The Next Frontier: Environmental Law in a Trade-Dominated World
By J. Carol Williams
INTRODUCTION
By 1980, the pillars of the U.S. domestic framework of pollution prevention and control laws were in place. The Clean Air Act Amendments of 1970,1 the Toxic Substances Control Act of 1976,2 the Resource Conservation and Recovery Act of 1976,3 and the 1977 Amendments to the Federal Water Pollution Control Act of 1972 (the Clean Water Act) were joined by the Comprehensive Environmental Response, Compensation and Liability Act of December 1980. Significant amendments to these laws and the enactment of other pollution control laws were still to follow, but the major components of an effective, comprehensive approach to pollution prevention and control had become law.
In 1980, the frontier for environmental law rested largely with the domestic courts and their interpretation of this extensive and largely untested body of environmental law. The judicial decisions addressing environmental issues in the 1980s and early 1990s filled out this legislative framework and defined the relationship of these environmental statutes to fundamental legal principles such as deference, sovereign immunity, and injunction standards, as well as other bodies of law, such as corporate law and the Bankruptcy Code.
Today, environmental law is at a juncture similar to that faced by pollution laws in 1980. However, it is not a comprehensive package of domestic legislation that brings environmental law to this juncture. Instead, developments at the international level are responsible--developments that did not even focus on the environment or environmental laws, but rather on trade and trade liberalization. The two pivotal events were the enactment of the 1994 North American Free Trade Agreement (‘NAFTA‘) and the 1995 establishment of the World Trade Organization (‘WTO‘). Together, these two events pushed the frontier for U.S. domestic environmental law into the international arena.
By 1980, the pillars of the U.S. domestic framework of pollution prevention and control laws were in place. The Clean Air Act Amendments of 1970,1 the Toxic Substances Control Act of 1976,2 the Resource Conservation and Recovery Act of 1976,3 and the 1977 Amendments to the Federal Water Pollution Control Act of 1972 (the Clean Water Act) were joined by the Comprehensive Environmental Response, Compensation and Liability Act of December 1980. Significant amendments to these laws and the enactment of other pollution control laws were still to follow, but the major components of an effective, comprehensive approach to pollution prevention and control had become law.
In 1980, the frontier for environmental law rested largely with the domestic courts and their interpretation of this extensive and largely untested body of environmental law. The judicial decisions addressing environmental issues in the 1980s and early 1990s filled out this legislative framework and defined the relationship of these environmental statutes to fundamental legal principles such as deference, sovereign immunity, and injunction standards, as well as other bodies of law, such as corporate law and the Bankruptcy Code.
Today, environmental law is at a juncture similar to that faced by pollution laws in 1980. However, it is not a comprehensive package of domestic legislation that brings environmental law to this juncture. Instead, developments at the international level are responsible--developments that did not even focus on the environment or environmental laws, but rather on trade and trade liberalization. The two pivotal events were the enactment of the 1994 North American Free Trade Agreement (‘NAFTA‘) and the 1995 establishment of the World Trade Organization (‘WTO‘). Together, these two events pushed the frontier for U.S. domestic environmental law into the international arena.
