA Calls Superfund Cleanup Progress ‘Significant,’ environmental
protection: the Solution reSource For managing air, water, energy anD
waSte iSSueS (Mar. 10, 2010), http://www.eponline.com/Articles/2010/03/10/
EPA-Calls-Superfund-Cleanup-Progress-Significant.aspx.
26 Superfund National Accomplishments Summary Fiscal Year 2009,supra note 4.
27 Bob Van Sternberg, Minneapolis Superfund Site Gets More Cleanup
Money, Star trib., (Apr. 15, 2009, 1:31 PM), http://www.startribune.com/
local/43041332.html.
28 Mireya Navarro, U.S. Cleanup Is Set for Newtown Creek, Long Polluted
by Industry, N.Y. TIMES, Sept. 27, 2010, available at http://www.nytimes.
com/2010/09/28/science/earth/28newtown.html.
29 Dylan Darling, First Economic Stimulus Grant for Superfund Clean-Up
Goes to Iron Mountain Mine, reDDing.com, (Apr. 14, 2009, 12:00 AM), http://
www.redding.com/news/2009/apr/14/first-economic-stimuls-grant-for-super-
fund-clean.
30 Id.
31 Ben Geman, EPA Pushes Congress to Revive Superfund Tax on Oil, Chemi-
cal Companies, thehill.com, (June 21, 2010, 3:07 PM), http://thehill.com/
blogs/e2-wire/677-e2-wire/104507-epa-pushes-congress-to-revive-superfund-
tax-on-oil-chemical-companies.
32 H.R. 546, 111th Cong. (2009); H.R. 832, 111th Cong. (2009).
33 EPA Asks Congress to Revive Superfund Tax, uniteD preSS intl., (June 21,
2010, 5:22 PM), http://www.upi.com/Top_News/US/2010/06/21/EPA-asks-Con-
gress-to-revive-Superfund-tax/UPI-58331277136057; MacCurdy, supra note 7.
ENDNOTES: Stimulating the Future oF SuperFunD: why the american recovery anD reinveStment act callS For a
reinStatement oF the SuperFunD taX to polluteD SiteS in urban environmentS continued from page 27
FALL 2010 66
24 Francois Grosse, Is Recycling “Part of the Solution”? The Role of Recycling
in an Expanding Society and a World of Finite Resources, 3:1 S.A.P.I.EN.S
(2010), available at http://sapiens.revues.org/index906.html.
25 Id.
26 See envt prot. & heritage council, national waSte report (2010),
http://www.ephc.gov.au/sites/default/files/WasteMgt_Nat_Waste_Report_
FINAL_20_FullReport_201005_0.pdf.
27 Id.
28 UN-Habitat, 15th Session of the Committee on Sustainable Development,
Apr. 30-May 11, 2007, Background Information: Climate Change-The Role of
Cities, http://www.unhabitat.org/documents/csd15/15thsession1.pdf.
29 See generally mathiS wacKernagel & william reeS, our ecological
Footprint (1996) (explaining the concept of “overshooting”). Global world
populations in 2010 were 6.8 billion. It is predicted by UN-Habitat to increase
to 9 billion by 2050. While the population in some countries is shrinking
(Japan, Germany, Italy, Russia), other countries, such as India, have a fast
growing population. The population in India is forecast to overtake that of
China’s by 2050 (India is predicted to have 1.6 billion people). We will soon
reach the limits of the Earth’s “carrying capacity” (what Wackernagel and Rees
call “overshooting”), for instance, the Earth’s reduced capacity to supply fresh
drinking water to all citizens of a city (as we have seen in Sub-Saharan African
cities and in Mexico City). Id. The world’s population has been growing signifi-
cantly since around 1800 due to the improved control of diseases and longer life
expectancy. As a consequence, numerous scientists recommend halting further
growth in cities in arid, hot climatic regions. At the same time, global agricul-
ture is approaching a natural limit. While the amount of food production needs
to keep increasing in pace with population growth, there is hardly any undevel-
oped farmland left on the planet. Experience shows that birth rates fall when
women are well educated, when they aspire to a career, or when they chose
to marry later and to have only one child. Clearly to slow down this immense
population growth and to delay a food/water/energy supply disaster, we have to
succeed in three important areas: reducing consumption and changing behavior;
improving technology; and limiting population growth through education programs.
30 See envt prot. & heritage council, supra note 26.
31 Municipal solid waste generation has grown significantly over the last
decades as a result of higher incomes, more intensive use of packaging
materials and disposable goods, and increased purchases of durable material
goods. This problem is projected to continue to grow, despite current efforts to
reduce the material content of products and to stimulate the reuse of products
and packaging and the recycling of materials and substances. The international
Organisation for Economic Co-operation and Development (“OECD”) com-
piles worldwide data, including environmental statistics and data on waste
generation and recycling rates (environmental indicators), for its thirty member
countries, which can be found at: organiSation For economic cooperation anD
Development, http://www.oecd.org (last visited Nov. 13, 2010).
32 E. Giroult, et al., Public Health Aspects of Municipal Solid Waste
Management, in l. roSenberg, intl envtl tech. ctr., uniteD nationS
envt programme, international Source booK on environmentally SounD
technologieS For municipal SoliD waSte management 395–406 (1996).
33 manFreD StepanSKi & manFreD wacKerlin, SoDa cupS maDe oF Sugar,
SulZer technical review (2008), http://www.sulzerchemtech.com/en/
portaldata/11/Resources//mixingreaction/publications/2008_1_stepanski_e.pdf.
34 Kara Law et al., Plastic Accumulation in the North Atlantic Subtropical
Gyre, Sci. eXpreSS (Aug. 19, 2010), http://www.sciencemag.org/cgi/content/full
/329/5996/1185?ijkey=o7duXkENkVaDs&keytype=ref&siteid=sci.
35 Ljubomir Jeftic, et al., Marine Litter: A Global Challenge, uniteD nationS
environment programme (2010), http://www.unep.org/pdf/unep_marine_
litter-a_global_challenge.pdf.
36 Id.
37 Id.
38 Id.
39 See What You Need to Know about Mercury in Fish and Shellfish, envtl.
prot. agency, http://water.epa.gov/scitech/swguidance/fishshellfish/outreach/
advice_index.cfm (last updated June 17, 2010).
40 See, e.g., Paul Westerhoff et. al., Antimony Leaching From Polyethylene
Terephthalate (PET) Plastic Used for Bottled Drinking Water, 42 water
reSearch 551 (2008).
41 Recent research explored the connection between the production of plastic
and the amount of plastic waste found in oceans. Surprisingly, more terrestrial
waste does not necessarily imply more leakage in the sea: there seems to be
no link between an increase in discarded plastic and concentration of plastic
marine debris. Despite a rapid increase in plastic production and disposal during
the time period of the last ten years, no trend in plastic concentration was
observed in the region of highest accumulation. Law et al., supra note 34.
42 protocol oF 1978 relating to the international convention For the
prevention oF pollution From ShipS, 1973, Feb. 17, 1978, 17 I.L.M. 546, 1340
U.N.T.S. 61; European Directive 2000/59/EC.
43 Interview with Mal Williams, CEO, Cylch, in Syndey, Austl. (Sept. 14, 2010).
44 See Department oF DeFenSe, uFc-1-900-01, Selection oF methoDS For
the reDuction, reuSe, anD recycling oF Demolition waSte, at 3-1 3-2 (2002),
http://www.wbdg.org/ccb/DOD/UFC/ufc_1_900_01.pdf (noting disposal costs
incurred during demolition alone can amount to up to fifty percent of the total
demolition cost. This amount takes into account recycling costs, which include
costs for separation, removal, and recovery of building wastes).
45 See envt prot. & heritage council, supra note 26 at 233–35 (noting
the large number of and wide variety of job opportunities created through the
promotion of waste management and recycling).
46 lehmann, supra note 19 at 261-68.
47 See envtl. prot. agency, recover your reSourceS: reDuce, reuSe, anD
recycle conStruction anD Demolition materialS at lanD revitaliZation
proJectS (2009), http://epa.gov/brownfields/tools/cdbrochure.pdf (estimating
that only forty percent of the construction and demolition building materials
were reused, recycled, or sent to waste-to-energy facilities and the remaining
sixty percent was sent to landfills).
48 See, e.g., Stephen J. Pickering, Recycling Technologies for Thermoset
Composite Materials—Current Status, 37 compoSiteS part a: applieD Sci.
& mFg. 1206, 1206–07 (2005) (reviewing the problems faced with recycling
thermoset composite materials, which include the inability to remould
thermosetting polymers of the material).
49 See Tom Napier, Construction Waste Management, whole blDg. DeSign
guiDe, http://www.wbdg.org/resources/cwmgmt.php (last updated June 9,
2010) (stating that concrete and masonry materials can be recycled on-site with
mobile equipment or can be taken to a permanent recycling facility).
50 The adaptive re-use of existing buildings is always a more sustainable
strategy than building new. Instead of tearing down and rebuilding (which
usually means losing the materials and embodied energy of the existing
building), adaptive re-use allows the building to be given a new lease of life;
an approach that was the norm until a generation ago. Now, our focus needs
to return to upgrading the existing building stock. Recent research conducted
by the Advisory Council on Historic Preservation (“ACHP”) in the U.S.
indicates that even if forty percent of the materials of demolished buildings
are recycled, it would still take over sixty years for a green, energy-efficient
new office building to recover the energy lost in demolishing an existing
building. Strategic Sustainability Performance Plan, aDviSory council on
hiStoric preS., http://www.achp.gov/sustplan.html (last visited Oct. 22, 2010)
(summarizing the ACHP’s efforts to address issues including energy efficiency
and community livability).
51 See gruener punKt, http://www.gruener-punkt.de/en/duales-system-
deutschland-gmbh.html (last visited Oct. 30, 2010) (providing information on
the German recycling system).
