MS. WAGNER: Welcome to Learning to Live With the Data Quality Act. I am Wendy Wagner, a professor at the University of Texas Law School.

I. Introduction

The fate of humans has been intertwined with the fate of other animals since human ancestors scavenged the carcasses of non-human animals, nearly six million years ago. Feeding upon the meat of other animals gave these early humans a boost of protein, providing their brains with extra energy for higher level thinking. Thus began the rise of humanity and the flourishing of Homo sapiens.

Like other developed countries, Japan faces a serious soil contamination problem. Much of Japan's legal history, however, has failed to address the serious issue of soil contamination because Japanese environmental law focuses on human compensatory damages, injunctive relief, and environmental regulations to prevent further pollution. Unlike flow pollution,¹ which can be lessened when the source of that pollution is regulated, the damage from soil contamination is accumulative and infringes upon the human environment unless and until it is completely eliminated.

One of the most significant law review articles of the past decade in the area of environmental regulation is Wendy Wagner's "The Science Charade in Toxic Risk Reduction."¹ The gist of the article is quite simple: "Agencies exaggerate the contributions made by science in setting toxic standards in order to avoid accountability for the underlying policy decisions."² The article amply documents the existence of the phenomenon in compelling fashion.

One of the central concerns of environmental ethics is to clarify the moral relationship between present and future generations. How should we think about our ethical responsibilities to a continuing stream of unknown humanity? Virtually all commentators recognize that the future is entitled to moral consideration in evaluating our present actions.¹ We owe the future something; the questions are what and why. On these questions there is no consensus.

In the 1992 case of Lucas v. South Carolina Coastal Council,¹ the U.S. Supreme Court held that "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is to leave his property economically idle, he has suffered a taking."² A decade later, in Tahoe-Sierra Preservation Council, Inc. v.

The developed world has spent some $ 10 billion in assistance over the past 25 years to improve environmental policies and management in developing countries and countries in transition. The apparent assumption has been that it is sufficient to bring environmental professionals together and let them work on issues of mutual concern. Thus, western economists work with local economists to develop market-incentive instruments; engineers install technology; lawyers in concert with their counterparts draft laws or develop enforcement policies; and so forth.

This Article offers a global assessment of the record and promise of international environmental law to the beginning of the millennium. I first present several overall accounts of the contribution of international environmental law. Herein I describe the complexities of undertaking global evaluations. After summarizing the negative and positive evaluations, the Article takes a closer look at five case studies. I then lay out a description of a set of characteristics linked to effective law.

Federal law divides the responsibility of enforcing federal environmental regulations between federal agencies, typically the U.S. Environmental Protection Agency (EPA), and state agencies.¹ Generally, state programs receive formal approval or authorization from EPA to administer the federal environmental program.² EPA usually combines the delegation of authority to the states with retained enforcement authority for themselves.³

To those who have wearied of an environmental regulatory system that manages to combine sluggish bureaucracy with partisan rancor—and the list of the disenchanted appears to include just about everybody involved in the environmental field—contracts may seem to provide an attractive alternative. Because contracts are flexible, collaborative, and enforceable, they offer an opportunity to bypass litigation while addressing the failures of command-and-control regulation. Why, then, are they so little used?