24 ELR 10593 -- EPA's International Assistance Efforts: Developing Effective Environmental Institutions and Partners

24 ELR 10593 | Environmental Law Reporter | copyright © 1994 | All rights reserved

EPA's International Assistance Efforts: Developing Effective Environmental Institutions and Partners

Ruth Greenspan Bell

Ruth Greenspan Bell is Senior Attorney in the International Activities Division of the Office of General Counsel, U.S. Environmental Protection Agency, Washington, D.C. From March 1991 to August 1991, she was Senior Fellow and Polish Representative for the Regional Environmental Center for Central and Eastern Europe (Budapest). The author benefitted greatly from the assistance of Durwood Zaelke and Claudia Saladin, and the comments of Bob Ward and David Sandalow. Laura Neuwirth and Debbie Dalton of EPA also provided invaluable support. The approach for Russian assistance described in this Dialogue was formulated by the author with contributions from two AID contractors, Michele Brown and Eugene Gibson. The views expressed here are the author's and do not necessarily represent the views of EPA or the Regional Environmental Center.

[24 ELR 10593]

In recent years, the U.S. Environmental Protection Agency (EPA) has expanded its programs to assist governments around the world in building their capacity to protect the environment. This effort serves policies embodied in a variety of treaties, appropriations, and other legislative and executive decisions. A small but important part of this work is the effort to help other countries develop an effective legal framework for environmental protection.

This Dialogue begins with a brief overview of EPA's international assistance efforts. Next, it highlights the major potential benefits flowing from international environmental assistance programs, and some of the challenges facing those programs. The Dialogue then illustrates the special challenges and opportunities of legal assistance by describing EPA's effort to provide environmental law assistance to Russia. The Dialogue concludes that environmental legal assistance has the potential to encourage broad reforms with benefits that extend beyond the environmental area.

EPA's International Assistance Programs

International assistance is only one of three general categories of EPA's international programs.1 In addition, EPA is engaged in the negotiation and implementation of international agreements, including trade agreements,2 to address global and transboundary environmental threats, and in sharing data and information.3

EPA's international assistance activities reflect developments that began in the 1970s in the context of U.S. foreign assistance and development programs.4 In 1976, the United States began to formally review foreign aid for environmental impacts.5 Since then, environmental considerations have had an increasingly prominent role in foreign aid, leading to the funding of projects directed at improving environmental conditions.6 To date, the largest of EPA's environmental assistance efforts have been in Central and Eastern Europe. Recently, EPA began offering environmental assistance to the countries of the former Soviet Union.7

[24 ELR 10594]

Why Provide Environmental Assistance?

In evaluating environmental assistance, two perspectives are important -- those of the donor and of the recipient country. From the U.S. (donor) perspective, there are several compelling reasons for EPA to provide environmental assistance to foreign nations, in addition to humanitarian reasons. First and foremost is the benefit to the United States' own environment of addressing risks posed by global environmental problems. In addition, environmental assistance can advance foreign policy objectives by improving the long-term stability of foreign governments. Finally, environmental legal assistance has the potential to help build working legal institutions in the recipient countries.8

Reducing International Threats to the U.S. Environment

Much of the world's pollution today crosses national borders. Global and transboundary environmental pollution9 affects the U.S. environment even when sources are located in distant nations. Multilateral treaties and agreements, such as the Montreal Protocol on Substances That Deplete the Ozone Layer10 and the biodiversity convention,11 are first steps toward addressing this problem. The environmental protection responsibilities imposed on countries that sign such agreements almost always assume working domestic systems of environmental protection. The effectiveness of such international agreements is limited if some signatory countries lack the capacity to carry out their obligations.

Without support for capacity building, the few countries that have working environmental regimes will continue to shoulder the largest part of the burden of environmental compliance to address global problems.12 The United States has such a working environmental regime, and does not enter into international agreements lightly.13 Assistance involves sharing our hard-won experience in meeting our international and domestic commitments.

A central goal for EPA should be to foster viable environmental working partners with the capacity to implement basic environmental protection requirements. Indeed, helping other countries do a better job with their own environmental protection may often be the most effective way to address global and regional pollution. Thus, such assistance squarely addresses EPA's domestic mandate to reduce pollution in the United States.

Advancing Foreign Policy Goals

In addition to providing a direct benefit to the U.S. environment and the global environment, EPA's foreign assistance can also support key U.S. foreign policy goals. Environmental assistance is a logical extension of efforts like the Marshall Plan, in which the United States committed to support the rebuilding of Europe after World War II.14 [24 ELR 10595] The Marshall Plan drew a close connection between social and economic stability, democracy, and world peace.15

Similar considerations provide a strong rationale for international environmental assistance. Providing specialized expertise and direction to foreign nations can help combat environmental degradation that threatens the growth of stable democracies.16 In this context, EPA's efforts are part of a broader effort to support fragile democracies and the rule of law, a goal set by Congress in the Support for Eastern European Democracy Act and the Freedom Support Act.17

The concerns articulated by Congress -- including democratic governance, transparency in government decisionmaking, and rule of law18 -- underscore the central position of law in the environmental assistance effort. Environmental assistance funding is rarely adequate to provide more than limited technical assistance. Such efforts, however well-designed, will not have their full intended impact until they are incorporated into the laws and practices of the recipient countries and repeated domestically after U.S. support ends.