52 See Frequent Questions, envtl. prot. agency, http://www.epa.gov/
epawaste/conserve/materials/tires/faq.htm (last updated Feb. 2, 2010)
(providing information on recycling tires, the pollution that can result from
tire fires, and innovative ways tires can be recycled); see also auStralian
pacKaging covenant, http://www.packagingcovenant.org.au (last visited Oct.
30, 2010) (regarding packaging).
53 See weiSenbach recycleD proD., 2010 SuStainability report For year
enDing December 31, 2009 (2010), http://www.recycledproducts.com/wsp_i/
PDFs/WeisenbachSustainabililtyReport2010.pdf (stating that Weisenbach
Recycled Products uses “cast-offs collected from other companies, community
members, and [its] own internal operations as the raw material for the creation
of new products”).
54 Betsy Kraat, Weisenbach Recycled Products “Up-cycles” Trash
into Treasure, metrogreen+buSineSS (Mar. 2, 2010), http://www.
ENDNOTES: reSource recovery anD materialS Flow in the city: Zero waSte anD SuStainable conSumption aS
paraDigmS in urban Development continued from page 38
SUSTAINABLE DEVELOPMENT LAW & POLICY67
metrogreenbusiness.com/news/green.php/2010/03/02/weisenbach_recycled_
products_up_cycles_t (quoting Mr. Weisenbach and providing background on
Weisenbach Recycled Products).
55 See climate protection with baSF, BASF 6–7 (2009), http://basf.com/
group/corporate/en/function/conversions:/publish/content/sustainability/
environment/climate-protection/images/BASF_Climate_Protection_
Brochure_e.pdf (describing its comprehensive analysis of greenhouse gas
emissions associated with its operations for the entire lifecycle of its products);
see also Andreas Künkel, Sustainable Products—Just a Mouse Click Away,
baSF (June 30, 2010), http://www.basf.com/group/pressrelease/P-10-296
(describing BASF’s new online tool that assists in determining whether the use
of biodegradable plastics promotes sustainability).
56 E.g, The Ultimate Re-cycling Project 14.09.10, lonDon borough oF Sutton,
http://www.sutton.gov.uk/index.aspx?articleid=10975&onOff=OFF (last
visited Oct. 22, 2010); Mattress Recycling Program Reaches 10,000 Mark,
SuStainabilitymatterS (Oct. 8, 2008), http://www.sustainabilitymatters.net.
au/news/27293-Mattress-recycling-program-reaches-1-mark?topic_id=1066;
Michelle Hucal, Closing the Loop, envtl. DeSign + conStr. (Mar. 11, 2003),
http://www.edcmag.com/Articles/Sustainable_Flooring/fdc1f34f5a697010Vgn
VCM100000f932a8c0.
57 See Let’s Treat Waste as Valuable ‘Resource’, Says Averda, ameinFo
(May 30, 2009, 3:59 PM), http://www.ameinfo.com/198589.html (drawing
inspiration from McDonough’s philosophy that “[e]verything has an infinite life
cycle. Societies with a linear resource pattern discard items at a particular stage.
Yet that isn’t the death of the material.”).
58 Presentation by Michael Braungart at SASBE Conference, Technical
University of Delft, Neth. (June 18, 2009).
59 Joshuah Stolaroff, Products, Packaging and US Greenhouse Gas Emissions,
proD. policy inSt. (2009), http://www.productpolicy.org/ppi/attachments/
PPI_Climate_Change_and_Products_White_Paper_September_2009.pdf.
60 Press Release, Product Policy Institute, Products and Packaging Contribute
44 Percent of U.S. Greenhouse Gas Emissions (Sept. 18, 2009), available at
http://www.productpolicy.org/ppi-press-release/products-and-packaging-con-
tribute-44-percent-us-greenhouse-gas-emissions.
61 Id. (quoting Stolaroff, supra, note 59).
62 See Design for Disassembly Guidelines, active DiSaSSembly reSearch ltD.
(2005), http://www.activedisassembly.com/guidelines/ADR_050202_DFD-
guidelines.pdf (noting that the implementation of design for disassembly can
reduce the amount of resources required to create new products).
63 Zero Waste and Climate Change, govt oF S. auStl., http://www.
zerowaste.sa.gov.au/about-us/climate-change (last visited Oct. 20, 2010) (citing
Recycling International, which is a reference tool on the world’s recycling
industry).
64 See Margaret Walls, Extended Producer Responsibility and Product Design,
reS. For the Future, Mar. 2006, at 1, http://www.rff.org/Documents/RFF-DP-
06-08-REV.pdf (stating that this shift can “improv[e] product recyclability and
reusability, reduc[e] material usage, downsiz[e] products, and engag[e] in a host
of other ‘design for environment’ (DfE) activities.”).
65 Herbert Girardet points out the importance for cities to adopt a circular
metabolism: “In nature, waste materials are absorbed beneficially back into the
local environment as nutrients. Cities don’t do that. They work by way of tak-
ing resources from one place and dumping them somewhere else causing dam-
age to nature. We need to turn this linear process into a circular process instead.
The recycling of particularly organic waste is important for the sustainability of
large cities. We need to meet this challenge and create a metabolism that mim-
ics natural systems. Materials and products that we use need to be biodegrad-
able. Plastic, which does not decompose easily, can be produced so that nature
can absorb it more effectively.” herbert girarDet, creating SuStainable cit-
ieS, 2 Schumacher brieFingS (1999).
66 Id. (noting that this shift could incentivize producers to consider the
environmental effects of their products during the design stage).
67 Eight in 10 Aussies Want Plastic Bag Ban: Survey, the Daily telegraph
(May 22, 2009, 12:17 AM), http://www.dailytelegraph.com.au/news/
breaking-news/eight-in-10-aussies-want-plastic-bag-ban-survey/story-
e6freuyi-1225714569177.
68
See the worlD banK, eco2 citieS 205 (2010), http://issuu.com/world.bank.
publications/docs/9780821380468?mode=embed&layout=http%3A%2F%2Fs
kin.issuu.com%2Fv%2Flight%2Flayout.xml&showFlipBtn=true; maSDar city,
http://www.masdarcity.ae/en/index.aspx (last visited Nov. 11, 2010).
69 See id.
70 Donella h. meaDowS et al., the limitS to growth (1972).
71 See UNESCO–Education for Sustainable Development (ED/PEQ/ESD),
UN Decade of Education for Sustainable Development: The DESD at a
glance, ED/2005/PEQ/ESD/3 (2005), available at http://unesdoc.unesco.org/
images/0014/001416/141629e.pdf (stating that the Decade will (1) promote and
improve the quality of education, (2) reorient educational programs, (3) build
public understanding and awareness, and (4) provide practical training to move
towards meeting the objectives).
72 See Ingrid Pramling Samuelsson & Yoshie Kaga, Early Childhood
Education to Transform Cultures for Sustainability, the worlDwatch inSt.
57 (2010), http://blogs.worldwatch.org/transformingcultures/wp-content/
uploads/2010/01/Early-Childhood-Education-to-Transform-Cultures-for-
Sustainability-Samuelsson-and-Kaga.pdf (describing a case study performed
on young children on waste management in Sweden); getting out getS
reSultS: environmental eDucation reSearch From boSton anD beyonD,
boSton youth envtl. networK (2008), http://www.peecworks.org/PEEC/
PEEC_Research/035F4D9A-007EA7AB.0/BYEN%202008%20Getting%20
Out%20Gets%20Results%20web.pdf (highlighting the importance of student
involvement in exposure to an environmental education).
73 Amy Ando & Anne Y. Gosselin, Recycling in Multifamily Dwellings: Does
Convenience Matter?, cbS buSineSS networK (2005), http://findarticles.com/p/
articles/mi_hb5814/is_2_43/ai_n29175444/. See generally Seonghoon Hong
& Richard M. Adams, Household Responses to Price Incentives for Recycling:
Some Further Evidence, 75 lanD econ. 505 (1999) (studying the correlation
between waste disposal service fees and recycling rates and waste generation
and considering the impact of the choice of the container size).
74 See generally id. (studying the correlation between waste disposal service
fees, recycling rates, and waste generation, and considering the impact of the
choice of the container size).
75 See SriDhar r. & Shibu K. nair, thanal conServation action &
inFormation networK, Zero waSte Kovalam anD employment opportunitieS,
(2004), http://krpcds.org/report/ZEROWASTE.pdf (identifying the high cost
of waste and the need for long-term planning and sensible decision-making as
barriers to zero waste); see also LeeAnne French et al., Zero Waste Strategies
for Gills Onions Sustainable Innovation and Waste Management, at 16–17
(2010), http://www.bren.ucsb.edu/research/documents/onions_proposal.pdf
(listing technical and economical feasibility, health safety requirements, and
product quality are the more prominent barriers to zero waste).
76 Zero waSte Sa, supra note 1.
77 Id. at 15.
78 Id. at 20.
79 Id. at 18-19.
80 Id. at 3.
81 Julian Parfitt et al., Food Waste Within Food Supply Chains: Quantification
and Potential for Change to 2050, 27 phil. tranSactionS oF the royal
Socy oF britain 3065, 3077 (2010), http://rstb.royalsocietypublishing.org/
content/365/1554/3065.full.pdf+html. More information on food waste can be
found at the following web sites: http://www.foodwise.com.au; http://www.
resourcesnotwaste.org; http://www.lovefoodhatewaste.com; http://www.
ozharvest.org.au (last visited Oct. 30, 2010).
82 Directive 2008/98/EC, of the European Parliament and of the Council of 19
November 2008 on Waste and Repealing Certain Directives, 2008 O.J. (L 312)
3, 18, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:312:
0003:0030:EN:PDF.
83 European Commission DG Environment, Analysis of the evolution of waste
reduction and the scope of waste prevention, Framework contract ENV.G.4/
FRA/2008/0112, at 181 (Mar. 24, 2010), http://ec.europa.eu/environment/waste/
prevention/pdf/draft3_2.pdf.
