Ecology Law Currents

A Blooming Problem: How Florida Could Address the Causes and Effects of Red Tide

By John Niedzwiecki, Senior Editor, Georgetown Environmental Law Review

Originally published on August 29, 2018 in the Georgetown Environmental Law Review Online: https://www.law.georgetown.edu/environmental-law-review/blog/a-blooming-problem-how-florida-could-address-the-causes-and-effects-of-red-tide/

An algae bloom in the Gulf of Mexico is wreaking havoc on Florida’s economy and environment. An effective state and local response can help provide a solution.

Florida’s southwest coast, once a haven to wildlife and tourists alike, is experiencing one of the worst red tides in recent memory. Red tides, harmful algae blooms (“HABs”) which often have a red hue which affect both inland and coastal waterways, are common occurrences in Florida, but they have increased in both intensity and frequency in recent years. This blog post will discuss the problems that red tides pose to communities in Florida and the legal structures that could help provide a solution to this growing problem.

First, this blog post will discuss the background of red tides in Florida, including their historical occurrence, effect on local economies, and effect on wildlife and the environment. Second, the blog will review the natural and man-made factors that contribute to the development of red tides in Florida. Finally, I will discuss the potential legal responses to red tide. Although this blog post limits the discussion of red tides to Florida, it is important to note that red tides are not limited to Florida, and HABs occur around the world.

Red tides in Florida present a large-scale, fast-changing environmental problem. The red tide currently impacting the state is having a dramatic effect on both the state’s economy, plant life and wildlife. It is likely that, in the future, state and local governments across the country will have a larger role in finding solutions to environmental problems that are not contained to one community or state. By finding a solution to the problem of red tides in the legal system, it is possible that Floridians, and people watching in other states, can see how activism on the local level can bring about positive change that impacts individuals, businesses, and communities.

 

State and Local Control of Federal Lands: New Developments in the Transfer of Federal Lands Movement

By Martin Nie* and Patrick Kelly**

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Beginning in 2012, western state legislatures reinitiated old efforts to transfer federal lands into state ownership. What started in Utah with the Transfer of Public Lands Act quickly spread to every western state but California.[1] The Transfer of Public Lands Act called for legislation to establish actions to secure, preserve, and protect the state’s rights and benefits in the event that the federal government failed to transfer public lands to Utah.[2] But when other western states and their attorneys general conveyed skepticism about the legal arguments being made by Utah,[3] the movement pivoted to the federal arena, with a focus on a Republican-controlled White House and Congress.

The political strategy coalesced in 2017, when Representative Jason Chaffetz of Utah introduced legislation that authorized the disposal of 3.3 million acres of federal land.[4] The backlash to the “land seizure movement” was swift (e.g., #keepitpublic) and Chaffetz’s bill was widely condemned by a coalition of conservation, hunting, angling, and recreational interests.[5] The legislation was withdrawn a week after its introduction and it looked as though the transfer movement might be losing momentum given the unsuccessful attempts, at the federal and state levels, to transfer or privatize federal public lands.[6] 

But the story is far from finished and the threats to public lands are just as acute today as they were in 2012, when western states began demanding the imminent transfer of title of federal public lands to a state or introduced legislation calling for studies of a possible transfer.[7] These state-based efforts received considerable national attention.[8] But receiving less coverage, and discussed below, are a new spate of bills that do not transfer ownership of federal lands to the states or private interests, but rather give state and local governments control over federal lands and resources. In doing so, these bills radically alter the traditional paradigm of federal lands management, and the constitutional principle of federal preemption, by making federal law subservient to state authority. 

To understand how far Congress is pushing the boundaries of state power, some background in federal public lands and “cooperative federalism” is needed. This context shows that in the past, Congress fashioned a pragmatic balance between the national interest in public lands and providing state and local governments an important role to play in their administration.

State Clean Energy Polices at Risk: Courts Should Not Preempt Zero Emission Credits for Nuclear Plants

Ari Peskoe*

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In 2016, the Illinois Legislature and New York Public Service Commission (PSC) enacted nearly identical policies to induce economically struggling nuclear power plants to continue operating. Competing power generation companies filed suits in federal district courts, arguing that the states’ policies are preempted by the Federal Power Act (FPA) and violate the dormant Commerce Clause. Both courts dismissed all claims,[1] and the generators have appealed those decisions to the Seventh and Second Circuit Courts of Appeal, respectively.[2] Decisions are expected in the first half of 2018.

The disputes over the states’ Zero Emission Credits (ZECs) for nuclear plants are just the latest controversies about the roles of states and the federal government in overseeing the electricity industry.[3] Recent federalism cases highlight the incongruity of applying the New-Deal-era FPA to today’s dynamic and evolving industry.[4] Fossil-fuels proponents have also seized on the increasing overlap between state regulation of the generation resource mix and interstate power markets to argue that state clean energy policies overstep the limits of state authority that the dormant Commerce Clause establishes.[5]

The ZEC cases are particularly significant for delineating the boundaries of authority between state and federal regulators. States designed the policies to adhere to the limits of state authority outlined in a trio of Supreme Court energy federalism cases decided in 2015–2016. This bounty of new case law has delighted energy law scholars and inspired voluminous interpretations,[6] but only three federal courts have applied their holdings to electricity regulation cases.[7] Decisions by the Second and Seventh Circuits on ZECs could set precedent that defines the industry’s governance for decades.

These decisions may also be consequential for the future of state climate action. A broad ruling against the states could invite litigation about state renewable portfolio standards and emission allowance programs, such as the Regional Greenhouse Gas Initiative cap-and-trade program that covers power generators in nine Northeastern states. If these well-established, market-based programs are found to be incompatible with federal regulation, states might retreat to “command-and-control”-type policies that entirely ignore the interstate nature of the electric grid and today’s power markets. This result would likely leave consumers, and the environment, worse off. On the flip side, decisions upholding the ZEC policies would implicitly affirm the legality of an array of long-standing state clean energy policies that have never been challenged on preemption grounds. It would also bolster the legal defensibility of more recent policies, such as Maryland’s offshore wind credit program,[8] and could encourage states to enact new clean energy policies.

The New(Clear?) Electricity Federalism: Federal Preemption of States’ “Zero Emissions Credit” Programs

Joel B. Eisen*

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Two pending federal appellate cases involving Illinois and New York laws, Old Mill Creek v. Star and Coalition For Competitive Electricity v. Zibelman respectively,[1] involve the conflict between federal authority over the electric grid and state laws supporting nuclear power plants. The issues are nearly identical in both cases.[2] In Illinois, New York, and other states,[3] aging nuclear plants are struggling to stay in business. These plants generate electricity and sell it in regional wholesale electricity markets that grid operators known as “independent system operators” (ISOs) and “regional transmission organizations” (RTOs) administer.[4] Competition in these markets, primarily with low-priced natural gas but also with renewables, has lowered prices and left the nuclear plants short of recovering their high operating and capital costs.[5]

Concerned about this, the states are subsidizing these plants. The plaintiff-appellants in Star and Zibelman argue that the authority of the Federal Energy Regulatory Commission (FERC) over the wholesale electricity markets under the Federal Power Act (FPA) preempts these state subsidies.[6] This Article proposes and explains a test for resolving the upcoming appeals that turns on the state’s conscious disregard of FERC’s authority. If a state law explicitly and consciously aims to directly affect wholesale market prices, terms, or conditions, its subsidy program is impermissible as an intrusion on FERC’s regulatory turf. It further contends that only this test can harmonize three recent Supreme Court decisions on the intersection of state and federal jurisdiction over the electric grid, preserve valuable state policy experimentation, and set a narrowly defined preemption standard that avoids unintended consequences in future litigation. Applying the test to the state nuclear subsidies, this Article concludes that federal law preempts them and that the District Courts’ decisions to the contrary were in error.

The Electric Grid Confronts the Dormant Commerce Clause

by

Sam Kalen & Steven Weissman 

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Many modern energy dialogues gravitate toward a conversation about the present status of the jurisdictional divide between state and federal authority over the regulation of wholesale sales of energy.  A March 3, 2017 Bureau of National Affairs (BNA) article began by observing how the utility industry believes the biggest challenges for the Federal Energy Regulatory Commission (FERC) will involve “[j]urisdictional battles between state and federal control in the energy markets.” And last fall, a joint report by centers at Duke University, University of North Carolina, and Harvard observed how “[t]he line between federal and state jurisdiction over the electricity sector is shifting.  FERC once played a limited role in sector oversight, but regionalization of the electric grid and development of interstate markets for electricity, electric capacity, and transmission development have expanded its responsibilities.”  A similar theme echoed in the Obama Administration Department of Energy (DOE) Quadrennial Energy Report.

This jurisdictional conundrum primarily has played out on two fronts: first, whether state-related energy programs are preempted by the Federal Power Act (FPA), and second, whether such state programs run afoul of the dormant Commerce Clause.  As the electric grid began expanding across state boundaries in the first quarter of the twentieth century, a similar question surfaced about which entities—whether states, the federal government, or regional agencies—ought to regulate sales and transmission of electric energy.  Indeed, Justice Frankfurter and James Landis published a landmark 1925 article on the potential use of interstate compacts for promoting regional electric “superpowers,” an idea supported by such notables as Herbert Hoover.[1]  The Federal Power Commission (FPC), which at the time only enjoyed jurisdiction over hydroelectric facilities, opposed the development of such interstate compacts and instead seemingly favored expanding its own jurisdiction over interstate transactions.[2]

Opportunities to Address Climate Change in the Next Farm Bill

 

Sara Dewey,[2] Liz Hanson,[3] & Claire Horan[4]

This post is part of the Environmental Law Review Syndicate (ELRS). Original article can be found here.

Introduction

The Farm Bill affects nearly every aspect of agriculture and forestry in the United States. Therefore, its next reauthorization offers an important opportunity to better manage the risks of climate change on farms, forests, and ranches by supporting resilience practices that also offer greenhouse gas (GHG) emission reductions.

Agriculture is vulnerable to the impacts of climate change, including rising temperatures, changes in rainfall and pest migration patterns, extreme weather events, and drought. In addition to being heavily affected by climate change, agriculture is also a significant contributor to climate change. Agricultural practices are responsible for about eight percent of U.S. GHG emissions.[5] Estimates of total food system emissions, which include the CO₂ emissions from energy use and transportation, increase the agricultural industry’s proportion of U.S. GHG emissions to between 19 and 29 percent.[6]

To better align their practices with their long-term interests, farmers and ranchers can adopt practices that enhance their resilience, while also reducing GHG emissions, and increasing carbon sequestration. Many of these practices improve the long-term productivity and profitability of farms. For example, farmers are already adopting practices that reduce emissions or sequester carbon in the soil and in woody biomass while also improving productivity and resilience on their land.

This paper proposes a suite of practices that should be considered during the next authorization of the Farm Bill to improve on-farm efforts to adapt to and mitigate climate impacts. It is organized into four main sections. Part I provides background on the Farm Bill and the ways that the U.S. agricultural system contributes to GHG emissions. Part II provides an overview of opportunities for on-farm mitigation and adaptation. Many of the practices we recommend can reduce on-farm emissions and build a more resilient agricultural system. Part III identifies a set of metrics that we used to assess potential proposals. Lastly, Part IV summarizes how climate practices can be incorporated across titles and highlights three policy options.

The SB 32 Scoping Plan Update, Waivers, and ZEVs

Garrett Lenahan

This post is part of the Environmental Law Review Syndicate (ELRS). 

I. Scoping Plan Background

Two prominent pieces of Californian legislation that seek to address climate change are Assembly Bill 32 ("AB 32") and Senate Bill 32 ("SB 32"). AB 32 required California to reduce its greenhouse gas ("GHG") emissions to the 1990 level by 2020. It tasked the Air Resources Board with creating a Scoping Plan for reaching those levels. The original scoping plan contained a range of programs that would reduce GHG emissions from cars, trucks, fuels, industry, and electricity generation. SB 32 now requires the Air Resources Board to ensure that statewide GHG emissions are reduced to 40 percent below the 1990 level by 2030. The proposed Scoping Plan Update builds on the programs from the original Scoping Plan under AB 32 and includes some new ones.[1] Programs under the Proposed Scoping Plan include the Cap and Trade Regulation, the Low Carbon Fuel Standard, the Renewable Portfolio Standard, the Sustainable Community Strategies, the Sustainable Freight Action Plan, and the Mobile Source Strategy, among others.

 

The proposed Scoping Plan Update is comprehensive and commendable. However, it does lead to a few potential questions and issues. This paper will address two potential concerns regarding the transportation sector in particular. The transportation sector emits the most greenhouse gases of any economic sector in the state, so it is vital to reaching the SB 32 goal.[2] The first concern is whether the new administration under President Trump will revoke California's waiver to regulate tailpipe emissions and how that affects the Scoping Plan. The second issue about the Scoping Plan is whether California will be able to install adequate infrastructure across the state to accommodate the increased number of zero emission vehicles.

Navigating with an Ocean Liner: The Clean Water Rule, Trump’s Executive Order, and the Future of “Waters of the United States”

Kacy Manahan*

Kacy Manahan is the a clinical student at Earthrise Law Center at Lewis & Clark Law School and the 2017-2018 Symposium Editor for Environmental Law. This post is part of the Environmental Law Review Syndicate (ELRS). 

 

I. Introduction

The scope of the Clean Water Act’s jurisdiction has been controversial throughout the statute’s history. Reconciling the extent of Congress’ Commerce Clause authority with the reality of vast hydrological connections across the United States has been an unenviable task delegated to the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps). This post is a comprehensive, though certainly not exhaustive, examination of EPA’s and the Corps’ efforts to define the jurisdictional scope of the Clean Water Act. The issue is once again embroiled in litigation, and regulation is in the hands of an Administration seeking to depart substantially from prior policies. For that reason, I also discuss potential outcomes of the litigation and President Trump’s Executive Order.

An Autopsy of the Clean Power Plan

John Copeland Nagle*

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The Clean Power Plan (CPP) was supposed to be great. The Environmental Protection Agency (EPA) celebrated its regulation as “a historic and important step,” “fair, flexible and designed to strengthen the fast-growing trend toward cleaner and lower-polluting American energy,” providing “national consistency, accountability and a level playing field,” and a demonstration “that the United States is committed to leading global efforts to address climate change.”[1] President Obama applauded it, too. The Clean Power Plan, he remarked, is “the single most important step America has ever taken in the fight against global climate change.”[2]

We’ll never know. The fate of the CPP was sealed a little after midnight on Wednesday, November 9, when the election results indicated that Donald Trump will serve as the next President. Congress, moreover, retained its Republican majorities in both the House and the Senate. The seat on the Supreme Court that had been vacant since Justice Scalia died in February will be filled by President Trump’s nominee, rather than by executive and regulatory power supporter Judge Merrick Garland.[3]

One way or another, the CPP is doomed. Any branch could wield the death blow. Congress could repeal the provision of the Clean Air Act (CAA), which obligates EPA to regulate greenhouse gas emissions.[4] President Trump or his executive branch appointees could kill the CPP by refusing to defend it in court, by settling with the states and other parties who oppose it, by withdrawing the rule for agency reconsideration, or perhaps through other actions.[5] Or the D.C. Circuit or the Supreme Court could strike down the CPP.[6]

So why bother beating up on the dead? My conclusion is that the CPP was probably legal, but that was precisely the problem. Multiple legal doctrines needed to be stacked on top of one another in order to sustain the rule. In other words, the CPP rests on the understanding that a statute enacted 47 years ago to reduce harmful air pollution also delegates lawmaking power to an agency that did not exist at the time to choose between two conflicting statutory provisions to regulate emissions of a categorically different kind of pollutant. And all this even though those regulations displace traditional state authority over energy generation and even though Congress refused to enact such a statute specifically authorizing such regulations. I will examine each of these issues in turn, and then explain why they are especially troubling when combined.

Climate Change Regulation Through Litigation: New York’s Investigation of ExxonMobil under the Martin Act

Chris Erickson

Chris Erickson is a Junior Editor of the Michigan Journal of Environmental and Administrative Law at the University of Michigan Law School. This post is part of the Environmental Law Review Syndicate (ELRS).

In November 2015, New York Attorney General Eric Schneiderman began an investigation into whether ExxonMobil made public statements about climate change that conflicted with its own internal research.[1] Schneiderman issued a subpoena to ExxonMobil ordering production of documents related to its internal climate change research and the use of that research in making strategic decisions.[2] This investigation differentiates itself from previous climate change litigation by attempting to hold companies responsible for their contributions to climate change using laws unrelated to climate change. If New York is successful in its investigation, it could signal a new wave of climate change litigation centered on issues tangentially related to climate change.

The current investigation pursues a different strategy than past approaches to climate change litigation. Climate change litigation against greenhouse gas (“GHG”) emitters usually involves violations of federal law (such as the Clean Air Act or the National Environmental Policy Act).[3] If a GHG emitter has not violated any federal or state environmental law, plaintiffs bringing an action against a GHG emitter face the difficult task of proving tort law nuisance claims.[4] Avoiding this, New York’s investigation aims to hold GHG emitters accountable by attacking something more tangible: disclosures to investors.[5] The Martin Act, a New York statute, gives broad power to the attorney general to investigate companies for finance-related “deception, misrepresentation, concealment, suppression, [or] fraud.”[6] Investigating large GHG emitters under the Martin Act allows New York to confront the problem of climate change without the difficulties of pursuing a climate change nuisance claim under tort law. 

New York has been leading the movement for an increase in the disclosures companies must make about their internal climate change research. Before its current investigation, New York settled with Xcel Energy and Dynegy, Inc. in 2008 and AES Corp. in 2009, after investigating their omissions of climate change risks in SEC filings.[7] As part of the settlement agreements, the energy companies agreed to disclose their potential financial exposure due to climate change, the incorporation of their internal climate change research and projections into their overall strategic plans, and the companies’ efforts to reduce, offset, or limit their GHG emissions.[8]

Following these settlements, the federal government also sought to provide investors with information about companies’ financial exposure to various aspects of climate change.[9] In 2010, the SEC began to require companies to make certain climate change related disclosures.[10] These disclosures include the impact of climate change regulations, climate change’s effect on business trends (e.g. decreased consumer demand for goods that produce significant GHG emissions), and climate change’s physical effects (e.g. rising sea levels threatening property).[11]

Our Money is Safe, but the Planet Is Not: How the Carbon Bubble Will Cause Havoc for the Environment, but Not the Stock Market

Breanna Hayes

Breanna Hayes is the Managing Editor of the Vermont Journal of Environmental Law. This post is part of the Environmental Law Review Syndicate (ELRS).

 

               I.              Introduction

Human use of fossil fuels dates back to prehistoric times.[1]  Before the Industrial Revolution, humans mostly relied on wood, wind, and water as energy sources.[2]  But as the Industrial Revolution progressed, humans developed a dependence on fossil fuels.[3]  In addition, the advancements of the Industrial Revolution allowed for the human population to grow rapidly.[4]  Combined, these facts indicate that, not only were humans developing a greater dependence on fossil fuels, but also there were more humans on earth than ever before.  With a greater number of humans, fossil fuel dependence was even more severe.

While humans blindly relied on fossil fuels for centuries, by the 1940s scientists began predicting the impact that fossil fuels would have on the environment.[5]  In 1949, M. King Hubbart made a prediction known as “Hubbart’s Peak.”[6]  According to this prediction, fossil fuels would peak in the 1970s.[7]  Hubbart further predicted that despite the peak in fossil fuels, humans would still have a rising demand for energy.[8]  According to Hubbart’s predictions, the energy sector would need to replace fossil fuels with renewable energy sources to meet the demand.[9]  As predicted, oil peaked in 1971, with other fossil fuels soon to follow.[10]  Yet, by the time the world began to acknowledge Hubbart’s peak, fossil fuels had “become so firmly interwoven into human progress and economy, that changing this energy system would drastically alter the very way we have lived our lives.”[11]  While the transition will be difficult, many nations around the world have begun to move away from fossil fuels.[12]  A major victory in the movement from fossil fuels was the Paris Agreement, which has been ratified by more than 100 countries.[13]  In the Paris Agreement, countries committed to, “holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change”[14]   

While world governments are progressing towards greener energy to combat climate change, a problem arises in the energy industry.  Publicly traded energy companies are a considerable market force,[15] despite demand for fossil fuels continuing to decrease and the demand for renewable energy sources rising.[16]  In 2015, even though fossil fuel prices were at a multi-year low, “over half of global power capacity additions in 2015 came from wind, solar, hydro and nuclear.”[17]  Additionally, the Paris Agreement, formulated in December 2015, creates the expectation that policy-makers will advance progressive ideas to help countries meet the agreed-upon two degree Celsius cap.[18]  An obvious way to mitigate this change is for energy companies to start diversifying portfolios to include renewable sources.[19]  However, timing is key for both the market and the climate.  Concerning the market, “If [companies] move too quickly, money could be left on the table from their fossil fuels business. But too slowly, and they could miss their window of opportunity.”  On the other hand, the world has a very restricted carbon budget if it is going to honor the two degree Celsius cap embodied in the Paris Agreement.[20]

This article focuses on the window of time that companies have to shift from fossil fuels to renewable energy. The article provides a quick overview of public companies and the use of stock.  Then, the article discusses the “Carbon Bubble” and how it compares and contrasts to both the dotcom and housing market bubbles. Finally, the article discusses the environmental impact of the energy industry’s financial choices.

Pipelines, Protests and General Permits

 Samantha L. Varsalona

Samantha Varsalona is a 2L at Georgetown University Law Center and Staff Member of Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate (ELRS). 

Abstract

The Dakota Access Pipeline (DAPL) has become a contentious topic in recent months. The controversy centers around Dakota Access, LLC[1], a subsidiary of Energy Transfer Crude Oil Company, LLC, and the Standing Rock Sioux Tribe of North and South Dakota[2] (the Tribe or Sioux), a federally-recognized Indian tribe.  The Tribe’s reservation, Standing Rock Indian Reservation, is half a mile upstream from where DAPL’s crude oil pipeline would cross the Missouri River underneath Lake Oahe in North Dakota.[3]  While much of the recent media attention surrounding Dakota Access and the Tribe has focused on the destruction of the Tribe’s ancestral burial grounds, the underlying issue can be traced back to the nationwide permits issued by the Army Corps of Engineers (the Corps) in 2012.[4] More specifically, this article will examine Nationwide Permit 12 (NWP 12), which was one of the fifty NWPs issued by the Corps in 2012[5] and is at the heart of the current legal battle between Dakota Access and the Tribe.

Introduction

The Tribe and environmentalists alike raised concerns about the potential health and environmental consequences of oil spills, being that the Missouri River “provides drinking water for millions of Americans and irrigation water for thousands of acres of farming and ranching lands.”[6] Besides the Tribes concern about the proximity of the pipeline to their reservation, they were also concerned about the pipeline disrupting sacred ancestral burial grounds and places of cultural significance to the Sioux people.[7] In particular, the Sioux have traditionally placed significance on the convergence of the Missouri and Cannonball Rivers because their ancestors gathered at that location to peacefully trade with other tribes.[8] Ironically, this is not the first time the Army Corps of Engineers (the Corps) or the federal government has taken the Tribe’s land in particular location without their consent. In 1958 the Corps dredged the sacred Cannonball river to construct the Oahe Dam, which created the man-made Lake Oahe that now covers the confluence of the two rivers and is the future site of DAPL.[9] The Oahe Dam not only destroyed a site of spiritual significance to the Sioux, but also flooded nearly fifty-six thousand acres of Standing Rock Reservation and over one hundred four thousand acres on the Cheyenne River Reservation.[10]  Overall, the construction of the Oahe Dam destroyed more Indian land than any other public works project in America.[11] Nonetheless, the Tribe continues to use the banks of the Missouri River for “spiritual ceremonies, and the River, as well as Lake Oahe, plays an integral role in the life and recreation of those living on the reservation.”[12] With that poignant history in mind, it comes as no surprise that the Tribe would fight so vehemently against DAPL which would obviously  affect both the Missouri River and Lake Oahe.

Fearing, once again, the possibility of sacred burial grounds being destroyed, the Tribe pursued legal action against the Army Corps of Engineers (Corps), the federal agency that approved DAPL’s permits, in hopes of being granted an injunction that would block DAPL’s construction of the pipeline.[13] The outcome of the suit, decided September 9th by the D.C. District Court, held that the Corps had sufficiently followed federal law in approving the pipeline.[14] Minutes after the court’s decision came down, the Department of Justice, the Department of the Army and the Department of the Interior issued a joint statement temporarily halting the work.[15] 

The future of DAPL underneath Lake Oahe is still unclear and it will, more than likely, continue to be a political hot potato for months to come. In its simplest form, the conflict comes down to the permitting process and the Corp’s alleged failure to adequately consult the Tribe before issuing the permit.[16] The permit granted to DAPL is a type of general permit known as Nationwide Permit 12 (NWP 12) and has caused considerable controversy in the past several years.