Environmental assistance can be designed to reinforce U.S. foreign policy goals by demonstrating the role of legal process in formulating environmental policies and practices in democratic societies. The process of setting and enforcing environmental standards can demonstrate how democratic societies establish and implement economic and social priorities and reconcile conflicting legitimate interests, such as development and conservation.19 The process can be designed to consider a variety of relevant institutional, economic, legal, and other constraints, including the economic impacts of the laws and the technical difficulties of achieving compliance. By emphasizing legal procedures, efforts to build the capacity of developing countries to protect their own environments and engage in balanced lawmaking processes can also help reinforce the political and social conditions necessary for the development of viable democratic institutions.

Recipient Country Perspectives

To be effective, environmental assistance efforts must address the needs of recipient nations. Simply making environmental assistance available, or operating on the basis of the environmental ethic that has developed in the United States, does not necessarily create a commitment on the part of recipient countries to give any level of priority to environmental progress. Assistance programs must meet the domestic goals of recipient countries.

Environmental assistance can be effective only if recipient countries are willing to invest their own time and resources in the environment. More often, however, immediate problems in these countries overwhelm the environment when priorities are set. In Central and Eastern Europe, for example, much of the enthusiasm and local support for environmental change has disappeared as energy has been turned to the substantial problems of economic transition. Today, some environmental burdens appear to be tolerated in the face of more pressing concerns: Contaminated vegetables and produce are certainly better than expensive imports or no food at all, and the effects of eating them may not be apparent for many years. A polluting factory that provides employment for the community is arguably better than no work at all.20

Under these circumstances, economic uncertainty is perceived as more destabilizing than environmental conditions, and environmental damage that may be unacceptable to affluent Northern American, Japanese, or Western European citizens may be tolerated in view of more immediate problems.21 To help recipient nations avoid the long-term effects of deferring attention to the environment, EPA must consider local conditions.

In some cases, local commitment can be increased by restructuring existing environmental assistance efforts to connect them with more immediate concerns in the recipient countries. In particular, emphasis should be given to environmental problems that impact productivity and efficiency. For example, in transitional economies, resource conservation and waste minimization can serve as important means for reducing expenditures for energy and raw materials.22 At the same time, cutting down on unnecessary energy use and promoting greater efficiency can have a tremendous environmental payoff. Although the United States has been active in promoting this concept, this is an example of a [24 ELR 10596] situation in which the name of a program, "pollution prevention," may obscure its important potential benefits to transitional and developing economies.23

Environmental assistance that focuses on development of effective legal systems can help address the economic concerns of recipient nations, since successful transitions to market-based economies, and participation in the world trading system, requires a foundation in law. Foreign investors will not provide the necessary capital to proceed with privatization or economic growth without the investment security provided by a functioning legal system. Similarly, environmental issues can be a disincentive to investment where significant gaps between law and practice create uncertainty.24

Environmental Law Assistance: The Experience in Russia

One way to illustrate the challenges and opportunities facing EPA's legal assistance effort is to examine ongoing U.S. efforts to provide environmental law assistance to Russia. Russia has environmental laws, ministries, knowledgeable scientists, and other research and support institutions for controlling pollution.25 Despite these, Russia is suffering severely from the ravages of unchecked pollution.26 Given the scope of the problem and Russia's size, U.S. assistance -- even at greatly increased funding levels -- cannot supply adequate amounts of pollution control equipment or do more than provide limited technical and policy help. Under these circumstances, the planners involved in assistance efforts had to ask what could be achieved by providing environmental assistance at all? The U.S. response to this dilemma has been to devise a program of legal assistance that could plant the seeds for what eventually might become effective Russian environmental protection institutions.

Overview of the Assistance Program for Russia: The Demonstration Project Approach

Environmental legal assistance is part of a larger environmental assistance program for Russia conducted under the Freedom Support Act.27 The Freedom Support Act speaks of "an historic opportunity for a transition to… the integration of [Russia] into the community of democratic nations,"28 and makes clear that a major purpose for the entire U.S. assistance effort is to encourage the emergence of a stable society and a reliable foreign partner. Part of that goal is a Russia governed by laws rather than the arbitrary actions of people.

Environmental assistance has been designed to provide demonstration projects in areas outside of Moscow.29 This reflects a Western concern that Russia lacks concrete experience in the process of controlling pollution, not expertise. A strategy evolved of locating the demonstrations away from Moscow, and working with the Moscow-based Russian Ministry for Environment and Natural Resources [24 ELR 10597] Protection (the Environment Ministry) to use the results of each successful demonstration as a basis for Russia-wide environmental reform. This strategy would harness local energy and initiative, but would assure that the impacts of the assistance were felt beyond the individual project sites.