84 See envt prot. & heritage council, supra note 26.
85 4613.0–Australia’s Environment: Issues and Trends, Jan 2010, auStr.
bur. oF Stat. (Feb. 5, 2010), http://www.abs.gov.au/AUSSTATS/abs@.nsf/
Lookup/4613.0Chapter40Jan+2010.
86 Karen Barlow, Landfills “Busting at Seams” with E-Waste, auStl.
broaD. corp. (June 25, 2010, 6:58 PM AEST), http://www.abc.net.au/news/
stories/2010/06/05/2919217.htm; Patrick McMahon, E-Waste Flooding
Landfills, uSa toDay, Jan 21, 2002, http://www.usatoday.com/news/
nation/2002/01/22/usat-recycle.htm.
87 Matthew Bennis, Waste Solution Left to Rot as Landfill Capacity Runs
Out, SyDney morning heralD (Mar. 21, 2010), http://www.smh.com.au/
environment/waste-solution-left-to-rot-as-landfill-capacity-runs-out-20100320-
qn6z.html (citing State government oF new South waleS, public review
lanDFill capacity anD DemanD report (2009), available at http://www.planning.nsw.
gov.au/LinkClick.aspx?fileticket=Xtm8jz6j7WI%3D&tabid=70&language=en-AU).
88 Id.
FALL 2010 68
89 Id.
90 Matthew Bennis, Microchips, Recycling Ramped Up to Cut Waste, SyDney
morning heralD (Mar. 21, 2010), http://www.smh.com.au/environment/
microchips-recycling-ramped-up-to-cut-waste-20100320-qn70.html.
91 Bennis, supra note 87.
92 Id.
93 Bennis, supra note 90.
94 herbert girarDet, citieS people planet: urban Development anD climate
change 238 (2008).
95 yoShiFumi FuJii, SucceSSFul Source Separation in aSian citieS: leSSonS
From JapanS eXperience anD an action reSearch in thailanD (2008), http://
www.ide.go.jp/English/Publish/Download/Spot/pdf/30/002.pdf.
96 city oF aalborg, aalborg commitmentS-baSeline review 19 (2005), http://
www.aalborgplus10.dk/media/pdf2005/aalborg_commitments_engelsk.pdf.
97 Tjalfe G. Poulsen & Jens Aage Hansen, Assessing the Impacts of Changes in
Treatment Technology on Energy and Greenhouse Gas Balances for Organic
Waste and Wastewater Treatment Using Historical Data, 27 waSte mgmt. &
reSearch 861, 861-62 (2009).
98 Id.
99 Id.
100 See Tjalfe G. Poulsen, Danish Eco City Proves Waste Management Can
Reverse Greenhouse Trend, SAGE, (Nov. 26, 2009), http://www.uk.sagepub.
com/press/2009/november/26_november2.sp.
101 Id.
102 Id.
103 Id.
104 Id.
105 Id.
106 Id.
107 See The Story of the Club of Rome, the club oF rome, http://www.
clubofrome.org/eng/about/4/ (last visited Oct. 21, 2010) (detailing the history
of the Club of Rome and warning of the dangers of unrestrained growth of
material consumption in a world of finite resources).
108 See the hague centre For Strategic StuDieS, Scarcity oF mineralS: a
Strategic Security iSSue 10-11 (2009), http://www.hcss.nl/en/download/1286/
file/HCSS_Scarcity%20of%20Minerals.pdf.
109 Data from inStitut Der DeutSchen wirtSchaFt, http://www.idw-online.de
(last visited Oct. 30, 2010).
110 Interview with Martin Faulstich, Professor, Technical University of Munich,
Sydney, Austl. (Mar. 28, 2010).
111 Lucy Siegle, Is it Possible to Avoid Unsustainable Palm Oil?, the obServer
(Nov. 15, 2009), available at http://www.guardian.co.uk/environment/2009/
nov/15/lucy-siegle-sustainable-palm-oil.
112 Paul-Marie Boulanger, Three Strategies for Sustainable Consumption, 3
SapienS No. 2, at 8–9 (2010), available at http://sapiens.revues.org/index1022.
html#tocto1n1.
113 Interview with Martin Faulstich, Professor, Technical University of Munich,
Sydney, Austl. (Mar. 28, 2010).
114 herbert girarDet, citieS people planet: urban Development anD climate
change 238 (2008).
115 Courtney A. Dahl, Connecting Consumption with Environmental Impact:
Waste Prevention and Pay as You Throw, a Collective Case Study in
Sweden (May 2010) (unpublished Masters thesis, Lund University Centre for
Sustainability Studies), http://www.lumes.lu.se/database/alumni/08.10/Thesis/
Dahl_Courtney_Thesis_2010.pdf.
116 oZharveSt, http://www.ozharvest.org.au (last visited Oct. 30, 2010); see
also The National Waste Report 2010 Fact Sheet, Dept. oF SuStainability,
envt, water, population anD communitieS, auSt. govt., available at http://
www.environment.gov.au/settlements/waste/publications/pubs/fs-national-
waste-report-2010.rtf (putting food waste at 7.6m metric tons out of 43.7m
metric tons, or about 18 percent).
117 Interview with Iain Gulland, Dir., Zero Waste Scotland, in Sydney, Austl.
(Sep. 14, 2010).
118 The National Waste Report 2010 Fact Sheet, supra note 116.
119 Interview with Vaughan Levitzke, Chief Exec. Officer, Zero Waste SA,
Adelaide, Austl. (Oct. 28, 2010).
120 william mcDonough & michael braungart, craDle to craDle: remaKing
the way we maKe thingS (2002).
121 William McDonough & Michael Braungart, Cradle to Cradle: Adapting
Production to Nature’s Model, in worlDwatch inSt., State oF the worlD
2010: tranSForming cultureS: From conSumeriSm to SuStainability 106
(2010).
122 population reFerence bureau, 2009 worlD population Data Sheet
(2009), http://www.prb.org/pdf09/09wpds_eng.pdf.
123 Curitiba, Brazil, intl ct. For SuStainable citieS, http://sustainablecities.net/
plusnetwork/plus-cities/curitiba-brazil (last visited Oct. 29, 2010).
124 Id.
125 Id.
126 Bharati Chaturved, Ragpickers: The Bottom Rung in the Waste Trade
Ladder, intl plaSticS taSK Force, www.ecologycenter.org/iptf/Ragpickers/
indexragpicker.html (last visited Oct. 30, 2010).
127 The Human Scale of Recycling in India, the artblog (Apr. 2, 2009), http://
theartblog.org/2009/04/the-human-scale-of-recycling-in-india.
128 Chaturved, supra note 126.
129 Id.
130 Amelia Gentleman, Picking Up Trash by Hand, and Yearning for Dignity,
n.y. timeS, Sept. 27, 2007, http://www.nytimes.com/2007/09/27/world/
asia/27ragpickers.html.
131 Chris Bonner, Waste Pickers Without Frontiers (Oct.-Nov. 2008), http://
www.wiego.org/papers/5334%20SALB%20Waste%20Pickers.pdf.
132 Shrija Agrawal, Multi-Billion Dollar Waste Management Companies to
Emerge from India (July 27, 2010, 10:43:01 IST), vccircle, http://www.
vccircle.com/500/news/‘multi-billion-dollar-waste-management-companies-
emerge-india’.
133 Cairo, Egypt Statistics, tour egypt, http://www.touregypt.net/cairo/
cairostatistics.htm (last visited Nov. 15, 2010).
134 From: http://en.wikipedia.org/wiki/Manshiyat_naser (last visited Oct. 30,
2010).
135 Id.
136 See Claire A. Williams, Cairo’s Garbage City, the wip (Mar. 10, 2007),
http://www.thewip.net/contributors/2007/03/cairos_garbage_city.html.
137 Sarah Gauch, Egypt Dumps ‘Garbage People, chriStian Sci. monitor, Jan.
6, 2003, http://www.csmonitor.com/2003/0106/p07s02-woaf.html.
138 Id.
139 uniteD nationS human SettlementS programme (un-habitat), supra note
4.
140 Christer Berglund, The Assessment of Households Recycling Costs: The
Role of Personal Motives, 56 ecological econ. 560 (2006).
141 See Daten und Fakten der Abfallwirtschaft in Deutschland,
bunDeSminiSterium Für umwelt, naturSchutZ unD reaKtorSicherheit, http://
www.bmu.de/abfallwirtschaft/doc/6497.php (Sept. 2007) (providing data for
the German recycling and waste management sector) (in German language).
1 Annie Murphy Paul, How the First Nine Months Shape the Rest of Your
Life, time, Sept. 22, 2010, available at http://www.time.com/time/print-
out/0,8816,2020815,00.html.
2 Id.
3 See robert D. putnam, bowling alone: the collapSe anD revival oF
american community 209, 214 (2000) (arguing that Americans moved to the
suburbs for their “greater space, larger homes, [and] lower-cost shopping and
housing”).
4 See Christopher B. Leinberger, The Next Slum?, the atlantic, Mar. 2008,
available at http://www.theatlantic.com/magazine/archive/2008/03/the-next-
slum/6653/ (explaining that, beginning in the 1970s, parents believed they had
to move to the suburbs to ensure their children grew up in safety and had access
to good schools).
5 See James F. Sallis & Karen Glanz, The Role of Built Environments in
Physical Activity, Eating, and Obesity in Childhood, the Future oF chilDren,
Spring 2006, at 92-94 (suggesting that the lack of walkable neighborhoods in
the suburbs may correlate with increased childhood obesity); Willem van Vliet,
Neighborhood Evaluations by City and Suburban Children, 47 J. am. plan.
aSSn 458, 460 (1981) (explaining how suburban children become increasingly
socially isolated as they grow up).