An Ecology of Liberation: The Shifting Landscape of Environmental Law in an Era of Changing Environmental Values

Michael Zielinski

Michael Zielinski is a 3L at William & Mary Law School.[1] This post is part of the Environmental Law Review Syndicate (ELRS). 

 

I.      Introduction

In 1971, the Peruvian theologian and Dominican priest Gustavo Gutiérrez published his seminal work, A Theology of Liberation, in which he advocated an activist approach to Christianity based on the belief that it is only through living in solidarity with exploited and impoverished populations that all people can ultimately become free from all forms of injustice, oppression, and suffering.[2] Recognizing that “the signs of the times,” demanded a theology that synthesized spiritual contemplation and direct action,[3] Gutiérrez identified Christ’s description of the Last Judgment as the foundation of this call to solidarity with the poor[4]: 

I was hungry and you gave me food. I was thirsty and you gave me drink. I was a stranger and you took me in. I was naked and you clothed me. I was sick and you visited me. I was in prison and you came unto me…insofar as you did this to one of the least of my brethren, you did it to me.[5]

More than three decades later, Pope Francis used similar language of liberation when he declared climate change to be the imperative moral issue of our time, asserting “the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor.”[6] Moreover, both Gutiérrez and Pope Francis identified rampant consumerism and a self-centered notion of economic progress as the greatest contributors to deplorable conditions in the developing world.  Just as Gutiérrez descried social and economic poverty as “the fruit of injustice and coercion” sown by wealthy nations and force-fed to poorer ones,[7] so too Pope Francis lamented that human beings frequently seem “to see no other meaning in their natural environment than what serves for immediate use and consumption.”[8]

Liberation theology, although most strongly associated with the Catholic Church in Latin America,[9] is not uniquely Catholic, or even uniquely Christian. Rather, the concept of liberation is a facet of all religions that challenge the injustice and poverty that are the byproducts of neoliberal economics.[10] Moreover, though the term “liberation” often carries a religious connotation,[11] liberationist principles can exist even within secular ethical theories, notably environmental justice,[12] that do not expressly use the term “liberation.” Similar to how liberation extends beyond the bounds of religion, steadily growing concerns over climate change and other environmental problems are also not confined to religion,[13] let alone any particular religion.[14] The twenty-first century is witnessing the emergence of a new ecological conscience, and as the world’s largest economic power, the United States has the opportunity to place itself in the vanguard of a global environmental movement toward greener and more sustainable practices.[15]

Rising sea levels, unpredictable weather, and dwindling natural resources make it increasingly difficult to maintain the notion that nature is beyond our ability to hurt and its bounty beyond our ability to deplete.[16] Americans’ changing attitudes and behaviors regarding sustainability in this Anthropocene era[17] indicate a sobering realization that unchecked greenhouse gas emissions have created a tragedy of the atmospheric commons.[18] Increasing awareness of the magnitude of climate change and other pressing environmental concerns has begun shifting our collective environmental values toward an ethical posture that acknowledges the continuity and interdependence of all life,[19] thus laying bare the logical conclusion that our mistreatment of the natural world translates into mistreatment of the poor, who are especially vulnerable to environmental harms.[20] The mutability of environmental ethics, however, strains against the intractability of environmental law, whose overreliance on economic principles and stilted doctrine has locked it into a narrow and anthropocentric outlook that perceives environmentally responsible practices solely as instrumental, rather than intrinsic, goods.[21]

Congress Must Act To Fully Fund the Land and Water Conservation Fund

 Andrew J. Lewis*

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Introduction

This past summer my family celebrated my grandfather’s 90th birthday by walking the Civil War battlefield at Chancellorsville Virginia. The battlefield forms a section of the Fredericksburg and Spotsylvania National Military Park, 7600 acres of rural Virginia stitched together by twenty-three miles of trails.[1] History enthusiasts wander the hallowed grounds in awe, walking over the very terrain where 85,000 American’s were wounded and 15,000 died for their convictions.[2] Visitors interested more generally in outdoor recreation can lose themselves walking along the ten mile shore of Lake Anna, a 3127 acre sub-park boasting one of the most popular lakes in the Commonwealth of Virginia.[3] As of October 2015, 1,836,626 people had visited the Fredericksburg and Spotsylvania National Military Park that year to reflect on its past and glory in its natural beauty.[4] None of it would have been possible without over $3 million in support from the United States Land and Water Conservation Fund (LWCF).[5]      

For the last fifty years, the LWCF has been a rousing policy success, but today it is in danger. While Congress recently granted the fund a temporary renewal, its future and funding remain in jeopardy. This Article will discuss the history of the LWCF, its undeniably positive impacts, and the shortcomings of the current statute. The Article concludes by urging Congress to pass Senator Maria Cantwell’s Senate Bill 890, a measure currently before the Senate capable of restoring the LWCF to its former glory.

Ethical Convergence and the Endangered Species Act

Caitlin Troyer Busch

Caitlin Troyer Busch is a 2L at Stanford Law School. This post is part of the Environmental Law Review Syndicate.

Introduction

The Endangered Species Act (ESA) is both lauded and criticized as one of the most powerful environmental laws ever enacted. Proponents of the law praise it for protecting thousands of endangered species over the last forty years, while detractors argue it is a bureaucratic mess that no longer benefits humans, but instead overburdens private landowners and development and values species’ needs above human needs. These claims reflect the disparate values underlying the statute itself. At the time of the Act’s passage, some proponents pushed for endangered species reform on the belief that species have intrinsic value—that is, value that “an entity has in itself, for what it is, or as an end.”[1] Others believed that the value of endangered species lay in their instrumental value to humans, as “means to a desired or valued end,” such as agriculture.[2] Despite these distinct values, the Act was passed in 1973 with little to no opposition. A wide range of stakeholders with differing environmental values came together to craft a far-reaching and unprecedented environmental law. This lack of opposition demonstrates that the Endangered Species Act successfully captured both sets of values in a single, comprehensive environmental statute.

In 1991, environmental ethicist Bryan Norton hypothesized that two disparate sets of values can lead to a single, meaningful policy in a process known as “convergence.”[3] The Endangered Species Act supports this hypothesis. The Act’s major proponent groups—the public, national legislators and the executive officials, and conservation organizations—each had non-anthropocentric (species-centered; intrinsic) and anthropocentric (human-centered; instrumental) motivations. What resulted was a statute incorporating both intrinsic and instrumental values, proving that disparate values can converge into one, noncontentious policy, as the convergence hypothesis contends. But, as today’s deeply divided battle over the Act demonstrates, there has been a divergence in opinion since the Act’s passage. So while the Act may substantiate the convergence hypothesis, it also demonstrates how ever-increasing scientific knowledge coupled with poor implementation of a statute’s requirements may render initial policy convergence obsolete.

I. The Convergence Hypothesis

Influential environmental philosopher Bryan Norton first explained his convergence hypothesis in detail in his 1991 book, Toward Unity Among Environmentalists,[4] and he has refined this hypothesis over the last two and a half decades.[5] According to his hypothesis, environmental policymakers need not explicitly consider or weigh differing environmental values when they make decisions because anthropocentric and non-anthropocentric values actually converge in terms of “practical goals and aims for environmental management.”[6] Norton argues that if an anthropocentric policymaker “takes the full range of human values—present and future—into account, [he or she] will choose a set of policies that can also be accepted by an advocate of a consistent and reasonable non-anthropocentrism.”[7]

This formulation limits his hypothesis in two important ways. The first is that anthropocentric policymakers must take into account “the full range of human values,” including future needs. Norton’s policymaker thus practices what Norton calls “weak anthropocentrism.”[8] Weak anthropocentrists understand that instrumental value need not only be “exploitative and economistic,” but instead can incorporate noneconomic, human-centered values, such as aesthetic pleasure, spiritual uses, and preservation for future generations.[9] Norton refers to these values as “transformative values.”[10] By incorporating these values as well as economic ones, an anthropocentric policymaker would understand that maintenance of ecosystems across generations best serves present and future human needs.[11] The second limit on his hypothesis is that non-anthropocentric advocates must be both “consistent and reasonable.” What Norton means by reasonable is not pejorative; it is simply a reflection of the fact that his hypothesis is a falsifiable, empirical one, centering around achievable, “real-world polices.”[12] Non-anthropocentrists who believe that no species should ever go extinct are, to Norton, unreasonable because it would be impossible to preserve every species in every situation, given that we can never have “complete biological knowledge.”[13] For those “unreasonable” non-anthropocentrists, no policy could ever reflect their values, and thus convergence is impossible.

For weak anthropocentrists and reasonable non-anthropocentrists, however, the focus in policymaking could be shifted from the differing values of environmentalists to the “shared policy goals and objectives that might characterize [their] unity”[14]—specifically, maintaining ecosystems across multiple generations.[15] Thus, policy makers can level weak anthropocentric arguments, rather than what many see as less palatable non-anthropocentric arguments, in order to build bridges between various stakeholders, without sacrificing the desires of non-anthropocentrists.[16] The convergence hypothesis thus allows for a more pragmatic focus in environmental ethics on decision-making based on weak anthropocentric values.

Not surprisingly, Norton has received a lot of pushback on his hypothesis. Many critics argue that Norton ignores a wide spectrum of environmental values by limiting his hypothesis to weak anthropocentrists and “reasonable” non-anthropocentrists. By excluding the polar ends of the spectrum—strong anthropocentrists who make strictly economic arguments and strong non-anthropocentrists who oppose essentially any human degradation of the environment—Norton leaves out a variety of perspectives perhaps quite relevant to policymaking and instead serves only the narrow “consistent and reasonable” middle.[17] Conceding that convergence is not applicable to those intransigently set in their philosophical ideologies, Norton claims that convergence describes “what would happen if intuitionists and ideologues shifted their attention from [mere] abstractions to how we can resolve real and difficult cases,” thus condoning a pragmatic approach.[18] But many environmental philosophers find it unpalatable to check ideology at the door, no matter the effect on real world, legislative decisionmaking. Either way, Norton does not attempt to capture these polarized ends in his hypothesis, so their existence or intransigence plays little role in supporting or falsifying his hypothesis.

In contrast to this argument concerning things concededly outside of Norton’s hypothesis, many non-anthropocentric environmentalists allege that Norton is “dead wrong” in arguing that both stances would lead to the same policies—that is, his hypothesis is false.[19] J. Baird Callicott, a renowned non-anthropocentric environmental philosopher, argues that policies based on anthropocentrism, even if broadly defined to include transformative values, will never be as “robust and inclusive [as] conservation policy based on the intrinsic value of nature.”[20] Because many entities with intrinsic value, like certain species, “are of little or no use to us,” they argue that most policies would not fully protect such entities under laws based solely on instrumental valuation.[21] The Endangered Species Act, then, is a perfect lens for testing the validity of the convergence hypothesis.

II. The Endangered Species Act as Convergence

There were three key groups of stakeholders at the passage of the Endangered Species Act: the public, politicians, and conservation groups. These stakeholders made both anthropocentric and non-anthropocentric arguments in the years leading up to the Act’s passage. Most arguments appealed to the instrumental value of nature (including transformative values), which was a recurrent theme in the passage of most major US environmental laws.[22] Indeed, the Act’s text mentions instrumental values only, proclaiming that “species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value.”[23] Though this may suggest that the Act is strictly anthropocentric, many key stakeholders involved in passing the ESA had non-anthropocentric motivations. Commentators have suggested that these non-anthropocentric stakeholders sacrificed explicit recognition of their own values “to encourage support for conservation beyond the abstract principle of species rights.”[24] This sacrifice directly reflects Norton’s view that weak anthropocentric arguments are more likely to build bridges without sacrificing the policy goals of those non-anthropocentrists. Indeed, the Endangered Species Act passed with only four dissenting votes, indicating that these diverse values had converged on a single, comprehensive policy that was acceptable to all parties.

A. The Values of the Stakeholders

1. The Public

The Endangered Species Act of 1973 came on the “peak of the environmental wave” and “represented the quintessential environmental issue” for much of the American public.[25] The Act was not the first of its kind; it represented the culmination of a decades-long adoption of a strong environmental ethic by the United States and its citizens. In the wake of World War II, as new technologies and industry began to dominate the American landscape, popular pro-environmental writers such as Rachel Carson and Aldo Leopold challenged the American people to reject human degradation of the environment and adopt a more conservationist attitude. As the environmental movement grew so did scientific knowledge, and the public became “more aware of basic ecological concepts [and] increasingly concerned about the fate of rare and endangered species.”[26] In particular, species like the bison, the passenger pigeon, and the whooping crane symbolized the human-caused loss of magnificent, historical, and useful species. The bison, in particular, embodied many of these concerns, as it was recognized as both a “symbol of the nation’s heritage” and a potential “vital food source [and source of] raw materials.”[27] Instrumental arguments such as these were often made about endangered species, particularly in regard to charismatic megafauna—large animals like elephants and tigers that invoke greater public sympathy and interest.[28] But the increasing public concern also spoke implicitly to a core belief of the environmental movement: the loss of species was somehow more meaningful and disturbing than simply losing something beneficial to humans.

As endangered species legislation was introduced in Congress in the mid-1960s[29] and throughout the early 1970s, the plight of endangered species was a popular news topic. Articles chastising humans for polluting the air and water and “put[ting] additional stress on wildlife”[30] were common during the time, which “helped raise public support for and awareness of endangered species protection.”[31] These articles often focused on instrumental values. For popular endangered species, many articles emphasized transformative values, including the historical legacy and symbolic value of these species.[32] News articles also appealed to generational equity concerns. For example, one article asked rhetorically: “Do you realize that there is an excellent chance that your children may never see a California Condor?”[33] Less charismatic species were often described in terms of their utility in medicine or agriculture or their importance in maintaining ecosystems.[34] Oftentimes these ecosystem arguments emphasized that these populations needed to be stabilized if key industries, such as fishing and hunting, were to continue.[35] All of these popular arguments—aesthetics, historical and symbolic importance, future generations, ecological stability, and economic uses—represented the anthropocentric values of much of the public at the time.

These were not the only values important to the public at the time, however. Many in the environmental movement argued for “[e]xtending moral concern to animals.”[36] This intrinsic value was certainly recognized in charismatic megafauna, as hunters of these animals were rebuked for not recognizing the higher value and majesty of the animal.[37] In fact, it was the exploitation of the big cats (e.g., tigers, leopards, cheetahs) for their fur in the mid-1960s that led the public to rally around endangered species protection.[38] During this time period, the fur of the spotted cats was considered a luxury item for women, and the strong demand for the coats caused depletion in some natural populations. In protest of these deleterious effects, the public successfully boycotted the industry.[39] The fight for the cats was explicitly against instrumental uses, reflecting a deeper moral outrage. This moral concern even extended to seemingly valueless species. One 1967 article stated: “Now what effect the spinedace or the pupfish will have on the price of butter and eggs is anyone’s guess. It has always been my feeling that the great outdoors was populated with a purpose . . . .”[40] Even plants were described as having infinite and intrinsic beauty.[41] The plight of the big cats and this recognition of intrinsic value in various species, coupled with widespread instrumental arguments, eventually led directly to calls for stricter endangered species legislation.[42]

2. Politicians

Congress clearly recognized the growing concern of the American public for endangered species, as the Endangered Species Preservation Act was passed in 1966,[43] followed three years later by the expanded Endangered Species Conservation Act of 1969.[44] This 1969 law was still too weak to adequately protect endangered species, so debate on the next iteration began. In hearings on the soon-to-be Endangered Species Act, many noted that “[t]he public’s interest in the protection and management of all wildlife and fish [was] increasing dramatically,”[45] and they made it clear that the “public emphathize[d] [sic] with the purposes of [the Act].”[46] Growing scientific knowledge also demonstrated that the previous “economy-based policies of the [Fish and Wildlife Service] and the Department of the Interior” were insufficient for species protection.[47] As a result, both Congress and the Nixon administration, which was heavily involved in the push for endangered species reform, relied on a wider variety of values to secure for the Act’s passage.

Still, the most prevalent argument for protecting endangered species was their economic value. Many politicians referred to endangered species as renewable, wildlife resources and sought to restore them to more productive levels.[48] These arguments directly reflected the cost-benefit analyses and trade-offs that an expansive Endangered Species Act would force them to consider during implementation. For example, despite external pressures to reduce the import and export of species, there was a particular emphasis on continuing to support international wildlife trade, where appropriate.[49] Thanks to these considerations, the bill received little backlash from major industries like fur and timber.[50]

Others in the hearings emphasized that, because species are irreplaceable, the loss of species could irreparably injury humans.[51] There was deep concern that the destruction of unique species had “resulted in ecological instability, reduced man’s freedom in choosing species for his utilization, and contributed to an impoverished quality of life.”[52] The potential for future loss of species was particularly disconcerting to politicians because such loss could abolish an entire facet of the country’s national heritage, destroying an important part of U.S. history for future generations.[53] In fact, both President Johnson (on signing the Endangered Species Preservation Act of 1966) and President Nixon (on signing the Endangered Species Act of 1973) explicitly touted the ability of the respective laws to “help us to preserve for our children the heritage of this great land we call America”[54] and to protect “threatened wildlife . . . [which] forms a vital part of the heritage we all share as Americans.”[55]

Members of these administrations and other legislators also made arguments for the intrinsic value of species. The Assistant Secretary of the Interior Nathan Reed gave testimony at Congressional hearings defending the intrinsic value of species saying, “I believe that mankind has matured to the point that we are no longer willing to participate in the unnatural destruction of the end product of eons of evolution,” while also appealing to the unique nature of each species and man’s role as one small part of the natural environment.[56] At other times, congressmen reproached man’s onslaught on endangered species, as represented by Senator Alan Cranston’s statement: “To cause the extinction of a species, whether by commission or omission, is unqualifiedly evil. The prevention of this extinction . . . must be a tenet among man’s moral responsibilities.”[57] Lastly, soon after Congress passed the 1966 Act, the Bureau of Fish and Wildlife Services released a paper that contained some of the most explicit arguments for intrinsic value made by anyone in government. One passage stated that “[t]o lose a rare and delicate flower or to lose bluebird habitat is not important because of anguish of the conservationist but because bluebirds, Indian paintbrush, cardinals, and grizzly bears should be present.”[58] These intrinsic arguments were imperative for winning over many key decisionmakers and stakeholders involved in crafting the Endangered Species Act.

3. Conservationists

By far the most influential group in the argument for species’ intrinsic rights was the conservation organizations that played such a large role in the 1960s environmental movement. Organizations like the National Wildlife Federation, the National Audubon Society, the World Wildlife Fund, and the Wildlife Institute all pushed for expansive endangered species legislation, both in Congress and to the public.[59] The National Wildlife Federation (NWF), especially, played a key role in spreading knowledge and moral concern about the loss of endangered species. In 1957, the NWF released a short publication, in which species were recognized as having both intrinsic and instrumental values. Not only did it describe the duty of mankind to protect the land and maintain harmony with nature, but it also equated society’s attitude toward nature with past attitudes on race—clearly rebuking both as assailing the intrinsic rights of others.[60] At the same time, the NWF essay recognized the tension between species’ instrumental value for humankind and the potential for humans to encroach on other organisms’ intrinsic rights:

In the broadest sense of appreciation there are new worlds to conquer in sane and sound resource management, to become a challenge to hundreds of young men who aspire to work and seek renown in the conservation field. Be admonished not to become so cold and calculating as to sense no emotional ecstasy in a flight of mallards through the marsh mists in the eerie light of a rising sun, the serenity of a country meadow, the awe-inspiring grandeur of mountains, and the peace of silent places.[61]

This dichotomy between the recognition of intrinsic rights and the necessity of instrumental argumentation carried over into the debates over endangered species legislation. When the first two endangered species acts were passed in the 1960s, conservation organizations were among the first to call for the application of the law to all species including plants and invertebrates. Charles Callison of the National Audubon Society summed up this desire to expand protection to all species by saying, “[I]n the few are concentrated all the worth of one small but valuable part of our whole world. We condemn no wild creature and work to assure that no living species shall be lost.”[62] Other conservationists appealed directly to the intrinsic worth of particular species and noted that endangered species, no matter where they reside or what their use to humans, should be the concern of citizens all around the country.[63] These arguments translated into practical effects on the final Act’s coverage. For instance, a National Audubon Society representative argued that any exemptions for “taking”[64] species needed to ultimately be for the good of the species, not for the good of the humans doing the taking.[65]

Despite their intrinsic value focus, conservationists also made instrumental value arguments. They especially made strong appeals to species’ scientific import. Several conservationists mentioned the role of endangered species in filling “ecological niches” and maintaining healthy ecosystems, while others used stories of the past, such as the discovery of penicillin, to argue that even plants should be protected for their potential future contributions.[66] Even with these instrumental arguments, the key for conservationists was that the legislation strike a “sensible balance between environmental protection and the needs of progress,” so as to avoid losing any more of the natural world.[67]

B. The Final Statute as Convergence

This canvassing of the value-driven arguments of the various Endangered Species Act stakeholders demonstrates that a wide range of values shaped the final Act’s provisions. Despite this range of values, the final statute received little to no opposition, thus reflecting a convergence of these values.[68] This convergence led to one of the most comprehensive, powerful environmental laws in the history of the United States. The goal of the Act was to prioritize conservation of endangered species, even above economic growth and development.[69] In order to do this, the law granted the most stringent protection imaginable at the time—no endangered species could be harmed or killed for almost any reason.[70] The statute also called for equal protection of all endangered species, with no specific privilege given to different taxonomies (e.g. plants or animals).[71] The Act also has a somewhat unique structure: it applies to every single federal agency and all sectors of the American public.[72]

Though the explicit values in the Act are anthropocentric ones, including both economic and transformative values,[73] the power and breadth of the Act demonstrate that the intrinsic value of species is implicitly written into the law. Brian Czech and Paul Krausman believe the Act has a clear “biocentricity of goals,”[74] while others see the Act as an ethical law that can be implemented “as though species have a fundamental right not to be terminated by human activities.”[75] Ray Vaughan even went as far as to claim that the Act “attempts to accomplish something humanity has not tried before through statutory means: the saving of other species for their own good, regardless of whether those creatures have any significance to humanity or not.”[76] Finally, J. Baird Callicott, one of the foremost defenders of the Act’s non-anthropocentric values, suggests that economic values do not “appear adequate to achieve conservation of such species by purely market forces,” which suggests that the Act must “implicitly recognize[] the intrinsic value of listed species, effectively exempting their conservation from purely instrumental—and thus purely economic—considerations.”[77] Callicott and others believe that inclusions such as the citizen suit provision[78] and strict monetary penalties for takings[79] are manifestations of this intrinsic value prioritization and have led to the ability of non-anthropocentrists to protect endangered species throughout the Act’s implementation.[80]

III. Divergence in the Implementation of the Endangered Species Act

In the forty-three years since the Endangered Species Act’s passage, the Act has lost its convergent nature. It is no longer a policy that incorporates current anthropocentric and non-anthropocentric values. As scientific knowledge has increased and Legislative and Executive branch priorities have shifted, many stakeholders have come to see the Act as a poor fit for their values. Some weak anthropocentrists rely on current scientific knowledge to criticize the Act as no longer focusing on the correct “level” of conservation, i.e., species instead of habitat preservation, while others believe the Act is still effective at maintaining ecosystems long-term. Non-anthropocentrists, for their part, feel that strong anthropocentrists in Congress have weakened the Act through subsequent amendments, and that various presidential administrations have inadequately enforced it.[81] Finally, as scientific knowledge increases, it may be that the values of these stakeholders are actually shifting. As these values move toward the polar ends not covered by Norton’s hypothesis, the range of values reflected in convergent policies becomes narrower, and the hypothesis loses some import.

Since the Act’s passage, scientific knowledge has grown significantly, and some environmentalists and scientists criticize the Act for not accurately reflecting current knowledge, while still placing significant burdens on many.[82] As ecological knowledge has expanded, many critics have questioned whether the Act’s strict focus on individual species (as opposed to genetic diversity or habitat conservation) has scientific merit.[83] To these critics, this level of protection does not protect biodiversity most effectively, thus indicating that the Act relies on outdated science. Even so, given that the science on these issues is by no means settled, many weak anthropocentrists still believe the Act is a sufficient policy for conservation, if implemented effectively.[84] And of course, many non-anthropocentric conservationists praise the Act because they can use it to protect all endangered species, no matter the species’ role in broader conservation efforts. These values have evolved over time and thus no longer converge on the Endangered Species Act as enacted.