Russian Environmental Law

Russian participants in theassistance effort have consistently expressed their frustration with the almost total failure of implementation of their environmental laws. Assistance planning meetings with the Russians almost always began with Russians describing their formal institutions and laws and almost always ended with Russian recognition, whether explicit or implicit, that the laws have little to do with actual practice.30 Nevertheless, the Russians urged in those early meetings that the legal assistance effort focus on joint activities to support a Russian effort to write new environmental laws.31

Law drafting might have been appropriate had there been a reason to conclude that the Russian laws were inadequate or were somehow the cause of the more general failure of implementation. A review of the existing Russian laws indicated, however, that they appear to include a number of provisions capable of implementation, given an adequate investment of resources, institutional structure, and governmental will.32

While some Russian environmental laws are very general, and lack specifics, other parts of the laws and implementing regulations appear to contain extremely stringent requirements. Frank evaluations by Russians indicated that the requirements are not being met,33 and in many cases could not be met without expensive plant modifications and other investments that seem unlikely in the face of the reality of the Russian economy, as well as changes in the Russian political culture.34 Many Russian laws have a technical and scientific precision characteristic of idealized goals or scientific determinations rather than attainable requirements.35

Site visits confirmed what the Russians and the literature had said: The laws do not appear to actually govern the environmental responsibilities of Russian enterprises, much less protect the health and safety of citizens. Further investigation indicated that the laws have often been drafted by academics and others in a relatively isolated process, considered by the parliament and enacted without much, if any, public process. As such, the laws and instructions do not appear to be the product of a genuine policy debate between all parts of society interested in the outcome, or to reflect a workable consensus. They appear, instead, to have been written to articulate ideological or aspirational goals.36

The Role of Law in Russia

As those engaged in the assistance effort studied the paradox of stringent Russian law and severe environmental degradation, it became apparent that the Russians have a very narrow view of the role of law in environmental compliance. Russian lawyers have a very limited role in implementing environmental law; for example, there are very few lawyers [24 ELR 10598] in the Environment Ministry.37 In general, law drafters appear to believe their jobs as environmental lawyers are completed when environmental laws are written, and the few environmental law specialists are not involved in specific regulatory decisions or implementation.

The limited role of law in Russian society poses some fundamental problems that are broader than the environmental health of the Russian land.38 Basic fairness cannot be achieved in a society if laws have little or nothing to do with -- or are at odds with -- actual practice.39 In Russia the actual practice is too often determined by hierarchial power relationships that stand in the place of laws and a predictable system for their application to specific factual problems.40

Environmental law assistance provides an opportunity to reinforce the importance of law by encouraging a process in which environmental requirements are reliable guides to expectations. The law demonstration project will allow Russians to begin to give life to the laws on their books, and enable U.S. practitioners to show how the United States has animated environmental requirements and integrated them into the economic and personal lives of its citizens.

The foundation of EPA's approach is that law is not a mechanical process, but is a set of activities and attitudes.41 Thus, the best way to educate Russian lawyers -- as well as members of the technical, policy, and other parts of the Russian environmental protection apparatus -- about the role of law and lawyers is to involve them in the process of environmental protection. The assistance effort's focus is on law as a problem-solving activity, the lawyer/client relationship, and the role of technical and policy specialists in conducting their duties to advance, and be consistent with, the rule of law.

Implementation of the Approach

The assistance effort's conceptual design of legal assistance is based on a Western model in which lawyers do not work alone, but are part of a larger team of environmental protection specialists, each of whom has a part in shaping the final product, whether that product is a policy, a regulation, or an enforcement decision. The approach emphasizes that effective environmental protection is not merely a technical exercise as it has been treated in Russia to date, but is one conducted pursuant to law. The environmental assistance team is establishing a legal task force designed to draw Russian lawyers more actively into the process of environmental regulation by teaching them to analyze and address specific proposed regulatory activities in the context of Russian laws. The task force will have its first meetings in the fall of 1994. It will act as a service arm to EPA's demonstration projects, and will receive, examine, and resolve legal questions at each relevant step of the process of designing, implementing, and institutionalizing the projects.

From its inception, the task force will include players representing the various groups, with their diverse interests, who are -- or should be -- part of the process of environmental protection. This will avoid cultural tendencies to treat legal analysis as a mechanical or purely technical exercise. Thus, the task force includes members from relevant Russian interest groups -- government, the parliament, industry, and nongovernmental organizations -- as well as from the local governments where EPA projects are located.42 Western experts will work with Russians to provide support, assistance, and insights into the activity of environmental law.43

[24 ELR 10599]

Plans for the task force put great emphasis on negotiation, rather than adversarial or litigation-type models. This approach is designed to show how most environmental decisions that work result from difficult compromises between strong interest groups, and that effective and enforceable decisions are best achieved by negotiation and consensus. The process of seeking consensus will emphasize the fact that working environmental laws require trade-offs between costs and benefits, an evaluation of available resources, and hard decisions about the relative priorities of numerous legitimate goals in society.