6 See Sallis & Glanz, supra note 5, at 92-94.
7 Barry Checkoway et al., Young People as Competent Citizens, 38 cmty. Dev.
ENDNOTES: StanDing on their own: the parallel rightS oF young people to participate in planning proceSSeS
anD DeFenD thoSe rightS continued from page 45
SUSTAINABLE DEVELOPMENT LAW & POLICY69
J. 298, 299 (2003).
8 See John R. Hibb ing & Elizabeth Theiss-Mors e, Civics Is Not E nough:
Teaching Barbarics in K-12, 29 pol. Sci. & pol. 57, 57-62 (1996) (arguing that
American students “lack the most rudimentary back ground information” about
current politics).
9 See putnam, supra note 3, at 25, 129 (arguing that members of “Generation
X” are less civically engaged than previous generations as evidenced by their
decreased volunteering).
10 See Checkoway et al., supra note 7, at 299 (arguing that cities are expanding
services to assist youth).
11 Id.
12 Id. at 299-300 (asserting that journalists, social scientists, and social work-
ers’ assistance weakens minority children’s ability to help and empower them-
selves).
13 Id.
14 Id.
15 eDith brown weiSS, in FairneSS to Future generationS 17 (1998).
16 See id. at 47, 50 (explaining the nature of human’s “planetary obligations”
to “conserve diversity, quality, and access” to global resources).
17 Id. at 165.
18 See id. at 21 (arguing for obligations shared among and within generations
in using the earth’s “natural and cultural resources”).
19 Id. at 23.
20 Paul A. Barresi, Beyond Fairness to Future Generations: An Intragenera-
tional Alternative to Intergenerational Equity in the International Environmen-
tal Arena, 11 tul. envtl. l.J. 59, 69 (1997).
21 Id. at 70-71.
22 Id.
23 Camille Passon et al., Implications of Adolescents’ Perceptions and Values
for Planning and Design, 28 J. plan. eDuc. & reS. 73, 74 (2008).
24 See Checkoway et al., supra note 7, at 300, 306 (explaining how empowered
community members, rather than social workers, are the most effective at help-
ing at-risk members of their communities).
25 See van Vliet, supra note 5, at 459 (explaining that officials have consis-
tently, if not completely effectively, attempted to improve the conditions that
urban youth grow up in); Passon et al., supra note 24, at 74-75 (noting that
urban planning “usually centers on the need to protect children from real and
perceived harm”).
26 See Suburban Sprawl: culture, theory, anD politicS xviii (Matthew J.
Lindstrom & Hugh Bartling eds., 2003) (outlining the use of child safety as
a constitutional basis for the restriction of private property rights to promote
the development of urban zoning); see generally, Robert E. Lang & Karen A.
Danielson, Gated Communities in America: Walling Out the World?, 8 houSing
poly Debate 867 (1997), available at http://content.knowledgeplex.org/kp2/
img/cache/documents/2104.pdf (positing that gated communities lead to alien-
ation from local school districts).
27 See Karen Malone, Children, Youth, and Sustainable Cities, 6 loc. envt 5,
6-7 (2001) (arguing that excessively regulated public spaces retard children’s
social maturation and diminish “the integrity of the social, economic, and envi-
ronmental fabric”).
28 See id.
29 aipc coDe oF ethicS anD proFeSSional conDuct, am. plan. aSSn, (revised
Oct. 3, 2009), http://www.planning.org/ethics/ethicscode.htm.
30 Id.
31 Kathryn I. Frank, The Potential of Youth Participation in Planning, 20 J.
plan. literature 351, 360 (2006).
32 See Malone, supra note 27, at 6.
33 See van Vliet, supra note 5, at 458 (asserting that parents prefer to raise their
children in “suburban settings”).
34 Passon et al., supra note 23, at 73.
35 growing up in citieS 1 (Kevin Lynch ed., 1977).
36 Id.
37 See, e.g., id. at 1-2; Karen Malone, Growing Up in Cities as a Model of Par-
ticipatory Planning and ‘Place-Making’ with Young People, 18 youth StuD.
auStl., June 1999, at 17; Jeff Bishop, An Unrecognized Legacy – Children, the
Environment and Kevin Lynch, 2 chilD. envtS q., Fall 1985, at 7.
38 See growing up in citieS, supra note 35 at 57-58.
39 E.g., Louise Chawla, Putting Young Old Ideas into Action: The Relevance of
Growing Up in Cities to Local Agenda 21, 6 loc. envt 13, 16-17 (2001).
40 See Malone, supra note 27, at 7 (noting that recently “[t]he connection
between children’s rights and sustainable development has been formally
articulated in a number of global declarations.”).
41 Id. (citing U.N. World Comm’n on Env’t and Dev., Our Common Future,
U.N. Doc. A/42/427 (Mar. 20, 1987)).
42 Geneva Declaration of the Rights of the Child, League of Nations Doc.
O.J. Spec. Supp. 21, at 43 (1924), available at http://www.umn.edu/humanrts/
instree/childrights.html.
43 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 25(2),
U.N. Doc. A/RES/217(III), (Dec. 10, 1948), available at http://www.udhr.org/
udhr/udhr.htm.
44 Cleveland Ferguson III, Of Politics and Policy: Can the U.S. Maintain its
Credibility Abroad While Ignoring the Needs of its Children at Home? – Revis-
iting the U.N. Convention on the Rights of the Child as a Transnational Frame-
work for Local Governing, 14 tulSa J. comp. & intl l. 191, 228 (2007).
45 Id. at 226-27.
46 World Summit for Children, Sept. 29-30, 1990, New Plan of Action for
Implementing the World Declaration on the Survival, Protection and Develop-
ment of Children in the 1990s, (Sept. 30, 1990), available at http://www.unicef.
org/wsc/plan.htm.
47 United Nations Conference on Environment & Development, Rio de
Janiero, Braz., June 3-14, 1992, Rio Declaration on Environment and Develop-
ment, U.N. Doc. A/CONF.151/26 (Vol. I) (Aug. 12, 1992), available at http://
www.un.org/documents/ga/conf151/aconf15126-1annex1.htm (proclaiming that
“[t]he creativity, ideals, and courage of the youth of the world should be mobi-
lized to forge a global partnership in order to achieve sustainable development
and ensure a better future for all”).
48 United Nations Conference on Environment & Development, Rio de
Janiero, Braz., June 3-14, 1992, Agenda 21 § III ch. 25, U.N. Doc. A/
CONF.151/5/Rev.1 (Aug. 12, 1992), available at http://www.un.org/esa/dsd/
agenda21/ (promoting the active participation of youth “in the protection of the
environment and the promotion of economic and social development”).
49 Malone, supra note 27, at 8.
50 See id.
51 See id. (noting that local governments should consider not only the needs
of children in sustainable development, but also how children may effectively
participate in the policy planning).
52 ResourcesZine, am. plan. aSSn, http://www.planning.org/resourceszine/
(last visited October 18, 2010).
53 See id.
54 See, e.g., Sandrine Depeau, Urban Identities and Social Interaction: A
Cross-Cultural Analysis of Young People’s Spatial Mobility in Paris, France,
and Frankston, Australia, 6 loc. envt 81, 81 (2001).
55 See, e.g., Paul Tranter & Eric Pawson, Children’s Access to Local Envi-
ronments: A Case-Study of Christchurch, New Zealand, 6 loc. envt 27, 27
(2001).
56 See, e.g., Emily Talen & Mary Coffindaffer, The Utopianism of Children:
An Empirical Study of Children’s Neighborhood Design Preferences, 18 J.
plan. eDuc. & reS. 321, 321 (1999).
57 See, e.g., Myrna Margulies Breitbart, Banners for the Street: Reclaiming
Space and Designing Change with Urban Youth, 15 J. plan. eDuc. & reS. 35,
35-36 (1995); Ilaria Salvadori, “Remove a Fence, Invite Chaos”: Children as
Active Agents of Change, 6 loc. envt 87, 88-89 (2001); Suzanne Speak, Chil-
dren in Urban Regeneration: Foundations for Sustainable Participation, 35
cmty. Dev. J. 31, 31-32 (2000).
58 See Elizabeth M. Rocha, A Ladder of Empowerment, 17 J. oF plan. eDuc. &
reS. 31, 37 (1997).
59 See Sherry R. Arnstein, A Ladder of Citizen Participation, 35 J. am. inSt.
plan. 216, 216 (1969) (describing citizen participation in government as “a
revered idea”).
60 See Frank, supra note 31, at 355, 359.
61 roger a. hart, chilDrenS participation 42-45 (1997).
62 See Frank, supra note 31, at 369 (arguing that youth should participate in
projects that are “win-win-win” for “planners, youth, and the community”).
63 See Arnstein, supra note 59, at 217, 223.
64 See Dawn Jourdan, Enhancing HOPE VI Revitalization Processes with Par-
ticipation, 39 J. cmty. Dev. Socy 75 (2008) [hereinafter Jourdan, Enhancing
HOPE VI]; Dawn Jourdan, Reducing Pre-Relocation Grief with Participation
in a HOPE VI Grant Application Process, 2 intl J. pub. participation 42, 43
(2008) [hereinafter Jourdan, Reducing Pre-Relocation Grief].
65 The HOPE VI program was adopted by Congress in the early 1990s after
the results of a Congressional study revealed that a significant portion of the
nation’s public housing infrastructure was “severely distressed.” See Jourdan,
Reducing Pre-Relocation Grief, supra note 64, at 45-46.
66 See id. at 53.
FALL 2010 70
67 See id. at 54.
68 See id. at 56, 46.
69 See Jourdan, Enhancing HOPE VI, supra note 64, at 9.
70 See id.
71 See id.
72 See id.
73 See id. at 9-11.
74 See id.
75 See id. at 9.
76 See id. at 9-10.
77 See id. at 11.
78 See id.
79 See id.
80 Jourdan, Reducing Pre-Relocation Grief, supra note 64, at 63; Jourdan,
Enhancing HOPE VI, supra note 64, at 14.
