U.S. Senate Committee on Environment & Public Works
U.S. Senate Committee on Environment & Public Works
Hearing Statements
Date:   09/16/2003
American Society of Civil Engineers
Clean Water Act oversight.

Mr. Chairman and Members of the Subcommittee:

The American Society of Civil Engineers (ASCE) is pleased to offer this statement to the Subcommittee for the hearing on issues related to the implementation of the Clean Water Act.

ASCE was founded in 1852 and is the country’s oldest national civil engineering organization. It represents more than 130,000 civil engineers in private practice, government, industry, and academia who are dedicated to the advancement of the science and profession of civil engineering.

I. Policy Recommendations

* ASCE supports a Clean Water Act (CWA) that maximizes, to the extent possible, the protection of our nation's waters and the beneficial use of those waters. The Act should aggressively address nonpoint source pollution from watersheds and also point sources, including from sanitary sewer overflows, combined sewer overflows, and storm sewer discharges.

* National policy should protect the beneficial uses of the nation’s water and be flexible enough to allow innovative practices and means to achieve these goals.

* Water quality should be protected at the source through cooperative partnerships that utilize financial incentives or other market-based mechanisms. Emphasis needs to be given to protecting water quality and habitat from adverse impacts of wet weather flows, including non-point sources, stormwater, and combined sewer overflows.

II. Background

Wastewater treatment is now well established throughout the nation, and the design, construction, and maintenance of treatment plants is understood. There is still a need for controlling other sources of point source pollution (e.g. stormwater wet weather systems, combined sewer overflows, sanitary sewer overflows, and stormwater discharges) and a much greater effort is needed to control nonpoint sources of pollution.

Measuring the effects of nutrients as well as toxic pollutants on water quality and ecosystems requires further research. Establishing source water programs will minimize downstream pollution programs. Watershed approaches to water-quality management offer the best way to integrate management of diverse pollution sources with the wide range of water usages seen in the United States.

The Federal Water Pollution Control Act is the principal law that deals with pollution in the nation’s streams, lakes, and estuaries.[1] The Act, commonly referred to as the Clean Water Act, is “one of the landmark statutes of the twentieth century, … .”[2]

The Act consists of two major parts: a regulatory scheme that imposes progressively more stringent requirements on industries and cities to abate pollution and meet the statutory goal of zero discharge of pollutants and provisions that authorize federal financial assistance for municipal wastewater treatment plant construction. Both are supported by permit and enforcement provisions. Programs at the federal level are administered by the Environmental Protection Agency (EPA); the Act allows EPA to delegate enforcement and permitting authority to the states, and they have major responsibilities to implement the Act’s programs.

In 1972, Congress declared that it intended to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.[3] These objectives were accompanied by statutory goals to eliminate the discharge of pollutants into navigable waters by 1985 and to attain, wherever possible, waters deemed “fishable and swimmable” by 1983. While the goals have not been entirely achieved, progress has been made, especially in controlling conventional pollutants (suspended solids, bacteria, and oxygen-consuming materials) discharged by industries and municipal sewage treatment plants. These discrete sources are easily identifiable and regulated.

The Act focuses on two possible sources of pollution: point sources and nonpoint sources. Adopting a command-and-control response to water pollution, Congress dealt with the problem of point source pollution using the National Pollution Discharge Elimination System (NPDES) permit process. Under this approach, compliance rests on technology-based controls that limit the discharge of pollutants from any point source into certain waters unless that discharge complies with the Act's specific requirements.[4]

When the NPDES system fails to adequately clean up certain rivers, streams, or smaller water segments, the Act requires use of a water-quality based approach. States are required to identify such waters, which are to be designated as "water quality limited segments" (WQLS). The states must then rank these waters in order of priority, and based on that ranking, calculate levels of permissible pollution called "total maximum daily loads" or TMDLs.[5]

TMDLs are the maximum quantity of a pollutant the water body can receive on a daily basis without violating the water quality standard. The TMDL calculations are to ensure that the cumulative impacts of multiple point source discharges and nonpoint source pollution are accounted for. The TMDL does not establish direct controls over pollutants, however. It is a technology-forcing program that may require pollutant sources within a watershed to install new pollution-control devices.