Consistent with the focus on consensus, the task force will have training in dispute resolution and meeting skills to allow its members to develop and sustain a cooperative planning process involving multiple parties and issues.44

Initially, the task force will examine the legal authorization under Russian law to conduct the EPA-sponsored demonstration projects,45 and address questions that arise out of those projects. Issues resolved by the task force will be memorialized in written opinions. Some of the more difficult decisions may have dissents or minority views. What is important is that the legal reasoning for the resolution of each issue addressed by the task force be expressed in a clear, understandable way, citing relevant legal authorities, and that this product be available to the interest groups represented by task force members, to other parts of the government, to the public,46 and the press.

Once exposed to the task force model, the Russians can decide whether it is appropriate for them, whether they want to modify it, and whether it should be applied in contexts other than that of the demonstration projects. In the long run, the task force may be engaged in law drafting. Such efforts, however, would be reserved for drafting laws to incorporate into Russian law lessons learned in the demonstration projects. The newly drafted laws should reflect the practical realities of Russian environmental goals, economics, and technical capacity, rather than theoretical goals established by academics.

It is legitimate to ask whether this approach can work when it is at odds not only with the past 70 years of Russian practice, but also with parts of Russian history preceding the emergence of the Soviet Union. A similar question could be asked of any assistance effort that involves the transfer of "soft" concepts, rather than hardware and technology. The answer depends on any number of factors, many of which go far beyond environmental assistance to Russia, including the stability of the Russian government and the receptivity of Russian authorities to moving toward a system governed by the rule of law. With official support, and patience on all sides, the task force approach can help shape a more reliable and predictable system of environmental protection, increase respect for law, and enhance environmental protection in Russia.

Conclusion

The commitment to environmental protection in the United States has grown over a period of 25 years and is firmly entrenched in our laws and our economy. It is in our interest to work with the many countries that are effectively just beginning this process. Sharing our technical and policy expertise with such countries will have a range of benefits, both for the U.S. domestic environment and to support our foreign policy goals.

Perhaps the most difficult part of an assistance program -- but also one of the most important -- involves sharing "soft" concepts such as the rule of law, which have the potential to work broad changes in recipient nations' approaches to environmental problems. Reforming institutional processes in foreign governments will not guarantee results that will be politically popular in the United States or other countries. Indeed, some of the resulting laws may relax current standards, even though they achieve more actual pollution control than the present requirements. But if the process is successful, the resulting laws may also achieve a greater level of practical pollution control than is currently possible. More fundamentally, there is the hope of encouraging a different perception of law as an effective tool for achieving societal goals, even beyond those directed at the environment.

1. The principal entity in EPA managing international programs is the Office of International Activities (OIA). Although an Office of International Activities has existed for many years at EPA, the importance of the office was elevated during the tenure of Administrator William Reilly when an EPA reorganization designated its head an "Assistant Administrator," appointed by the President and confirmed by the Senate. At the same time, the office was expanded to its current strength of approximately 75. The actual implementation of EPA's international programs takes place throughout the Agency.

2. The issue of potential conflict between environmental and trade goals has reached greatest prominence to date in the negotiation and implementation of the North American Free Trade Agreement (NAFTA). See John J. Kim and James P. Cargas, The Environmental Side Agreement to the North American Free Trade Agreement: Background and Analysis, 23 ELR 10720 (Dec. 1993). Many of the issues addressed turn on concerns about Mexican failure to enforce its environmental laws and of the consequences of that failure for industry that might elect to relocate to Mexico, as well as for the U.S. environment. The resolution of these issues not only facilitated the negotiation and approval of NAFTA, but presumably will assist Mexican environmental progress.

3. EPA's Office of Research and Development plays the most prominent role in information- and data-sharing, but other offices, notably the Office of Air and Radiation, are engaged in cooperative programs with other countries, e.g., The People's Republic of China.

The three areas of EPA's international work are interrelated. For example, NAFTA and its side agreements embody a recognition that a viable trade agreement would require effective domestic environmental protection institutions in each implementing country. Thus, implementation of NAFTA has included EPA assistance efforts to help Mexico improve its capacity to address environmental issues. See, e.g., U.S. ENVIRONMENTAL PROTECTION AGENCY AND THE MEXICAN SECRETARIAT FOR URBAN DEVELOPMENT AND ECOLOGY, INTEGRATED ENVIRONMENTAL PLAN FOR THE MEXICAN-U.S. BORDER AREA (FIRST STAGE, 1992-1994) (Feb. 1992).

4. Environmental groups criticized development assistance to developing countries for contributing to environmental damage. A brief history of the evolution of these issues is contained in U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, DEVELOPMENT ASSISTANCE, EXPORT PROMOTION, AND ENVIRONMENTAL TECHNOLOGY -- BACKGROUND PAPER (OTA-BP-ITE-107) 18-23 (Aug. 1993). The Office of Technology Assessment report notes that a U.N. World Commission on Environment and Development report, Our Common Future, did much to lay the ground work for including environmental protection as a specific objective in bilateral and multilateral foreign assistance. See U.N. WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE (1987).

5. 22 C.F.R. § 216 (1976).