81 Jourdan, Enhancing HOPE VI, supra note 64, at 12-13.
82 Id. at 11.
83 Linda D. Elrod, Client-Directed Lawyers for Children: It is the “Right”
Thing to Do, 27 pace l. rev. 869, 872 (2007).
84 Id. at 875.
85 Id.
86 Id.
87 Id.
88 Finlay v. Finlay, 148 N.E. 624, 626 (N.Y. 1925).
89 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976).
90 See Barbara Bennett Woodhouse, Children’s Rights, in hanDbooK oF youth
anD JuStice 377, 398-99 (Susan O. White ed., 2001) (explaining that “the idea
that children must be provided with advocates whose role is to represent the
child, not the parent or the state, is becoming firmly established”); Elrod, supra
note 83, at 912 (arguing that “a child who has the capacity to direct litigation
should be able to do so”).
91 Fla. Stat. § 163.3167 (2010).
92 Fla. Stat. § 163.3184 (2010).
93 Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 193 (Fla. Dist. Ct. App.
2001).
94 Id. at 207, 209.
95 See Warth v. Seldin, 422 U.S. 490, 497 (1975) (explaining that “the question
of standing is whether the litigant is entitled to have the court decide the merits
of the dispute or of particular issues”).
96 Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2006).
97 16 U.S.C. § 1540 (g)(1).
98 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
99 Id. at 560.
100 Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
101 Id.
102 Id. (citing Allen v. Wright, 468 U.S. 737, 756 (1984); quoting Whitmore,
495 U.S. at 155 (1990)).
103 See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976).
104 Lujan, 504 U.S. at 560 (quoting Simon v. E. Ky. Welfare Rights Org., 426
U.S. 26, 41-42 (1976)).
105 Id. at 561 (quoting Simon, 426 U.S. at 38).
106 Id. at 562.
107 Id. at 563-64.
108 Id. at 564.
109 Raymond A. Just, Intergenerational Standing Under the Endangered Spe-
cies Act: Giving Back the Right to Biodiversity After Lujan v. Defenders of
Wildlife, 71 tul. l. rev. 597, 607 (1996).
110 Oposa v. Sec’y of the Dep’t of Env’t & Natural Res., 33 I.L.M. 173 (1994).
111 Id. at 185.
112 Id. at 176-77.
113 Id. at 176, 183.
114 Id. at 177.
115 Id. at 176.
116 Id. at 185.
117 Id.
118 Id. at 185-86.
119 Id. at 198.
120 See Dante B. Gatmaytan, The Illusion of Intergenerational Equity: Oposa
v. Factoran as Pyrrhic Victory, 15 geo. intl envtl. l. rev. 457, 467 (2003)
(stating that the plaintiffs in Oposa dropped their suit upon the Supreme Court’s
remand of their case to the trial court, and that commercial timbering contin-
ued).
121 See Gregory F. Maggio, Inter/intra-generational Equity: Current Applica-
tions under International Law for Promoting the Sustainable Development of
Natural Resources, 4 buFF. envtl. l.J. 161, 192 (1997).
122 See id. at 208-09, 214.
123 See Malgosia Fitzmaurice, The Right of the Child to a Clean Environment,
23 S. ill. u. l.J. 611, 652 (1999) (arguing that a child’s right to a clean envi-
ronment ought to be tied to a child’s right to achieve environmental justice).
1 See Cheree Franco, Can Pakistan Learn from Katrina?, The EXpreSS Tri-
bune WorlD Blog, http://blogs.tribune.com.pk/story/1258/can-pakistan-learn-
from-katrina/ (last visited Oct. 20, 2010).
2 See Snehal Shingavi, From Natural Disaster to Social Catastrophe, Social-
iStworKer (Aug. 16, 2010), http://socialistworker.org/2010/08/16/disaster-to-
social-catastrophe (noting failures of Pakistan’s infrastructure and actions by
government officials that call into question their ability to protect the population
during floods); U.S. HouSe oF RepreSentativeS, a Failure oF initiative: Final
report oF the Select bipartiSan committee to inveStigate the preparation
For anD reSponSe to hurricane Katrina, h.r. rep. no. 109-377, at 1-5 (2006)
[hereinafter houSe report] http://www.gpoaccess.gov/katrinareport/fullreport.
pdf (discussing the failure of government at all levels to prepare and respond to
Hurricane Katrina).
3 See Shingavi, supra note 2 (citing Pakistan’s dam and canal system built to
benefit wealthy landowners); Peter Bosshard & Shannon Lawrence, The World
Bank’s Conflicted Corruption Fight, international riverS (May 1, 2006),
http://www.internationalrivers.org/south-asia/pakistan/world-bank’s-conflicted-
corruption-fight (discussing corruption in Pakistan’s water sector); A Land
Left to Drown by the ‘Timber Mafia’, the heralD ScotlanD (Aug. 29, 2010),
http://www.heraldscotland.com/news/world-news/a-land-left-to-drown-by-the-
timber-mafia-1.1051230 (reporting a local Pakistani journalist’s story about
government collaboration with the “timber mafia”); houSe report, supra note
2, at 359-62 (drawing conclusions about the failure of the U.S. federal, state,
and local government to appropriately plan for Hurricane Katrina).
4 See CIA World Fact Book: Pakistan, cent. intelligence agency, https://
www.cia.gov/library/publications/the-world-factbook/geos/pk.html (last visited
Oct. 23, 2010) (providing statistical data about urban population growth from
2005 to 2010).
5 See Medha Bisht, Pakistan Floods: Causes and Consequences, InSt. For
DeFence StuDieS anD AnalySeS (Aug. 19, 2010), http://www.idsa.in/idsacom-
ments/PakistanFloodsCausesandConsequences_mbisht_190810 (asserting
that a variety of natural and man-made causes led to the flooding in Pakistan);
Shingavi, supra note 2 (noting the failure of Pakistan’s waterway system to
adequately protect against flooding); Alex Rodriguez, Pakistan Flood Crisis
Blamed Partly on Deforestation, L.a. timeS (oct. 13, 2010), http://articles.lat-
imes.com/2010/oct/13/world/la-fg-pakistan-logging-20101013 (noting the role
of deforestation in exacerbating the flooding).
6 See peter giZewSKi & thomaS homer-DiXon, environmental Scarcity
anD violent conFlict: the caSe oF paKiStan, pt. 2 (Apr. 1996), http://www.
library.utoronto.ca/pcs/eps/pakistan/pak2.htm (noting that the Pakistani gov-
ernment and the “timber mafia” have exploited the forests and caused heavy
deforestation that eliminates much of the tree cover in the country). Several
other articles published after the floods provide statistics of deforestation and
the role of the “timber mafia” from different regions and provinces around
Pakistan. See also Bisht, supra note 5; Rodriguez, supra note 5; A Land Left to
Drown, supra note 3; Amir Mohammad Khan, ‘Timber Mafia’ Made Floods
Worse (Aug. 17, 2010, 8:12 PM), http://english.aljazeera.net/focus/floodofmis-
ery/2010/08/201081614111704604.html; Pakistan Floods and the Timber
Mafia, UniteD PreSS Intl (Sep. 2, 2010, 2:56 PM), http://www.upi.com/Sci-
ence_News/Resource-Wars/2010/09/02/Pakistan-flods-and-the-timber-mafia/
UPI-92421283453799.
7 See Khan, supra note 6 (quoting the head of Pakistan’s Forest Institute that
forests play an important role in mitigating the force of floods).
8 Id. (discussing the role of “inadequate forest cover” that allowed the flood
ENDNOTES: a Failure oF conScience: how paKiStan'S DevaStating FlooDS compare to america'S eXperience
During Katrina continued from page 46
SUSTAINABLE DEVELOPMENT LAW & POLICY71
waters to rise quickly); Id. (noting that Shakil Quadir, the provincial head of the
National Disaster Management Authority (“NDMA”), estimates that if Pakistan
had preserved twenty to twenty-five percent of its original tree cover, the flood-
ing would have been greatly mitigated).
9 See Bisht, supra note 5 (noting that timber stored away for transportation
was washed away in the flood, destroying bridges and dams); see also Khan,
supra note 6.
10 See A Land Left to Drown, supra note 3 (noting that the “timber mafia” has
representatives in Pakistan’s government and connections with the military);
giZewSKi, supra note 6 (providing a brief history of the development of “timber
mafia” entrenchment in the government).
11 See peter giZewSKi & thomaS homer-DiXon, environmental Scarcity anD
violent conFlict: the caSe oF paKiStan, pt. 1 (Apr. 1996), http://www.library.
utoronto.ca/pcs/eps/pakistan/pak1.htm (discussing the construction of large
dams and other “mega projects” without consideration for the social impacts);
Shaheen RaFi Khan, the Kalabagh controverSy, at 8-10, http://www.sanal-
ist.org/Acrobat/A-14.pdf (last visited Oct. 20, 2010) (highlighting the adverse
environmental affects of large dams built in Pakistan); Shingavi, supra note
2 (asserting the general claim that Pakistan’s waterway infrastructure benefits
only wealthy landowners); Bosshard & Lawrence, supra note 3 (noting the
ways in which Pakistan’s waterway infrastructure has supported wealthy elites
and landowners).
12 See Kalabagh Dam Could Have Averted Destruction of Floods: PM
Gilani, paKtribune (Aug. 10, 2010), http://www.paktribune.com/news/index.
shtml?230425 (directly quoting Prime Minister Gilani’s statement regarding the
devastation caused by the flooding).
13 See Khan, supra note 11, at 8 (asserting that large dams provide little as a
flood prevention mechanism).
14 See id. at 1 (discussing the controversy of the Kalabagh dam as a replace-
ment for the Tarbela dam).