States may then institute whatever additional cleanup actions are necessary, which can include further controls on point and nonpoint pollution sources. Under the Act, states are required to submit lists of WQLSs and TMDLs to the EPA at certain times; the first were due by June 26, 1979.[6]

The TMDL program regulates waste load allocations for point sources, watershed allocations for nonpoint sources, and includes a margin of safety. It was intended to serve as a backstop to the NPDES permit program.

Section 303(d) and the TMDL program were included in the Act as a second-string safeguard against failure of the primary water quality improvement mechanism, the NPDES program. As a result of its backup status, the TMDL program was not aggressively or broadly pursued until the late 1980s and early 1990s when it became clear that the NPDES program alone could not solve the country's water quality problems.[7]

The NPDES and TMDL approaches sanction the controlled release of pollutants into the ambient environment. Like virtually every aspect of the American environmental protection system, the programs assume that a certain amount of pollution — an external diseconomy — is acceptable in order to maintain the overall wealth and security of the nation.

Such a tradeoff between economic welfare and ecological protection, while politically essential, cannot provide the most advantageous outcome to environmental degradation, however. Every contaminant release, no matter how well controlled, results in a progressively greater pollutant load on the environment, although it may be argued that the burden likely grows more slowly because the releases occur at less toxic levels than if there were no NPDES program at all.

The use of economic tools to assess the ecological effects of market-based activities in order to alleviate environmental pollution is a relatively new phenomenon. But human economic welfare, not the physical welfare of ecosystems or species, is at the heart of all neoclassical economic analysis.

In neoclassical economic theory, groups and individuals act to advance their own economic self-interest. Non-economic considerations — including real or potential damages to the commons from industrial pollution or other threats to the environment from economic activity — are not possible. This is because all market-driven economic systems are unsentimental and utilitarian; they do not place the preservation of natural resources above the need to improve the economic welfare of individuals and groups in the economy. The central function of neoclassical economics is the well-being of the consumers (and producers) who make up the economy.[8]

To state it clearly:

The hallmark of welfare economics is that policies are assessed exclusively in terms of their effects on the well-being of individuals. Accordingly, whatever is relevant to individuals' well-being is relevant under welfare economics, and whatever is unrelated to individuals' well-being is excluded from consideration under welfare economics.[9]

Because classical economics concentrates on the control of pollution only as it affects the economic utility of agents in the economy, it frequently ignores the effect of pollution on economic activity and the resulting restrictions placed on the economy by increasingly polluted (and therefore scarcer) ecosystem resources.

Although the severe economic functionalism has been somewhat softened by a host of environmental laws like the Clean Water Act and other regulations governing virtually every aspect of American financial and industrial life, the use of economics to measure the benefits of these protective laws remains controversial. Indeed, the advent of new economic approaches — often called "natural capitalism" or "resource economics" — simply exacerbates the old problem of how best to allocate scarce natural resources.[10]

Despite some obvious disadvantages, however, economic solutions to environmental problems are increasingly seen as preferable by policymakers looking for different solutions to pollutant-control issues and ecological degradation.

[There is] a general trend toward using market mechanisms to attain environmental protection objectives. Market-based programs operate under the assumption that allowing regulated entities to choose among a range of compliance options results in more efficient environmental management than does traditional “command-and- control" regulation. Essentially, environmental markets attach costs to environmentally damaging activities and values to environmental benefits, thereby encouraging companies and individuals to consider the environmental impact of their activities. Regulators increasingly are turning to taxes, subsidies, unit charges, deposit-refund schemes, and tradable permit programs to force regulated entities to internalize environmental costs.[11]

III. Implementation of the Clean Water Act

A. The National Pollutant Discharge Elimination System

The EPA frequently has lauded its efforts and those of its state partners to protect the nation’s waters from point sources regulated under the NPDES permitting program. “Over the nearly thirty years since enactment of the Clean Water and Safe Drinking Water Acts, we have worked together at all levels to make remarkable progress in improving the quality of surface waters and the safety of drinking water.”[12]

The admiration is not universally shared. Critics have noted, for example, that “EPA has never been very interested in pursuing a broad interpretation of the Clean Water Act that would construe some of the statute’s ambiguities to fit the scope of the nation’s water pollution problem.”[13] Another states: “Unfortunately, point source controls have reached the limits of their effectiveness, yet water quality remains ubiquitously substandard nationwide. While America's rivers and harbors no longer catch fire, thousands of waterways fail to meet water quality standards despite point source regulation.”[14]

The nation’s remaining water quality problems are varied, ranging from runoff from farms and ranches, city streets, and other widely distributed sources to metals (especially mercury), organic and inorganic toxic substances discharged from factories and sewage treatment plants, as well as numerous nonpoint sources.