6. The U.S. Agency for International Development (AID) is the principal manager of foreign assistance funds, but its in-house environmental capacity is limited, and AID taps domestic resources to carry out its programs. Implementors have included EPA and other federal agencies and contractors. As the funding for environmental assistance has grown, so has EPA's role. Funding from AID is received and managed by OIA and generally covers the travel of EPA employees, as well as grants, cooperative agreements, and contracts to support EPA's foreign work. Funds received from AID do not cover EPA's personnel costs.

7. Funding for these efforts comes from foreign assistance appropriations, such as the Support for Eastern European Democracy Act (SEED), 22 U.S.C. § 5452(b) (1989) and the Freedom for Russia and Emerging Eurasian Democracies and Open Markets Support Act of 1992 ("Freedom Support Act"), 22 U.S.C. §§ 5801 et seq. (1992) In 1989, SEED directed EPA to engage in environmental assistance activities as part of the assistance provided the emerging democracies of Poland and Hungary. As other countries joined the transition from communism, EPA received funds from AID to finance environmental assistance efforts. To date, AID has transferred between $ 25 and 30 million to EPA for activities in Central and Eastern Europe. The Freedom Support Act established an assistance program for the former Soviet Union in recognition of the problems of transition from communist economies. The largest portion of this assistance is intended for Russia. About $ 35 million, a relatively small amount of the total assistance package, is allocated for environmental assistance. AID has agreed to transfer approximately $ 13 million to EPA over a four-year period. A very small percentage of that figure has been reserved for environmental law assistance. Other efforts funded in whole or in part by AID have included the United States-Asia Environmental Partnership and certain environmental efforts in Mexico, as well as Central and South America.

8. There are two other arguments frequently made on behalf of international environmental assistance. The first is that improvements in the implementation and enforcement of environmental laws in other countries provide a competitive benefit to U.S. industry. To the extent that U.S. multinationals follow U.S. environmental protection practices in developing countries, their relative disadvantage will be reduced as local businesses also come into compliance with more rigorous environmental standards. Similarly, U.S. exporters may benefit in competition with foreign producers currently operating in weak environmental regimes.

A second and related argument for increasing the environmental capacity in developing countries is the expansion of markets for the U.S. environmental goods and services industry. The export rationale offers EPA the opportunity to build alliances supportive of foreign environmental assistance with the business community and with other arms of the U.S. government. The issue for EPA is how to integrate these goals with its other responsibilities. There are at least three issues that EPA must grapple with if export policy were to become the predominant justification for assistance. First, the countries with the greatest need for assistance may not be the same countries with disposable income to spend on environmental imports from the United States. The second is whether such a policy raises a question that goes to the very credibility of EPA's assistance effort: Can advice from EPA that is understood by the recipient country to be grounded in the expectation of future sales be viewed as objective? Finally, such efforts could place EPA in apparent conflicts of interest as it both regulates and promotes industry. For these reasons, it may be better to continue to separate clearly the promotion and assistance functions within the U.S. government.

9. Global and transboundary problems include climate change, ozone depletion, threats to biodiversity, marine pollution, long-range air pollution, and pollution of transboundary watercourses.

10. Sept. 16, 1987, 26 I.L.M. 1550 (entered into force Jan. 1, 1989), ELR STAT. TREATIES 50333.

11. Convention on Biological Diversity, May 22, 1992, 31 I.L.M. 842.

12. In some cases, the industrialized countries with working environmental regimes also bear more direct responsibility for the problems addressed by international environmental agreements, but this is not always the case. A large contribution to global and regional environmental problems is the responsibility of the highly industrialized countries, including those of the former Soviet bloc, where environmental regimes are weak. Poland appears to be one of Europe's greatest polluters. See, e.g., Stanley Kabala, Poland: Facing the Hidden Costs of Development, 27 ENV'T 9 (1985); Elzbieta M. Zechenter, The Socio-Economic Transformation of Poland: Privatization and the Future of Environmental Protection, 5 GEO. INT'L ENVTL. L. REV. 99 (Winter 1993). China and India are also large contributors to international pollution.

13. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 28 I.L.M. 657, ELR STAT. TREATIES 50308, is an example. The United States has not ratified the Basel Convention because we have not yet come to agreement on the substantial domestic implementation issues presented by this requirement, although a set of principles to form the basis of implementing legislation was sent to Congress by the Administrator of EPA on behalf of the Clinton Administration in a letter dated February 28, 1994. By contrast, Romania, a country with few working environmental protection institutions, ratified early. In fairness, Romania's policies may be driven more by the need to protect itself against being a destination for other countries' hazardous waste. In that case, the importance of implementing domestic controls is not so critical. Nevertheless, it does not appear that Romania had addressed the complexity of domestic implementation when it ratified.

14. See generally CHARLES L. MEE JR., THE MARSHALL PLAN: THE LAUNCHING OF THE PAX AMERICANA (1984); HARRY BAYARD PRICE, THE MARSHALL PLAN AND ITS MEANING (1955).