15 Khan’s study of the Kalabagh dam project indicates that supporters of the
dam are largely in favor of the project for its increase in agricultural and hydro-
electrical output. Yet, as Khan shows, there is sufficient evidence to prove that
the environmental impacts of the dam will mirror the negative impacts of past
large dams on the Indus river valley ecosystem. See id. at 8-10.
16 The Mangla and Tarbela Dams were completed in 1967 and 1974 respec-
tively. Table 4 of Dr. Khan’s study provides figures that show no reduction in
the lives lost, villages affected, or area affected by floods since the construction
of the dams. If these large dams were built to prevent flood damage (which they
were not) then presumably there would be a reduction in lives lost and villages
affected. See id. at tbl. 4.
17 See Mushtaq Gaadi, Understanding the Flood Disaster at Taunsa Barrage,
intl riverS (Aug. 20, 2010), http://www.internationalrivers.org/node/5723
(describing the causes that led to flooding at the Taunsa Barrage, a key failure
in Pakistan’s waterway system that contributed to the devastation).
18 See id. (expressing a general concern about the use of reasoning by engineers
to justify the construction of the Kalabagh dam); see also Khan, supra note 11,
at 6-9 (providing evidence as to the ecological harm and concerns of sedimenta-
tion that would occur from construction of the Kalabagh dam).
19 See Khan, supra note 11, at 1, 8 (highlighting the selective use of data by
the Pakistani government, and a historical system of centralized decision mak-
ing that ignores the concerns of local communities).
20 See peter giZewSKi & thomaS homer-DiXon, environmental Scarcity anD
violent conFlict: the caSe oF paKiStan, pt. 3 (Apr. 1996), http://www.library.
utoronto.ca/pcs/eps/pakistan/pak3.htm (noting that planners of large dams have
consistently neglected the impacts on groundwater, local water quality, etc.).
21 See Gaadi, supra note 17 (citing the impact of sedimentation, specifically at
the Taunsa Barrage, which led to the flooding of higher grounds).
22 See id. (using the Taunsa Barrage as an example of the larger effect that
large dam projects had in exacerbating the flooding).
23 houSe report, supra note 2, at 87-97 (discussing the role of the U.S. Army
Corp of Engineers in failing to design the levees with the ability to withstand a
Category 5 hurricane, and the continued operation of the levees with the knowl-
edge that they would not withstand such a hurricane. Also, discussing the fail-
ure of federal, state, and local government to appropriately maintain the levees,
which led to leaking even prior to Hurricane Katrina).
24 See Will Bunch, Why the Levee Broke, alternet (Sept. 1, 2005), http://
www.alternet.org/story/24871/?page=entire (discussing several instances where
people in charge of maintaining the levees reported a lack of funding from the
federal government to complete the maintenance projects).
25 Nothing in the U.S. House Report indicates that class favoritism or govern-
ment corruption played a role in the government failures to prepare and respond
to Katrina. See houSe report, supra note 2.
26 See id. at 1 (noting that the U.S. government is the world’s largest purchaser
of intelligence and information, and it could still not respond quickly enough to
Hurricane Katrina).
27 See id. at 103-04, 108-23 (discussing the failure of local officials to evacuate
a larger portion of the population in a timely manner from New Orleans and
Jefferson Parish despite the successful evacuations in Mississippi, Alabama,
and other affected parts of Louisiana).
28 See giZewSKi, pt. 1, supra note 11 (highlighting the economic, geographic,
and demographic diversity of Pakistan); CIA World Fact Book: Pakistan, supra
note 4 (noting that Pakistan only has about 125,000 miles of paved roads and
about 3,500 miles of railways ranking 20th and 28th respectively in the world).
29 See Michael Georgy, Pakistan Floods Cost $9.7 Bln in Damage: ADB/
WBank, ReuterS (Oct. 14, 2010 12:19 PM), http://news.yahoo.com/s/
nm/20101014/pl_nm/us_pakistan_floods_damage_2/print (providing recent
statistics about the floods in Pakistan); Pakistan Floods and the Timber Mafia,
supra note 5 (noting that the floods submerged about twenty percent of Pakistan).
30 See CIA World Fact Book: Pakistan, supra note 4 (providing data about
Pakistan’s size).
31 See State and County Quickfacts: New Orleans (city), u.S. cenSuS bureau,
http://quickfacts.census.gov/qfd/states/22/2255000.html (last visited Oct. 23, 2010).
32 See population cenSuS organiZation, http://www.statpak.gov.pk/depts/pco/
(last visited Oct. 23, 2010).
33 See State and County Quickfacts: New Orleans (city), supra note 31.
34 See giZewSKi, pt. 1, supra note 11 (discussing the consistent battle over
resources between provinces).
35 See id. (describing geographic distribution of the population, and noting that
most of the population is rural and lives along riverbanks).
36 See CIA World Facts Book: Pakistan, supra note 4 (providing statistical data
regarding urban population growth between 2005-2010); GiZewSKi, pt. 3, supra
note 20 (highlighting the effects of population growth on urban decay).
37 See giZewSKi, pt. 3, supra note 20 (noting the adverse effects of the urban
population boom on the structure of Pakistani cities).
38 See Bisht, supra note 5 (noting the fragile relationship between the general
population and the government, and recognizing that a lack of response by the
government could elevate the anger of the people).
39 Gizewski and Homer-Dixon note that Pakistani’s are already swarming to
the cities where there is comparatively more prosperity than in rural areas. The
flooding destroyed much of Pakistan’s ability to produce crops. It is likely that
more people will flood to the cities, where shelter, food, services, and opportu-
nity are more likely than in the isolated rural areas. See giZewSKi, pt. 3, supra
note 20.
40 See Khan, supra note 6 (quoting the NDMA regional director about securing
lands that were affected by the floods because of deforestation).
41 See Khan, supra note 11, at 8 (discussing the new approach to large dam
projects).
42 See Bosshard & Lawrence, supra note 3 (providing historical data about the
World Bank’s investment in Pakistani waterway infrastructure).
21 Id.
22 Id.
23 Sheela Patel, Sundar Burra & Celine D’Cruz, Slum/Shack Dwellers Interna-
tional–Foundations to Treetops, 13:1 envt & urbaniZation 45 (2001), avail-
able at http://www.bvsde.paho.org/bvsacd/cd26/enurb/v13n2/45.pdf.
24 Sheela Patel, Celine d’Cruz & Sundar Burra, Beyond Evictions in a Global
City: People Managed Resettlement in Mumbai, 14 envt & urbaniZation
159, 163 (2002), available at http://www.ucl.ac.uk/dpu-projects/drivers_urb_
change/urb_infrastructure/pdf_city_planning/IIED_patel_Evictions.pdf.
25 Celine d’Cruz & David Satterthwaite, The Role of Urban Grassroots Orga-
nizations and Their National Federations in Reducing Poverty and Achieving the
Millennium Development Goals, global urban Dev. Mar. 2006, at 1, http://www.
ENDNOTES: out oF the garDen oF eDen: moving beyonD the rightS-baSeD agenDa in the urban Sector
continued from page 49
FALL 2010 72
1 Power to the People, economiSt, Sept. 4, 2010, http://www.economist.com/
specialreports/displaystory.cfm?story_id=14483848.
2 Nicolas Mirabaud, Migrants’ Remittances and Mobile Transfer in Emerging
Markets, 4 intl J. oF emerging marKetS 108, 112-13 (2009).
3 See George Lin, Urban China Transformation: Hybrid Economy, Juxta-
posed Space, and New Testing Ground for Geographical Enquiries, 8 chineSe
geographical Sci. 271, 281 (2010) (proposing that the wealth of nations is
driven by cities that are more technologically advanced relative to others).
4 See Beyond Vo ice, economiSt, Sept. 26, 2009, http://www.economist.com /
specialreports/displaystory.cfm?story_id=14483848.
5 Dilip Ratha, Dollars Without Borders: Can the Global Flow of Remittances
Survive the Crisis?, Foreign aFFairS, Oct. 16, 2009, http://www.foreignaffairs.
com/articles/65448/dilip-ratha/dollars-without-borders.
6 Id.; see also intl FunD For agric. Dev., SenDing money home to aFrica:
remittance marKetS, enabling environment anD proSpectS 3 (2009), http://
www.ifad.org/remittances/pub/money_africa.pdf.
7 Id.
8 Ratha, supra note 5.
9 Indep. Expert on the Question of Human Rights and Extreme Poverty,
Report of the Independent Expert on the Question of Human Rights and
Extreme Poverty, Human Rights Council ¶ 22, U.N. Doc. A/HRC/14/31 (Mar.
31, 2010) (by Magdalena Sepulveda Carmona), http://www2.ohchr.org/english/
bodies/hrcouncil/docs/14session/A.HRC.14.31_en.pdf [hereinafter Rep. of the
Indep. Expert] (noting that the large migration of young people to urban centers
raises concern about the support of older family members).
10 Christian Barry & Gerhard Overland, Why Remittances to Poor Countries
Should Not Be Taxed, 42 n.y.u. J. intl l. & pol. 1181, 1181 (2010) (positing
that remittances are usually made to family members who have not emigrated).
11 Mirabaud, supra note 2, at 111.
12 intl FunD For agric. Dev., supra note 6, at 13.
13 worlD banK, global economic proSpectS anD the Developing countrieS
2006 xiii (2005) available at http://econ.worldbank.org/external/default/main
?pagePK=64165259&theSitePK=469372&piPK=64165421&menuPK=64166
322&entityID=000112742_20051114174928 (observing that remittances have
been correlated with significant decreases in poverty levels in Uganda, Bangla-
desh, and Ghana).
14 Mirabaud, supra note 2, at 111.
15 Id. (providing, furthermore, that people in rural areas of developing coun-
tries have limited access to banks and that most recipients of remittances do not
have bank accounts).