Likewise, though the Act was enacted as a cohesive, well-supported policy, its implementation has been wrought with contention, raising the question: Even if an Act represents convergence of values, does this convergence matter if the Act’s implementation does not mirror that convergence? Almost from the start, Congress (though a different one than had passed the Act) has sought to undermine the Act. In 1978, the Act delayed the Tennessee Valley Authority’s construction of the Tellico Dam in order to protect a tiny species of fish called the snail darter, costing Tennessee millions of dollars. As a result, the Carter administration was forced to make concessions in enforcing the Act, and largely did not carry out ambitious plans for designating and protecting critical habitats.[85] Over the next forty years, Congress would periodically undermine the law. For instance, the Fish and Wildlife Service, responsible for implementing the Act, has been called “one of the most severely underfunded natural resource agencies,”[86] and many argue that “Congress has slowly starved the wildlife agencies by denying them funding to fulfill their statutory obligations.”[87]

The Executive branch, for its part, has often under-enforced the law’s stringent requirements, including through nonenforcement of the strict taking restrictions and administrative downlisting of species to save resources.[88] Some administrations have even gone so far as to reject appropriations for listing species, as they see the listing process as too procedurally complex to be worth the necessary time and resources.[89] This under-enforcement has led to numerous lawsuits, which have typically served to broaden the Act’s reach.[90] This activism in the judicial system has caused both Congress and the Executive branch to attempt to “limit the scope of legal decisions regarding the law.”[91] This push and pull over the Act is in stark contrast to the homogeneous opinions on the Act at the time of its passage.

As the conservation science continues to improve and battles continue to rage over the Act’s implementation, it may be that the environmental values of the Act’s key stakeholders are actually becoming more polarized. While “reasonable” non-anthropocentrists essentially stay stable (believing that species have intrinsic value in their own right), weak anthropocentrists’ holistic view of conservation means they can more easily abandon the notion of protecting individual species if necessary to achieve the fundamental goal of protecting ecosystems. As some scholars have noted, as scientific knowledge improves and better management techniques are discovered, “[t]his tension between investing in species for their intrinsic value versus their utility is likely to increase.”[92] Likewise, the need for constant litigation to ensure the Act is consistently enforced may have caused non-anthropocentrists to become more entrenched in their ideologies—they want the Act implemented to its fullest extent to protect as many species as possible, even if the Fish and Wildlife Service has determined this is not the best way to manage broader conservation efforts.[93] Thus, some “reasonable” non-anthropocentrists may have easily moved into the realm of what Norton might call “unreasonable” over the course of the Act’s implementation.

IV. Conclusion

The Endangered Species Act was considered a massive triumph at the time of its passage, having little to no opposition from any of the Act’s stakeholders. The decades leading up to the Act’s passage witnessed a massive movement by the public, conservation organizations, and politicians to protect endangered species. Although each group had differing values and motivations for conserving species, their policy goals converged, as Bryan Norton’s convergence hypothesis predicts. The resulting Act explicitly recognized instrumental values and implicitly included necessary provisions codifying species’ intrinsic value. Now, forty years later, scientific knowledge has grown significantly, and some environmentalists and scientists are pushing for new conservation goals and policy that better reflect current knowledge. While Norton recognized that the convergence hypothesis would not include the polar ends of the anthropocentrism spectrum, even a “reasonable” non-anthropocentrist might not accept the Act in its current form, at least as currently implemented. What’s more, some weak anthropocentrists believe the Endangered Species Act is still sufficient for conservation, if implemented effectively, while others argue for its replacement wholesale. In the end, despite the Act supporting Norton’s convergence hypothesis, as scientific knowledge increases and decades of implementation occur, values may eventually diverge in such a way that the convergent policy no longer represents a convergence of those values.

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[1] Ronald Sandler, Intrinsic Value, Ecology, and Conservation, 3 Nature Educ. Knowledge 10, 2012, at 4.

[2] Id.

[3] See generally Bryan G. Norton, Toward Unity Among Environmentalists (1991). 

[4] Id.

[5] See, e.g., id.; Bryan Norton, Why I am not a non-anthropocentrist: Callicott and the Failure of Monistic Inherentism, 17 Envtl. Ethics 341 (1995); Bryan Norton, Convergence and Contextualism: Some Clarifications and a Reply to Steverson, 19 Envtl. Ethics 87 (1997).

[6] Brian K. Steverson, Contextualism and Norton’s Convergence Hypothesis, 17 Envtl. Ethics 135, 135 (1995).

[7] Norton, Convergence and Contextualism, supra note 5, at 87.

[8] See generally Bryan G. Norton, Environmental Ethics and Weak Anthropocentrism, 6 Envtl. Ethics 131 (1984).

[9] Ben A. Minteer, Unity Among Environmentalists? Debating the Values-Policy Link in Environmental Ethics, in Nature in Common? Environmental Ethics and the Contested Foundations of Environmental Policy 3, 9 (Ben A. Minteer ed., 2009).

[10] Id.

[11] Norton, Convergence and Contextualism, supra note 5, at 87.

[12] Id. at 87, 89; see also Bryan G. Norton, Convergence and Divergence: The Convergence Hypothesis Twenty Years Later, in Nature in Common? Environmental Ethics and the Contested Foundations of Environmental Policy 235, 237-40 (Ben A. Minteer ed., 2009).

[13] Norton, Convergence and Contextualism, supra note 5, at 87.

[14] Norton, supra note 3, at 12.

[15] Steverson, supra note 6, at 136.

[16] Id.

[17] See J. Baird Callicott, The Pragmatic Power and Promise of Theoretical Environmental Ethics: Forging a New Discourse, 11 Envtl. Values 3, 13 (2002); Holmes Rolston III, Converging Versus Reconstituting Environmental Ethics, in Nature in Common? Environmental Ethics and the Contested Foundations of Environmental Policy 97, 107-08 (Ben A. Minteer ed., 2009).

[18] Norton, Convergence and Contextualism, supra note 5, at 99.

[19] Minteer, supra note 9, at 12.

[20] Callicott, supra note 17, at 14.

[21] Rolston, supra note 17, at 101 (emphasis omitted); see also Callicott, supra note 17, at 13.

[22] Minteer, supra note 9, at 6.

[23] Endangered Species Act, § 2(a)(3), Pub. L. No. 93-205, 87 Stat. 885 (1973) (codified at 16 U.S.C. § 1531).

[24] Peter Kareiva et al., Nongovernmental Organizations, in 1 The Endangered Species Act at Thirty 176, 178 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[25] Steven Lewis Yaffee, Prohibitive Policy: Implementing the Federal Endangered Species Act 48 (1982).

[26] Mark V. Barrow, Nature’s Ghosts: Confronting Extinction from the Age of Jefferson to the Age of Ecology 306 (2009).

[27] Shannon Petersen, Acting for Endangered Species: The Statutory Ark 5-6 (2002).

[28] Frédéric Ducarme, Gloria M. Luque & Franck Courchamp, What Are “Charismatic Species” for Conservation Biologists?, BioSciences Master Reviews, July 2013, at 1-2.

[29] Congress passed the first iteration of the Endangered Species Act in 1966. Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, 80 Stat. 926.

[30] Everett W. Lumbert, Environment Continues Decline Despite Man’s Curbing Effort, Hartford Courant, Sept. 12, 1971, at 12C.

[31] Petersen, supra note at 27, at 23.

[32] Id. at 5-6.

[33] Blame for Decline of Wildlife Placed Largely on Loss of Natural Habitat, Hartford Courant, July 24, 1967, at 27.

[34] See, e.g., William S. Boyd, Federal Protection of Endangered Wildlife Species, 22 Stan. L. Rev. 1289, 1290 (1970); Ronald Melville, Plant Conservation and the Red Book, 2 Biological Conservation 185, 185 (1970).

[35] See, e.g., Boyd, supra note 34, at 1290.

[36] Anne Batchelor, The Preservation of Wildlife Habitat in Ecosystems: Towards a New Direction Under International Law to Prevent Species’ Extinction, 3 Fla. Int’l L.J. 307, 324 (1988). 

[37] See, e.g., Glen Sherwood, If It’s Big and Flies – Shoot It!, 73 Audubon 72, 72 (1971).

[38] Barrow, supra note 26, at 328.

[39] See Joe Wing, Big Cats Should Still Run Scared, Hartford Courant, Oct. 11, 1970, at 6A; A Shortage of Tigers, Hartford Courant, Jan. 2, 1973, at 22.

[40] Blame for the Decline of Wildlife, supra note 33, at 27; see also Petersen, supra note 27, at 23.

[41] See, e.g., Willem Meijer, Endangered Plant Life, 5 Biological Conservation 163, 167 (1973); Melville, supra note 34, at 185.

[42] See, e.g., Save Species that Are Endangered, Hartford Courant, Aug. 4, 1968, at 2B.

[43] Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, 80 Stat. 926.

[44] Endangered Species Conservation Act of 1969, Pub.L. 91-135, 83 Stat. 275.

[45] Endangered Species: Hearings on H.R. 37, H.R. 470, H.R. 471, H.R. 1461, H.R. 1511, H.R. 2669, H.R. 2735, H.R. 3310, H.R. 3696, H.R. 3795, H.R. 4755, H.R. 2169 and H.R. 4758 Before the Subcomm. on Fisheries & Wildlife Conservation & the Env’t of the H. Comm. on Merch. and Marine Fisheries, 93d Cong. 190, 237 (1973) (statement of Raymond M. Housley, Associate Deputy Chief for National Forest System, Department of Agriculture).

[46] Id. at 190 (draft environmental statement attached to statement of W.W. Lyons, Deputy Assistant Secretary of the Interior).

[47] Petersen, supra note at 27, at 18.

[48] See, e.g., Endangered Species Hearings, supra note 45, at 186-94 (draft environmental statement attached to statement of W.W. Lyons, Deputy Assistant Secretary of the Interior) (describing the loss of species in economic terms, in part).

[49] Id. at 17-20 (report attached to statement of Christian A. Herter, Special Assistant to the Secretary of State).

[50] Petersen, supra note at 27, at 31.

[51] See George Cameron Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51 Notre Dame L. Rev. 315, 321 (1974) (“Senators and Congressmen uniformly deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage should more species disappear.”).

[52] Endangered Species Hearings, supra note 45, at 202 (statement of Nathaniel P. Reed, Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior).

[53] Petersen, supra note at 27, at 26.

[54] President Lyndon B. Johnson, Remarks at the Signing Ceremony for Seven Conservation Bills (Oct. 15, 1966), http://www.presidency.ucsb.edu/ws/?pid=27929.

[55] President Richard Nixon, Statement on Signing the Endangered Species Act of 1973 (Dec. 28, 1973), http://www.presidency.ucsb.edu/ws/?pid=4090.

[56] Endangered Species Hearing, supra note 45, at 202 (statement of Nathaniel P. Reed, Assistant Secretary for Fish and Wildlife and Parks, Department of the Interior).

[57] 116 Cong. Rec. 17, 198 (May 27, 1970) (statement of Senator Alan Cranston). 

[58] Boyd, supra note 34, at 1290 n.8 (quoting U.S. Dep’t of the Interior, Conservation Yearbook No. 4: Man-An Endangered Species? 44 (1967)).

[59] Petersen, supra note at 27, at 22.

[60] Ernest Swift, National Wildlife Federation, By Which We Live 1,4 (1957).

[61] Id. at 15.

[62] Conservation, Protection, and Propagation of Endangered Species of Fish and Wildlife: Hearings on S. 2217 Before Merchant Marine and Fisheries Subcomm of the S. Comm. on Comm., 89th Cong. 38-39 (1965) (statement of Charles H. Callison, Assistant to the President, National Audubon Society). 

[63] Endangered Species Hearing, supra note 45, at 248, 299 (statements of Cynthia E. Wilson, National Audubon Society, and Tom Garrett, Wildlife Director, Friends of the Earth).

[64] Endangered Species Act, § 3(14) Pub. L. No. 93-205, 87 Stat. 885 (1973) (codified at 16 U.S.C. § 1532(19)) [hereinafter Endangered Species Act] (defining a taking as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct”).

[65] See Endangered Species Hearing, supra note 45, at 252 (statement of Cynthia E. Wilson, National Audubon Society).

[66] See, e.g., id. at 256, 269 (statements of Christine Stevens, Secretary, Society for Animal Protective Legislation, and Howard S. Irwin, President, New York Botanical Garden).

[67] Id. at 334 (statement of Robert C. Hughes, Chairman of the Sierra Club’s National Wildlife Committee).

[68] J. Baird Callicott has argued that the Endangered Species Act actually “falsifies” the Convergence Hypothesis. See J. Baird Callicott, The Convergence Hypothesis Falsified: Implicit Intrinsic Value, Operational Rights, and De Facto Standing in the Endangered Species Act, in Nature in Common? Environmental Ethics and the Contested Foundations of Environmental Policy 142, 142-166 (Ben A. Minteer ed., 2009). He stakes this claim on two fundamental premises: (1) that the Act is “clearly based on non-anthropocentric intrinsic values” and (2) that exclusively anthropocentric instrumental values would not have led to the same policy. Id. As demonstrated in Part II.A, premise (1) appears wrong on its face. Though Callicott concedes that “the values of endangered species explicitly stated in the ESA appear to be largely of the anthropocentric instrumental kind,” id. at 144, he claims that the Act’s conferral of “operational legal rights” on species—the right for any person to bring suit on behalf of any listed species—“implicitly recognizes their intrinsic value,” id. at 149. But this exactly proves the point: the Act is a single convergent policy that recognizes both the instrumental and intrinsic values of species. Moreover, his second premise relies on a definition of instrumental value much narrower than what Norton accounts for in his hypothesis. Callicott reduces these values to a monetary metric governed by strict cost-benefit analyses. See id. at 152-58. The convergence hypothesis was never meant to account for this strong anthropocentrism, so the fact that the Act does not reflect a policy that strong anthropocentrists would adopt is of no moment. See Norton, Convergence and Divergence, supra note 12, at 250-58. 

[69] Endangered Species Act, § 2(a)(1); see J. Baird Callicott, Explicit and Implicit Values, in 2 Endangered Species Act at Thirty 36, 39 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[70] There were takings allowances for scientific endeavors and a few other very minor instances. Endangered Species Act § 9, 10.

[71] Id. § 3 (excepting only pests presenting “an overwhelming and overriding risk to man”); see Frank W. Davis et al., Part 1: Conservation Goals, in 2 Endangered Species Act at Thirty 1, 3-5 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[72] Endangered Species Act § 7, 11(a)(1); see Brian Czech & Paul R. Krausman, The Endangered Species Act: History, Conservation Biology, and Public Policy 49-50 (2001).

[73] Endangered Species Act § 2(a)(3) (“These species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.”).

[74] Czech & Krausman, supra note 72, at 50.

[75] Kareiva et al., supra note 24, at 176.

[76] Lessons Learned Protecting and Restoring Wildlife in the Southern United States Under the Endangered Species Act: Oversight Field Hearing Before H. Comm. on Res., 109th Cong. 51 (Apr. 30, 2005) (statement of Ray Vaughan, Executive Director, WildLaw).

[77] Callicott, supra note 69, at 39.

[78] Endangered Species Act § 11(g).

[79] Id. § 11(a)(1).

[80] Coggins, supra note 51, at 320; Callicott, supra note 69, at 40.

[81] Steve Brown et al., Why Save Endangered Species: An Ethical Perspective, 2 Endangered Species: Technical Bulletin Reprint, no. 7, May 1985, at 1 (“Simply being listed as endangered or threatened is no guarantee that actions will be taken to preserve a species.”).

[82] See, e.g., Daniel J. Rohlf, Six Biological Reasons Why the Endangered Species Act Doesn’t Work-And What to Do About It, 5 Conservation Biology 273 (1991).

[83] J. Michael Scott et al., By the Numbers, in 1 Endangered Species Act at Thirty 16, 20 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[84] See, e.g., Holly Doremus, Lessons Learned, in 1 Endangered Species Act at Thirty 195, 197 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006); Scott et al., supra note 83, at 31; Kieran Suckling & Martin Taylor, Critical Habitat and Recovery, in 1 Endangered Species Act at Thirty 75, 75 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[85] Suckling & Taylor, supra note 84, at 76.

[86] Czech & Krausman, supra note 72, at 127.

[87] Dale D. Goble, Endangered Species Act, in Encyclopedia of Environmental Ethics and Philosophy 2009, at 302 (J. Baird Callicott and Robert Frodeman, eds.).

[88] See Michael J. Bean & Melanie J. Rowland, The Evolution of National Wildlife Law 234 (3d ed. 1997); Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. Colo. L. Rev. 277, 290-91 (1993). 

[89] See D. Noah Greenwald et al., The Listing Record, in 1 Endangered Species Act at Thirty 51, 61 (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).

[90] See Petersen, supra note at 27, at 119. 

[91] Id. at XI, 105.

[92] Davis, et al., supra note 71, at 4. 

[93] Petersen, supra note at 27, at IX-XI.

Adapting the Paris Agreement

Bonnie Smith

Bonnie Smith is the Staff Editor at the Vermont Journal of Environmental Law. This post is part of the Environmental Law Review Syndicate.

Introduction

For the first time in the history of international climate negotiations, adaptation has its own article in a legal text. Even more striking is that loss and damage, historically treated as a component of adaptation, does too. For many years, negotiations concerning adaptation and loss and damage have been contentious between developed countries, which prioritize mitigation over adaptation and loss and damage, and developing countries uniquely vulnerable to the impacts of climate change. Chronicling the controversial discussions and negotiations leading up to these monumental Paris Agreement articles reveals still-existing tensions between Parties to the Agreement. It also sheds light on negotiable points for future Conferences of the Parties (“COPs”).

Adaptation, mitigation, and loss and damage are three interconnected concepts pertaining to climate change. Defined simply, “adaptation” is the “adjustment of behaviour to limit harm, or exploit beneficial opportunities, arising from actual or expected climate change.”[1] In contrast, “mitigation” seeks to limit climate change, primarily by reducing greenhouse gas emissions.[2]  “Loss and damage” encompasses the costs associated with climate impacts that adaptation and mitigation cannot prevent.[3]  

This article will begin comparing the historical treatment of adaptation and loss and damage with mitigation in the context of international climate change negotiations. Then, the article will analyze the Paris Agreement’s treatment of adaptation and loss and damage.

I. The Fight for Parity

Prior to the Paris Agreement, the governing international climate agreements prioritized mitigation over adaptation and loss and damage. Adaptation was only a minor component of the United Nations Framework Convention on Climate Change (“UNFCCC”), which in Article 2 identified the Convention’s primary objective as “stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous interference with the climate system.”[4] Although the UNFCCC’s priority was mitigation, it acknowledged adaptation as a commitment in Article 4.[5] The Kyoto Protocol continued to prioritize mitigation by establishing greenhouse gas emissions-reduction targets for developed countries.[6]

In the five years leading up to COP21, developing countries prioritized achieving parity between adaptation and mitigation. The path to parity began in 2010 at COP16 in Cancun, Mexico when the Parties established the Cancun Adaptation Framework and the Adaptation Committee.[7] Notably, in the Cancun Adaptation Framework the Parties agreed, “adaptation must be addressed with the same priority as mitigation.”[8] The Parties advanced the Adaptation Framework at COP17 in Durban, South Africa in the decision by reaffirming the Adaptation Committee as “the overall advisory body to the Conference of the Parties on adaptation to the adverse effects of climate change.”[9] Building on the creation of the Cancun Framework, Parties solidified the placement of loss and damage at COP19 by creating the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (“WIM”) to serve as a loss and damage mechanism.[10]

Parity culminated at COP20 in two ways: 1) with negotiations over the required elements for Parties to include in their intended nationally determined contributions (“INDCs”), which were to be submitted prior to COP21; and 2) in the focus of the new agreement.[11] Predictably, developed countries maintained that the INDCs should focus solely on mitigation. Developing countries disagreed, and advocated to include adaptation, too.[12] Ultimately, developing countries prevailed, as evidenced by the COP20 decision text, which “[i]nvites all Parties to consider communicating their undertakings in adaptation planning or consider including an adaptation component in their intended nationally determined contributions.”[13] Parties also agreed that the new legal instrument to be developed at COP21 would address adaptation and mitigation “in a balanced manner.”[14]

Negotiations on loss and damage yielded little resolution at COP20. The decision’s introduction “welcome[d] the progress made” toward implementing the WIM, but Parties did not reach a consensus on how or even whether loss and damage should appear in the Paris Agreement.[15] The “Elements For a Draft Negotiating Text” in the draft decision’s Annex listed multiple options for the manners in which loss and damage may or may not be included in the Paris Agreement.[16]

II. Paris Agreement

At COP21, the Parties furthered parity by adopting the Paris Agreement, which treats mitigation, adaptation, and loss and damage more equally than ever before. Structurally, the Paris Agreement employs a combined top-down and bottom-up procedural approach, which inherently favors adaptation and loss and damage activities.

The Paris Agreement effectuates a country-driven process to achieve its goals. Adaptation by its very nature relies on country-driven processes. Because climate change affects individual countries in vastly different ways, appropriate adaptation actions differ among countries and consist of a broad array of specific actions.

Unlike the prior international climate treaties, the Paris Agreement’s process-focused articles on adaptation and loss and damage use differentiation to guide planning and policy implementation. Countries have differing vulnerabilities and abilities to respond to climate change. With differing dispositions toward climate change, it would be impractical to establish a global, quantitative adaptation or loss and damage goal. It would be equally impractical to delineate a uniform set of adaptation or loss and damage commitments. Relying on a bottom-up approach to address the location-specific areas of adaptation and loss and damage is most appropriate. Yet, this approach relies on a collective goal of support for these individual actions, which incorporates the top-down aspect of the combined approach.

This article looks beyond mitigation commitments and examines how the Paris Agreement’s adaptation and loss and damage provisions rely on differentiation to enable combined top-down and bottom-up approaches to Article 2’s global cooperation goals set by the UNFCCC and the COP. It describes the fundamental aspects of the Paris Agreement and the accompanying COP21 decision’s treatment of adaptation and loss and damage that allows parties to work toward a qualitative goal based on Parties’ unique vulnerabilities and abilities to respond to the impacts of climate change impacts.

Adaptation in the Paris Agreement

The Paris Agreement includes action on adaptation among the three goals that serve the Agreement’s purpose of “strengthen[ing] the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty.”[17] Later in the Agreement, Article 7 operationalizes this goal by specifically addressing the adaptive efforts Parties should make. With fourteen paragraphs, the adaptation article is the third-largest provision in the Paris Agreement—behind only mitigation, at thirty, and transparency, at fifteen.

These paragraphs focus on the need to approach adaptation collectively, even though specific adaptation needs vary from country to country. Where the Agreement is less detailed, COP21 decision paragraphs 41–46 provide greater specificity. But language confined to the decision does not carry the same legal force as the binding Agreement. Language in the decision influences the manner in which Parties can interpret the Agreement and also provides guidance for carrying out the Agreement’s objectives. Yet, because of its non-binding nature, language in the decision will likely require more negotiation at future negotiation sessions.

I. Global Goal & Challenge

Establishing a global adaptation goal was a serious source of contention among UNFCCC Parties.[18] Developing countries sought parity between mitigation and adaptation in this provision by establishing a nexus between the two concepts.[19] Developed countries opposed the global goal seeking to strengthen adaptation; they proposed no text.[20] Further complicating matters, the location-specific nature of adaptation created difficulties in formulating one unified global goal.  Adaptation needs vary widely from country to country and region to region, so agreeing on one common adaptation plan to address all Parties’ needs was not possible. Ultimately the Parties agreed to a global qualitative goal requiring all Parties to engage in their own, individual adaptation planning and implementation.  

Article 7 of the Paris Agreement begins broadly by framing the overarching “global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change.”[21]  The goal ultimately lies in promoting “sustainable development and ensuring an adequate adaptation response” in light of the temperature goal listed in Article 2 of the Agreement.[22] The adequacy of a country’s adaptation response will vary according its vulnerabilities to climate change and its respective ability to adapt to those vulnerabilities.

Article 7 “recognize[s] that adaptation is a global challenge faced by all with local, subnational, regional and international dimensions, and that it is a key component of and makes a contribution to the long-term global response to climate change to protect people, livelihoods and ecosystems.”[23] Importantly, the provision recognizes the needs for global cooperation even though adaptation is highly location-specific.

The principal of common but differentiated responsibilities and respective capabilities, although not named explicitly, is relevant to this provision. Common but differentiated responsibilities and respective capabilities is an important international environmental law principal dating back to the 1992 Earth Summit that expresses “the need to evaluate responsibility for the remediation or mitigation of environmental degradation based on both historical contribution to a given environmental problem and present capabilities.”[24]  It was a fundamental component of the UNFCCC and the Kyoto Protocol.[25] Developing countries advocated retaining this historical concept in the Paris Agreement, but were opposed by developed countries (historically the largest greenhouse gas emitters). Although common but differentiated responsibilities and respective capabilities is not expressly articulated in Article 7, the Paris Agreement does name it as a guiding principal in both the introduction and Article 2, which identifies the Paris Agreement’s overarching purpose and goals.