Whatever limited success the Act has enjoyed is due almost entirely to federal and state efforts to apply the NPDES program to control point sources. Inadequate nationwide data make it difficult to assess the scope of the remaining water quality issues. In 2000, the latest year for which data are available, EPA concluded from an extremely narrow examination of the nation’s waters that only 61 percent of assessed river and stream miles; 54 percent of assessed lake acres; 49 percent of assessed estuarine square miles; and 22 percent of assessed Great Lakes shoreline miles supported the water quality standards evaluated.[15]

B. Total Maximum Daily Loads

The Total Maximum Daily Load (TMDL) program languished for decades. Despite the mandate in the Act, after 30 years, there are still more than 22,000 impaired waters nationwide, with an estimated 48,000 individual impairments in these water bodies, according to the EPA.[16] The states, who have been delegated to implement the TMDL program under EPA oversight, have generally failed to carry out their section 303(d) duties.[17]

The TMDL provision … is a relic of the previous strategy that calls for states to manage pollution loading into waterways that, despite point source regulation, do not meet water quality standards. With a few exceptions, the states have consistently bowed to political pressure and not established TMDLs. In addition … EPA had virtually ignored its mandate to evaluate state TMDLs.[18]

The program was reinvigorated in the 1980s and 1990s after environmental groups began making use of the Act’s citizen suit provisions to go to court to force EPA and the states to speed the approval of TMDLs. Because the Act requires EPA to develop a priority list for the state and make a federal TMDL determination if a state fails to set TMDLs for its impaired water bodies, the suits met an initial round of judicial successes.

Numerous judicial rulings employed the doctrine of “constructive submission” to require the EPA to issue a TMDL when states failed (often for many years) to submit a TMDL for EPA approval. The doctrine held that a state’s failure to submit any TMDLs effectively was a “constructive submission” of no TMDLs, thus requiring EPA to act.[19] Lately, however, environmentalists have found a less friendly reception at the courthouse. In a recent shift from earlier decisions, at least two federal appellate courts have narrowed the doctrine to situations in which a state clearly refuses to adopt a TMDL and the EPA delays action unreasonably.[20] The burden of conclusively proving federal and state obduracy is now “nearly insurmountable.”[21]

C. Water Quality Trading

In January 2003, EPA sought to ration water pollution in U.S. watersheds. It adopted a new “Water Quality Trading Policy” designed, in part, to move away from top-down regulations and to establish a market-based program by which state and tribal governments may attain the required TMDLs for their impaired water bodies.[22]

[M]arket-based approaches such as water quality trading provide greater flexibility and have potential to achieve water quality and environmental benefits greater than would otherwise be achieved under more traditional regulatory approaches. … [T]he policy is intended to encourage voluntary trading programs that facilitate implementation of TMDLs, reduce the costs of compliance with CWA regulations, establish incentives for voluntary reductions and promote watershed-based initiatives.[23]

The modified “cap-and-trade” policy focuses on total emissions of nutrients and sediment in a watershed. It caps total pollutant emissions and encourages pollution reductions through the trading of nutrients and sediment from point and nonpoint sources. Trades of other pollutants are possible, but the Agency will oppose any trades involving persistent bioaccumulative toxics in the absence of evidence that such a trade would achieve “a substantial reduction” of the pollutant.

The Water Quality Trading Policy is similar to the program for sulfur dioxide emissions established under the Clean Air Act Amendments of 1990. In title IV, Congress authorized EPA to create a tradable emissions market for sulfur dioxide (SO2). The SO2 program produced a market for pollution permits (allowances) in order to reduce emissions from older, less efficient electric generating plants. The CAA Amendments established a cap-and-trade system whereby the government capped emissions from generating units at each plant. (Many plants have more than one generating unit subject to the cap.)

