Journals
Summer 2004, Vol. 44, No. 3
Cultural Myths, Concrete Results, and Whoops Again
Peter M. Lavigne
When we examine barriers and opportunities to healthy ecosystems in the river basins of the West, think of what the metaphor Concrete Results encompasses. Dams, especially on the Columbia and Colorado, have a special place in our culture and imagination. They represent man's (and I use the possessive of "man" here in the strictest sense of gender) triumph over the combined manmade evils of the dust bowl and the Great Depression of the 1930s. A hold so powerful that a U.S. postage stamp issued with the caption "Conservation" during the Great Depression had a dam as the illustration of conservation. When it comes to dams, the narrator in Pare Lorentz's classic propaganda film of 1937, The River, captured the American idea of progress saying, "There's no such thing as an ideal river in Nature."
Reclaiming the Spirit of Reclamation
Ed Marston
It is astounding to me, watching the divided society we live in, that an earlier society situated on the same land could have come together to build Hoover, Glen Canyon, Flaming Gorge, and scores of other major dams. We today are like barbarians left with something a higher order, or at least a more organized and cohesive society, built. The society that built those machines agreed on what they were for, and put them to work to produce food, fiber, and electricity and water for urban areas, with flat-water recreation thrown in.
Now, decades later, we have 50 ideas about what they are for. Some of us want them to be used exclusively for their original purposes. But others want them to be used to create floods to build beaches and to provide water for rafters, raptors, or fish that are barely hanging onto their changed environments. And always there is the tug of war between rural uses of water and urban uses of water. That rural-urban conflict does not include only the diversion of water away from irrigation and into cities' water treatment plants; this conflict also includes the environmental uses of water.
Administrative Rulemaking and Public Lands Conflict: The Forest Service's Roadless Rule
Martin Nie
Many of the most controversial issues in public land policy and management are addressed by natural resource agencies using the administrative rulemaking process. This is partly due to the design of public land laws, many of which are ambiguous, vague, and/or contradictory in part. This article examines the historic roadless rule promulgated by the U.S. Forest Service from a process and decision-making standpoint. The roadless rule is important to learn from because it has been one of the most controversial rules ever written and has raised serious questions about the limitations and legitimacy of large-scale rulemakings. The article finishes by exploring various options and alternatives to the rulemaking status quo. Alternatives in public participation, transparency, electronic rulemaking, scoping, collaboration, and others are discussed. The article argues for more congressional responsibility in resolving the roadless issue but also defends the rule in terms of what is legal and legitimate in today's political context and administrative state.
New Institutional Economics and the Failure of Sustainable Forestry in Ghana
Kofi Oteng Kufuor
This article explores reasons for the failure of sustainable forestry in Ghana. Its contribution to the debate examines the problem of increased timber logging from an institutionalist point of view. Drawing on New Institutional Economics methodologies, the article sets out hitherto unexamined rationales for the failure to reverse deforestation in Ghana. The focus is on key actors and institutions in the timber market and the state bureaucracy. The article challenges the assumption that legislation on sustainable forestry is motivated solely by the public interest. The article concludes by suggesting a raft of approaches to dealing with deforestation in Ghana.
Evaluating and Enhancing Competition in the Interstate Natural Gas Transportation Industry
Michael J. Doane, R. Preston MCAfee & Michael A. Williams
In 1996, the Federal Energy Regulatory Commission (FERC) established criteria it uses when evaluating proposals for market-based rates by natural gas pipelines. Since that time, a number of significant developments have occurred, both in markets for natural gas transportation and in economic tools for market-power assessment. This article will review the current approach for measuring interstate pipeline market power presented in the 1996 Policy Statement of the FERC and will critically evaluate that framework in light of these recent developments. We show that fundamental changes in the operation of natural gas transportation markets and new developments in the economic analysis of market power suggest that the Commission's methodology for assessing market power actually or potentially exercisable by pipelines seeking market-based rates is, as it currently stands, inappropriate and should be updated in light of new developments. As we discuss below, the Commission's approach fails to account for a number of important factors potentially influencing a determination of market power. Consequently, the goals of this article are (1) to apply economically appropriate criteria to current natural gas transportation markets in order to illustrate how to evaluate their competitiveness and (2) to demonstrate that improving the competitive assessment of pipelines competing in those markets could enhance consumer welfare.
The Hanford Nuclear Waste Site: A Legacy of Risk, Cost, and Inefficiency
Noah D. Lichtenstein
Since the cessation of plutonium production in 1987, the Hanford Nuclear Waste facility has been the site of the largest and most expensive environmental cleanup project in history. Without prior knowledge of the dangers associated with chemical and radiological wastes, the Department of Energy disposed of millions of gallons of these wastes directly into the soil and the nearby Columbia River. Faced with this enormous burden, the federal government has adopted a new cleanup strategy to accelerate the remediation process and reduce excess spending. However, critics argue that these efforts jeopardized both personal and environmental safety, and the federal and local governments have often been locked in dispute over the proper course of cleanup action to pursue. The result of these conflicting interests has been the most expensive and arguably most inefficient cleanup project in environmental history.
International Law of the Sea/Seed: Public Domain versus Private Commodity
Carol B. Thompson
The United Nations Convention on the Law of the Sea (UNCLOS) prohibits privatization or territorial control over the deep seas. The Convention on Biological Diversity (CBD) recognizes sovereign rights over biodiversity within national territories, but the World Trade Organization (WTO) permits privatization of microorganisms and plans to incorporate seeds and plants. Yet both the high seas and biodiversity (gene pool) could be viewed as the common heritage of mankind - necessary for human life, to be shared by all.
Why are seeds legally treated so differently from the seabed, the former to be declared private property (WTO), the other remaining available to all (UNCLOS)? This study compares political contestations over jurisdiction for access and use, for benefit sharing and governance of the sea versus the seed. The conclusion discusses lessons from UNCLOS in delimitation of private property of global resources for resolving the current impasse over privatization of the gene pool between the CBD and WTO.
The Deep Seabed: Customary Law Codified
Ian Bezpalko
Recognizing that a fragmented international policy regarding the use of the seas did not serve well the global community and jeopardized valuable environmental resources, the United Nations undertook the task of codifying the Law of the Sea. The Conventions, approved following U.N. conferences on this law, aim to eliminate conflict and to assure environmentally responsible development of resources.
Although the United States and other technologically advanced countries have not yet ratified the latest Convention on the Law of the Sea, legitimate precedent in the Outer Space Regime and a contractual revision of res communis as a peremptory norm eminently favor ratification. Pursuant to the Convention, agreements intended to accommodate technologically advanced countries specifically target the deep seabed. Regulations promulgated by the International Seabed Authority guarantee the organized and responsible exploitation of undersea minerals that are beyond the jurisdiction of coastal states. The same regulations allow for a controlled scientific study of the deep seabed and provide for the collection of data in a single depositary organ.
The author contends that the choice of the United States to position itself outside the legal framework developed by the United Nations and its International Seabed Authority is nothing less than shortsighted in view of the overarching aim to preserve the seabed. But the United Nations must also recognize that the "as is" rule presents undue constraints that can only impede acceptance of what could prove to be a most useful tool in the protection of the marine environment.