II. International and National Cooperation

Achieving the Paris Agreement’s global goal requires both international and national cooperation. Article 7 “recognize[s] the importance of support for and international cooperation on adaptation efforts.”[26] Yet, it does not impose mandatory commitments on Parties. The article instead states that Parties “should” engage in five enumerated actions pertaining to sharing policy-related information, strengthening institutional arrangements, assisting developing countries with adaptation planning, and generally improving adaptation actions. In addition to requesting all Parties undertake these efforts, Article 7 also “encourage[s]” the United Nations “to support the efforts of Parties to implement the [articulated] actions.”[27] Likewise, this language does not actually require the United Nations organizations to cooperate.

The Paris Agreement requires national cooperation from the Parties via national adaptation activities. Under Article 7.9, parties “shall, as appropriate, engage in adaptation planning processes and the implementation of actions, including the development or enhancement of relevant plans, policies and/or contributions.”[28] Such planning and implementation processes include actions related to adaptation actions, national adaptation plans, nationally determined prioritized actions, sustainability, and resilience building.[29] Allowing parties to establish their own adaptation actions in whatever way they deem appropriate allows differentiation to guide the national adaptation planning and implementation process.

Tracking the Parties’ national adaptation activities may prove difficult, however, due to non-binding reporting measures. Under the Paris Agreement, Parties “should” submit adaptation communications to a public registry.[30] The aspirational “should” does not require, but merely requests that Parties “submit and update periodically an adaptation communication.”[31] Thus, it is unclear whether this attempt at transparency will become widespread among the Parties. Although almost all parties submitted intended nationally determined contributions prior to COP21, they did not report on adaptation in a consistent manner.[32] Most developing countries included robust adaptation sections that detailed their needs and intended actions; however, most developed countries provided no adaptation information. Depending on Parties’ compliance and thoroughness with this request, adaptation communications could become a major topic of discussion at future COP events.

Article 7 designates help to developing countries in reaching their adaptation goals and requirements. Developing country parties are to receive “continuous and enhanced international support” for implementing adaptation plans, adaptation communications, and other measures.[33] Importantly, the Article does not indicate from whom or from where the support will come. But when read with Article 9 on finance, it is clear that developed countries will be the source of support. Pursuant to Article 9.1, “[d]eveloped country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation.”[34]

Planning and reviewing these national adaptation efforts will depend on each Party’s specific adaptation needs and ability to respond. Thus, differentiation is an important component of national activities.

III. Adaptation Needs and Mitigation Co-Benefits

Article 7.4 explains the co-benefits of adaptation and mitigation and stresses the importance of climate change adaptation, and in doing so further solidifies parity between adaptation and mitigation. The article states, “the current need for adaptation is significant and that greater levels of mitigation can reduce the need for additional adaptation efforts.”[35] Article 7 also refers to the financial aspects of adaptation. Specifically, that “greater adaptation needs can involve greater adaptation costs.”[36]

Significantly, Article 7 elevates mitigation and adaptation actions to the purview of all Parties to the Paris Agreement. Although mitigation reduces future climate risks, and adaptation addresses current climate change impacts, it is possible to create synergies between the two and “implement[t] climate policy options in a more cost-effective way.”[37] Article 7 can communicate to developed countries that increasing mitigation efforts can reduce the need and cost for future adaptation actions. To developing countries, the provision can acknowledge that implementing adequate adaptation measures can simultaneously affect mitigation.[38]

An introductory decision paragraph highlights the “benefits of ambitious and early action, including major reductions in the cost of future mitigation and adaptation efforts.”[39] Significantly, paragraph 52 of the decision states that developing countries’ financial support, which historically has been intended primarily for mitigation, should be allocated to “enhance the implementation of their policies, strategies, regulations and action plans and their climate change actions with respect to both mitigation and adaptation.”[40]  Unfortunately this financial instruction does not have the same binding effect as it would in the Agreement. Although developing countries secured language correlating adaptation and mitigation efforts in the Agreement, developed countries managed to incorporate the terms pertaining to finance, which ultimately enables these efforts, into the softer-law decision. Because of the non-binding placement of the language and the historical controversy surrounding allocation of funds, this financial-allocation language may be the subject of future negotiations.

IV. Governance

The Paris Agreement and COP21 decision paragraphs rely heavily on the Adaptation Committee for governance. Article 7.7 of the Paris Agreement calls for parties to take into account the current Cancun Adaptation Framework. COP21 decision paragraphs 41–46 provide more specific information on how to do so. These paragraphs predominantly direct the Adaptation Committee to review adaptation-related processes and make recommendations to the COP at the first meeting of the Parties to the Paris Agreement. The Adaptation Committee is an institutional arrangement under the Cancun Framework that was established at COP16 under the Cancun Agreements.[41] The Adaptation Committee’s purpose is “to promote the implementation of enhanced actions on adaptation in a coherent manner under the Convention.”[42]

The Adaptation Committee’s membership structure allows developing countries to be a driving force in adaptation governance. At COP17, the Parties decided that the Adaptation Committee will have sixteen members: two from each of the United Nations regional groups, one from a small island developing State (“SIDS”), one from a least developed country (“LDC”) Party, two from the Convention’s designated Annex I Parties (developed countries), and two from non-Annex I countries.[43] Thus, with a majority of seats, developing countries, particularly SIDS and LDCs, can wield significant influence in developing adaptation planning processes and policy recommendations for consideration by the COPs. For example, the Paris Agreement requires developing country Parties’ adaptation efforts to be recognized according to modalities “to be adopted” later.[44] COP 21 decision paragraph 41 delegates authority to the Adaptation Committee to develop these modalities.

The decision also delegates authority to the Adaptation Committee and other sub-bodies to work on adaptation finance matters, a priority area for developing countries. United Nations agencies and other financial institutions should communicate “climate-proofing and climate resilience measures” related to development assistance and climate finance programs.[45] The Adaptation Committee, the Least Developed Countries Expert Group, and other relevant institutions should recommend means of mobilizing adaptation support to developing countries and review “the adequacy and effectiveness” of adaptation support at the first meeting of Paris Agreement parties.[46] The decision also requests the Green Climate Fund, which pledged to support mitigation and adaptation equally, to expedite developing country support to assist their formulation and implementation of national adaptation plans.[47]

Yet, because these governance aspects pertaining to the Adaptation Committee appear in the decision, they are subject to change in the future. For this reason, it is likely adaptation governance, particularly of financial matters, will be a significant topic of negotiation at future COPs.

Loss and Damage in the Paris Agreement

The Paris Agreement is the first international agreement to explicitly address loss and damage, which the UNFCCC Parties have historically treated as a component of adaptation.[48] Adaptation and loss and damage function in tandem but are two distinct concepts.[49] The World Resources Institute explains that loss and damage arises from the “reality that there are some climate change impacts that cannot be adapted to—impacts that are so severe that they leave in their wake permanent or significantly damaging effects.”[50] Climate-related impacts associated with loss and damage include slow-onset events like ocean acidification, desertification, and sea level rise and also sudden extreme weather events like intense cyclones and flooding. These devastating impacts cause many types of losses, including those of lives, infrastructure, assets, ecosystems, and communities.[51]

Loss and damage in the Paris Agreement was one of the most controversial topics at COP21. Developed and developing countries debated whether to place loss and damage in the decision or the Agreement and whether to organize it as a component of adaptation or as a distinct, free-standing article. Faced disproportionately with losses of this kind, LDC parties and SIDS prioritized securing a place for loss and damage in the Paris Agreement, where its provisions would carry the full force of law. Concerned with being held liable for the costs associated with loss and damage in financially strained developing countries, developed countries strove to preclude loss and damage from appearing in the Agreement. They preferred loss and damage to appear exclusively in the decision, where its text would be nonbinding and more of a political statement.       

I. Distinct Article

Since COP14 in 2008, the Parties have disagreed on how to collectively address loss and damage. In drafting the Paris Agreement, the Parties were unresolved through to the penultimate draft as to whether loss and damage would receive its own article in the agreement, occupy a subordinate position within the Adaptation article, or be relegated to the decision. In the end, the Parties agreed to designate a distinct article of the Agreement to loss and damage.

Not only does loss and damage have its own article in the Paris Agreement, it has one of average length. With five paragraphs, article 8 on loss and damage is an average-sized article in the Paris Agreement.[52] These five paragraphs, along with decision paragraphs 47–51, focus mainly on acknowledging the importance of “minimizing and addressing loss and damage associated with the adverse effects of climate change”[53] and establishing the preexisting Warsaw International Mechanism as the official international governance mechanism under the Paris Agreement. Article 8 states that Parties “should” act cooperatively to address and minimize loss and damage associated with climate change.[54] It provides examples of “areas of cooperation and facilitation to enhance understanding, action, and support” with respect to loss and damage.[55] These examples include “early warning systems; emergency preparedness; slow onset events” and also “comprehensive risk assessment and management; risk insurance facilities . . . and resilience of communities, livelihoods and ecosystems.”[56]

A major area of contention between developed and developing country Parties was whether and how to address liability and compensation for loss and damage.[57] Liability and compensation language appeared first in the Agreement, but developed countries succeeded at pressuring the Parties to move this language to the decision.[58] With decision paragraph 51, Parties agreed that Article 8 “does not involve or prove a basis for any liability or compensation.”[59] The United States predicated its cooperation with other key aspects of the overall Agreement on the inclusion of this provision. This provision was a victory for developed countries concerned with being held liable for their heavy past and current greenhouse gas emissions. Developing countries were relieved to prevent its inclusion in the Agreement. Technically, though highly unlikely, a subsequent COP decision could modify this paragraph.

Article 8 differs from the adaptation and mitigation articles in that neither it nor its related decisions even hint at financing. How the Parties will pay for damages resulting from extreme weather or slow onset events remains unclear. The manner in which Parties will finance loss and damage planning measures also remains unclear. While the creation of a distinct article on loss and damage in the Paris Agreement concludes the debate on its proper placement, gaps in its treatment will spur future debate on adaptation-financing measures.

A. Governance Mechanism

The Parties selected the existing WIM to serve the agreement as the governance mechanism for loss and damage.[60] Based on the COP18 decision, at COP 19 the COP established the WIM and its Executive Committee as a means for continuing discussion and understanding of loss and damage.[61] But, it did so under the adaptation pillar of the UNFCCC agenda.[62] The WIM has three major functions: 1) promoting understanding of risk management; 2) strengthening communications among stakeholders; and 3) enhancing action and support.[63] An initial two-year work plan for the Executive Committee of the WIM was approved at COP20, but the WIM’s future beyond that two-year mark remained uncertain.[64] At COP21, the Parties agreed to anchor the two-year-old mechanism as the permanent governance structure for loss and damage. The agreement leaves open the possibility for the WIM to evolve over time to be “enhanced or strengthened as determined by” the Parties.[65] Thus, this young mechanism will likely be a topic of future negotiations.

The COP21 decision paragraphs cement the WIM’s governance role by requesting it carry out specific governance actions.[66] The Executive Committee should: establish comprehensive risk management strategies; create a task force for displacement issues related to the adverse impacts of climate change; and prepare annual reports.[67] Including language related to displacement was a pillar of developing countries’ loss and damage negotiation demands.[68] Ideally for developing countries, however, the issue of displacement and migration would have been incorporated into the WIM’s major action areas listed in Article 8.4 of the agreement.

Through dedicated efforts and compromise, both developed and developing countries succeeded at certain aspects of the loss and damage negotiations. Developing countries achieved a freestanding loss and damage article in the Paris Agreement that instilled the WIM as a permanent governing institution to promote best methods of approaching loss and damage. Developed countries, spearheaded by the United States, managed to achieve zero-liability language in the decision.

The Parties will evaluate the WIM’s efforts at COP22 in Morocco. There, the Parties will likely engage in negotiations and discussions concerning loss and damage financing, the WIM’s governance, and displaced populations.

Conclusion

The Paris Agreement’s treatment of adaptation and loss and damage reflect the Parties’ willingness to allow differentiation to guide national policy planning and implementation and also to grant adaptation greater parity with mitigation. Unlike mitigation, which can reach quantitative greenhouse gas emissions goals, adaptation and loss and damage require location-based and process-focused goals. The Paris Agreement’s procedural method of relying on differentiation to enable a combined top-down and bottom-up approach caters to the unique location-specific nature of adaptation and loss and damage.

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[1] European Parliament, The Paris Agreement: A New Framework for Global Climate Action 2 (2016), http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/573910/EPRS_BRI(2016)573910_EN.pdf  (last visited Apr. 10, 2016).

[2] Id.

[3] Id.

[4] United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc No. 102-38, 1771 U.N.T.S. 107 [hereinafter UNFCCC].

[5] Id. at art. 4.1(e).

[6] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998).

[7] Chronology-Adaptation Committee, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/7518.php (last visited Apr. 10, 2016).

[8] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Sixteenth Session, held in Cancun from 29 November to 10 December 2010, ¶ 2(b), U.N. Doc. FCCC/CP/2010/7/Add.1 (Mar. 15, 2011).

[9] Id. ¶ 92.

[10] Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php (last visited Apr. 12, 2015).

[11] Lima Call for Climate Action Puts World on Track to Paris 2015, U.N. Framework Convention on Climate Change (Dec. 14, 2014), http://newsroom.unfccc.int/lima/lima-call-for-climate-action-puts-world-on-track-to-paris-2015/; At COP17, the Parties established the Ad Hoc Working Group on a Durban Platform for Enhanced Action and mandated that it develop “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by 2015. U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Seventeenth Session, Held in Durban from 28 November to 11 December 2011, 2, U.N. Doc. FCC/CP/2011/9/Add.1, ¶ 2, Decision 1/CP.17 (Mar. 15, 2012).

[12] Outcomes of the U.N. Climate Change Conference in Lima, Ctr. for Climate & Energy Sols., http://www.c2es.org/international/negotiations/cop-20-lima/summary (last visited Apr. 12, 2016). They also advocated including finance, technology, and capacity building as fundamental INDC elements. Id.

[13] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twentieth Session, Held in Lima from 1 to 14 December 2014, ¶ 12, U.N. Doc. FCCC/CP/2014/10/Add.1 (Feb. 2, 2015).

[14] Id. ¶ 2.

[15] Id. at 2.

[16] Id. at 6.

[17] Paris Agreement, art. 2.1, Dec. 15, 2015, http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf. The Parties adopted the Paris Agreement on December 12, 2015, but it has not yet been ratified or entered into force. The signing period will open April 22, 2016 and it will enter into force once 55 countries accounting for at least 55% of global emissions deposit their ratification instruments. Historic Paris Agreement on Climate Change: 195 Nations Set Path to Keep Temperature Rise Well Below 2 Degrees Celsius, U.N. Framework Convention on Climate Change, http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/ (last visited Apr. 15, 2016).

[18] Chukwumerije Okereke et al., Options for Adaptation and Loss and Damage in a 2015 Climate Agreement 6 (unpublished) (Nov. 2014) (on file with the World Res. Inst.), http://act2015.org/ACT_2015_Options_for_Adaptation_and_Loss_&_Damage.pdf (last visited Apr. 12, 2016).

[19] Id.

[20] Id.

[21] Paris Agreement, supra note 17, at art. 7.1.

[22] Id.

[23] Id. at art. 7.2.

[24] Vito De Lucia, The Encyclopedia of the Earth, Common But Differentiated Responsibility (July 27, 2007, 11:01 AM), http://www.eoearth.org/view/article/151320/.

[25] Id.

[26] Paris Agreement, supra note 17, at art. 7.6.

[27] Id. at 7.8.

[28] Id. at art. 7.9.

[29] Id.

[30] Id. at art. 7.12.

[31] Id. at art. 7.11.

[32] Kathleen Mogelgaard & Heather McGray, With New Climate Plans, Adaptation Is No Longer an Overlooked Issue, World Res. Inst.  (Nov. 24, 2015), http://www.wri.org/blog/2015/11/new-climate-plans-adaptation-no-longer-overlooked-issue.

[33] Paris Agreement, supra note 17, at art. 7.13.

[34] Id. at 9.1.

[35] Id. at art. 7.4.

[36] Id.

[37] Synergies Between Adaptation and Mitigation, weAdapt, https://www.weadapt.org/knowledge-base/synergies-between-adaptation-and-mitigation (last visited Apr. 12, 2016).

[38] The Mitigation of Climate Change in Agriculture (MICA) Global Program, weAdapt (Dec. 14, 2012, 2:29 PM), https://www.weadapt.org/knowledge-base/synergies-between-adaptation-and-mitigation/mitigation-of-climate-change-in-agriculture-micca. Studies confirm that co-benefits of adaptation and mitigation exist “in the areas of low carbon development, climate-smart agriculture, water-energy-land nexus, bioenergy, [and] blue carbon.” Id.

[39] U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twenty-First Session, Held in Paris from 30 November to 13 December 2015 2, U.N. Doc. FCCC/CP/2015/10/Add.1 (Jan. 29, 2016) [hereinafter COP21 decision].

[40] Id. at 8.

[41] Chronology - Adaptation Committee, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/7518.php (last visited Apr. 12, 2016).

[42] Id.

[43] Members of the Adaptation Committee, U.N. Framework Convention on Climate Change http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/6944.php (last visited Apr. 12, 2016).

[44] Paris Agreement, supra note 17, at art 7.3.

[45] COP 21 decision, supra note 37, at ¶ 43.

[46] Id. ¶ 45.

[47] Id. ¶ 46.

[48] Kathleen Mogelgaard & Heather McGray, When Adaptation Is Not Enough: Paris Agreement Recognizes “Loss and Damage”, World Res. Inst. (Dec. 24, 2015), http://www.wri.org/blog/2015/12/when-adaptation-not-enough-paris-agreement-recognizes-“loss-and-damage”.

[49] Jorge Vinuales, The Paris Climate Agreement: An Initial Examination (Part II of III), Eur. Journal of Int’l Law Blog (Feb. 8, 2016), http://www.ejiltalk.org/the-paris-climate-agreement-an-initial-examination-part-ii-of-iii/.

[50] Mogelgaard, supra note 46.

[51] Id.

[52] Article 8 receives a comparable amount of treatment as Article 10 on technology development and transfer and Art. 11 on capacity building.

[53] Paris Agreement, supra note 17, at art. 8.1.

[54] Id. at art. 8.3.

[55] Id. at 8.4.

[56] Id. at art. 8.4.

[57] Ben Adler, Why the Words “Loss and Damage” Are Causing Such a Fuss at the Paris Climate Talks, Vox Energy & Env’t, http://www.vox.com/2015/12/9/9871800/paris-cop21-climate-loss-damage (last updated on Dec. 9, 2015, 9:00 AM).

[58] Id.

[59] COP21 decision, supra note 37, at ¶ 51.

[60] Paris Agreement, supra note 17, at art. 8.2.

[61] Chronology – Loss and Damage, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/workstreams/loss_and_damage/items/7545.php (last visited Apr. 12, 2016).

[62] Id.

[63] Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, U.N. Framework Convention on Climate Change http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php (last visited Apr. 12, 2016).

[64] Id.

[65] Paris Agreement, supra note 17, at art. 8.2.

[66] COP21 decision, supra note 37, at ¶¶ 48–50.

[67] Id.

[68] Saleemul Huq & Roger-Mark De Souza, Not Fully Lost and Damaged: How Loss and Damage Fared in the Paris Agreement, Wilson Ct.r (Dec. 22, 2015), https://www.wilsoncenter.org/article/not-fully-lost-and-damaged-how-loss-and-damage-fared-the-paris-agreement.

It is Time for Oregon to Define its Public Trust Duties

Olivier Jamin

Olivier Jamin is a 2L at Louis & Clark Law School and is the Online Journal Editor of Environmental Law. This post is part of the Environmental Law Review Syndicate.

I. Introduction

The public trust doctrine (PTD) is a concept under which states have the duty to preserve certain natural and cultural resources for the benefit of the public.[1] The PTD is a common law doctrine, and state courts around the country have spent the last three decades applying — and in some cases rejecting — it to a variety of natural resources.[2] For example, the New Jersey Supreme Court applied the PTD to beaches and shores,[3] the California Supreme Court applied it to navigable streams and their tributaries,[4] and the U.S. Supreme Court has held that states own fish and game within their borders on behalf of their citizens,[5] a position followed by many states.[6] However, the most traditional application of the PTD has been to tidal and submerged lands.[7] Oregon has been slow to develop its application of the PTD, as illustrates the lack of case law.[8] Professor Blumm explains that although Oregon courts have repeatedly announced broad public rights in all waters of the state, the courts have not addressed the PTD since 1979.[9] Last year however, the PTD was the topic of a circuit court opinion in Lane County that could mandate the Oregon Supreme Court to define precisely the extent of the doctrine in the state.[10] The decision is highly controversial as it constitutes one of the most restrictive approach to the PTD, as to its scope and duties. The plaintiffs, Kelsey Juliana and Olivia Chernaik, represented by Our Children’s Trust, a non-profit organization advocating for greater reduction of CO2 emissions, appealed the decision last summer,[11] gathering support from local law professors.[12] Because the decision gave an erroneous overview of the PTD in Oregon, the court of appeals, and possibly the Supreme Court should seize on this opportunity to clarify the scope of the doctrine in the state.

II. Summary of the decision

A. Background

The case dates back to 2011, when Plaintiffs (children and their families living in Oregon) filed an Amended Complaint for Declaratory Judgment and Equitable Relief against the State of Oregon and Governor Kitzhaber.[13] Plaintiffs alleged their personal welfare and wellbeing were directly dependent upon the state’s natural resources, including water resources, submersible lands, coastal lands, forests, wildlife, and the atmosphere.[14] According to the plaintiffs, these resources were being threatened by the state’s failure to regulate climate change and enforce adequate limitations on the levels of greenhouse gas emissions. They sought a declaration that “the atmosphere is a part of the public trust res and is therefore held in trust by the State for the benefit of the present and future citizens of Oregon.”[15] Plaintiffs also sought an order to force the state to implement a plan to reduce greenhouse gas emissions.

In October 2011, Defendants filed a motion to dismiss for lack of subject matter jurisdiction. The Lane County circuit court granted the motion. Plaintiffs appealed in July 2012, and the Court of Appeals reversed and remanded the case in June 2014. The Court of Appeals held the Plaintiffs were entitled to a judicial declaration of whether, as they allege, the atmosphere ‘is a trust resource’ that ‘the State of Oregon, as a trustee, has a fiduciary obligation to protect . . . from the impacts of climate change,’ and whether the other natural resources identified in plaintiffs’ complaint also ‘are trust resources’ that the state has a fiduciary obligation to protect.[16]

On remand, the court’s opinion and order provided a thorough overview of the PTD in Oregon and explained that the doctrine “is a matter of state law, subject to the federal power to regulate navigation under the Commerce Clause and admiralty power.”[17] The court’s opinion and order analyzed the scope of the PTD (i.e., the resources to which it applies), the state’s duties are under the PTD, and the applicable remedies where the state fails to carry out those duties.

B.  The Scope of the Public Trust Doctrine

The parties and the court agreed that “submerged and submersible lands are encompassed by the public trust doctrine, according to case law.”[18]

The court rejected Plaintiffs’ argument that “waters of the state” are encompassed by the public trust doctrine. According to the court, the public trust doctrine finds its source on the title transferred to the State of Oregon upon its admission to the Union, and the title transferred to the state was burdened with a public trust.[19] The court argued that “unlike submerged and submersible lands, title to navigable waters themselves did not pass to the State.”[20]

Similarly, the court rejected Plaintiffs’ argument that “beaches and shorelands” are encompassed by the PTD. The court relied on the absence of case law recognizing such a trust in Oregon, explaining that “Oregon’s public trust doctrine has not traditionally incorporated lands adjacent to but not underlying navigable waters.”[21]

Plaintiffs’ argument that the PTD encompasses “fish and wildlife” was also rejected. The court acknowledged that the protection of such resource was under the state’s police power authority, but concluded that courts “have always treated the public trust doctrine as distinct from the State’s police power authority.”[22] Accordingly, the PTD does not apply to “fish and wildlife.”[23]

Finally, regarding the atmosphere, the court questioned whether the atmosphere is a “natural resource.”[24] However, the court concluded that, even if the atmosphere were a natural resource, the PTD would not apply to it. Again, the court relied on the fact that “[u]nlike submerged and submersible lands . . . the State has not been granted title to the atmosphere” and that the atmosphere is not “exhaustible and irreplaceable” in nature.[25] The court then addressed the state’s obligations and duties under the PTD.

C.  The State’s Duties Under the Public Trust Doctrine

Although plaintiffs alleged in their complaint that the state has a fiduciary obligation to protect the atmosphere and other natural resources covered by the public trust from impairment, the court interpreted the state’s duties under the PTD more narrowly. The court held that the public trust doctrine merely prevents the state “from entirely alienating submerged and submersible lands under navigable waters.”[26] To support this holding, the court relied on Morse v. Oregon Division of State Lands.[27] There, the Supreme Court of Oregon held that the state has sovereignty over submerged and submersible lands and a right to use or dispose of any portion thereof, “when that can be done without substantial impairment of the interest of the public in such waters.”[28] Although it is true that Oregon has not clearly recognized a fiduciary obligation to protect natural resources encompassed by the public trust, the court’s definition of the state’s duties seems narrower than the holding of Morse. Specifically, the court in Morse did recognize that “the severe restriction upon the power of the state as trustee to modify water resources is predicated not only upon the importance of the public use of such waters and lands, but upon the exhaustible and irreplaceable nature of the resources and its fundamental importance to our society and to our environment.”[29] The language used in Morse seems to go further than a simple restriction on alienation.