In general, an ambient pollution permit for a given environmental receptor (air, water, or land) gives the holder the right to emit a pollutant at any location, provided that the incremental pollution emitted into the specific receptor does not exceed the permitted amount. The marginal savings to the permit holder should equal the permit price. When the price of a permit is greater than the savings from releasing the pollutant, the allowance holder will try to sell some allowances and emit fewer pollutants.

Theoretically, allowance trading creates more flexibility than the standard command-and-control policies in the reduction of pollutants. The increased efficiency resulting from a tradable permit system potentially allows environmental regulators to tighten emission standards, resulting in less pollution while still holding costs at their initial level.

A central feature of any emissions trading program is that it shifts the burden of designing and locating pollution controls from the government to industry. Finally, three points in determining the economic significance of pollution allowances must be kept in mind:

* A market equilibrium exists in the buying and selling of ambient pollution permits for any initial issuance of permits.

* Emissions from each source in a permit market equilibrium are efficient (the least costly way of attaining the efficient level of pollution for each environmental receptor) no matter how the permits are initially distributed.

* If the price of the permits in equilibrium equals the marginal damage from pollution, economic efficiency has been obtained.[24]

The CAA Amendments granted allowance holders with a surplus of credits a federal license to release one ton of SO2 emissions or to sell the allowances to another generating unit. The allowances transfer pollutant abatement from high-cost generating units to ones that cost less, thus improving economic efficiency.

Under the Amendments, owners of existing generating units are given fixed numbers of tradable allowances each year following rules that depend primarily on historic emissions and fuel use. Each allowance entitles its holder to emit one ton of SO2. A small number of additional allowances are auctioned annually by the EPA, with the revenues rebated to utilities roughly in proportion to their allowance allocations.

New units must buy needed allowances from existing units or at the EPA auctions. Each covered generating unit must deliver to EPA valid allowances sufficient to cover each year’s emissions within 30 days of year’s end or incur serious penalties. Allowances can be bought or sold without restrictions to cover emissions from any generating unit in the U.S.[25] The overall amount of SO2 released by all units remains the same as long as the number of permits does not increase.

Opinion among economists as to the supposed superiority of the cap-and-trade system is divided, however. Command-and-control regulations may be more protective and more cost-effective if they result in reductions in environmental pollutants below the standard set in the regulations. This “over control” may make command-and-control policies more expensive — and more efficient.[26]

“The evidence is ambiguous as to whether marketable permits have stimulated any more innovation in pollution control than the command-and-control technological restrictions. Marketable permits have proved to be administratively cumbersome.”[27]

Under the 2003 Water Quality Trading Policy, emissions of sediment and nutrients are to be capped in the form of the waste load established under a TMDL for point and nonpoint sources. For water bodies or watersheds for which there are no TMDLs at the time of the trade the caps are implied, according to EPA.

In watersheds with approved TMDLs, the watershed itself effectively will be treated as if it were a more traditional point source under the Policy; in watersheds without a TMDL at hand, the task of establishing regulatory baselines in order to determine the allowances to be traded will be exceedingly difficult in the absence of good data on total emissions of the covered pollutants.

It is this feature of the new Water Quality Trading Policy — the attempt for the first time to measure and regulate emissions from nonpoint sources within an entire watershed with “implied” caps — that holds the greatest challenge for the Agency. Almost certainly, the regulation of these widespread regional pollutants promises to be difficult, as the EPA concedes in its January announcement.[28]

IV. Policy Considerations for the Subcommittee

A. The Subcommittee Should Consider Legislation to Establish a Water Quality Trading Program at EPA

EPA has established the Water Quality Trading Policy without explicit congressional authorization. Although the Agency claims that the Policy is supported by the existing Clean Water Act, this point is at least arguable. EPA established its air quality trading program in 1974, but Congress did not codify Agency practices until 1990. In the absence of statutory authority, such a lengthy deferral in establishing a clear congressional role for pollutant trading under the Clean Air Act postponed the ecological reckoning by many years — years in which independent analysts raised serious questions about the environmental worth of the Agency’s air quality trades.[29]

To eliminate any doubts as to the legality and efficacy of the program, Congress should enact enabling legislation within the Clean Water Act. The legislation should contain explicit safeguards and a strong and continuing oversight role for Congress, including the use of regular audits of the water quality trading program by the General Accounting Office (GAO) and independent analyses of its utility by the Congressional Budget Office (CBO).

