The Environmental Law and Policy Annual Review (ELPAR) has selected articles by both John Edward Sexton Professor of Law Richard Stewart and Professor Katrina Wyman for its 2010 issue. Stewart's article, “U.S. Nuclear Waste Law and Policy: Fixing a Bankrupt System,” proposes a new approach to managing nuclear waste. Wyman’s article, "Rethinking the ESA to Reflect Human Dominion Over Nature,” recommends a new approach for protecting biodiversity under the Endangered Species Act. Both articles were published in the NYU Environmental Law Journal in 2008.
ELPAR is a joint publication of the Environmental Law Institute’s (ELI) Environmental Law Reporter and the Vanderbilt University Law School. Each year ELPAR selects the best writing on legal and policy solutions to pressing environmental problems and gathers condensed versions of the papers along with expert commentary from leading environmental experts.
In “Fixing a Bankrupt System,” Stewart, who is also the director of the Frank J. Guarini Center on Environmental and Land Use Law, calls for fundamental rethinking and restructuring of U.S. nuclear waste policy in light of the Obama administration’s abandonment of the planned Yucca Mountain repository. He urges that Congress adopt a comprehensive new approach to the management and disposal of nuclear waste in order to address the failures of past policies and resolve a key issue in the debate over whether to expand use of nuclear energy in order to address climate change. Stewart advocates a new ethics of waste that preserves society’s options (including possible reprocessing of spent nuclear fuel) by retaining wastes for a substantial period rather than a crash effort at immediate burial; a risk-based approach to waste classification and management; fundamental institutional changes including greater involvement of state and local communities and the private sector in waste management and deposal decisions; resolution by Congress of accumulating federal liabilities to utilities for the government’s failure to honor its commitment to take charge of spent nuclear fuel; and abolition of separate EPA regulation of nuclear waste risks already regulated by the Nuclear Regulatory Commission.
Wyman's article suggests new ways to protect biodiversity. The Endangered Species Act was passed in 1973 amid considerable optimism about the potential to reverse human impacts on the earth. Wyman emphasizes that our vast reshaping of the earth to suit human purposes has prevented us from realizing the ESA’s ambitious objective of recovering imperiled species. She proposes rethinking the ESA to set priorities in a world of scarce resources and many imperiled species. She recommends decoupling the initial decision to list a species as endangered or threatened from decisions about how to protect the species. Under her proposal a listed species would benefit from a package of protections similar to a preliminary injunction while the most cost-effective ways of protecting the species were identified and instituted. Funding for species protection would also be targeted to biological hotspots to cost-effectively protect species on a wholesale level. In addition, preventative steps such as designating additional protected areas would be pursued to keep species from becoming imperiled.
The articles are part of Breaking the Logjam: Environmental Reform for the New Congress and Administration, an ambitious and comprehensive project to reform outmoded environmental laws, led by Stewart, Wyman, and New York Law School's David Schoenbrod. The project recently issued a report for Washington policymakers synthesizing the reform proposals and concepts of more than 40 environmental law professors and other experts from around the country and across the ideological spectrum who participated in the project. The experts’ proposals were published in a special symposium edition of the NYU Environmental Law Journal. A book version will be published by Yale University Press next spring.
Posted on November 11, 2009