15. Although the Marshall Plan is remembered as a humanitarian effort, it was conceived for very specific economic, strategic, and political goals: To facilitate the "revival of a working economy in the world so as to permit the emergence of political and social conditions in which free institutions can exist." Secretary of State George C. Marshall's Address at the Commencement Exercises of Harvard University, Cambridge, Massachusetts, June 5, 1947, reprinted in MEE, app. II, supra note 14, at 272. This was based on the post-World War II fear that social turbulence might facilitate Soviet expansionist goals and that funding of programs to combat hunger, poverty, desperation, and chaos would favor "the return of normal economic health in the world." Id.

16. Both SEED, 22 U.S.C. §§ 5401(a)(b), 5452 (1989), and the Freedom Support Act, 22 U.S.C. § 5811 (1992), specifically identify foreign environmental assistance as part of activities linked to the building of democracy and democratic institutions.

17. The connection drawn by SEED and the Freedom Support Acts between environmental concerns and the fall of communism is consistent with the fact that opposition leaders often chose environmental conditions for rallying cries against communist regimes. See, e.g., Margaret Bowman & David Hunter, Environmental Reforms in Post-Communist Central Europe: From High Hopes to Hard Realities, 13 MICH. J. INT'L L. 301 (1992). The emphasis on environment may have been misread in the West. Despite legitimate and deep-seated concern about the environment, protesting the conditions imposed on the environment by the communists was sometimes a substitute for protest against the very system of communism.

18. 22 U.S.C. § 5811 (1992). See also Larry Diamond, Promoting Democracy, 87 FOREIGN POL'Y 25 (Summer 1992) (arguing that democracy should be the central focus and defining feature of U.S. foreign policy, including the role of legislative and legal systems).

19. As in the United States, the affected interests will include regulated enterprises and the affected public (including communities and organizations representing the public) as well as the public bodies that administer the laws.

20. In some regions, improved environmental conditions can be attributed to plant closures and failing economies, rather than improved compliance or better enforcement, much less reordered priorities. See, e.g., John Pomfret, Clearing the Air in Krakow, WASH. POST, Aug. 9, 1994, at 1; ROGER MANSER, FAILED TRANSITIONS 73-75(1994). Production goals continue to prevail, albeit for new reasons, because governments are reluctant to impose additional costs on surviving industry that might weaken their prospects. See Ruth Greenspan Bell, Industrial Privatization and the Environment in Poland, 22 ELR 10092 (Feb. 1992).

21. See generally Ruth Greenspan Bell, Exporting Environmental Protection, 23 ELR 10701 (Dec. 1993).

22. Under the communist system, energy was typically priced below market rates and treated like a free resource. See, e.g., Bell, supra note 21, at 10704.

23. Poland's creation of a governmental unit to institutionalize resolution of environmental issues in the privatization process has also begun to create a more receptive atmosphere for environmental considerations in the economic ministries of Poland.

"… the privatization process disclosed all the small failings of Polish environmental law.… The matter is also raised by investors who do not want to compete with the plants against which environmental law is not effectively enforced. In a way that may be paradoxical, the enforcement agencies have earned a strong ally. The serious investors want to have clear rules and strong enforcement against those who break ecological law.…"

Piotr Syryczynski [Coordinator of the Polish Interministerial Unit for Environmental Issues in Capital Privatization], Environmental Compliance Issues During the Privatization Process in Poland 113, in PROCEEDINGS, THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT (Jo Gerardu & Cheryl Wasserman, eds., 1994).

24. These issues have received particular attention in the area of liability and responsibility for the clean up of existing contaminated sites. See, e.g., Jonathan Klavens & Anthony Zamparutti, Foreign Direct Investment and Environment in Central and Eastern Europe: A Survey (unpublished manuscript, prepared for the Warsaw Conference on Environmental Liability, Privatization and Direct Foreign Investment in Central and Eastern Europe held in May 1992, on file with author), and Environmental Liabilities: Dirty Legacy, THE ECONOMIST, Sept. 18, 1993, at 74. The relative importance of the liability issue will depend on the existence of other potential barriers to investment such as political stability, currency issues, and infrastructure, including banking.

25. Russia in this regard is like many countries that have fairly comprehensive "show" laws, often containing standards more stringent than those of the United States or Organization for Economic Cooperation and Development (OECD) countries. See, e.g., Ruth Greenspan Bell, Environmental Law Drafting in Central and Eastern Europe, 22 ELR 10597, 10598 (Sept. 1992); Zechenter, supra note 12, at 113-17. Most often, the laws are ignored in favor of other pressing economic interests, notably production and employment. In Poland, for example "state-owned industries were above the law … the penal sanctions were fictional [and in general] … environmental laws were subordinated to the short-term economic policies of the Communist government." Id. at 117.

A common explanation of this problem is that the countries in question lack the will for implementation. But it is not entirely clear whether the laws were ever intended to be implemented, or whether the laws were written largely as exhortations rather than to guide or mandate behavior. Bochniarz characterized such laws in Poland as "propaganda" or "wishful thinking." See Zbigniew Bochniarz, Overview of the Polish Environmental System: Deficiencies and Constraints 21-22 in DESIGNING INSTITUTIONSFOR SUSTAINABLE DEVELOPMENT: A NEW CHALLENGE FOR POLAND (Zbigniew Bochniarz & Richard Bolan, eds., 1991). Realistic programs to implement such show laws would be extremely expensive and would require a high level of government commitment.