B. Congress Must Monitor the EPA Water Quality Trading Program Closely

Cap-and-trade programs generally have reduced the regulatory burden on industry and increased its welfare, but they have not had large or unusually positive effects on the environment. They merely place a limit on total emissions of a given pollutant in a given area, and then allow firms that emit this pollutant to trade excess emissions allowances (each allowance entitles the user to emit a certain amount) with each other and with other third-party traders. These types of programs can be contrasted with command-and-control programs, which tend to be more prescriptive and more expensive for industry, requiring regulated units to install various types of pollution-control equipment.[30]

It is important to remember, however, that emissions trading programs are heavily dependent upon historic emissions data. The permits are not simply a means of improving economic efficiency for polluters or for abolishing the standard technological controls; they are meant to ration the release of pollutants governed by the allowances into the ambient environment based upon well established past practices.

Congress needs to maintain a close watch on the EPA Water Quality Trading Policy as it evolves. There are enough uncertainties associated with this particular policy, especially its unique approach to the trading pollutants from area sources, that it must be carefully overseen.

Among the issues that need to be carefully assessed are the timing of the permits, knowing how the monitoring data are to be obtained, and determining the appropriate government inspection schedule. Penalties for violating the permit must be greater than the permit price so that producers will stay within the rules of the market.

It is especially important for Congress to assess the marketable permit system for water bodies for which no TMDL has been approved early in the process. Without hard data on historic emissions within a watershed, it will be extremely difficult for the EPA to measure the amount of nutirents and sediment to establish in the initial permit issuance. Congress must insist on the best data available or consider prohibiting trades in non-TMDL watersheds.

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[1] 33 U.S.C.A. 1251 et seq. (West 2003).

2 William L. Andreen, The Evolution of Water Pollution Control in the United States--State, Local, and Federal Efforts, 1789-1972: Part II, 22 stan. env. l.j. 215, 216 (2003).

[3] William H. Rodgers Jr., Environmental Law 248 (2d ed. 1994).

[4] 33 U.S.C.A. §§ 1311(a), 1362(12) (West 2003).

[5] San Francisco BayKeeper v. Whitman, 297 F.3d 877, 880 (9th Cir. 2002).

[6] See id.

7 Jim Vergura and Ron Jones, The TMDL Program: Land Use and Other Implications, 6 DRAKE J.AGRIC. L. 317, 320 (2001) (citations omitted).

[8] kalman goldberg, the market system 57 (2000).

[9] Louis Kaplan and Steven Shavell, Fairness Versus Welfare, 114 harv. l. rev. 961, 977 (2001).

[10] paul hawken et al., natural capitalism (1999). ("[H]umankind is facing a historic juncture: For the first time, the limits to increased prosperity are due to the lack not of human-made capital but rather of natural capital.")

[11] David Sohn and Madeline Cohen, From Smokestacks To Species: Extending The Tradable Permit Approach From Air Pollution To Habitat Conservation, 15 stan. envtl. l.j. 405, 408 (1996) (footnote omitted). [12] Statement of G. Tracy Mehan III, Assistant Administrator for Water, U.S. EPA, before the Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure, U.S. House of Representatives, Feb. 27, 2003, at http://www.epa.gov/water/speeches/022703tm.html (last visited Sept. 11, 2003).

[13] Michael C. Blumm and William Warnock, Roads Not Taken: EPA vs. Clean Water, 33 envtl. l. 79 (2003) (concluding that the Agency “has failed miserably” to carry out the point and nonpoint source control programs in the Act due to political expediency).

[14] Debbie Shosteck, Pronsolino v. Marcus, 28 ecology l.q. 327, 328-329 (2001) (footnotes omitted).

[15] Environmental protection agency, 2000 national water quality inventory report to congress es-5 (2002), at http://www.epa.gov/305b (last visited Sept. 11, 2003) Less than half of all U.S. waters were assessed in 2000. States assessed 19 percent of the nation’s total river and stream miles; 43 percent of its lake, pond, and reservoir acres; 36 percent of its estuarine square miles; and 92 percent of Great Lakes shoreline miles.

[16] Environmental Protection Agency, National Section 303(d) List Fact Sheet, at http://oaspub.epa.gov/waters/national_rept.control (last visited Sept. 11, 2003). Approximately 9,100 separate TMDLs nationally covering the more than 22,000 impaired water bodies have been completed since 1972. Indeed, most of them have been completed only since 1996. Id.

