Preface
The twenty-fifth anniversary of the Virginia Environmental Law Journal presents an occasion to reflect upon the journal's origins, survival, development, and impact. The Virginia Journal of Natural Resources Law, as originally titled, set out in 1980 to provide a forum for scholarly examination and debate of natural resources, energy, and environmental policy. In the preface to the inaugural issue, I framed the journal's areas of interest, focusing on the choices facing government policymakers, including when to impose controls, their design, and their operation and effects:
A decade ago Barry Commoner published his widely praised book, The Closing Circle, in which he provided a framework for thinking about man's relationship with the environment. That rich and complicated relationship provides the broad focus for the important new venture in interdisciplinary scholarship represented by the Virginia Journal of Natural Resources Law. As this inaugural issue illustrates, human efforts to exploit nature's energy and resources and, more recently, to control the hazards of these activities present a wide range of problems for scholarly inquiry and debate.
The problems bracket most of the activities of modern government in the United States .... The importance of the major source of industrial energy-petroleum-to the world economy has decisively influenced the foreign policies not only of the United States but of its major European allies and Japan. Domestically, many activities of the Federal government represent attempts to cope with the development and supply of energy, the environmental impacts of technology, and the human health hazards of industrial capitalism ....
*viii Modern government is a series of institutionalized efforts to achieve optimum trade-offs between competing social demands--demands for energy, preferably cheap energy; demands for continued industrial innovation; demands for protection against occupational disease and environmental pollution; demands for the minimum essentials of decent living. The attempts of government to meet or mediate these demands are the subject matter of this new journal.
Without attempting to forecast the eventual coverage of the [Journal] it is yet possible to discern certain dominant areas of interest in the articles appearing in this first issue. Broadly speaking, the Journal will feature scholarship that deals with governmental efforts to regulate the use, control, and disposal of natural resources. Clearly the area of energy generation, conservation, and control embraces many governmental programs. Policy development in this area involves not only decisions about the design of governmental requirements, but also initially the choice between decision-making by government officials or by private entrepreneurs.
***
Many governmental programs similarly are designed to limit harm that new technologies may cause to human beings or to the environment. The Environmental Protection Agency ... performs this sort of function for many different media. The Food and Drug Administration, the Occupational Safety and Health Administration, and the Consumer Product Safety Commission share with EPA responsibility for identifying and averting hazards before they occur. Among the hazards of greatest current concern is ... another product of modern technology: chemically-induced cancer. In this arena, where government regulators must grapple with the complexities of risk assessment and trade-off analysis, they also confront demands that regulation allow individuals freedom to make their own choices. And, as our society's approach to the ancient danger of tobacco illustrates, these demands have political force.
A[nother] area of editorial interest involves the impact of resource use and hazard prevention on the institutions and procedures of government. As administrative lawyers know, the American system of government complicates the already difficult choices between competing policy objectives--such *ix as abundant energy and health protection--by insisting upon adherence to both institutional and procedural norms.
***
An important principle of scholarship ... is that resolution of the policy and process issues presented by efforts to use natural resources while minimizing economic and human costs requires the skills of many disciplines. Designing institutions and procedures for governmental decision-making may be the special province of lawyers and political scientists, but analysis of environmental problems and the design of models for their solution draw heavily on the ecologist, the engineer, the biologist, and the architect. TheVirginia Journal of Natural Resources Law is founded on the premise that these important subjects are truly multi-disciplinary, and that successful scholarship--professional and student--will reflect a collaboration of training and skills. I hope, and expect, that theJournal's future will confirm this vision.
The Journal has not only confirmed this conception but participated in advancing interdisciplinary approaches to modern environmental problems. In 1984, the Journal published the symposium issue on the Chesapeake Bay, featuring articles from a state agency official, marine scientist, and lawyers representing nonprofit, private, and academic sectors. Thus began an occasional series of Journal-sponsored symposia bringing together scholars of law and other disciplines to focus on a particular environmental concern. A recent example, the Environmental Letters, Environmental Law conference, saw a unique exchange among professors of literature and history and professors of law, each bringing insights to the project of environmental law.
As the field of environmental law matured, the Virginia Journal of Natural Resources Law became the Virginia Environmental Law Journal in 1989. Topically, the Journal has reflected the growing understanding of humans' relationship with the environment; articles and notes have addressed such diverse subjects as mining, pesticides, wetlands, acid rain, agriculture, land use, science, fisheries, waste, endangered species, water rights, and many more. As suggested in my original Preface, scholarship has often been concerned with the role and the design of government regulations and programs, tackling such difficult questions as: What is the appropriate *x goal or balance and how should it be determined? What form of regulation will be most effective? How can the program be most equitable to property owners, to disadvantaged persons? How do government environmental objectives relate to markets? What is the right mix of mandates and incentives? How should authority be structured among levels of government, among agencies, among states? In taking on such questions, the Journal has become a forum for an impressive range of critical ideas, from retrospective analyses to proposals of new legal theories, regulatory adjustments, and policy solutions.
