William H. Rodgers, Jr., Deception, Self-Deception, and Myth: Evaluating Long-Term Environmental Settlements, 29 U. Rich. L. Rev. 567 (1995), https://digitalcommons.law.uw.edu/faculty-articles/257
University of Richmond Law Review
This paper draws upon six famous settlements that are known in various degrees to students of environmental law. Three are a matter of deep history: the 1970 Environmental Defense Fund settlement that led the last manufacturer of DDT in the U.S. to cease discharges into the Los Angeles sewer system and thence into Santa Monica Bay, the Kepone settlement of the mid-70s that followed in the wake of Judge Merhige's initial assessment of a record-breaking criminal fine of $13.24 million, and the Hudson River settlement of the early 1980s in which environmentalists gave up demands for cooling towers on several utilities in return for the abandonment of the Storm King hydroelectric project and the construction of a fish hatchery that was expected to benefit the anadromous striped bass.
The other three of these "settlements" have a more contemporary ring: the Everglades settlement (celebrated perhaps prematurely in July of 1991) that committed $465 million to reconvert some farmlands into marshes, achieve phosphorus reduction targets and protect the Everglades' "river of grass" from upstream agricultural activities; the San Francisco Bay/ Sacramento-San Joaquin Delta settlement (announced after the elections of November 1994) that involves salinity levels, water management, and fish survival over a sizeable portion of mid-California; and the pinniped-steelhead conflicts (sometimes called the Hershel wars) that have gained notoriety in my part of the world (Puget Sound) and are frequently described (inaccurately of course) as the only instance known in the U.S. where a "natural" predator, the sea lion, threatens the survival of a listed endangered species.
The Hershel wars haven't really been "settled" in any definitive sense (the same is undoubtedly true of the other five conflicts) but a framework for resolution, or at least closure of the present phase, does appear in a half dozen pages of the Marine Mammal Protection Act Amendments of 1994.
Viewed through the lens of deception and self-deception, some widely heralded environmental settlements lose their luster. They suffer from representation deficiencies that mean some interests will be left out; prediction shortcomings that distort social and environmental realities; validation lapses that immunize happy assumptions from the tests of time; and direction difficulties that can send future events along unsavory trajectories that are difficult to undo.
But the good news is that all of these phenomena are manageable, which means that long-term environmental settlements need not necessarily founder on the shoals of narrow constituencies, poor prognostication, monitoring deficiencies, and directional shortcomings.
[This paper was prepared for the State of the Chesapeake Bay Symposium, sponsored by the University of Richmond Law Review, Richmond, Va., March 2-3, 1995.]