Since federal and state governments first began prosecuting environmental crimes more than 25 years ago, the nature of the cases they have investigated and prosecuted has changed dramatically. In the early years of criminal enforcement, prosecutors used then-recently enacted criminal statutes to deal with blatant criminal conduct, such as midnight dumping of toxic waste drums. Over the past 25 years, the states and the U.S. Congress have enacted tougher, more comprehensive environmental crimes statutes and devoted greater resources to fighting environmental crime.

In 1978, after more than 50 years of silence on regulatory takings, the U.S. Supreme Court decided Penn Central Transportation Co. v. City of New York. Penn Central has since been referred to as the "polestar" of regulatory takings jurisprudence;2 however, no clear method of applying the multi-part ad hoc factual analysis of Penn Central has emerged. The Penn Central analysis has instead created confusion in the field with case law being anything but "unified."

"[W]e have frequently observed that whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely upon the particular circumstances [in that] case." --Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978).

"[A] 'totality of the circumstances' analysis masks intellectual bankruptcy." --Thomas Merrill, "The Economics of Public Use," 72 Cornell L. Rev. 61, 92 (1986).

Introduction

Editors' Summary

In 2008, China continued its environmental development goals outlined in the Eleventh Five-Year Plan passed in 2006. This annual review surveys the major developments in Chinese environmental law and policy in the past year. The Article covers developments in international environmental law, energy conservation, enforcement mechanisms, and the environmental impacts of major events and incidents in China in the past year.

Editors' Summary

How does a chief executive officer (CEO) know when he or she certifies to the accuracy and completeness of the company's annual report, filed with the U.S. Securities and Exchange Commission (SEC), that all of the company's environmental liabilities have been identified and properly characterized and evaluated? If the answer is that he or she relied on a bunch of environmental audit reports prepared by employees or a consulting firm who said they knew the relevant laws, how does the CEO know they got it right?

I. Background and Context

Two Minnesota statutes, both adopted in the early 1970s, were intended to establish bedrock protections for Minnesota's environment. The first is the Minnesota Environmental Policy Act (MEPA) of 1973, considered the state's little NEPA [in reference to the National Environmental Policy Act2]. The second is the Minnesota Environmental Rights Act (MERA), which establishes a general claim for environmental degradation.

I. Introduction

This Article addresses the "accountability gap" in foreign investment projects and proposes the creation of a Foreign Investor Accountability Mechanism (the Mechanism) to ensure that multinational enterprises (MNEs) may be held accountable to the social and environmental standards to which they have agreed.

Editors' Summary

Editors' Summary