D.  The Remedy for a State’s Failure to Fulfill its Public Trust Duties

Regarding remedies, Plaintiffs asked the court to declare that Defendants have failed to protect the atmosphere from climate change, and to compel Defendants to address the impact of climate change by reducing GHG emissions in a specific amount over an established timeframe.[30] The court concluded the remedies sought by Plaintiffs would have intruded on the separation of powers. The court explained: “whether the court thinks global warming is or is not a problem and whether the court believes the legislature’s GHG emission goals are too weak, too stringent, or are altogether unnecessary is beside the point. These determinations are not judicial functions. They are legislative functions.”[31] The court concluded that providing relief beyond a declaratory judgment as to the scope of the public trust doctrine and the state’s duties under the doctrine would violate the separation of powers doctrine. According to the court, even if it were to declare that the PTD imposed new obligations on the state, the declaration itself would provide a sufficient remedy. That is, once the new duties were declared, the court would simply assume that the state would comply with the new law, without need for further remedies.[32]

II. The Decision Misunderstood the Public Trust Doctrine.

The heart of the case was to decide whether the PTD applied to the atmosphere in Oregon and if so, what duties fell upon the state to protect it. Additionally, Plaintiffs asked the court to recognize water resources, navigable waters, submerged and submersible lands, islands, shore lands, coastal areas, wildlife and fish as trust resources. The court took a very narrow approach regarding the scope, the state’s duties, and the remedy under the PTD. The court provided very limited analysis to support some of its conclusions, and in many instances, relied only on the fact that no Oregon court had previously recognized a specific resource as being subject to the PTD. However, the absence of a previous Oregon case on point does not necessarily mean the PTD is as narrow as the court concluded. Particularly, the court’s conclusion that the waters of the state and beaches and shorelands are not subject to the PTD is questionable to say the least. The justification that the atmosphere is not a trust resource because it is not “exhaustible and irreplaceable” in nature is a point that will be addressed on appeal.[33]

Most coastal states have held that the PTD applies to beaches, and the reasoning of the court, that “Oregon cases have not clearly recognized it,” is not a strong one. In New Jersey for example, courts have recognize that the PTD applies to beaches, and that the “public must be given both access to and use of privately-owned dry sand areas as reasonably necessary.”[34] In California, courts have long recognized that the PTD “protects navigable waters from harm caused by diversion of nonnavigable tributaries,”[35] and that it is an “affirmation of the duty of the state to protect the people’s common heritage” of these waters.[36] The decision, however, does not mean that there is no public access to the Oregon coast, since the Oregon Supreme Court recognized such access, but based on the doctrine of custom.[37]

Similarly, when analyzing the state’s duties under the public trust doctrine, the court might have taken an unnecessary narrow stance by limiting them to a “restraint from entirely alienating submerged and submersible lands under navigable waters.” The Court of Appeals of Oregon held that “that doctrine provides that submerged and submersible lands are preserved for public use in navigation, fishing and recreation. The state, as trustee for the people, bears the responsibility of preserving and protecting the right of the public to the use of the waters for those purposes.”[38] It seems that although it is not clear what affirmative duties the Court of Appeals imposed on the state in that case, it goes further than a restraint for complete alienation.

Our Children’s Trust released a press article immediately after the decision, criticizing the judgment. Michael Blumm, professor of law at Lewis and Clark Law School, was quoted in the press release:

The decision handed down today is a crabbed interpretation of the state’s public trust doctrine. Judge Rasmussen’s opinion is founded on erroneous notions of the state’s fiduciary responsibilities for natural resources it clearly owns in a sovereign capacity, like water and fish and wildlife. Moreover, the opinion’s questioning of whether the atmosphere is a natural resource because the state doesn’t hold title to the air – allegedly due to the fact that the atmosphere is not a tradable commodity – ignores the fact that pollution rights in the atmosphere are indeed traded every day under several programs, including those regulating acid rain, nitrogen oxide, and interstate emissions. One hopes that the Court of Appeals will once again correct Judge Rasmussen’s errors.[39]

Counsel for Plaintiffs already appealed the decision, and the case should be decided during the fall of 2016.[40] The court’s decision to reach a very narrow interpretation of the scope and duties of the PTD makes the opinion vulnerable to another reversal (or partial reversal) by the Oregon Court of Appeals. The decision that “waters of the state” and “beaches and coastal lands” are not protected is particularly vulnerable, as well as the restrictive view of the state’s duties under the PTD. Given the fundamental role that the PTD plays in the protection of our natural resources, environmental groups in Oregon should pay special attention to what the court of appeals will say about this case. Beyond these environmental concerns, the Oregon courts should seize on the opportunity offered to them to finally clarify and delimitate the scope of the PTD and the state’s duties under the doctrine.

---

[1] The late Joseph L. Sax, the most influential public trust doctrine scholar, is often celebrated for shedding light on the PTD. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).

[2] Richard M. Frank, The Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future, 45 U.C.D. L. Rev. 665, 671 (2012).

[3] Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J. 1984)

[4] Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709 (Cal. 1983) [hereinafter Mono Lake].

[5] Geer v. Connecticut, 161 U.S. 519, 529 (1896).

[6] Ex parte Maier, 37 P. 402, 404 (Cal. 1894); Owichek v. State Guide Licensing Bd., 763 P.2d 488, 495-496 (Alaska 1988); Wade v. Kraemer, 459 N.E.2d 1025, 1027-29 (Ill. App. Ct. 1984); Commonwealth v. Alger, 61 Mass. 53, 98 (1851).

[7] Frank, supra note 2.

[8] Michael C. Blumm & Erika Doot, Oregon’s Public trust Doctrine: Public Rights in Waters, Wildlife, and Beaches, 42 Envt’l L. 375, 378 (2012).

[9] Id. at 377, n. 7; Morse v. Or. Div. of State Lands, 590 P.2d 709, 713–14 (Or. 1979).

[10] Chernaik v. Brown, Case No. 16-11-09273 (Or. Lane County, May 11, 2015), available at https://ourchildrenstrust.org/sites/default/files/15.05.11.OregonCircuitCtOpinion.pdf.

[11] Our Children’s Trust, Oregon Youth File Critical Appeal In Their Climate Change Lawsuit, July 7, 2015, available at http://ourchildrenstrust.org/sites/default/files/15.07.07OregonAppealPR.pdf.

[12] Michael C. Blumm, Mary C. Wood & Steven M. Thiel, The Oregon Public Trust Doctrine and Atmospheric Greenhouse Gas Pollution: A Law Professors’ Amicus Brief, Feb. 1, 2016, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2720012.

[13] Amended Complaint for Declaratory Judgment and Equitable Relief, Chernaik v. Kitzbhaber, Case No. 16-11-09273, May 19, 2011.

[14] Id. at 2.

[15] Id. at 15.

[16] Chernaik v. Kitzhaber, 263 Or App 463, 481 (2014).

[17] Chernaik v. Brown, at 8.

[18] Id. (citing Cook v. Dabney, 70 Or 529, 532 (1914)).

[19] Id. at 9.

[20] Id.

[21] Id. at 10.

[22] Id.

[23] Id.

[24] Id. at 10–11.

[25] Id. at 11–12.

[26] Id. at 13.

[27] 285 Or 197 (1979)

[28] Id. at 201–02.

[29] Morse v.Oregon Division of State Lands, 34 Or. App. 853, 859–60 (1978).

[30] Chernaik v. Brown, at 15.

[31] Id. at 17.

[32] Id. at 13, n. 10.

[33] See Blumm, Wood & Thiel, supra note 12.

[34] Matthews, 471 A.2d at 365.

[35] Mono Lake, 658 P.2d at 721.

[36] Id. at 724.

[37] State ex rel. Thornton v. Hay, 254 Or 584 (1969). Oregon statutes also recognize access to the beach. 

[38] Oregon Shores Conservation Coalition v. Oregon Fish and Wildlife Com’n, 62 Or App 481, 493 (1983).

[39] Our Children’s Trust, Court Questions Whether Atmosphere is a “Natural Resource”, May 11, 2015, available at http://ourchildrenstrust.org/sites/default/files/2015.05.11OregonDecisionPR.pdf.

[40] Our Children’s Trust, Oregon Youth File Critical Appeal in Their Climate Change Lawsuit, July 7, 2015, available at http://ourchildrenstrust.org/sites/default/files/15.07.07OregonAppealPR.pdf.

Towards a Middle Path: Loss & Damage in the 2015 Paris Agreement

Maryam Al-Dabbagh

Maryam Al-Dabbagh is an L.L.M student in Environment & Energy Law at New York University School of Law and is the Graduate Editor of the NYU Environmental Law Journal. This post is part of the Environmental Law Review Syndicate.

Introduction

In the lead-up to the Paris talks, the issue of loss and damage (L&D) was portrayed to be one of the biggest hurdles in the quest for an agreement. L&D had already suffered multiple drawbacks in previous talks, such as the mass walkout by G-77 countries at COP19 in Warsaw in protest of the response by developed countries to their demands for L&D.[1] Surprisingly, no similar issues occurred in Paris; instead, the agreement articulated a middle path between the seemingly divergent aims of developing and developed countries. This paper will trace that path through an analysis of the L&D articles of the agreement, and set forth the headway as well as the challenges that should be expected in coming years.

Defining Loss & Damage

The first triumph for developing countries on the L&D front in Paris was the fact that L&D was dedicated its own Article, Art. 8 of the Agreement, and was recognized as separate from adaptation. Developed countries had originally pushed for L&D to be slotted under the latter framework, which was where the Warsaw International Mechanism for Loss and Damage had been placed in 2013, to the consternation of developing countries.[2] This new placing demonstrates the fact that loss and damage is finally seen as on par with mitigation and adaptation, which have long been pillars of the climate regime under the UNFCCC, and is an important political statement on recognition of its acknowledged status on the world stage of climate negotiations.[3] This recognition is set out in Art. 8.1 of the agreement: “Parties recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage.”[4]

To understand exactly what is meant by the term, it is important to note that ‘loss’ and ‘damage’ should not be conflated with one another. ‘Loss’ refers to negative climate change-induced impacts that are beyond repair and cannot be restored, such as glacial melt leading to a loss of freshwater resources; ‘damage’ indicates repairable impacts that can be restored, such as building damage following a cyclone.[5] L&D also includes negative effects that can be reduced, but not entirely avoided, through adaptation.[6] Essentially, L&D is a ‘post-adaptation problem’, where mitigation and adaptation have not been adequate to avoid negative climate change impacts. The insistence of vulnerable countries on the inclusion of L&D on its own as a ‘red line’ throughout the Paris negotiations reflects realistic forecasts for what they will have to confront as part of an unpredictable future.[7] These concerns were acknowledged by cementing L&D in Art. 8. Another important issue for vulnerable countries was to reinforce and clarify the place of the Warsaw International Mechanism (WIM) within the agreement.

The Role of the Warsaw International Mechanism

In the Paris Agreement, Art. 8 and Art. 48 solidify the continuation of the WIM’s role following its review in 2016. This role was originally set out in its 2014 workplan, which emphasizes the importance of gathering information and developing expertise on issues relevant to L&D—particularly problems such as slow-onset events where not much experience has been developed, and where collaboration and communication among stakeholders will be especially key to developing innovative solutions in future.[8] Thus, the WIM’s role is somewhat limited, stopping short of offering any measures through which to provide concrete support, or any means through which its proposals can be implemented. Prior to the Paris negotiations, this led to calls by some countries to either reenergize the WIM’s mandate by expanding it through increasing support, and including alternative approaches and paradigms, or to replace it with a new mechanism.[9]

Neither of these approaches materialized. Instead, as is true for the way L&D was treated in the Paris agreement as a whole, a middle path emerged: a reiteration of the WIM’s initial goals as expressed in its original workplan, while also including elements of what developing countries had requested in their proposal prior to the agreement. Articles 8.3 and 8.5 restate the necessity of cooperation among parties to deal with the effects of L&D, whether among themselves or with other relevant organizations and bodies, whether under the Agreement or outside of it. Art. 8.4 specifies certain areas where coordination will be necessary under the WIM, such as emergency preparedness related to sudden weather disasters, slow onset events, risk management and insurance, and non-economic loss and community resilience.[10] Each of these areas poses challenges, and the WIM’s assistance will be invaluable to vulnerable countries in confronting them.

The WIM and Disaster Events

For sudden weather disasters, the agreement lists emergency preparedness and early warning systems as areas of cooperation for Parties. As the WIM’s workplan states, this involves a cooperative assessment of the capacity of risk management systems for emergency preparedness, reducing risks through anticipatory action, and increasing resilience following such disasters during the process of rebuilding and rehabilitation.[11] Countries worldwide have had a good deal of experience in dealing with such disasters, and there are best practices that can be duplicated and implemented where needed.

A greater challenge lies in dealing with largely unprecedented issues such as slow-onset events, which is why the WIM’s workplan focuses mainly on sharing knowledge and improving access to information.[12] Another major challenge in assessing the adverse impacts of slow-onset disasters such as extreme drought, sea level rise and glacial melt, or attempting to mitigate them by preparing beforehand, is that they often do not show highly visible impacts but rather produce large, indirect losses with impacts spread out over large areas.[13] Scholars have noted the need to combat slow onset events by convening multilateral funding agencies to develop different, new and innovative financial measures that can help countries deal with L&D.[14]

The WIM and Risk Management

Risk management and assessment plays an important role in L&D, as it does for many other environmental issues, and the workplan stresses the importance of enhancing and developing measures such as insurance, and encouraging institutions to incorporate them as part of development projects and investment criteria. Regional risk management platforms, such as the Caribbean Catastrophe Risk Insurance Facility,[15] have proven to be adept at dealing with L&D-related challenges, since members all regularly face the same form of disaster risk. These regional platforms might pave the way for an eventual ideal solution: an international climate risk insurance facility which would substantially diversify the risk of L&D from extreme weather events, lower the costs of managing risks, and guarantee the delivery of support in a timely and targeted manner once disaster does strike.[16]

However, there are multiple drawbacks to the usage of insurance that prevent it from being considered the optimal financial measure for risk management in addressing L&D. For one, as mentioned earlier, the high level of risk for issues such as sea level rise would translate into prohibitively costly premiums for countries that may not be able to afford it,[17] and a regional platform may not be able to avail all the costs. Additionally, insurance is not a solution that can be used for all forms of L&D; its usage is customarily restricted to short-term, high-impact, extreme weather disasters.[18] Slow-onset events, which develop over the long term, present risks that are open-ended and difficulty to quantify, which has not traditionally proven popular with insurers. The same drawbacks also apply to customary financial mechanisms such as catastrophe bonds. As such, alternative financial mechanisms and tools should also be developed under the WIM.

In coming years, the role of the WIM will only grow more important, as the world begins to feel the effects of L&D more acutely. The question of whether the WIM itself is going to require further, more fundamental reformation will be up for review in 2016. If past experience indicates anything, it is that the voices of developing countries are being heard more and more, and thus it would not be surprising if their vision for a more involved, hands-on, action-oriented WIM comes to pass as part of the next agreement’s middle path. The history of the WIM is essentially one of initial foot-dragging on the part of developed countries, which eventually acquiesces to the stronger moral case made by vulnerable countries. This acquiescence was nowhere to be found on the subject of liability and compensation.

Liability and Compensation in the Agreement

Long one of the most controversial issues surrounding L&D, this issue was seemingly permanently settled by Art. 52 of the decision text, which reads: “Agrees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.” Developed countries had insisted on the explicit exclusion of linking loss and damage to liability and compensation, in return for anchoring L&D into the agreement.[19] The bespoke reluctance of developed countries to embrace L&D, based on their rejection of liability and compensation, was described as “creating a bogeyman that does not exist”,[20] given the fact that developing countries had removed any reference to those principles from their submitted text prior to the beginning of the Paris climate negotiations. Some took the inclusion of this clause as a failure for vulnerable countries, betraying their legal rights to compensation for the sake of a hollow compromise.[21]

The question yet to be resolved is whether or not any legal rights do in fact exist. The basis for any claims of L&D compensation would have been grounded in the principle that states should be held responsible for any violation of an international obligation.[22] Therefore, the first step is to determine whether or not cutting GHG emissions should be considered such an obligation on high-emitting states, the violation of which would function as a trigger for liability under standard principles of customary international law, or the text of any international treaties.[23]

Liability in Customary International Law

It has been well established by science that 63 percent of global GHG emissions from 1800 to 2005 have been contributed over the years by just seven of the top emitting countries: the US, China, Russia, Brazil, India, Germany and the United Kingdom, and 82 percent of GHG emissions are the responsibility of the top twenty emitters.[24] Claims of compensation for climate change damages would be based on acknowledging the historical responsibility of such states for significantly contributing to the causes of climate change. Specific principles of international law that have been cited to support these claims include the no-harm rule and the polluter-pays principle.

Under the no-harm rule, considered the main norm under customary international law that is applicable to climate change, each State is obligated to prevent, reduce and control the risk of environmental harm to other states.[25] In order to be held liable, two conditions must be met: that the offending state has inflicted a serious amount of harm on the injured state, and that the offending state has through its actions failed to adhere to a required standard of care through negligence.[26]

States may be held negligent for failing to act upon their knowledge of the harm caused by climate change, amid growing consensus in the scientific community surrounding its anthropogenic causes.[27] However, the no-harm rule also requires balancing the offending state’s technical and economic capabilities against the damage inflicted on the injured state.[28] Determining this appropriate balance is where subjectivity becomes involved, since it weighs the territorial sovereignty of one state against the territorial integrity of another, making application of the no-harm rule controversial.[29] It is therefore unlikely that the no-harm rule would lead to any conclusive findings of liability for which emitting states would be obliged to pay compensation.

The polluter-pays principle mandates that polluters should bear the costs of compensating for the damage they cause to the environment and/or to human health,[30] therefore obliging polluters to account for the externality of the pollution they cause.[31] This would provide a convenient basis for those seeking compensation for L&D damage from historical emitters of GHGs (“polluters”). However, the main problem with attempting to use this principle in the context of climate change is the simple fact that, in the normative context, “polluters are discrete entities, their legal negligence is well-documented, and losses and damages can be clearly attributed to wrongdoing.”[32] This is not the case for climate change; the complex interconnectedness between GHG emissions and industrialization in practically every sector and nation in the world renders a clear-cut accounting of responsibility practically impossible. In the global commons, no one ‘herdsman’ can be held completely responsible, and therein lies the tragedy.

In the end, although the aforementioned principles are based on established theories of customary international law, the fact that international interstate climate change litigation remains hitherto unexplored territory leaves the outcome of any violations of such principles ultimately uncertain, yet unlikely to result in liability.

Liability in International Treaties

When it comes to obligations established by international treaties and agreements, Principle 13 of the Rio Principles established during the first Earth Summit in 1992 reads that “states shall co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.”[33] However, no legal action has been based on this principle, whose explicit meaning does not seem to establish a distinct legal obligation. Attempts to establish liability based on UNFCCC Art. 4, which places climate change-related commitments on different countries, would also probably fail to provide a concrete basis for setting obligations that would bring about compensation claims. This is due to the vagueness of the requirements placed on countries to “mitigate climate change” under Art. 4(1). Although Art 4(2) is more precise, it applies only to Annex 1 countries, leaving out major emitters such as China and India.[34] This imbalance between the obligations placed on countries was a drawback of the Kyoto Protocol that minimized its effect, and would not constitute a viable basis for liability.[35]

Liability in the Real World

Beyond the legal difficulties, there are further drawbacks regarding the realistic outcomes of such attempts: the problem of disaster attribution, uncertainty regarding the appropriate form and procedure for issuing such compensation, and—most of all—the sheer political unfeasibility of such actions, due to the lack of an international sovereign.

First, developed countries rejecting liability often cite the fact that scientists cannot yet conclusively attribute certain events or L&D to climate change, given the high uncertainty associated with the contested accuracy of climate models and mechanisms currently used,[36] and the lack of good traceability measures.[37] Attributing specific weather events to climate change is already challenging, due to the disproportionate relationship between the intensity of hazards and impacts of disasters. Connecting the impact and damage that result from such events is exponentially more complicated, because of the complexity of the interactions involved.[38] Producing statistically significant trends is also practically impossible, given the scarcity of available data on historical weather-related disasters.[39]

Second, procedural and technical issues surrounding the likely form of climate change compensation also present a challenge to any injured countries. Reparations are typically made up of an apology, compensation and a guarantee of non-repetition.[40] Putting aside the fact that an apology would be politically unpalatable for the majority of high-emitting countries, questions remain regarding how the compensation should be calculated, and what form it would take. Additionally, which court would have the appropriate jurisdiction?[41]

For the foreseeable future, these vital questions will remain unanswered. Because even if, theoretically, countries could be found liable for their emissions of GHGs under international law, and the issues of attribution and calculating compensation could be solved, and an appropriate venue could be selected, and a judgment was finally issued, enforcement remains elusive. There is a distinct probability that after that entire process, any countries found liable could simply ignore any outcome. Countries would be highly wary of allowing the Pandora’s box of liability to be opened. From colonialism to slavery, considering historic responsibility for damages wrought throughout the centuries might bring about an untold number of claims, and an enormous amount of damages, that would never be politically acceptable or economically feasible to pay.

Therefore, due to the lack of an international sovereign to ensure enforcement of such a judgment, countries could never be held truly accountable. No matter the underlying principles involved, to claim otherwise simply ignores the realities of imbalanced political power. Powerful, industrialized developed countries that are historically responsible for the vast majority of emissions prove as much by their assertions that demands for compensation are of mere moral character, and have no place in the negotiations. They emphasize that L&D should focus on building capacity to deal with risk,[42] and otherwise addressing the negative effects of climate change in a non-adversarial way.[43]

Future Implications of Art. 52

Regarding the legal outcome of Art. 52 of the Paris Agreement’s decision text, it should be noted that Art. 52 does not provide a completely conclusive justification for banning all future liability/compensation attempts by vulnerable countries. The closest equivalent to this clause is its opposite, stating the lack of exclusion of their rights for holding states responsible for climate change, submitted by four small island states, Fiji, Kiribati, Nauru, and Tuvalu upon signing the UNFCCC: “Understanding that signature of the convention shall in no way constitute a renunciation of any rights under international law concerning state responsibility for the adverse effects of climate change and that no provisions in the convention can be interpreted as derogating from the principles of general international law.”[44] Since there have been no meaningful precedents of action taken under these clauses, their effectiveness remains questionable.

Also significant is Art. 52’s location in the decision text, a section of the Paris deal that is not legally binding.[45] This brings about considerable ambiguity in terms of whether the clause shields conceivably culpable states from the long-term effects of their actions. One somewhat convoluted argument is that by mentioning liability and compensation at all, high-emitting countries have implicitly accepted responsibility for taking action to avoid the most disastrous outcomes of climate change, opening the door for claims in the future. Should worst come to worst and the displacement of millions is in the balance, affected countries might “take it to an international forum, and the gloves come off”.[46] This outlook acknowledges the political reality that state-versus-state cases were never meant to come about in the short term. Any future litigation would likely only be the result of a last-ditch measure of desperation by countries facing imminent obliteration, such as islands disappearing beneath rising seas.

Overall, whether or not the Paris agreement truly excluded liability and compensation as a possible option for developing countries to pursue, it does not appear to be a feasible option in the foreseeable future to obtain the help they need. One of the most important factors to consider when discussing effective ways of addressing L&D is that much of what constitutes L&D simply cannot be addressed holistically by merely demanding money to throw at the problem, and so liability and compensation would not fully address the issue. A more acceptable and, arguably, more effective multilateral basis for concretely addressing L&D is through a framework of solidarity and collective responsibility.[47] Developed countries could provide support through both funding and non-monetary assistance with coping capacity, under the WIM’s mandate.[48] One such example might be providing long-term loans at low interest rates to developing countries to advance GHG-friendly development, as recently suggested by an Indian official.[49] Whether developed countries will actually follow through on their promises to provide such support remains to be seen.

Beyond State v. State Liability

Apart from the possibility of interstate legal action, pursuing L&D relief through liability is still a very real option. On a case-by-case basis, involving entities whose culpability is more readily established than the vast, radical uncertainty surrounding sovereign countries’ liability to one another, such pursuits have gained considerable momentum over the past several years. This applies both nationally, such as in cases of individual citizen suits against governments to bring about concrete action on climate change, and globally, such as pursuing corporate liability.