16 See Héctor Ricardo Grau & T. Mitchell Aide, Are Rural-Urban Migration
and Sustainable Development Compatible in Mountain Systems?, 27 mountain
reS. anD Dev. 119, 121 (2007) (hypothesizing that the reduction of rural popu-
lations due to urban migration has probably resulted in the expansion of forests
in mountain regions of Latin America).
17 Beyond Voice, su pra note 4 (discussi ng a database compil ed by locals that
accepts text-message questions and provides relevant farming advice).
18 See Grau & Aide, supra note 16, at 122 (explaining how urban migration
can lead to decreased agricultural activity reducing erosion and increasing pro-
ductivity).
19 See id. (stating that increasing populations in mountain regions could not
be supported by traditional agriculture and that subsequent urban migration has
resulted in benefits to society in general).
20 intl FunD For agric. Dev., supra note 6, at 2.
21 Id. at 15.
22 Id. at 17.
23 Id. at 6.
24 Hillel Rapoport & Frederic Docquier, The Economics of Migrants’ Remit-
tances, in hanDbooK on the economicS oF giving, reciprocity, anD altruiSm,
at 6 n.3 (Institute for the Study of Labor, Discussion Paper Ser. No. 1531,
1990), http://www.econstor.eu/bitstream/10419/21307/1/dp1531.pdf (noting
that official statistics do not account for small transfers, transfers in-kind, unof-
ficial transfers, or transfers personally carried by migrants).
25 U.N. Dep’t of Econ. & Soc. Affairs, Population Div., World Urbanization
Prospects, The 2009 Revision: Highlights, 2-3, u.n. Doc. eSa/p/wp/215
(Mar. 2010), http://esa.un.org/unpd/wup/Documents/WUP2009_Highlights_
Final.pdf.
26 Id. at 2.
27 Id. at 10.
28 Mirabaud, supra note 2, at 115.
29 intl FunD For agric. Dev., supra note 6, at 9 (describing five important
regulatory issues covered by rules pertaining to cross border payments: autho-
rized paying institutions; non-bank financial institutions; ownership of foreign
currency accounts; limits on and requirements for money transfers; and anti-
money laundering).
30 Id.
31 See Chris Bold, Mobile Banking 2.0 or 0.5? – Mobile Banking for Those
with No Mobile, cgap (Oct. 13, 2010), http://technology.cgap.org/2010/10/13/
mobile-banking-20-or-05-%E2%80%93-mobile-banking-for-those-with-no-
mobile/#more-3310 (describing how the governments of Pakistan and the Phil-
ippines may use over-the-counter agents to distribute government payments to
more impoverished citizens who likely do not have phone access).
32 intl FunD For agric. Dev., supra note 6, at 11 (describing how after Sep-
tember 11, 2001, most African countries introduced anti-money laundering
legislation).
33 Fin. action taSK Force, FatF 40 recommenDationS (2003), http://www.
fatf-gafi.org/dataoecd/7/40/34849567.PDF.
34 intl FunD For agric. Dev., supra note 6, at 11.
35 See Ratha, supra note 5 (asserting that between 2003 and 2008, remittances
doubled to reach approximately $330 billion).
36 Id. (postulating that increased regulation may drive remittances from official
channels, and official data may be underestimating global remittances by ten to
fifty percent).
37 See, e.g. , Tax Collect ions, Remittances, and Policy Measure s to Raise
Reserve s, the nati on (Pak. ), Aug. 17, 20 08, http://w ww.nation.c om.pk/
pakista n-news- newspa per-dai ly-engl ish-on line/Bu siness/ 17-Aug -2008/T ax-
collect ions-remitt ances-and-p olicy-measu res-to-rais e-reserves/ 1 (providin g
that tax recei pts from remittances could increase foreign exchange r eserves
while increasing economic stability ); About Pakista n Remitt ance Ini tiative,
paKiStan remittance initiative, http://www.pri.gov.pk/about (last visited Oct.
17, 2010); Remittances Exceed $8 Billion Mark, the Dawn meDia group (June
10, 20 10), http ://www.daw n.com/wps /wcm/conne ct/dawn-c ontent-lib rary/
dawn/ne ws/busines s/remittan ces-exceed -$8-billio n-mark-jd- 05 (desc ribing
how Pakistani government agencies have undertaken the Pakistan Re mittance
Initiative to direct remittances through formal channels and have made financial
gains through encashment and profit on Foreign Exchange and Currency Bearer
Certificates).
38 See, e.g, Rep. of the Indep. Expert, supra note 9, para. 42 (explaining that
cash transfer programs must remove physical, cultural, and geographical barri-
ers to reach certain vulnerable groups, including those living in remote areas).
ENDNOTES: mobile phoneS: reShaping the Flow oF urban-to-rural continued from page 50
globalurban.org/GUDMag06Vol2Iss1/d’Cruz%20&%20Satterthwaite%20PDF.pdf.
26 Jack Makau, Stops and Starts in Kibera, ShacK/Slum DwellerS interna-
tional, http://www.sdinet.org/news/31 (last visited Oct. 15, 2010).
27 Id.
28 Id.
29 Arif Hasan, Orangi Pilot Project: The Expansion of Work Beyond Orangi
and the Mapping of Informal Settlements and Infrastructure, 18 envt &
urbaniZation 451, 452 (2006), available at http://eau.sagepub.com/con-
tent/18/2/451.full.pdf.
30 Somsook Boonyabancha, Land for Housing the Poor — By the Poor: Expe-
riences From the Baan Mankong Nationwide Slum Upgrading Programme, 21
envt & urbaniZation 309, 312 (2009), available at http://eau.sagepub.com/
content/21/2/309.full.pdf.
SUSTAINABLE DEVELOPMENT LAW & POLICY73
ENDNOTES: population health through incluSive urban planning: healthier communitieS anD SuStainable
urban Development in inDian citieS continued from page 57
4 See generally Ministry of Urban Development, National Urban Transport
Policy, government oF inDia (2006), http://www.urbanindia.nic.in/policies/
TransportPolicy.pdf.
5 See the energy anD reSourceS inStitute, an eXploration oF SuStainabil-
ity in the proviSion oF baSic urban ServiceS in inDian citieS 319-20 (2009),
http://www.teriin.org/files/Sus_Cities_Report_20090424151451.pdf [hereinaf-
ter baSic urban ServiceS] (noting that paid employment is a reason for people
to move into city slums).
6 Shriya Malhotra & Divya Sharma, Integrated Urban Planning Processes for
Resilience and Low Carbon Development, in climate reSilient anD SuStain-
able urban Development 11, 16-17 (The Energy and Resources Institute, eds.,
n.d.), http://blogs.dfid.gov.uk/wp-content/uploads/2010/09/sustainable-urban-
development-background-paper.pdf.
7 See Urban Planning, britannica online encyclopeDia, http://www.britan-
nica.com/EBchecked/topic/619445/urban-planning (last visited Nov. 8, 2010).
8 Lawrence Gostin, A Theory and Definition of Public Health Law, univ. oF
cal. preSS blog (Sept. 22, 2008), http://www.ucpress.edu/blog/?p=178.
9 baSic urban ServiceS, supra note 5, at lxiii-lxix.
10 See generally id. at 263-316 (discussing cases studies of governance in Surat
and Hyderabad); M. Shamsul Haque, The Diminishing Publicness of Public
Service under the Current Mode of Governance, pub. aDmin. rev., Jan.-Feb.
2001, at 65, 70.
11 Pranab Bardhan, Decentralization of Governance and Development, J.
econ. perSp., Autumn 2002, at 185, 200-02, http://emlab.berkeley.edu/users/
webfac/bardhan/papers/BardhanGovt.pdf.
12 Nandita Kapadia-Kundu & Tara Kanitkar, Primary Healthcare in Urban
Slums, econ. & pol. wKly., Dec. 2002, at 5086, 5086. See generally baSic
urban ServiceS, supra note 5, at 319 (discussing issues surrounding water,
sanitation, electricity, and transportation in slums).
13 worlD population 2007, supra note 3, at 1.
14 baSic urban ServiceS, supra note 5, at xix.
15 See Environmental Problems and Developing Countries, all buSineSS,
(June 1, 1992), http://www.allbusiness.com/public-administration/national-
security-international/312961-1.html (noting the environmental degradation
that has occurred in developing nation’s wetlands and forests).
16 See worlD population 2007, supra note 3, at 6 (stating that “[t]he urban
population of Africa and Asia is expected to double between 2000 and 2030”
while similar growth for Latin American and the Caribbean is expected to be
less drastic).
17 See id. at 7 (stating that the urbanization and industrialization of the western
world was comparatively gradual and involved far fewer people).
18 See generally erach bharucha, teXtbooK For environmental StuDieS For
unDergraDuate courSeS oF all brancheS oF higher eDucation 214-48 (2004)
www.ugc.ac.in/policy/env/Chapter7.pdf.
19 See, e.g., Richard M. Krause, Preventive and Social Medicine: A Victorian
Legacy, 30 inD. J. oF community meD. 104, 108 (2005), http://medind.nic.in/iaj/
t05/i4/iajt05i4p104.pdf (discussing a public health history book that notes that
the ancient Indus valley civilizations of Mohenjo-jaro and Harappa had highly
developed sewage drains below the streets).
20 Shriya Malhotra, Conflating Boundaries to Envision Urban Public Health,
parSonS J. For inFo. mapping, Summer 2009 at 1, 3, http://piim.newschool.edu/
journal/issues/2009/03/pdfs/ParsonsJournalForInformationMapping_Malhotra-
Shriya.pdf.
21 See W. Conard Holton, Rich Man, Poor Man, envtl. health perSp., Mar.
2004, at 176, 178 (discussing a map depicting the spread of cholera in South
Africa); Scott Crosier, John Snow: The London Cholera Epidemic of 1854,
center For Spatially integrateD Soc. Sci., http://www.csiss.org/classics/con-
tent/8 (last visited Oct. 18, 2010) (discussing the life and scholarship of John
Snow).