[17] See U.S. GENERAL ACCOUNTING OFFICE, CLEAN WATER ACT: PROPOSED REVISIONS TO EPA REGULATIONS TO CLEAN UP POLLUTED WATERS (2000). (“[State] compliance with existing TMDL regulations has been problematic, and future compliance in the absence of the proposed regulation [of 2000] is uncertain … .”).

[18] Shosteck, Pronsolino supra note 14, at 330.

[19] See, e.g., Scott v. Hammond, 741 F.2d 992, 998 (7th Cir. 1984) (holding that the Clean Water Act “undoubtedly imposes mandatory duties on both the states and the EPA”); Alaska Center for the Environment v. Reilly, 762 F. Supp. 1422, 1429 (1991) (“Section 303(d) expressly requires the EPA to step into the states’ shoes if their TMDL submissions or lists of water quality limited segments are inadequate.”) aff’d sub nom. Alaska Center for the Environment v. Browner, 20 F.3d 981 (9th Cir. 1994); Defenders of Wildlife v. Browner, 909 F. Supp. 1342 (1995) (same); Natural Resources Defense Council v. Fox, 909 F. Supp. 153 (1995) (same); Sierra Club v. Hankinson, 939 F. Supp. 865 (1996) (same); Raymond Profitt Foundation v. EPA, 930 F. Supp. 1088 (1996) (same); Idaho Conservation League v. Browner, 968 F. Supp. 546 (1997) (same).

[20] See San Franscisco Baykeeper supra note 5, at 883 (holding that, because the State of California had submitted at least 18 TMDLs for pollutants received by waters designated as WQLS and had established a schedule for completing its remaining TMDLs, the constructive submission doctrine, under which complete failure by state to submit TMDLs was treated as decision not to submit TMDLs, did not apply); see also Hayes v. Whitman, 264 F.2d 1017, 1023 (10th Cir. 2001) (“Only upon [a] determination that the states' inaction was so clear as to constitute a ‘constructive submission’ of no TMDLs would the EPA then incur a nondiscretionary duty to approve or disapprove the constructive submission.”).

[21] James R. May, Where The Water Hits The Road: Recent Developments in Clean Water Act Litigation, 33 envtl. l. rep. 10,369 (2003).

[22] Environmental Protection Agency, Water Quality Trading Policy; Issuance of Final Policy, 68 Fed. Reg. 1608 (Jan. 13, 2003).

[23] environmental protection agency, water quality trading policy 1-2 (Jan. 13, 2003), at http://www.epa.gov/owow/watershed/trading/finalpolicy2003.html (Last visited Sept. 10, 2003).

[24] charles d. kolstad, environmental economics 163 (2000).

[25] Richard Schmalensee et al., An Interim Evaluation of Sulfur Dioxide Emissions Trading, 12 j. econ. persp. 53 (1998). See also Susanne M. Schennach, The Economics of Pollution Permit Banking in the Context of Title IV of the 1990 Clean Air Act Amendments, 40 j. envtl. econ. and mgmt. 189 (2000).

[26] See W.E. Oates et al., The Net Benefits of Incentive-Based Regulation: A Case Study of Environmental Standard Setting, 79 am. econ. rev. 1233 (1989).

[27] nick hanley et al., environmental economics in theory and practice 88 (1997).

[28] See 68 Fed. Reg. at 1612.

[29] See, e.g., Robert W. Hahn and Gordon L. Hester, Where Did All the Markets Go? An Analysis of EPA’s Emissions Trading Program, 6 yale j. on reg. 109, 151 (1989) (concluding that, after 15 years of air emissions trading, the program had provided billions of dollars worth of pollution-control savings to industry, but also determining that the EPA-designed program had had a negligible effect on the environment).

[30] The United States is not the only nation to experiment with cap-and-trade permits for pollutants from area sources. In 2001, the European Union established a cap-and-trade program for governing greenhouse gas emissions among EU countries. See Michael J-H. Smith and Thierry Chaumeil, Greenhouse Gas Emissions Trading within the European Union: An Overview of the Proposed European Directive, 13 fordham envtl. l.j. 207 (2002).