Examples of the first instance include the Urgenda case in the Netherlands. A citizen’s platform successfully brought a claim against the Dutch government for failing to discharge its duty of care to protect its people from the effects of climate change. The judge issued a ruling that mandated bringing emissions reductions of at least 25 percent below current rates.[50] Another example is the Leghari case, where a farmer brought a case against the government of Pakistan for failing to implement its climate change strategy, resulting in the court ordering the establishment of a new climate change commission. More citizen lawsuits have been filed in quick succession based on the success witnessed in these cases, including in Belgium, Australia, and the state of Washington in the US.[51]

Corporate Climate Liability

A number of cases are currently being litigated that question the liability of corporations, arguably inspired by the 1990s crackdown on tobacco companies for damages to public health and welfare. Greenpeace Southeast Asia is currently preparing a suit to be brought in front of the Philippine Commission for Human Rights, against a number of high-profile fossil fuel producing corporations that profit from climate change-inducing energy, such as Gazprom, Glencore Xstrata and Exxon Mobil.[52] Another case involves a Peruvian farmer suing German energy giant RWE, requesting it to pay 0.47 percent of the estimated project cost to protect a valley threatened by a melting glacier, based on proportional liability for RWE’s 0.47 percent share of world emissions between 1751-2010.[53]

 Another option would be to follow the example provided by the International Oil Pollution Compensation Fund, founded under the 1969 International Convention on Civil Liability for Oil Pollution Damage. The Fund provides relief to parties who have suffered pollution damages from oil spills, and who then claim compensation.[54] These funds are financed through a fee levied on entities that purchase more than a certain amount of crude oil in a year. Thus, to obtain the funds needed to address L&D, a similar convention could be enacted to levy a fee on polluters that would be funneled into an L&D fund that would provide relief for countries or parties suffering from L&D.

This latter solution would circumvent some of the challenges involved in the calculation of an appropriate amount of L&D compensation in the case of corporate liability. Both cases mentioned do not provide concrete amounts of compensation; the RWE case asks for a largely symbolic amount based on proportional liability that would provide for only a fraction of a percentage of what is needed. Civil liability cases can provide for only a limited amount of funds, and it is clear that the need for funds that are required in order to effectively address L&D is only going to increase. Therefore, measures such as the IOPCF seem to provide a useful blueprint on holding corporations monetarily accountable for negative outcomes resulting from their core businesses.

Conclusion

This paper attempted to sketch a picture of the way that the recent Paris negotiations addressed the issue of L&D; its definition, the role of the WIM, liability and compensation, and alternative options, all through the lens of how a middle path between developed and developing countries emerged in search of common ground to facilitate the eventual agreement. Over the years, the failures that have manifested time and time again in climate negotiations have been chalked up to the seemingly impossible rift that has opened up between both blocs. From Kyoto to Copenhagen, this insurmountable hurdle could not be cleared, and it led to years of stagnation that only resulted in exacerbating the problem of climate change for everyone involved.

While Paris was by no means an entirely balanced agreement, the method in which the issue of L&D was addressed provided a blueprint for how both blocs must push forward, in a spirit of collegial cooperation, not mutual sabotage. With untold numbers of lives hanging in the balance, they were able to put together an agreement that exemplified the necessary compromise. The middle path was simply the best option for both, which was why it materialized. Continuing on this middle path will be necessary in order to avoid a tragic outcome for the ultimate commons.

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[1] Vidal, J. (2013) ‘Poor countries walk out of UN climate talks as compensation row rumbles on’. The Guardian. http://www.theguardian.com/global-development/2013/nov/20/climate-talks-walk-out-compensation-un-warsaw

[2] Okereke, C., Baral, P., and Dagnet, Y. (2015) ‘Options for Adaptation and Loss & Damage in a 2015 Climate Agreement’. ACT 2015 Working Paper. http://act2015.org/ACT_2015_Options_for_Adaptation_and_Loss_&_Damage.pdf

[3] Carbon Brief (2015) ‘Analysis: The final Paris climate deal’. Carbon Brief.  http://www.carbonbrief.org/analysis-the-final-paris-climate-deal

[4] Paris Agreement (2015) FCCC/CP/2015/L.9. http://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf

[5] Kakakhel, Kashmala (2012) ‘Loss and Damage – From Defining to Understanding to Action’. Climate & Knowledge Development Network.

[6] In Decision 2/CP.19 (2013), the Parties acknowledged that “loss and damage associated with the adverse effects of climate change includes, and in some cases involves more than, that which can be reduced by adaptation”.

[7] Pacia, S. (2015) ‘COP21: PH will not cross ‘red line’ on loss and damage’. Philippine Daily Inquirer. http://newsinfo.inquirer.net/746590/cop21-ph-delegation-loss-and-damage-red-line

[8] UNFCCC (2014) WIM two-year workplan-18 September 2014. [Online] http://unfccc.int/files/adaptation/cancun_adaptation_framework/loss_and_damage/application/pdf/workplan_18sept_11am.pdf

[9] Schäfer, L., & Kreft, S. (2014). Loss and Damage: Roadmap to Relevance for the Warsaw International Mechanism. Germanwatch (March 2014), at, 5.

[10] Paris Agreement (2015) FCCC/CP/2015/L.9. http://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf

[11] UNFCCC (2014) _18sept_11am.pdf

[12] Id.

[13] World Bank (2006) ‘Overcoming drought : adaptation strategies for Andhra Pradesh, India.’ Directions In Development. Environment and Sustainable Development, World Bank.

[14] Stabinsky (2015)

[15] UNFCCC (2014)

[16] Munich Climate Insurance Initiative (2012) ‘Insurance solutions in the context of climate change-related loss and damage’. SBI Work Program on Loss and Damage.

[17] Democracy Now. ‘Loss & Damage: U.S. Stymies Push for Compensation for Climate Devastation at U.N. Climate Summit’. (2015) Democracy Now.

[18] Stabinsky, D. (2012) ‘Tackling the Limits to Adaptation: An International Framework to Address ‘Loss And Damage’ from Climate Change Impacts’. ActionAid Int’l, CARE Int’l and WWF Int’l.

[19] Sethi, N. (2015) ‘US pressure tactics work, clause excluding compensation option retained’. Business Standard. http://www.business-standard.com/article/current-affairs/us-pressure-tactics-work-clause-excluding-compensation-option-retained-115121200365_1.html

[20] Alegado, J. (2015) ‘Crunch time for 'loss and damage' in Paris climate talks’.Rappler. http://www.rappler.com/science-nature/environment/115480-cop21-crunch-time-loss-damage

[21] Sethi, N. (2015).

[22] Faure, M. G., & Nollkaemper, A. (2007). ‘International liability as an instrument to prevent and compensate for climate change.’ A Stan. Envtl. LJ, 26, 123.

[23] Shaw, M. N. (2003). International Law. Cambridge, UK; New York, Cambridge University Press.

[24] Matthews, H Damon, Tanya L Graham, Serge Keverian, Cassandra Lamontagne, Donny Seto and Trevor J Smith (2014) ‘National contributions to observed global warming’, Environmental Research Letters.

[25] Tol, R. S. J. and R. Verheyen (2004). "State Responsibility and Compensation for Climate Change Damages - A Legal and Economic Assessment." Energy Policy 32(9): 1109-1130.

[26] Voigt, C. (2008). "State Responsibility for Climate Change Damages." Nordic Journal of International Law 77: 1 - 22.

[27] Mayer, B. (2014). ‘State responsibility and climate change governance: A light through the storm.’ Chinese Journal of International Law 13: 1-40.

[28] Id.

[29] Voigt, C. (2008)

[30] Khan, M. R. (2015). Polluter-Pays-Principle: The Cardinal Instrument for Addressing Climate Change. Laws, 4(3), 638-653.

[31] Faure, Michael, and David Grimeaud. “Financial assurance issues of environmental liability.” In Deterrence, Insurability and Compensation in Environmental Liability. Edited by Michael Faure. London: Springer, 2003, pp. 194–206.

[32] Wrathall, D., Oliver-Smith, A., Sakdapolrak, P., Gencer, E., Fekete, A., & Reyes, M. L. (2013). ‘Conceptual and operational problems for loss and damage.’ Population Environmental Research.

[33] UN (1992): Rio Declaration on Environment and Development. Principle 13. http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

[34] UNFCCC (1995) Framework Convention on Climate Change. http://unfccc.int/resource/docs/cop1/07a01.pdf .

[35] UNFCCC (2014) Kyoto Protocol. http://unfccc.int/kyoto_protocol/items/2830.php .

[36] Hulme M, O'Neill SJ, Dessai S (2011) Climate Change: Is Weather Event Attribution Necessary for Adaptation Funding? Science 334: 764-765.

[37] Mathew, L. M. and Akter, S. (2015) ‘Loss and damage associated with climate change impacts’, in: W.-Y. Chen, J. Seiner, T. Suzuki and M. Lackner (Eds.), Handbook of Climate Change Mitigation and Adaptation (1st edn.), Springer, New York.

[38] World Bank (2013). ‘Building Resilience: Integrating climate and disaster risk into development. Lessons from World Bank Group experience’. The World Bank, Washington DC. http://www.worldbank.org/content/dam/Worldbank/document/SDN/Full_Report_Building_Resilience_Integrating_Climate_Disaster_Risk_Development.pdf

[39] Huggel, C., et al. 2013. Nature Climate Change. Loss and Damage Attribution. Macmillan Publishers, Limited. doi:10.1038/ nclimate1961.

[40] Burkett, Maxine (2009) ‘Climate Reparations’, Melbourne Journal of International Law.

[41] The question of appropriate jurisdiction is too exhaustive to be dealt with adequately in this paper, but it does present a very real issue.

[42] Hoffmaister JP, Talakai M, Damptey P, Barbosa AS. (2014) ‘Warsaw International Mechanism for loss and damage: Moving from polarizing discussions towards addressing the emerging challenges faced by developing countries.’ http://www.lossanddamage.net/4950.

[43] Taraska, Gwynne (2015) ‘The Meaning of Loss and Damage in the International Climate Negotiations’, Center for American Progress.

[44] Declarations of Kiribati, Fiji, Nauru and Tuvalu upon signature of the UNFCCC, 1771 UNTS 317-318.

[45] Pashley, A. (2015) ‘Did the Paris deal rule out climate compensation?’ Climate Home. http://www.climatechangenews.com/2015/12/18/did-the-paris-deal-rule-out-climate-compensation/

[46] Id

[47] Rajamani, L. (2015) ‘Addressing Loss and Damage from Climate Change Impacts’. Economic & Political Weekly, Vol. l No. 30 http://www.cprindia.org/sites/default/files/articles/Addressing_Loss_and_Damage_from_Climate_Change_Impacts.pdf

[48] Adler, B. (2015) ‘Here’s why the words “loss and damage” are causing such a fuss at the Paris climate talks.’ http://grist.org/climate-energy/heres-why-the-words-loss-and-damage-are-causing-such-a-fuss-at-the-paris-climate-talks/

[49] Press Trust of India (2015). ‘Carbon Emission: Principle of Polluter Pays Must be Respected, Says Piyush Goyal’ NDTV. http://www.ndtv.com/india-news/carbon-emission-principle-of-polluter-pays-must-be-respected-says-piyush-goyal-1224856

[50] Crosland, Tim (2015) ‘Vulnerable countries warned: Protect your legal rights in a Paris accord’. Climate Home. http://www.climatechangenews.com/2015/10/23/vulnerable-countries-warned-protect-your-legal-rights-in-a-paris-accord/

[51] Id.

[52] Darby, M. (2015) ‘Around the world in 5 climate change lawsuits.’ http://www.climatechangenews.com/2015/07/08/around-the-world-in-5-climate-change-lawsuits/

[53] French, K. (2015) ‘A Peruvian farmer is suing an energy giant over climate change’.

http://www.theverge.com/2015/12/2/9821758/climate-change-lawsuit-un-rwe-energy-vs-peru-farmer

[54] International Oil Pollution Compensation Fund (2015) ‘About Us’.  http://www.iopcfunds.org/about-us/

When a Disaster Is Not a “Disaster” and Why that Title Matters for Flint

Helen Marie Berg

 Helen Marie Berg is a student at The University of Michigan Law School and is a general member of the Michigan Journal of Environmental & Administrative Law. This post is part of the Environmental Law Review Syndicate.

In January 2016, Michigan Governor Rick Snyder appealed to the federal government for a $96 million emergency aid grant in response to the tremendous and growing public health crisis in Flint, Michigan.[1] City and state officials caused the crisis. They decided to switch the city’s drinking water source from Lake Huron to the Flint River, but failed to add the proper anti-corrosion treatment to the lead pipes that distribute water to the city’s 100,000 residents.[2]  That decision caused the lead to leach from the pipes, ultimately poisoning all who drank the city’s water.[3]

Governor Snyder’s request was not only for funds, but for President Obama to declare that the crisis in Flint was legally a disaster—a prerequisite for such an allocation of money and for eligibility for certain government programs. The headline of an article in the Detroit News shortly after Snyder’s request read: “Obama gives $80 million to Michigan for Flint.”[4] Though it sounds hopeful, this headline is misleading.

President Obama declared a federal emergency in Flint—but not a disaster.[5] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 was enacted “to support State and local governments and their citizens when disasters overwhelm them.”[6] The Act outlines the process to receive a presidential disaster declaration that would activate “an array of Federal programs to assist in the response and recovery effort.”[7] Governor Snyder’s request for such a presidential disaster declaration was denied.[8] He appealed the decision immediately—only for it to be denied again two days later.[9]

A disaster is defined in the Stafford Act as a “natural catastrophe” which “in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance.”[10] An emergency—a broader designation—is defined as “any occasion or instance for which . . . Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety.”[11]  Because the crisis in Flint was man-made, and not a natural catastrophe, it could only fall into the “emergency” category. Therefore, Flint received the maximum grant of aid for federal emergencies: $5 million.[12]

This $5 million emergency allocation has been used in part by FEMA to provide water and water filters to households in Flint (initially only for 90 days, but later extended to August),[13] by the U.S. Department of Health & Human Services (HHS) to disseminate public health information, and by the U.S. Environmental Protection Agency (EPA) to review the State of Michigan’s compliance with the National Safe Drinking Water Act. [14] Even though citizens have been advised not to drink the water until further notice—a period that will likely exceed FEMA’s water supply provision, even after it was extended[15]—these programs are positive and potentially impactful, albeit a far cry from the initially requested aid to begin vital infrastructure repair.[16] 

The $80 million referenced in the Detroit News headline was an allocation in last year’s Congressional budget.[17] Congress originally intended the $80 million allocation to be loaned out to Michigan for water distribution infrastructure repair.[18] President Obama made the funds available immediately when Snyder made his request, but as a loan (one initially intended for the entire state)—not an emergency allocation which would be available with a disaster designation.[19]

In March, Governor Snyder tried once more to appeal the denial, this time asking FEMA to reconsider its denial and to fund several specific programs.[20] The Governor invoked the language of the Stafford Act and explained in his appeal letter that the “incident is of such severity and magnitude that effective recovery” is out of the State and local government’s reach and that “federal relief assistance is undeniably needed to address the unmet needs of those most severely affected by the water contamination.”[21]

In his letter, Snyder noted that the crisis will cause a four percent average decrease in personal income overall amongst Flint residents, equivalent to a $115,000,000 loss to the local economy per year.[22] State law requires that the State’s emergency fund money (which has limitations on how much can be granted to individual jurisdictions) be used for incident-related response operations; it can’t be used to reimburse individual home or business owners—a necessary step to make up for the residents’ economic losses.[23] In contrast, Stafford Act funds could go directly to disaster relief organizations who could reimburse individuals to compensate for their losses.[24] These losses, however, must be “disaster-related.”[25]

Similarly, in declared disasters, HHS will fund programs to provide temporary prescription assistance for disaster survivors.[26]  An HHS program like this could have been used in Flint to provide blood tests for each resident exposed to the lead-contaminated water.[27]

But because what happened in Flint is not a disaster under law, Stafford Act funds for these programs were again denied. In its response to Snyder’s letter, FEMA repeated its rationale for its original denial: additional Stafford Act assistance is not appropriate for this kind of event.[28]

The disaster designation is not an absolute requirement to receive more federal aid. Congress could introduce or amend a bill to allocate aid to Flint. Already, Michigan’s delegation has proposed two such measures.

In February, Democratic Congressman Dan Kildee introduced the Families of Flint Act (H.R. 4479), a bill that proposes $765 million be allocated from the federal government and then matched by the state of Michigan for a variety of programs including infrastructure repair, services for families and children exposed to lead, economic development, and a health monitoring program.[29] The bill is ambitious. If passed in its current form, the bill would fund a “Center of Excellence on Lead Exposure” in Flint for medical experts to conduct research and monitor the crisis, and programs to address problems expected in Flint’s future, such as juvenile delinquency and unemployment.[30] At the end of March, the bill was still in committee.[31]   

In the Senate, the amendments proposed to the bipartisan Energy and Policy Modernization Act of 2015 (S. 2012) by Michigan Democratic Senators Gary Peters and Debbie Stabenow would allocate $600 million in aid for infrastructure repair and investment in health programs in Flint.[32] The amendment has faced opposition by Republicans, who fear setting the precedent of granting federal aid for local problems.[33] Their opposition—or at least the opposition by Texas Republican Senator John Cornyn—is hypocritical.  

Senator Cornyn appealed the federal government’s denial of an emergency designation and grant of federal aid to his home state after an explosion at a fertilizer plant killed 15 people in 2013—and was successful.[34] Michigan Senators have used the Texas story as a reminder to Republicans to be consistent and allow for further funding for Flint.  As of the end of March, the Senate had yet to come to a vote on the bill.[35]

Flint’s disaster was man-made, making it clearly outside of the scope of the legal definition of a disaster. But should the definition be expanded? Or should exceptions like the one made for the fertilizer plant be more common? A terrible mix of the emergency manager law, poor leadership, an economically depressed community, and a crumbling infrastructure led to Flint’s crisis. Those last two factors, however, are commonplace. There are dozens of “Flints” sprinkled throughout the Midwest and across the country. Once small-to-medium, working-class cities often fueled by a single industry, they are now small—and shrinking—cities sitting on the bones of what was built by an industry that is now long gone.[36] The bridges, roads, and pipes in these cities are old and in need of repair.

What happened in Flint should be viewed as a cautionary tale, not a bellwether. But with the current state of many American cities, it is possible for similar disasters to happen elsewhere. Expanding the law would provide a fairer and more uniform process for all cities to receive the necessary aid, regardless of how much influence their representatives have to push for a disaster designation, especially now that the nation has an example in Flint of how far-reaching and devastating a non-natural disaster can be.  Congress should amend the law to provide a better response to the next “Flint” —or, better yet, take action now to prevent such crises from occurring.

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[1] Melissa Nann Burke, Chris Livengood & Jonathan Oosting, White House to Decide Soon on $96M Flint Aid Request, Det. News (Jan. 16, 2016), http://www.detroitnews.com/story/news/politics/2016/01/14/snyder-asks-obama-declare-federal-emergency-flint/78831312/.

[2] Jeremy C.F. Lin, Jean Rutter & Haeyoun Park, Events That Led to Flint’s Water Crisis, N.Y. Times (Jan. 16, 2016), http://www.nytimes.com/interactive/2016/01/21/us/flint-lead-water-timeline.html?_r=0.

[3] Jennifer Dixon, How Flint’s Water Crisis Unfolded, Det. Free Press, http://www.freep.com/pages/interactives/flint-water-crisis-timeline/ (last visited Mar. 25, 2016).

[4] Melissa Nann Burke, Obama Gives $80 Million to Michigan for Flint, Det. News (Jan. 21, 2016), http://www.detroitnews.com/story/news/politics/2016/01/21/stabenow-obama-gives-million-flint/79134306/.

[5] Paul Egan & Ted Spangler, President Obama Declares Emergency in Flint, Det. Free Press (Jan. 16, 2016), http://www.freep.com/story/news/local/michigan/2016/01/16/president-obama-declares-emergency-flint/78898604/.

[6] Fed. Emergency Mgmt. Agency (FEMA), A Guide to the Disaster Declaration Process and Federal Disaster Assistance (2015).

[7] Id.

[8] Chris Livengood & Jonathan Oosting, Snyder to Appeal Obama’s Denial of Flint Disaster Zone, Det. News (Jan. 18, 2016) http://www.detroitnews.com/story/news/politics/2016/01/17/snyder-appeal-obama-flint-disaster-declaration/78944416/.

[9] Mark Hicks, FEMA Again Denies Snyder’s Flint Disaster Request, Det. News (Jan. 22, 2016), http://www.detroitnews.com/story/news/politics/2016/01/22/fema-denies-snyders-flint-disaster-request/79206308/.

[10] 42 U.S.C.S. § 5122(2) (LEXIS through Pub. Law. 114-119).

[11] 42 U.S.C.S. § 5122(1) (LEXIS).

[12] Egan & Spangler, supra note 5.

[13] Fed. Emergency Mgmt. Agency, HQ-16-004-FactSheet, Federal Aid Programs for the State of Michigan Emergency Declaration (Jan. 16, 2016), http://www.fema.gov/news-release/2016/01/16/federal-aid-programs-state-michigan-emergency-declaration; Matthew Dolan & Todd Spangler, Feds Extend Flint Emergency Until August—But No Later, Det. Free Press (Mar. 24, 2016) http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/03/25/feds-extend-flint-emergency-until-august----but-no-later/82254468/.

[14] Mary K. Wakefield, On the Ground This Week: HHS to Lead Federal Response in Flint, U.S. Dep’t of Health & Human Servs. Blog (Jan. 19, 2016) http://www.hhs.gov/blog/2016/01/19/ground-week-hhs-lead-federal-response-flint.html.

[15] Letter from Rick Snyder, Governor of Mich., to Elizabeth A. Zimmerman, Assoc. Adm’r, Fed. Emergency Mgmt. Agency, U.S. Dep’t of Homeland Sec. (Mar. 2, 2016), https://www.scribd.com/doc/301954132/FEMA-Appeal-Letter#download.

[16] Livengood & Oosting, supra note 8.

[17] Burke, supra note 4.

[18] Id.

[19] Id.

[20] Lindsey Smith, FEMA Denies Appeal for Federal Money for Flint Homeowners, Says Request “Not Appropriate”, Nat’l Pub. Radio (Mar. 16, 2016), http://michiganradio.org/post/fema-denies-appeal-federal-money-flint-homeowners-says-request-not-appropriate#stream/0.

[21] Snyder, supra note 15.

[22] Id.  

[23] Id. 

[24] 44 C.F.R. § 206.36(b)(2) (2016).

[25] Id.

[26] Snyder, supra note 15.

[27] Id.

[28] Letter from Elizabeth A. Zimmerman, Assoc. Adm’r, Fed. Emergency Mgmt. Agency, U.S. Dep’t of Homeland Sec., to Rick Snyder, Governor of Mich. (Mar. 14, 2016), http://mediad.publicbroadcasting.net/p/michigan/files/201603/3375_program_ap_td_letter_3_14_16.pdf?_ga=1.201994001.1061862277.1458513929.

[29] J.C. Reindl, Democrats Rip Flint’s Response, Pitch Kildee’s $1.5 Billion Plan, Det. Free Press (Feb. 6, 2016), http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/02/06/democrats-rip-flint-response-pitch-kildees-15b-plan/79933284/.

[30] Families of Flint Act, H.R. 4479, 114th Cong. (2016).

[31] Reindl, supra note 27; Energy Policy Modernization Act of 2015, S. 2012, 114th Cong. (2016). 

[32] Melissa Nan Burke, Senators Urge Vote Stalled on Flint-Related Bill, Det. News (Mar. 17, 2016), http://www.detroitnews.com/story/news/michigan/flint-water-crisis/2016/03/17/senators-urge-vote-stalled-flint-related-bill/81937860/; Energy Policy Modernization Act of 2015, S. 2012, 114th Cong. (2016).  

[33] Mike DeBonis, Democrats Block Energy Bill over Flint Aid, Wash. Post (Feb. 4, 2016), https://www.washingtonpost.com/news/powerpost/wp/2016/02/04/democrats-prepare-to-block-senate-energy-bill-over-flint-aid/.

[34] Melissa Nan Burke, U.S. Senate Talks on Flint Aid Bill Remain Deadlocked, Det. News (Feb. 11, 2016), http://www.detroitnews.com/story/news/michigan/flint-water-crisis/2016/02/11/flint-senate/80232862/.

[35] Burke, supra note 32.

[36] Detroit, Michigan, Gary, Indiana, Youngstown, Ohio, and Buffalo, New York are examples of shrinking, post-industrial cities. See Stephen Henderson, Editorial, Flint’s Long Misery, at the Hands of Urban Policy, Det. Free Press (Jan. 30, 2016)   http://www.freep.com/story/opinion/columnists/stephen-henderson/2016/01/30/flints-long-misery-hands-urban-policy/79531718/; Vince Calio, Alexander E.M. Hess & Thomas C. Frohlich, America’s Fastest Shrinking Cities, USA Today (Apr. 19, 2014), http://www.usatoday.com/story/money/business/2014/04/19/24-7-wallst-shrinking-cities/7871157/.