Some influential articles early in the journal's history include Erik D. Olson, The Quiet Shift of Power: Office of Management and Budget Supervision of Environmental Protection Agency Rulemaking under Executive Order 12,291; William A. Fischel, Zoning and Land Use Reform: A Property Rights Perspective;5 Kenneth S. Abraham, Cost Internalization, Insurance, and Toxic Tort Compensation Funds; Henry F. Habicht II, The Expanding Role of Natural Resource Damage Claims under Superfund;7 Gerald Torres, Theoretical Problems with the Environmental Regulation of Agriculture;8 and Craig N. Oren, Clearing the Air: The McCubbins-Noll-Weingast Hypothesis and the Clean Air Act.
Among the most-cited Journal articles are those illuminating developing areas of environmental law, for example Jerry Anderson,The Hazardous Waste Land; James E. Hickey Jr. and Vern R. Walker, Refining the Precautionary Principle in International Environmental Law; John Bagby et al, How Green Was My Balance Sheet: Corporate Liability and Environmental Disclosure; Reed D. Benson, Whose Water Is It - Private Rights and Public *xi Authority over Reclamation Project Water; Oliver A. Pollard III,Smart Growth: The Promise, Politics, and Potential Pitfalls of Emerging Growth Management Strategies; and Bradley C. Kark-kainen, Collaborative Ecosystem Governance: Scale, Complexity, and Dynamism. Others have offered doctrinal analyses, strategies, and/or proposed changes thereto; examples include Carl F. Cranor et al, Judicial Boundary Drawing and the Need for Context-Sensitive Science in Toxic Torts after Daubert v. Merrell Dow Pharmaceuticals, Inc.; and James R. MacAyeal, The Discovery Rule and the Continuing Violation Doctrine as Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims. With co-author Michael R. Taylor, I was pleased to publish the article Saccharin: A Case Study of Government Regulation of Environmental Carcinogens.
The Virginia Journal of Natural Resources Law was not the only new journal launched in this burgeoning field, nor was it the only new student publication at the University of Virginia School of Law. That the Journal has survived, indeed thrived, over twenty-five years is itself remarkable. The competition for articles is increasingly intense, and the anchorage of environmental concerns in the mainstream social agenda, as well as the interdisciplinary nature of environmental law itself, ensure numerous outlets for environmental scholarship--not only specialized topical journals, but general law reviews, administrative, government, and social policy journals. And, like most other law school publications, the Journal relies exclusively on volunteer student labor, another area of increasing competition.
Much has changed in natural resources and environmental law, but the underlying tension of policy choices and difficult social tradeoffs remain. Today, as at the Journal's birth, the nation faces difficult tradeoffs between the environment and other important social objectives, such as national security and economic prosperity. I have confidence that the Journal will survive, and continue to make a difference, well into the future.
A decade ago Barry Commoner published his widely praised book, The Closing Circle, in which he provided a framework for thinking about man's relationship with the environment. That rich and complicated relationship provides the broad focus for the important new venture in interdisciplinary scholarship represented by the Virginia Journal of Natural Resources Law. As this inaugural issue illustrates, human efforts to exploit nature's energy and resources and, more recently, to control the hazards of these activities present a wide range of problems for scholarly inquiry and debate.
The problems bracket most of the activities of modern government in the United States .... The importance of the major source of industrial energy-petroleum-to the world economy has decisively influenced the foreign policies not only of the United States but of its major European allies and Japan. Domestically, many activities of the Federal government represent attempts to cope with the development and supply of energy, the environmental impacts of technology, and the human health hazards of industrial capitalism ....
*viii Modern government is a series of institutionalized efforts to achieve optimum trade-offs between competing social demands--demands for energy, preferably cheap energy; demands for continued industrial innovation; demands for protection against occupational disease and environmental pollution; demands for the minimum essentials of decent living. The attempts of government to meet or mediate these demands are the subject matter of this new journal.
Without attempting to forecast the eventual coverage of the [Journal] it is yet possible to discern certain dominant areas of interest in the articles appearing in this first issue. Broadly speaking, the Journal will feature scholarship that deals with governmental efforts to regulate the use, control, and disposal of natural resources. Clearly the area of energy generation, conservation, and control embraces many governmental programs. Policy development in this area involves not only decisions about the design of governmental requirements, but also initially the choice between decision-making by government officials or by private entrepreneurs.
***
Many governmental programs similarly are designed to limit harm that new technologies may cause to human beings or to the environment. The Environmental Protection Agency ... performs this sort of function for many different media. The Food and Drug Administration, the Occupational Safety and Health Administration, and the Consumer Product Safety Commission share with EPA responsibility for identifying and averting hazards before they occur. Among the hazards of greatest current concern is ... another product of modern technology: chemically-induced cancer. In this arena, where government regulators must grapple with the complexities of risk assessment and trade-off analysis, they also confront demands that regulation allow individuals freedom to make their own choices. And, as our society's approach to the ancient danger of tobacco illustrates, these demands have political force.