22 See Scott Fearon, Charles Booth: Mapping London’s Poverty, 1885-1903,
center For Spatially integrateD Social ScienceS, http://www.csiss.org/clas-
sics/content/45 (discussing the life and scholarship of Charles Booth); Holton,
supra note 21, at 174 (discussing the power of these maps to highlight needs of
those depicted in them).
23 Cf. Malhotra, supra note 20, at 7 (positing that after the cholera outbreaks
were mapped in Europe, cities were prompted to convene health boards and
to “expand[] the networks of underground pipes to provide universal access to
clean water and hygienic sewage disposal”).
24 lawrence FranK, peter engelKe & thomaS SchmiD, health anD commu-
nity DeSign – the impact oF the built environment on phySical activity 2
(2003).
25 Id.
26 Id. at 44-46, 184-87.
27 Id. at 2-3.
28 Id. at 44-46, 184-87.
29 Press Release, New York City Governor, Mayor Bloomberg and Commis-
sioners Burney, Farley, Sadik-Khan and Burden Release Design Guidelines To
Promote Physical Activity And Health In Buildings And Communities (Jan. 31,
2010), http://www.nyc.gov/ (follow “News and Press Releases” hyperlink; fol-
low “January 2010” hyperlink; then follow “January 31, 2010” hyperlink).
30 R. Charon Gwynn et al., Contributions of a Local Health Examination Sur-
vey to the Surveillance of Chronic and Infectious Diseases in New York City, a.
J. pub. health, January 2009, at 152 (illustrating statistical evidence of lower
obesity rates in NYC).
31 barbara a. mccann & reiD ewing, Smart growth america, meaSur-
ing the health eFFectS oF Sprawl, 9, 23, 26, 28 (2003), http://www.smart-
growthamerica.org/report/HealthSprawl8.03.pdf.
32 See generally id. (illuminating the relationship between sprawl, obesity, and
chronic disease in America).
33 Lessons from Surat Plague, LIVEMINT (Aug. 12 2009), http://www.live-
mint.com/2009/08/12212147/Lessons-from-Surat-plague.html.
34 Dr.Steven Wolinsky, Preface to the First Edition of laurie garrett,
betrayal oF truSt the collapSe oF global public health, at xi (Hyperion,
1st ed. 2000).
35 See inDia public health aSSociation, http://iphaonline.org/home.html (last
visited Oct. 22, 2010) (explaining that the science of modern public health is
relatively young in India).
36 See generally Consumer Medical Devices to Cater to India’s Increasingly
Urbanized Middle Class, global intelligence alliance (Sept. 16, 2010),
http://www.globalintelligence.com/insights-analysis/bulletins/consumer-med-
ical-devices-to-cater-to-india-s-incre/ (noting that there is a dearth of medical
devices and technology in India and it has recently begun to grow rapidly).
37 See Ayurvedic Medicine: An Introduction, natl inSt. oF health, http://
nccam.nih.gov/health/ayurveda/introduction.htm (last visited Oct. 19, 2010)
(stating that “Ayurvedic medicine aims to integrate and balance the body, mind,
and spirit; thus, some view it as “holistic” . . . . A chief aim of Ayurvedic prac-
tices is to cleanse the body of substances that can cause disease, thus helping to
reestablish harmony and balance.”).
38 See Homeopathy, merriam webSter Dictionary, http://www.merriam-
webster.com/dictionary/Homeopathy (last visited Oct. 14, 2010) (defining
homeopathy as “[a] system of medical practice that treats a disease especially
by the administration of minute doses of a remedy that would in larger amounts
produce symptoms in healthy persons.”).
39 worlD health org., health in aSia anD the paciFic 186 (2008), available
at http://www.wpro.who.int/publications/Health+in+Asia+and+the+Pacific.
htm.
40 Id. at 302.
41 prema ramachanDran, FooD anD agriculture organiZation oF the u.n.,
the Double burDen oF malnutrition in inDia, the Double burDen oF malnu-
trition: caSe StuDieS From SiX Developing countrieS 99 (2006), available at
ftp://ftp.fao.org/docrep/fao/009/a0442e/a0442e00.pdf.
42 See generally worlD health org., supra note 39, at 77-125, 196-286
(noting that the high percentage of environmental health factors in developing
nations including India).
43 Id. at 246.
44 See Kenneth J. Cooper, Human Waste Overwhelms India’s War on Disease,
waSh. poSt, Feb. 17, 1997, available at http://www.swopnet.com/engr/sanita-
tion/India_sewers.html (noting the water borne diseases due to lack of clean
drinking water).
45 Sen, supra note 2, at 622.
46 Kapadia-Kundu & Kanitkar, supra note 12, at 5088.
47 worlD health org., supra note 39, at 195.
48 Rohina Joshi et al., Chronic Diseases Now a Leading Cause of Death in
Rural India—Mortality Data from the Andhra Pradesh Rural Health Initiative,
FALL 2010
35 intl J. epiDemiology 1524-25 (2006).
49 ramachanDran, supra note 41, at 99.
50 National Urban Sanitation Policy to Be Launched Today, newStracK inDia
(Nov. 12, 2008), http://newstrackindia.com/newsdetails/36647.
51 See Rank of Cities on Sanitation 2009-2010: National Urban Sanitation Pol-
icy, inDia envt. portal (May 2010), http://www.indiaenvironmentportal.org.in/
content/rank-cities-sanitation-2009-2010-national-urban-sanitation-policy.
52 See New Sanitation Award Creates Healthy Competition Among Indian
Cities, water & Sanitation program, http://www.wsp.org/wsp/node/1040 (last
visited Nov. 11, 2010).
53 PM Approves Mission on Sustainable habitat, econ. timeS (India), Jun. 20,
2010, http://economictimes.indiatimes.com/features/sunday-et/dateline-india/
PM-approves-mission-on-sustainable-habitat/articleshow/6069320.cms.
54 See Pushpam Kumar, Assessment of Economic Drivers of Land Use Change
in Urban Ecosystems in Delhi, ambio, Feb. 2009, at 38 (concluding that as a
result of converting agricultural land to urban areas and converting water bodies
into agricultural and “built-up” areas, the ecosystem is being derailed without
notice by developers).
55 See Government Extends More Tax Sops to SEZs in Trade Policy, econ.
timeS (India), Apr. 19, 2007, http://economictimes.indiatimes.com/news/
economy/policy/Govt-extends-more-tax-sops-to-SEZs-in-trade-policy/article-
show/1925487.cms (announcing the government’s expansion of the financial
incentives for developers while noting that SEZ “land should be acquired in a
fair and equitable manner”).
56 Bijoy Kishore Sundar Ray, Planning for the National Capital Region as a
Strategy for Sustainable Development of Delhi, natl real eSt. Dev. council,
Jan. 2010, at 1-3, http://naredco.in/Article.asp.
57 Id. at 2 (stating that the “the outer-ring of NCR, extend[s] beyond Panipat in
the north, Meerut in the east, Alwar in the south and Rohtak in the west”).
58 maDan mohan, geoSpacial inFormation For urban Sprawl planning anD
policieS implementation in Developing countryS ncr region: a StuDy
oF noiDa city, inDia 4 fig. 1a (2010), http://www.fig.net/pub/fig2010/papers/
ts06e%5Cts06e_mohan_4050.pdf.
59 Cf. Monkeys Attack Delhi Politician, bbc newS (Oct. 21, 2007), http://
news.bbc.co.uk/2/hi/7055625.stm (stating that urban development has been
blamed for destroying the monkey habitat and that various solutions are being
considered to alleviate the problem).
60 One Health Centre Soon for Every 50,000 Population, the hinDu, April 20,
2010, http://www.hindu.com/2010/04/20/stories/2010042057980400.htm.
61 Id.
62 Census of India 2001 (Provisional) Slum Population in Million Plus Cities
(Municipal Corporations): Part B, oFFice oF the regiStrar general & cenSuS
commiSSioner, http://censusindia.gov.in/tables_published/admin_units/admin_
links/slum1.html.
63 worlD health org., supra note 39, at 183.
64 Prince Charles Hails Indian Slum as Western Role Model, yahoo! newS
(Oct. 9, 2010), http://news.yahoo.com/s/afp/20101009/wl_uk_afp/britainin-
diaroyalsenvironment; see State of Urban Health in Delhi, urb. health anD
reSource center 4 (June 1, 2007).
65 The Commonwealth games are held every four years between seventy-one
potential countries linked to the old British Empire. See Commonwealth Games
Chief: All Countries to Participate but Much Work to be Done, voanewS
(Sept. 25, 2010), http://www.voanews.com/english/news/Extensive-Work-Still-
Needed-for-Commonwealth-Games-103780314.html.
66 Sumon K. Chakrabarti, India’s Commonwealth Games Mess, time, Aug 26
2010, http://www.time.com/time/world/article/0,8599,2013182,00.html.
67 Commonwealth Games Leave 2,500,000 Homeless, the hinDu, Oct. 13,
2010, http://www.thehindu.com/news/cities/Delhi/article828600.ece.
68 Id.
69 Aarti Dhar, It’s Dengue Epidemic in Delhi, the hinDu, Sep. 4, 2010, http://
www.hindu.com/2010/09/04/stories/2010090454561300.htm.
70 worlD health org. supra note 39, at 192.
71 Id.
72 Siddiq Osmani & Amartya Sen, The Hidden Penalties of Gender Inequality:
Fetal Origins of Ill-Health, 1 econ. anD hum. biology 105, 114 (2003).
73 u.n. Dev. programme, inDia: urban poverty report 2009, http://data.
undp.org.in/poverty_reduction/IUPR_Summary.pdf.
74 worlD health org., supra note 39, at 192.
75 Id.
76 cliFF elliS, hiStory oF citieS anD city planning, in Simcity manual 40
(1989), available at http://www.art.net/~hopkins/Don/simcity/manual/history.
html.
77 Id. at 48.
78 Id.
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