 

Clean Power Planning: Unlike with Obamacare, States are Preparing for Clean Power Plan Compliance Even as they Fight it in the Courts

Jennifer Golinsky

Jennifer Golinsky is on the Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate.

When the EPA released its draft of the Clean Power Plan (CPP) in June 2014,[1] commentators were quick to draw comparisons[2] to Obamacare (i.e., the Patient Protection and Affordable Care Act, hereinafter the ACA).[3] One journalist even dubbed the CPP “Obamacare for the Air” because the Clean Power Plan and the healthcare reform law are both “intensely polarizing” and “numbingly complex in an effort to ensure flexibility and fairness, based on a market system . . . likely to transform a key sector of the economy for decades to come.”[4]

From a technical standpoint, both the CPP and ACA offer a variety of tools and federal assistance to help states decide how to comply.[5] Under both schemes, states can choose to run their own system, run a system in partnership with the federal government, or not run any system at all (at which point the federal government steps in to run the system for that state).[6] And, once a state decides on a compliance program, it is not stuck with it: both the CPP and the ACA allow a state to transition later on to a different level of involvement in running its own system.[7] Finally, both the CPP and the ACA drew fierce legal challenges immediately upon their promulgation and enactment, respectively.[8]

Applying Stakeholder Theory to Utility Regulation

Inara Scott*

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Many in the energy sector have called for a transformation of the traditional utility model to accommodate developments in distributed generation, address declining utility financial returns, and facilitate a transition to a low-carbon future.[1] These proponents envision this transformation in a number of ways. Some suggest a shift from traditional cost-of-service ratemaking to more performance-based methods.[2] Others focus on allowing competition to develop within nascent renewable and micro-grid industries.[3] Still others advocate for a new model in which the utility is a service provider and integrator of a variety of energy options, rather than a peddler of kilowatt hours.[4] All of these options appear to maintain one basic paradigm: the bilateral relationship between the utility and its regulator. More precisely, they maintain the regulatory paradigm that pits the investor-owned utility—whose fiduciary duty is to maximize returns to its shareholders[5]—against the regulator—whose goal is to protect the utility’s customers from the utility itself.

While some state legislative schemes purport to allow utility regulators to consider environmental impacts and sustainability issues,[6] the jurisprudence and history of the U.S. regulatory system has essentially locked regulators into a narrow perspective that requires utility investments and business strategies to provide only short-term economic benefits to current customers.[7] Within this restrictive perspective, utility regulators can only consider other interests to the extent that they do not result in additional costs to utility customers. This essay posits that one of the key flaws in the U.S. utility regulatory system is its requirement that utilities and regulators adopt this myopic decision-making process, which limits the potential for consideration of stakeholder interests and more comprehensive systems thinking.

As demonstrated in the corporate context, stakeholder orientation can (1) create value for the firm and improve financial performance, (2) enhance relationships with customers, employees, and regulators, and (3) improve corporate image.[8] Research suggests that positive, active stakeholder relationships are crucial to the successful implementation of environmental policies.[9] On the other hand, when stakeholders are perceived to lack power, urgency, and legitimacy, their interests become less important to firm managers.[10] While expanding the circle of interests considered by utilities and regulators will not solve other problems embedded in traditional utility regulation,[11] a broadening of the consideration of stakeholder interests will almost certainly allow for more comprehensive long-term planning, greater attention to environmental and other stakeholder concerns, and the potential for transformational policy choices.

Stakeholder Theory in the Corporate Context

In the standard model of corporate governance, most consider the basic corporate objective to be the maximization of shareholder value.[12] This principle creates legal barriers that prevent corporate directors and managers from prioritizing other interests ahead of shareholder wealth maximization.[13] In contrast, “stakeholder theory” suggests that all corporate stakeholders—broadly defined as the groups and individuals who impact or are impacted by corporate decisions—stand in relationship with each other[IS2] , and no single stakeholder group should have its interests elevated above all others.[14]

Business scholars and economists have studied and debated the adoption of stakeholder theory from normative and instrumental standpoints, considering both the efficacy of stakeholder theory for value creation and the ethical justification for considering a broad range of stakeholder interests.[15] Some instrumental stakeholder theorists argue that stakeholder theory is consistent with the maximization of shareholder value, because, inter alia, healthy communities are necessary for corporate success, and happy employees work harder and more effectively.[16] In a normative context, stakeholder theory suggests that businesses have moral responsibilities to stakeholders, and that business decisions and ethics are inescapably intertwined. This “integration thesis” asserts that all decisions have an implicit or explicit ethical view and will benefit or harm some stakeholder parties.[17] It is therefore essential to consider the impacts that business decisions have on people and communities.[18]

In the legal literature, debates over stakeholder theory always begin with the question of whether corporate actors can legally pursue such a strategy, given that the notion of fiduciary duty has been interpreted to run narrowly to shareholders.[19] In response to a series of hostile corporate takeovers, in which the drive for corporate profits resulted in harsh consequences for employees and communities, states passed constituency, or stakeholder, statutes in the 1980s and 1990s. These statutes were intended to give corporate directors and officers greater freedom to consider non-shareholder interests.[20] More recently, academics in both business and legal realms have begun to apply stakeholder theory to environmental protection and sustainability issues, examining the responsiveness of corporations to environmental stakeholder concerns.[21]

This Is Not Your Grandmother’s Electric Utility

The original utility regulation model—“Utility 1.0”—sought to provide safe, reliable, low-cost utility services as widely as possible.[22] Utilities were seen as natural monopolies, meaning that significant economies of scale in the generation and distribution of energy would lead to lower rates. Therefore, governments would need to protect, rather than dismantle, utility monopolies.[23] Regulators were expected to be a substitute for competition, acting to protect customers in a market in which utilities were granted exclusive service territories.[24] As part of the classic “regulatory compact,” the utility agreed to serve all customers, including the unprofitable ones, in return for the opportunity to earn a fair return on its investment, comparable to firms with similar risk or industry profiles.[25] The higher expense of serving non-profitable customers was folded into system-wide costs, embedding a system of cost-sharing and subsidies into utility rates. Of course, such a system worked because profitable customers had no other options for service. If they had other options and could seek out alternative, lower-cost providers, they would simply leave the system.

Figure 1: In the traditional bilateral regulatory model, the regulator, typically a public utility commission (PUC), represents customer interests in having low rates and adequate services, while the utility is expected to maximize returns to its shareholders. The regulatory compact, in which the utility agrees to serve all customers at reasonable rates in exchange for regulated monopoly status, underlies this model.

While the classic rate-setting formula, which ties utility profits to invested capital, creates a significant incentive for utilities to make capital investments,^[26] it also makes utilities wary of significant investments that may not be deemed prudent. And it reduces the incentive for utilities to invest in research and development, because utility regulators, which focus on certainty and predictability in creating customer benefits, are unlikely to deem risky new technologies to be prudent.[27] Even if a utility received approval to invest in new technologies, it would only earn back the cost of the investment plus its normal rate of return. Thus, pursuing new technologies not only costs the utility its time and effort, but also yields no additional return. Given these built-in disincentives, it is both predictable and somewhat unfair for critics to lambaste utilities for being too conservative and risk-averse.[28] Indeed, the system has been structured to make them so.

When utility infrastructure was first developed, this regulatory structure made sense. Utilities were encouraged to invest in their systems and all customers received service on a non-discriminatory basis. The regulatory compact maintained the pretense of a market-based system and limited utility profits while ensuring universal access. The system also kept interest rates low for utilities that needed significant infusions of capital, because of the certainty of cost recovery for items included in rate base.[29]

However, in the century since the creation of the regulatory compact, electric utilities and their role in society have transformed. As late as 1907, only 8 percent of United States households had electricity.[30] Thanks to Utility 1.0, that picture changed rapidly. By 1940, that number had grown to 85 percent.[31] In 2014, electric utilities are, quite simply, essential to the basic functioning of our society. We rely on the utility grid for everything from national security to the treatment of drinking water.[32] Damage to the electric grid could “create disruptions of a scale that was only hinted at by Hurricane Sandy and the attacks of Sept. 11.”[33]

Initially, utilities developed as separate entities, confined primarily to single cities or, at most, regions. Today, the situation could not be more different. The interconnected nature of the utility grid means that the actions of any single utility can affect millions of people.[34] The scale of this potential was realized in 2003, when mistakes made at a small utility provider in Ohio resulted in a massive blackout along the East Coast that affected over fifty million people and caused damages that have been estimated between $4 billion and $10 billion.[35]

New technologies and the push for the reduction of greenhouse gases have created profound environmental and privacy issues associated with utilities. In 2010, the energy sector created 87 percent of greenhouse gas emissions in the United States while electricity generation alone accounted for 42 percent of total U.S. carbon dioxide emissions.[36] Tackling climate change will clearly require innovation within the electric utility system. The “smart grid,” which is essential to the integration of distributed generation, allows utilities to collect massive amounts of energy usage data that may be as granular as when customers used a particular appliance, and for how long.[37] While creating the potential for significant improvements in energy efficiency, the smart grid also raises significant privacy issues.[38]

Today’s utilities thus have a complex and far-ranging web of stakeholders with deep interests in the way utilities are operated. Yet due to the operation of the current regulatory structure, utilities are precluded from considering the input of any stakeholders beyond current customers.

Figure 2: The current regulatory model requires the PUC to make decisions based solely on the economic interests of current customers, effectively precluding it from considering the interests of other stakeholders. In turn, the utility is prevented from considering stakeholder input because its decisions must be approved by the PUC.

Regulation Must Evolve to Consider This Web of Relationships

For decades, utilities were considered among the most stable and reliable of investments. Because they regularly returned dividends to their investors, they were considered “widow-and-orphan” stocks, meaning that they were a good choice for those needing a certainty of returns, even if they were never wildly profitable.[39] However, utility credit ratings have dropped significantly since 2001.[40] In May 2014, Barclays downgraded the entire bond market rating for the U.S. electric utility sector.[41] A number of factors have led to this declining financial position, including: (1) the growth of distributed generation and the degradation of the regulatory compact, (2) falling load growth, and (3) an increased need for investment.[42]

The inability of utilities to respond to many stakeholders has arguably exacerbated this situation. For example, utilities have been roundly criticized for their hostility toward the spread of distributed solar generation in their service territories, and have almost certainly alienated customers in the process.[43] Yet this response is hardwired into the regulatory system. As part of the regulatory compact, utilities are required to serve all customers on a non-discriminatory basis, and the cost of serving more expensive, less profitable customers is spread across the lower-cost customers. If those customers leave the system and generate their own energy, costs to other customers rise and, due to the way traditional cost-of-service rates are calculated, utilities may not be able to recover their fixed costs. Moreover, because utility profits are tied to capital investments, if the opportunity to make new generation investments is limited by the growth of distributed renewable resources, utilities lose a key aspect of their value proposition. Unless changes are made to the way utility rates are calculated or utility programs are developed, utilities should be fighting solar projects—their fiduciary duty to their shareholders requires it.

The development of new technologies, including the smart grid, provides another good example of the impact of the blinders placed on utility regulators. Spending money on research and development is unlikely to return a financial benefit to current customers, so it is rarely approved, in terms of cost recovery, by utility regulators.As a result, the firms with arguably the greatest expertise in the retail energy market are precluded from engaging in significant research and development. Even if new technologies are developed, utilities cannot invest in them until their cost is equivalent to or less than other resource options. This problem was illustrated when Virginia’s utility commission rejected a utility proposal to develop a carbon capture and sequestration project because the technology was too expensive and had not been sufficiently demonstrated.[44] Utility regulators have rejected proposals for smart grid projects—which are essential to the evolution of distributed generation and improvements in energy efficiency— simply because they do not return benefits to current customers.[45]

Policy makers have attempted to address these problems through piecemeal legislation that prioritizes certain projects, technologies, or resources, such as renewable portfolio standards or feed-in tariffs.[46] Yet, by their nature, piecemeal solutions often fail to place utilities within a larger policy context, address interrelated project impacts, or consider the impacts of various policy initiatives on unrepresented stakeholder parties. I suggest that, just as there was a call for stakeholder statutes in the 1980s and 1990s, we should be calling for utility stakeholder statutes, in order to begin to address this regulatory failure and improve the functioning of our utility system.

A Proposal

While the concept of adopting a stakeholder statute for utilities sounds relatively straightforward, the regulatory structure, in fact, makes it quite complicated. If regulation were to permit a utility to consider other stakeholders, rather than utility customers alone, when making resource acquisitions, numerous questions would need to be answered. What criteria should the utility commission use when determining if that resource acquisition is prudent? Should the utility be able to include the cost of that investment in its rates? How should the utility prioritize stakeholder interests? In a competitive industry, market prices for the cost of competing goods and services put natural limits on the ability of a company to incorporate stakeholder interests. In the utility sector, there is no significant competitor to provide those limits, and the PUC (public utility commission) would have to decide whether to allow utility customers to pick up the bill for stakeholder initiatives.

Though challenging, this concern should not preclude the development of a utility stakeholder statute. First, the PUC could develop a new prudence standard that does not rely solely on considerations of customer benefits. This could be addressed by creating a stakeholder board to approve utility initiatives, either by a majority or unanimous vote. Initiatives approved by the board would be deemed prudent.

The stakeholder statute could also incorporate by reference state energy policies, such as a reduction in carbon emissions or the development of distributed generation technology, that would have to be achieved by utility programs but do not directly benefit utility customers. The statute could include a cost cap, as is the case with many renewable portfolio standards,[47] permitting the utility to acquire resources or pursue other programs only in the event that its decision did not raise rates more than, for example, 10 percent above the utility’s costs absent the resource or program.

Lastly, states could form regional stakeholder groups to create energy policy plans that would be adopted and implemented at the state level. Creating regional plans and policy goals, such as the adoption of time-of-use rates, the acquisition of smart grid technologies, and the implementation of a carbon capture and sequestration project, would create the potential for regional cost sharing of new technologies and the implementation of controversial new rate structures across similarly situated utilities.

Significantly, the implementation of such stakeholder statutes would require a directive demanding the PUC to adopt programs or approve recovery for resource acquisitions that were deemed prudent under the new policy. If such a directive were not implemented, the PUC would continue to be bound by existing jurisprudence, which limits prudence to only the initiatives that return a financial benefit to current customers. Of course, the PUC would have to be included as one of the stakeholders on a regional policy taskforce or stakeholder board, in order to ensure that the PUC’s experience, foresight, and skills are brought to the table.

Conclusion

Energy usage in general, and electric generation in particular, are integral parts of the current climate-change crisis and are key to the mitigation of future carbon emissions. Working Group III of the Intergovernmental Panel on Climate Change noted that scenarios limiting global temperature increases to 2°C require “more rapid improvements of energy efficiency, a tripling to nearly a quadrupling of the share of zero- and low-carbon energy supply from renewables, nuclear energy, and fossil energy with carbon dioxide capture and storage (CCS), or bioenergy with CCS.”[48] Additionally, the first stage in President Obama’s plan to reduce U.S. carbon emissions focuses on cutting emissions from existing power plants.[49] Yet, progress toward environmental goals is regularly stymied by the utility regulatory system, which cuts off considerations of environmental impacts not directly and financially affecting current utility customers.

As noted above in Figure 1, in a traditional regulatory scheme, the utility acts in the interest of its shareholders, and the regulator acts to protect utility customers and to simulate the forces of competition. This regulatory structure limits creativity and innovation and drives short-term decision making that fails to take into account the diversity and complexity of the utility stakeholder web. Until the regulatory structure recognizes the value and importance of stakeholders beyond the immediate utility customer, the system will not evolve to address the environmental and technological challenges that it faces. The application of stakeholder theory is only one piece of a broader revolution in utility governance, but it is an essential part of this much-needed transformation.

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* Assistant Professor, College of Business, Oregon State University; J.D., Lewis & Clark Law School. Professor Scott practiced energy law for more than a decade before joining the faculty at Oregon State University. She would like to thank Jon White and the staff at Currents for their eagle eyes and meticulous editing.

[1] See, e.g., Michael T. Burr, Reinventing the Grid: How to Find a Future that Works, Pub. Utils. Fortnightly, Mar. 2014, at 20, 21 (noting that each of the various scenarios includes a decentralized transmission grid and greater service to “localized customer needs”).

[2] See Charles Goldman et al., Lawrence Berkeley Nat’l Lab., Utility Business Models in a Low Load Growth/High DG Future: Gazing into the Crystal Ball? 21­–25 (Apr. 10, 2013), available at http://
www.westgov.org/wieb/meetings/crepcsprg2013/briefing/present/c_goldman.pdf.

[3] See John Slocum, Threat from Behind the Meter: The Case for Utilities to Compete Directly with Distributed Resources, Pub. Utils. Fortnightly, July 2013, at 46–51, 57.

[4] See Elisabeth Graffy & Steven Kihm, Does Disruptive Competition Mean a Death Spiral for Electric Utilities?, 35 Energy L.J. 1, 39–43 (2014).

[5] See, e.g., Kathleen Hale, Corporate Law and Stakeholders: Moving Beyond Stakeholder Statutes, 45 Ariz. L. Rev. 823, 838 (2003) (describing “shareholder primacy norm,” which presumes that maximization of shareholder value is the primary corporate objective).

[6] See Michael Dworkin et al., Revisiting the Environmental Duties of Public Utility Commissions (2006), 7 Vt. J. Envtl. L. 1, 2 (2006).

[7] See Inara Scott, Teaching an Old Dog New Tricks: Adapting Public Utility Commissions to Meet Twenty-First Century Climate Challenges, 38 Harv. Envtl. L. Rev. 371 (2014).

[8] See Shawn L. Berman et al., Does Stakeholder Orientation Matter? The Relationship Between Stakeholder Management Models and Firm Financial Performance, 42 Acad. Mgmt. J. 488, 489–90, 503 (1999).

[9] Irene Henriques & Perry Sadorsky, The Relationship Between Environmental Commitment and Managerial Perceptions of Stakeholder Importance, 42 Acad. Mgmt. J. 87, 96 (1999) (“[S]uccessful environmental policy planning requires industry members to work with community leaders and look at environmental issues through the eyes of other special interest groups.”).

[10] See Ronald K. Mitchell et al., Toward a Theory of Stakeholder Identification and Salience: Defining the Principle of Who and What Really Counts, 22 Acad. Mgmt. Rev. 853, 878–79 (1997) (“Stakeholder salience will be high where all three of the stakeholder attributes—power, legitimacy, and urgency—are perceived by managers to be present.”).

[11] These problems are substantial and must be addressed. They include: outdated regulatory incentives tying fixed cost recovery to volumetric sales; punishing utilities for engaging in energy efficiency projects; a lack of performance-based assessments; and reliance on rising cost of service rates in an increasingly competitive market.

[12] Timothy P. Glynn, Communities and Their Corporations: Towards a Stakeholder Conception of the Production of Corporate Law, 58 Case W. Res. L. Rev. 1067, 1072–74 (2008).

[13] See Anthony Bisconti, The Double Bottom Line: Can Constituency Statutes Protect Socially Responsible Corporations Stuck in Revlon Land?, 42 Loy. L.A. L. Rev. 765, 772–76, 778–80 (2009) (reviewing fiduciary duties of directors and legal cases requiring the maximization of shareholder value).

[14] Tara J. Radin, Stakeholders and Sustainability: An Argument for Responsible Corporate Decision-Making, 31 Wm. & Mary Envtl. L. & Pol’y Rev. 363, 382–86 (2007).

[15] See, e.g., Thomas M. Jones, Instrumental Stakeholder Theory: A Synthesis of Ethics and Economics, 20 Acad. Mgmt. Rev. 404, 432 (1995) (synthesizing ethical and economic theories and arguing that stakeholder management can improve business performance); Thomas M. Jones & Andrew C. Wicks, Convergent Stakeholder Theory, 24 Acad. Mgmt. Rev. 206, 206 (1999) (proposing “convergent stakeholder theory” to bring together normative and instrumental theories previously found in distinct bodies of stakeholder literature).

[16] R. Edward Freeman et al., Stakeholder Theory: The State of the Art 11 (2010).

[17] Id. at 7. [17]

[18] Id. at 6–8. [17]

[19] See Bisconti, supra note 14.

[20] See Hale, supra note 6, at 831–32.

[21] See, e.g.,Kristel Buysse & Alain Verbeke, Proactive Environmental Strategies: A Stakeholder Management Perspective, 24 Strategic Mgmt. J. 453 (2003) (providing empirical evidence of links between environmental strategy and stakeholder orientation).

[22] See Edward Eyre Hunt, Power Comms., The Power Industry and the Public Interest 3–4, 17, 35 (Edward Eyre Hunt ed., 1944); John Bauer, Effective Regulation of Public Utilities 12-13, 16 (1925) (noting that entitlement to service and the establishment of reasonable rates are intertwined); Charles F. Phillips, Jr., The Regulation of Public Utilities: Theory and Practice 172–73 (1988) (describing goals of public utility regulation).

[23] See James K. Hall, Regulation of Public Utilities, 206 Annals Am. Acad. Pol. & Soc. Sci. 92, 93–94 (1939) (describing monopolistic characteristics of public utilities).

[24] See Phillips, supra note 23, at 163–65.

[25] See id. at 110 [25]; Bluefield Water Works & Improvement Co. v. Pub. Serv. Comm’n of W. Va., 262 U.S. 679, 692 (1923) (“A public utility is entitled to such rates as will permit it to earn a return on the value of the property which it employs for the convenience of the public equal to that generally being made at the same time and in the same general part of the country on investments in other business undertakings which are attended by corresponding, [sic] risks and uncertainties . . . .”).

[26] The seminal study by Harvey Averch and Leland Johnson argues that rate-of-return regulation has resulted in the overcapitalization of the utility industry. See Harvey Averch & Leland J. Johnson, Behavior of the Firm under Regulatory Constraint, 52 Am. Econ. Rev. 1052 (1962) (describing the phenomenon now known as the “Averch-Johnson effect”).

[27] “The rate of utility spending on research and development is less than one-tenth the average rate for all sectors of the U.S. economy and a much smaller fraction of the rate in the most productive sectors.” David Malkin & Paul A. Centolella, Results-Based Regulation, Public Utils. Fortnightly, Mar. 2014, at 28, 35.

[28] See, e.g., Brian Sheets, The Smart Grid Movement: A Different Perspective,Energy Cent.(May 29, 2013), http://www.energycentral.com/articles/article/2641 (“[T]he utility world is seen as conservative, cautious, stuffy, slow-to-change, and risk-adverse. In today's climate, this is a recipe for failure.”).

[29] See Division of Ratepayer Advocates, Cal. Pub. Utils. Comm’n, Docket A.12-04-015: Report on the Cost of Capital for Test Year 2013, 2-7 to 2-16 (2012), available at http://www.ora.ca.gov/uploadedFiles/Content/Energy/Customer_Rates/Cost_of_Capital/Report%20on%20the%20Cost%20of%20Capital%20for%20Test%20Year%202013%20%28Exhibit%20DRA-01%29.pdf (explaining the calculation of cost of capital, risk premium, and why utility cost of capital is low relative to other industries based on reduced investment risk). The Report notes, “the cost of equity capital for utilities is among the lowest of all industries in the U.S.” Id. at 2-16.

[30] See Richard Munson, From Edison to Enron: The Business of Power and What it Means for the Future of Electricity 43 (2005).

[31] Hunt, supra note 23, at 3.

[32] See Nicholas C. Abi-Samra, One Year Later: Superstorm Sandy Underscores Need for a Resilient Grid, IEEE Spectrum (Nov. 4, 2013), http://spectrum.ieee.org/energy/the-smarter-grid/one-year-later-superstorm-sandy-underscores-need-for-a-resilient-grid (noting various impacts from Superstorm Sandy, including disruption of drinking water supplies). Presidential Directive 63, signed by President Clinton in 1998, identified electric power as critical infrastructure necessary for the nation’s security and economy. See Karl A. Seger, Utility Security: The New Paradigm 4 (2003). The United States military is reliant on commercial power for continued operations at 99 percent of its facilities. Matthew L. Wald, As Worries Over the Power Grid Rise, a Drill Will Simulate a Knockout Blow, N.Y. Times, Aug. 17, 2013, at A11, available at http://www.nytimes.com/2013/08/17/us/as-worries-over-the-power-grid-rise-a-drill-will-simulate-a-knockout-blow.html?pagewanted=all.

[33] See Wald, supra note 33, at A11.

[34] In 2012, mistakes by a utility technician in Southern California resulted in a blackout affecting about nine million people in the region. See Matthew L. Wald, Combination of Errors Led to Power Loss in San Diego, N.Y. Times, May 2, 2012, at B4, available at http://www.nytimes.com/2012/05/02/science/earth/power-failure-in-west-is-tied-to-combination-of-errors.html?_r=0.