A[nother] area of editorial interest involves the impact of resource use and hazard prevention on the institutions and procedures of government. As administrative lawyers know, the American system of government complicates the already difficult choices between competing policy objectives--such *ix as abundant energy and health protection--by insisting upon adherence to both institutional and procedural norms.
***
An important principle of scholarship ... is that resolution of the policy and process issues presented by efforts to use natural resources while minimizing economic and human costs requires the skills of many disciplines. Designing institutions and procedures for governmental decision-making may be the special province of lawyers and political scientists, but analysis of environmental problems and the design of models for their solution draw heavily on the ecologist, the engineer, the biologist, and the architect. TheVirginia Journal of Natural Resources Law is founded on the premise that these important subjects are truly multi-disciplinary, and that successful scholarship--professional and student--will reflect a collaboration of training and skills. I hope, and expect, that theJournal's future will confirm this vision.
The Journal has not only confirmed this conception but participated in advancing interdisciplinary approaches to modern environmental problems. In 1984, the Journal published the symposium issue on the Chesapeake Bay, featuring articles from a state agency official, marine scientist, and lawyers representing nonprofit, private, and academic sectors. Thus began an occasional series of Journal-sponsored symposia bringing together scholars of law and other disciplines to focus on a particular environmental concern. A recent example, the Environmental Letters, Environmental Law conference, saw a unique exchange among professors of literature and history and professors of law, each bringing insights to the project of environmental law.
As the field of environmental law matured, the Virginia Journal of Natural Resources Law became the Virginia Environmental Law Journal in 1989. Topically, the Journal has reflected the growing understanding of humans' relationship with the environment; articles and notes have addressed such diverse subjects as mining, pesticides, wetlands, acid rain, agriculture, land use, science, fisheries, waste, endangered species, water rights, and many more. As suggested in my original Preface, scholarship has often been concerned with the role and the design of government regulations and programs, tackling such difficult questions as: What is the appropriate *x goal or balance and how should it be determined? What form of regulation will be most effective? How can the program be most equitable to property owners, to disadvantaged persons? How do government environmental objectives relate to markets? What is the right mix of mandates and incentives? How should authority be structured among levels of government, among agencies, among states? In taking on such questions, the Journal has become a forum for an impressive range of critical ideas, from retrospective analyses to proposals of new legal theories, regulatory adjustments, and policy solutions.
Some influential articles early in the journal's history include Erik D. Olson, The Quiet Shift of Power: Office of Management and Budget Supervision of Environmental Protection Agency Rulemaking under Executive Order 12,291; William A. Fischel, Zoning and Land Use Reform: A Property Rights Perspective;5 Kenneth S. Abraham, Cost Internalization, Insurance, and Toxic Tort Compensation Funds; Henry F. Habicht II, The Expanding Role of Natural Resource Damage Claims under Superfund;7 Gerald Torres, Theoretical Problems with the Environmental Regulation of Agriculture;8 and Craig N. Oren, Clearing the Air: The McCubbins-Noll-Weingast Hypothesis and the Clean Air Act.
Among the most-cited Journal articles are those illuminating developing areas of environmental law, for example Jerry Anderson,The Hazardous Waste Land; James E. Hickey Jr. and Vern R. Walker, Refining the Precautionary Principle in International Environmental Law; John Bagby et al, How Green Was My Balance Sheet: Corporate Liability and Environmental Disclosure; Reed D. Benson, Whose Water Is It - Private Rights and Public *xi Authority over Reclamation Project Water; Oliver A. Pollard III,Smart Growth: The Promise, Politics, and Potential Pitfalls of Emerging Growth Management Strategies; and Bradley C. Kark-kainen, Collaborative Ecosystem Governance: Scale, Complexity, and Dynamism. Others have offered doctrinal analyses, strategies, and/or proposed changes thereto; examples include Carl F. Cranor et al, Judicial Boundary Drawing and the Need for Context-Sensitive Science in Toxic Torts after Daubert v. Merrell Dow Pharmaceuticals, Inc.; and James R. MacAyeal, The Discovery Rule and the Continuing Violation Doctrine as Exceptions to the Statute of Limitations for Civil Environmental Penalty Claims. With co-author Michael R. Taylor, I was pleased to publish the article Saccharin: A Case Study of Government Regulation of Environmental Carcinogens.
The Virginia Journal of Natural Resources Law was not the only new journal launched in this burgeoning field, nor was it the only new student publication at the University of Virginia School of Law. That the Journal has survived, indeed thrived, over twenty-five years is itself remarkable. The competition for articles is increasingly intense, and the anchorage of environmental concerns in the mainstream social agenda, as well as the interdisciplinary nature of environmental law itself, ensure numerous outlets for environmental scholarship--not only specialized topical journals, but general law reviews, administrative, government, and social policy journals. And, like most other law school publications, the Journal relies exclusively on volunteer student labor, another area of increasing competition.
Much has changed in natural resources and environmental law, but the underlying tension of policy choices and difficult social tradeoffs remain. Today, as at the Journal's birth, the nation faces difficult tradeoffs between the environment and other important social objectives, such as national security and economic prosperity. I have confidence that the Journal will survive, and continue to make a difference, well into the future.