26. See, e.g., MURRAY FESHBACH & ALFRED FRIENDLY JR., ECOCIDE IN THE USSR, HEALTH AND NATURE UNDER SIEGE (1992).

27. In 1992-93, the U.S. government agencies, AID and EPA, worked closely with the World Bank with the goal of creating a fully integrated program. The joint effort disintegrated in the fall of 1993, by coincidence about the same time that Boris Yeltsin dissolved the Russian Parliament, and the United States is now working bilaterally with Russia.

28. 22 U.S.C. § 5811 (1992) (findings). The findings section goes on to speak of the need to ensure continued progress on political reforms. See also HOUSE COMMITTEE ON FOREIGN AFFAIRS, H.R. REP. NO. 569 (I & II), 102d Cong., 2d Sess. 3 (1992), reprinted in 1992 U.S.C.C.A.N. 2703, 2705. ("… it is in the national interest … to help the independent states of the former Soviet Union in their efforts to create new democracies.… These states … are moving in the direction that is amendable to U.S. interests: Toward democracy, free markets, and the rule of law.")

29. In all, 14 projects were formulated under U.S. government auspices. In 1993, the U.S. projects were folded under the Environmental Subcommittee of the Gore-Chernomyrdin Commission, an umbrella Committee formed by Vice President Gore and Russian Prime Minister Chernomyrdin to address areas of joint interest and concern in defense restructuring, space, energy policy, science and technology, and business development, as well as environment. EPA Administrator Carol Browner chairs the Environment Subcommittee. The projects were announced formally at the first meeting of the Environment Subcommittee, on December 1 through 3, 1993.

30. Yuri Maksimenko, head of the Russian Environment Ministry's Legal Department, captured the flavor of these concerns in a recent speech to the Third Annual International Conference on Environmental Enforcement:

… [the] environmental situation in Russia indicates that [the] present organization of … law practice … require[s] serious improvement … [including] [1] working out environmental requirements and conditions for conducting economic and other activities and achievement of the agreement in society about the necessity of their realization; [2] working out the program of measures for improvement of environmental mechanisms of execution of environmental norms, standards, normative rules for economic and other activity.…

Yuri Maksimenko, Enforcing Environmental Regulations Related to Industrial and Other Economic Activities in Russian Federation 222, in PROCEEDINGS, THIRD INTERNATIONAL CONFERENCE ON ENVIRONMENTAL ENFORCEMENT (Jo Gerardu & Cheryl Wasserman, eds., 1994).

31. The Russian proposed model for cooperation appeared to follow the pattern set by joint activities conducted under the long-standing Agreement on Co-operation in the Field of Environmental Protection, U.S.-U.S.S.R., May 23, 1972, 23 U.S.T. 845, T.I.A.S. 7345, which were directed more toward information exchange than encouraging a serious pollution control program in the Soviet Union.

32. See also the Statement of Mikhail Galyatin, Assistant to Deputy Prime Minister Gavrilov, RSFSR (Russian initials for Russian Federal Soviet Socialist Republics) Council of Ministers, Democratic Federalism and Environmental Crisis in the Republics of the Former Soviet Union: Facts and Strategies, August 1991 (unpublished manuscript, on file with author). ("… the problem is not that we have no legislation. The problem is that we do have the legislation, but it is not observed, it is not realized. It has no effect on the actual state of the natural environment.") This point was checked with and verified by Russian lawyers residing in the United States.

33. One example of this is the use of fees and charges for the use of Russian natural resources. Recent laws imposing fees marked a radical change, since official doctrine had previously made natural resources a free good. There has been little compliance with the law because of opposition from enterprises. See, e.g., Statement of Nikolai Nikiforovich Lukyanchikov, First Deputy Chairman, RSFSR Goskompriroda, Moscow, Democratic Federalism and Environmental Crisis in the Republics of the Former Soviet Union: Facts and Strategies, August 1991 (unpublished manuscript, on file with author).

34. Statement of Pavel B. Mydulyash, Member of the Board, Interregional Ecological Association, Moscow, Democratic Federalism and Environmental Crisis in the Republics of the Former Soviet Union: Facts and Strategies, August 1991 (unpublished manuscript, on file with author). The statement notes:

… many of our serious ecological situations are produced by large government departments or large enterprises … which are of great importance in social and economic life. These enterprises do not relate to the government environmental department as subordinates, but as equal powerful parties…. With regard to these super-giants, we are not able to put recommended solutions into effect.

35. See, e.g., Eugene N. Lisitsyn, Environmental Law and Management in the USSR: A Reflection on Contemporary Reforms, 17 REV. SOCIALIST L., 125, 133 (1991). That author noted:

… the USSR environmental policy's regulatory mechanism is formulated on a rather optimal, conceptual level. This fact sometimes gives researchers an impression that the national environmental policy is quite adequate. An eminent professor of Soviet Law, W. E. Butler once concluded, although rather preposterously, that Soviet environmental law could be regarded as a model for other countries, because it was so simple.

Id., citing W. E. Butler, Soviet Environmental Law as a Model for Other Countries, 4 CONN. J. INT'L L. 279-86 (1989).

36. See, e.g., RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE, 8 (1990) ([as symbolized in modern times by the Soviet Constitution of 1936] law is largely aspirational -- a set of norms that look good on paper but are not enforced, because the courts are co-opted or overawed by other forces in the society).

37. One reflection of the value Russians put on law in ordering relationships is the insignificant role of lawyers: The "prestige, influence and rights of lawyers … are almost minimal." Lisitsyn, supra note 35, at 136. Lisitsyn goes on to say:

During the 1930-60s, Communist Party leaders and government officials persuaded the people to believe that in a centrally-planned economic system every aspect of social life is "foreseen" beforehand in various kinds of plans. So, the main function of any "good" administration was merely to follow the central authorities' instructions, orders and directives and the desired "victory of socialism" would be achieved. This social legacy has led to a negative public attitude toward legislative "arrangements," and at the same time an extremely low per capita number of lawyers in the USSR in relation to the total population, i.e., about 100,000 for a population of about 300 million. Out of this number about 27,000 are advocates, 16,000 are judges, and the rest work in the national economy.

Id.

38. See, e.g., Bell, supra note 25. One result of current Russian practice is an almost total lack of necessary predictability. See, e.g., Marshall L. Goldman, Do Business in Russia? For Now, No, N.Y. TIMES, Aug. 7, 1994, Sec. 3, at 9. Business people (including Western investors in Russia) do not know what environmental rules apply or might apply to their activities, what requirements they must meet and when, and most fundamentally, how to predict the cost of the environmental parts of any planned investment. Communities affected by pollution and the nongovernmental organizations that frequently represent their interests are also injured because they are deprived of an opportunity to have their needs met through legal process and cannot obtain recourse in a legal forum. There are some signs of change in Russia. With the assistance of the Natural Resources Defense Council, the first Russian public interest environmental lawyers are bringing citizen suits in Moscow and St. Petersburg.

39. See, e.g., Lisitsyn, supra note 35, at 126 (noting that the Soviet Union's environmental policy consisted of two main parts: "(i) a 'visible' part, consisting of environmental laws and regulatory decisions on economy-ecology interrelations; and (ii) a 'hidden' part, which is reflected in implementation measures signifying practical governmental decision-making towards environmental protection.").

40. "The fact that most problems are tackled 'from above' by means of various types of orders and directives reveals the authoritarian nature of USSR legal traditions (i.e., down through the administrative hierarchy)." Lisitsyn, supra note 35, at 136.

41. Discussing this issue in the context of our own system, Richard A. Posner, for example, says that law is the name of the "activity" that lawyers do.

The law is not a thing they discover, it is the name of their activity … law is something that licensed persons, mainly judges, lawyers and legislators do, rather than a box they pull off the shelf when a legal question appears in the hope of finding the answer in it.…

POSNER, supra note 36, at 225.

42. The task force must be small enough to have effective interactions, but large enough to include the appropriate experts. Our approach is to structure the legal component as a small core group ("executive committee") of participants who can tap subsets of participants on an as-needed basis. The core will include a representative from the Department of Legislation and Regulations in the Ministry who has a sufficiently broad base of knowledge to identify issues and call upon specialists in water, air, or other medias to participate in discussions regarding those particular areas.

43. The task force will meet periodically through the life of the U.S. assistance effort but it is important that members not think of their activities as only applicable to formal meetings. Between formal meetings, arrangements will be made so that legal issues can be addressed as they come up, using phone, fax, and e-mail. If possible, the Western side will have a presence resident in Moscow to facilitate this process.

44. See, e.g., Eliza Klose, 12 Surviving Together: A Quarterly on Grassroots Cooperation in Eurasia 2 (Summer 1994). Klose notes that:

… leaders of the environmental movement, independent activists in opposition to an inimical system, had to be tough-minded.… Forged in the fire of Stalinism, this attitude is understandable, but tough to come to terms with while carrying out joint projects. It has polarized Russian society and made the word "compromise" synonymous with weakness. As a result, Americans used to seeking the middle ground as a way of achieving a goal have difficulty working closely with Russians who believe that the way to achieve success is to better one's opponent.… Russians tend to come to the table with a set agenda, prepared to fight for their own position. When presented with a … program that seems wrong but offers attractive resources, the Russian side has not yet found ways to express their concerns honestly but not defensivelyand negotiate an alternative plan that could be satisfactory to both sides.…

45. The current plan for the first meeting will be to address the legal authority for undertaking "experiments" in environmental protection and legal authority for including new requirements in Russian ecological passports (permits).

46. Making the written deliberations of the Russian lawyers public is an important step toward transparency and developing concepts of public participation.

24 ELR 10593 | Environmental Law Reporter | copyright © 1994 | All rights reserved