[35] The blackout of 2003 is widely attributed to cascading failures that began with an outage in Northern Ohio caused by tree limbs coming into contact with transmission wires. See JR Minkel, The 2003 Northeast Blackout—Five Years Later, Sci. Am. (Aug. 13, 2008), http://www.scientificamerican.com/article/2003-blackout-five-years-later/; see also U.S.-Canada Power System Outage Task Force, Final Report on the August 14, 2003 Blackout in the United States and Canada: Causes and Recommendations 45 (2004), available at http://energy.gov/sites/prod/files/oeprod/DocumentsandMedia/BlackoutFinal-Web.pdf; Bobby McMahon, Ten Years Later, Electric Grid Faces More Complex Challenges Despite Post-Blackout Gains, Inside FERC (Platts, McGraw Hill Fin.), Aug. 19, 2013, at 1.

[36] See U.S. Envtl. Prot. Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2010 3-1, 3-11 (2012), available at http://www.epa.gov/climatechange/emissions/usinventoryreport.html.

[37] See Lauren Reilly, Automatic Consumer Privacy Rights Embedded in Smart Grid Technology Standards by the Federal Government, 36 Vt. L. Rev. 471, 473–77 (2011).

[38] See Peter Fox-Penner, Smart Power: Climate Change, the Smart Grid, and the Future of Electric Utilities 40–45 ,47 (2010) (discussing the advantages of, and resistances to, dynamic pricing over traditional time-of-use pricing).

[39] See John Waggoner, Investing: Utilities May Ease Some Stock Shock, USA Today (Sept. 23, 2011), http://usatoday30.usatoday.com/money/perfi/columnist/waggon/story/2011-09-22/utility-stocks/50518996/1.

[40] “In 2001, 32 percent of electric utilities earned an A- or higher credit rating. By the end of 2012, only 19 percent of electric utilities earned a rating of A- or higher. The lower rating of BBB- and below has increased from 19 percent in 2001 to 29 percent in 2012.” George Fisher, Electric Utility Credit Ratings Are Deteriorating, Seeking Alpha (Jun. 11, 2013), http://seekingalpha.com/article/1492952-electric-utility-credit-ratings-are-deteriorating.

[41] Herman K. Trabish, Barclays Downgrades Entire US Electric Utility Sector, Util. Dive (May 26, 2014), http://www.utilitydive.com/news/barclays-downgrades-entire-us-electric-utility-sector/266936/.

[42] See Fisher, supra note 41; Malkin, supra note 28, at 29–31.

[43] See, e.g., Editorial, The Koch Attack on Solar Energy, N.Y. Times, Apr. 27, 2014, at SR10, available at http://www.nytimes.com/2014/04/27/opinion/sunday/the-koch-attack-on-solar-energy.html (“This campaign [against renewable energy incentives] is really about the profits of Koch Carbon and the utilities, which to its organizers is much more important than clean air and the consequences of climate change.”).

[44] Jonas J. Monast & Sarah K. Adair, Completing the Energy Innovation Cycle: The View from the Public Utility Commission, 65 Hastings L.J. 1345, 1371–74 (2014).

[45] See, e.g., Baltimore Gas & Elec. Co. Smart Grid Initiative, Case No. 9208, Order No. 83410 (Md. Pub. Serv. Comm’n June 22, 2010), available at http://webapp.psc.state.md.us/Intranet/Maillog/orders_new.cfm (enter “83410” in “Enter Order Number” text box) (final order denying authorization for proposed smart grid initiative).

[46] See Scott, supra note 8, at 402–406.

[47] For a list of states with cost caps in their renewable portfolio standards, see Jocelyn Durkay, State Renewable Portfolio Standards and Goals,Nat’l Conf. St. Legislatures (Jan. 16, 2014), http://www.ncsl.org/research/energy/renewable-portfolio-standards.aspx.

[48] Intergovernmental Panel on Climate Change, Summary for Policymakers, in Climate Change 2014: Mitigation of Climate Change, Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 13 (Ottmar Edenhofer et al. eds., 2014), available at http://report.mitigation2014.org/spm/ipcc_wg3_ar5_summary-for-policymakers_approved.pdf.

[49] Climate Change and President Obama’s Action Plan, The White House, http://www.whitehouse.gov/climate-change (last visited Oct. 8, 2014).

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Copyright 2015 Inara Scott. All rights reserved.

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Damages from Pesticide Spray Drift under Trespass Law

Terence J. Centner*

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Introduction

In today’s world, millions of people lack access to sufficient quantities of food to meet recommended dietary needs.[1] As the world’s population grows, global demand only increases for food and fiber.[2] These shortages are occurring despite significant increases in the production of food resulting from new and modified practices including the more intense use of land resources,[3] irrigation,[4] plant breeding,[5] genetically modified crops,[6] advances in technology,[7] improved agricultural management practices,[8] and the use of pesticides.[9]

A crop duster spraying pesticides. Photo courtesy of tpmartins.

However, many pesticides harm humans, other animals, and plants, and consequently, governments regulate their use.[10] In the United States, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes a regulatory system under which pesticides cannot be marketed unless they are registered.[11] The registration process submits the pesticide to rigorous cost-benefit analysis, and regulators can remove pesticides that prove more dangerous than initially anticipated.[12] Further, FIFRA makes it unlawful “to use any registered pesticide in a manner inconsistent with its labeling.”[13]

Pesticide use inherently involves risks to humans and the environment.[14] One of the risks is the possibility that spray applications will cause particles to drift onto neighboring properties causing damages[15] The registration of a pesticide covers the possibility of spray drift.[16] Labels warn applicators that the pesticide must be applied in a manner to preclude particles or droplets from being carried onto neighboring properties.[17] Applicators who fail to follow label instructions are liable for damages.[18]

Applicators following label instructions may also incur liability under common law if they cause pesticide drift to enter properties of others and cause damages.[19] While pesticide particles carried by air currents may injure people,[20] the most frequent claim for damages is drift from an herbicide that is carried onto nontarget agricultural crops.[21] Pesticide particulates may also drift onto nontarget organic crops and lead to damages.[22] For these situations, persons suffering damages need to present evidence that establishes liability under a common law cause of action.[23]

Generally, plaintiffs who can show that defendants breached a label instruction or regulatory provision can succeed in recovering damages.[24] However, for claims not involving labeling or regulatory provisions, plaintiffs need to establish trespass or another common law cause of action as a basis for the recovery of damages. These claims prove challenging for plaintiffs to establish. Due to the common usage of pesticides, strict liability is generally not available as a cause of action.[25] Nuisance may be defeated by an anti-nuisance defense.[26] FIFRA preempts negligence claims concerning labeling,[27] and remaining negligence claims tend to be difficult to prove.[28] This means that persons injured by spray drift damages often seek to sue in trespass. Yet, the intangible nature of spray drift makes it difficult for plaintiffs to meet the requirements for a trespass claim. States’ approaches to trespass for securing damages resulting from spray drift vary, and this can mean that plaintiffs must carefully plead interference with exclusive possession together with injury to a res, meaning substantial property damages or damage that is physical,[29] to establish their cause of action in trespass.

Trespass Actions for Spray Drift

Trespass involves an invasion of the interest in exclusive possession of land.[30] Every unauthorized entry of a tangible object creates a trespass, even in the absence of damages.[31] Entry need not be by a person, as an actor may invade another’s interest in exclusive possession by intentionally propelling a thing onto the surface of the land.[32] Moreover, intent in a jurisdiction may be described broadly to include a person who has reason to be aware of the consequences of an act,[33] including inadvertence or mistake.[34] Persons suffering injuries for pesticide spray drift often allege a trespass, and state jurisprudence on trespass will determine whether the facts support a finding of liability.

Invasions of spray drift may not meet the requirements prescribed for tangible objects because airborne drift is considered to be an intangible substance.[35] In the absence of a tangible object, courts have determined that there is no interference with exclusive possession.[36] Furthermore, as an intangible substance, jurisprudence used for odors,[37] dust,[38] smoke,[39] noise,[40] and electromagnetic fields[41] may be applied to actions involving spray drift even though drift is different from these other intangibles.

An examination of claims involving intangible substances discloses three features that limit the success of a trespass lawsuit for pesticide spray drift. The first feature involves a limitation on trespass actions because spray drift is considered an interference with the use and enjoyment of land, and plaintiffs have a remedy under nuisance law.[42] Second, state jurisprudence may hold that spray drift does not interfere with the plaintiff’s exclusive possession.[43] Third, a court may require that intangible intrusions need to result in injury to a res.[44] An evaluation of these separate features means that a claim for damages resulting from spray drift requires a careful accounting of the facts to qualify as a trespass under state law.

Sources of environmental contamination with pesticides. Image courtesy of Roy Bateman.

A. Remedy under Nuisance Law

Courts in some states have justified their denial of liability under trespass for spray drift damages by the presence of the alternative remedy of nuisance for invasions of intangible substances.[45] Because intangible substances interfering “with an owner’s use and enjoyment of land” are nuisances, an action in trespass is not needed.[46] The availability of nuisance law provides adequate redress for persons suffering damages from pesticide drift.

In 2012, the Minnesota Supreme Court drew upon the distinctions between nuisance and trespass when responding to allegations of damages for spray drift in Johnson v. Paynesville Farmers Union Cooperative Oil Company.[47] The court noted that spray drift was an intangible agency.[48] After observing that traditional distinctions between nuisance and trespass have become blurred,[49] the court acknowledged an earlier decision in which invasive odors from a confined hog operation were not recognized as a trespass.[50] Given this precedent, the court found that an intrusion of pesticide spray drift could not constitute a trespass as intangible invasions in Minnesota provide plaintiffs a cause of action in nuisance.[51] Trespass involves an invasion of a plaintiff’s right to exercise exclusive possession of land while nuisance involves interference with a plaintiff’s use and enjoyment of the land.[52] The drift of pesticides did not result in a tangible object invading plaintiffs’ land, so it was not a trespass.[53] Nuisance law provides remedies for intangible invasions.

A court in Connecticut reached a similar result.[54] Responding to a claim for damages from electromagnetic fields, the court noted that there was no substance or thing entering the plaintiff’s land.[55] This led the court to decline to find a trespass, since intangible intrusions can be dealt with as nuisance cases.[56] Likewise, a court in Michigan sought “to preserve the separate identities of trespass and nuisance” when considering intrusions of dust, noise, and vibrations.[57] The Michigan court felt that proving real and substantial damages and balancing them against the usefulness of the offending activity should not apply to trespass law because it would endanger the right to exclusion.[58]

Yet, American jurisprudence generally is open to allowing claims under both trespass and nuisance.[59] The torts of trespass and nuisance address separate interests.[60] Implying that invasions of particles constituting nuisances should not also be considered as trespasses runs counter to giving full recognition to factual situations and injurious behavior.[61] If both interests have been infringed by an invasion of particles, an injured plaintiff should be able to initiate a legal action under both causes of action.[62] Given distinctions in burdens of proof,[63] statutory defenses,[64] and statutes of limitations,[65] it seems incongruous not to allow plaintiffs to allege both causes of action.

B. Interference with Exclusive Possession

Trespasses require an unauthorized intrusion that interferes with the exclusive possession of land.[66] The issue for spray drift is whether particles flowing onto a nontarget site actually interfere with the plaintiff’s exclusive possession.[67] Some courts note that an interference with exclusive possession requires a tangible invasion so that intangibles such as spray drift cannot constitute a trespass.[68] Other courts have recognized distinctions between invasions of intangible substances such as light or sound that may not physically interfere with the possession of property[69] versus intangibles that do cause an interference.[70] If intangible spray drift is determined to physically interfere with exclusive possession, the facts support an allegation of trespass.[71] However, whenever the entry of an intangible substance is less disruptive and does not interfere with a landowner’s exclusive possessory interest, a court might find that the substance does not require that the landowner share possession.[72] Without a showing of an interference with exclusive possession, there is no trespass in these situations.

Photo courtesy of Djuradj Vujcic.

Returning to the Johnson case in which the Minnesota Supreme Court considered an allegation for damages from pesticide spray drift, the court noted that a trespass traditionally required “some physical, tangible agency,” as opposed to intangible substances entering another’s property.[73] The court proceeded to dismiss the plaintiffs’ trespass claim, holding that there was no interference with an exclusive possessory interest.[74] Instead, the court found that the facts, if proven, would show the spray drift interfering with the plaintiffs’ use and enjoyment of their land.[75]

The Vermont Supreme Court also had the opportunity to consider an allegation of a trespass by pesticides in John Larkin, Inc. v. Marceau.[76] The court found that the plaintiff never made any showing that the dispersion of pesticides onto its property “deprived it of exclusive possession of its property or had any other impact on the property.”[77] In the absence of a demonstrated physical impact, there was no interference with exclusive possession, so the dismissal of the trespass allegation was affirmed.[78] However, the court declined to decide “the question of whether the intrusion of airborne particulates may ever be a trespass. . .”[79]

Subsequently in Paris v. Lussier, the Vermont Supreme Court considered an action alleging a trespass by smoke, particulate matter, and carbon monoxide from a neighbor’s wood stove.[80] Due to the absence of a physical impact on plaintiffs’ property from the intangible invasion of airborne particulates, the court concluded that there was no invasion of plaintiffs’ exclusive possession.[81] To delineate a claim of trespass, some type of physical impact was required to establish an interference with exclusive possession.[82] The court specifically reported that the plaintiffs had not “demonstrated [any] physical impact on their property resulting from the airborne particulates.”[83]

The recent Macalpine v. Hopper case from Colorado shows that given sufficient pleadings, a court may find that pesticide drift interferes with exclusive possession.[84] The court concluded that the physical intrusion of spray drift contaminants was a physical invasion because the plaintiffs had “felt the effects of the [defendants’] spray.”[85] Given the physical nature of the spray residue, the Colorado court found that the spray drift constituted a trespass that did not require proof of actual damages.[86]

C. Substantial Damages or Physical Damage

To establish a cause of action in trespass for an invasion by an intangible substance, courts in a number of states have delineated an additional requirement involving substantial damages to a res, or thing.[87] While historic trespass law did not require damages, adding a requirement of damage to a res for intangible substances means that trespass law demands an interference with the right of possession.[88] The requirement of damages or injury means that intrusions of intangible substances occurring as part of normal activities are not trespasses.[89] For example, ambient air almost always contains particles from many sources so that invasions of expected and ordinary particles are not trespasses.[90] But concentrations of intruding particles that cause significant interferences may constitute a trespass if they injure a res.[91]

A leading authority for the requirement of substantial damages is Borland v. Sanders Lead Company, an Alabama case involving the trespass of lead particulates and sulfoxide gases.[92] The Alabama Supreme Court decided that intangible invasions of property interests interfering “with the right to exclusive possession of property” were trespasses.[93] The court determined that trespass is not dependent upon whether the intruding substance is tangible or intangible and that invisible pieces of matter or energy intruding on property could constitute a trespass.[94] However, for a trespass by intangible substances under Alabama law, the court delineated four requirements: an invasion, intentional doing of the act, reasonable foreseeability, and substantial damages.[95]

Borland and others created the “modern view” of trespass law.[96] Intrusions of intangible particles may constitute a trespass if they meet a further requirement of substantial damages to the res.[97] By incorporating a requirement of substantial damages, trespass can be used to address invasions of intangible substances.[98] While intrusions of particles and droplets causing damages to property may be trespasses under this jurisprudence, intrusions of light,[99] odors,[100] and electromagnetic fields[101] generally are not trespasses.[102] Substantial damages to the res show an interference with exclusive possession so that the intrusion of intangible particles constitutes a trespass.[103]

Rather than focusing on substantial damages to a res, some courts have espoused a requirement involving physical damage to the plaintiff’s property. Interpreting Colorado law, the Tenth Circuit Court of Appeals considered a trespass allegation involving a release of plutonium particles that contaminated plaintiffs’ properties.[104] Since the particles were impalpable, the court found them to be intangible and required a showing of physical damage to find liability.[105] Upon remand, the plaintiffs would be required to prove “actual physical damage to their property” to establish a trespass for the invasion of intangible particles.[106] A federal district court in Missouri interpreted the state’s law to enable plaintiffs to maintain a trespass cause of action for stray electricity that allegedly had a deleterious effect on their electric motors and appliances and accelerated corrosion of metal structures.[107] By alleging actual physical damage by the escaping electricity, the plaintiffs had presented sufficient evidence to maintain a cause of action in trespass.

Other courts require some type of physical presence by examining whether the facts show an intangible substance being deposited on the plaintiff’s property. The Fifth Circuit Court of Appeals considered allegations of a trespass by airborne heavy metals that contaminated plaintiffs’ properties and caused other damages.[108] The court found that Texas law allowed trespass actions for airborne particulates if they deposited some “thing” on the plaintiffs’ properties.[109] Because the plaintiffs had introduced evidence that the airborne particulates were deposited on their properties, they had established evidence of a trespass.[110]

A sign placed by the Kansas State Department of Agriculture alerts farmers to crops sensitive to pesticide and herbicide drift. Photo courtesy of Kansas State Department of Agriculture.

D. Bringing Lawsuits for Trespass or Nuisance

Plaintiffs bringing actions for invasions of intangible objects in states with historic limitations on trespass law will need to differentiate their situations to overcome judicial precedents. This may be achieved by introducing detailed evidence to establish a trespass that distinguishes the case from whatever limitation was present in an earlier decision. The facts and evidence of some pesticide drift cases lend themselves to differentiation and qualification as a trespass.

In rare situations, plaintiffs may have been present during the spraying and seen and felt the spray drift coming onto their property. This evidence existed in a Colorado case and was used, with further affidavits, to establish liability under trespass law.[111] The plaintiffs showed that the Malathion residue on their property came from the defendant and that there were no other spray applications that would account for residues. Without acknowledging a physical invasion, the court found the evidence sufficient to grant the plaintiffs summary judgment on the trespass claim.[112]

In most spray drift cases, plaintiffs will not have felt the effects of the spray drift so other evidence is required to establish a trespass. Typically, this will involve damages to a crop.[113] As soon as a problem is noted, a plaintiff will need to evaluate the situation to determine whether sufficient evidence can be obtained to establish liability and whether the damages are sufficient to invest in efforts to secure relief. Gathering evidence to establish causation and prove a trespass will require the assistance of experts who know what to look for, what is needed, and can perform the necessary tests to relate the pesticide drift to injuries.

Plaintiffs generally will need to introduce evidence of physical damage to plants related to a defendant’s spray activities to establish a trespass.[114] An agronomic inspection and tissue samples from the affected area can form the basis of evidence of pesticide damage. The samples would undergo testing using liquid and gas chromatographic methods with mass spectrophotometric detection to identify the culprit pesticide residue.[115] This evidence will need to be gathered immediately as plants rapidly metabolize some pesticides and, in some cases, residues may no longer be present in dead tissue.[116] Samples may need to be chilled or frozen to preserve evidence of a pesticide residue.[117] Moreover, documentation of the chain of custody of the samples will need to meet evidentiary standards.[118]

A plaintiff will also need to secure the spray records of all possible neighbors whose actions might have contributed to the damages.[119] With information on the dates of applications of pesticides, a plaintiff can match residue samples to a specific pesticide used by an applicator. Next, the plaintiff can document information on the wind and climatic conditions of the day of the pesticide application to show a relationship between the defendant’s action and the drift damages.[120] Further, the plaintiff may gather affidavits from other neighbors documenting the nonuse of the culprit pesticide to support the claim that the pesticide causing damage came from the defendant.

With the information from the samples and records of pesticide usage, the plaintiff would need one or more experts on crop damages to offer testimony as expert witnesses.[121] The experts would explain that the damage to the plants was consistent with the application of the culprit pesticide, how the pesticide affected the growth and development of the crop, and the amount of the financial loss suffered by the plaintiff.

For states in which courts have found that intangible invasions do not interfere with a landowner’s exclusive possession of land, plaintiffs may be able to distinguish that a deposit of spray has interfered with their possession. Agricultural producers use their properties to grow crops that they sell to others. Any action by an unauthorized person that denigrates a crop interferes with the owner’s exclusive right to use property for crop production. The unauthorized physical injury to plant material caused by a defendant’s spray drift constitutes an interference with a plaintiff’s exclusive possession.

With the careful documentation of spray drift damages, a plaintiff can distinguish the case from established precedents that declined to recognize trespasses by intangibles. This might start with an explanation on how an action in trespass for spray drift is different from actions concerning dust, electromagnetic fields, or vibrations. The evidence from the testing laboratory showing the presence of an unauthorized deposit of a pesticide would constitute evidence of an invasion of a plaintiff’s property with a deposit that caused physical damage. This evidence would distinguish spray drift from other types of invasions that lack deposits. Moreover, the physical damage would establish interference with a plaintiff’s exclusive possession. The evidence would enable the court to differentiate earlier precedents that declined to recognize a trespass action for entry of intangibles.

For example, a court concluded in a spray drift case from Vermont that the plaintiffs failed to demonstrate a “physical impact” on property so were not able to establish a cause of action in trespass.[122] This precedent does not preclude a subsequent plaintiff from developing evidence that documents a physical impact. Through an orderly documentation of the defendant’s actions, a plaintiff could establish injury to plants from a pesticide used by a defendant. Through the introduction of evidence of destruction of plants or stunting or physical alteration of growing plants, a plaintiff can present evidence of physical damage.[123] This suggests that in some spray drift cases, a plaintiff should be able to assemble the necessary documentation to meet the requirement of a physical impact.

Another problem with trespasses by intangibles such as dust has been the absence of “proof of damage to the invaded property.”[124] An allegation of trespass with evidence of a documented deposit of a pesticide interfering with exclusive possession that caused physical damage supports a trespass. A conclusion that the facts of a spray drift case present sufficient evidence to maintain an action is trespass would not change trespass law for most intangible invasions. Only invasions with a deposit clearly related to physical damages would qualify as a trespass.

Conclusion

Activities that generate intangible substances that are carried in the air onto properties of others present courts with difficult questions concerning liability for damages. Because different intangible substances pose greater dangers and inflict greater harm than others, some states have proceeded to differentiate particles from intangibles such as odors, noise, and radiation waves. The distinctions suggest that attempts to treat all intangible substances as similar are misplaced.[125] While ambient air may always contain intangible substances, this should not mean that unnatural concentrations of particles from human activities damaging properties of others cannot be a trespass.

Persons causing particles to invade properties of others to damage a possessory interest in property are trespassing. A Texas court concluded particles were a “thing” that could invade another’s property and constitute a trespass.[126] Evidence that the plaintiff photographed an intrusion and smelled and felt the spray drift led a Colorado court to conclude that the existence of particles was a trespass.[127] States adopting a “modern view” of trespass law allow recoveries for invasions of intangible substances if there are substantial damages or physical invasions.[128] Alternatively, the jurisprudence of at least one state provides that intangible particles constitute a trespass without a showing of actual or substantial harm.[129]

The existence of a nuisance cause of action should not impinge a plaintiff’s right to recover damages under trespass law.[130] This is particularly important whenever an anti-nuisance statute shields an invasion of spray drift or when a statute of limitations has expired for a nuisance claim of action but not for trespass. Although trespass law is not as amenable as nuisance for balancing equities, the rights of persons generating intangible substances and those claiming injuries from the substances may be reconciled under trespass law. This is accomplished under the “modern view” of trespass law by requiring a plaintiff to show substantial damages to a res or physical damage. State law may be expected to evolve so that plaintiffs suffering damages from an unreasonable invasion of an intangible substance can secure relief under trespass law.

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Copyright © 2014 Terence J. Centner.

* Terence J. Centner is Professor of Agricultural and Applied Economics at the University of Georgia and his teaching program involves environmental, public health, and agribusiness law courses. He focuses on policy analyses of current issues confronting agriculture and the environment.

[1]. It is estimated that one in seven people lack access to sufficient protein and energy in their diet. Charles J. Godfray et al., Food Security: The Challenge of Feeding 9 Billion People, 327 Sci. 812, 812 (2010).

[2]. It is estimated that by 2050 the world will need 70 percent more food due to increasing population and changes in diets. József Popp, Károly Petö & János Nagy, Pesticide Productivity and Food Security: A Review, 33 Agronomy Sustainable Dev. 243, 243 (2013). Population growth is also accompanied by an increase in the demand for water for the production of food crops. Henry Vaux Jr., Water for Agriculture and the Environment: The Ultimate Trade-off, 14 Water Poly 136, 137 (2012). Due to insufficient irrigation water, millions of people will be condemned to starvation. Id.

[3]. See Uwe A. Schneider et al., Impacts of Population Growth, Economic Development, and Technical Change on Global Food Production and Consumption, 104 Agric. Sys. 204, 205 (2011) (noting that intensification of water, fertilizer, pesticides, machinery, and labor has increased food production).

[4]. See David Molden et al., Improving Agricultural Water Productivity: Between Optimism and Caution, 97 Agric. Water Mgmt. 528, 530 (2010) (observing potential crop production gains from irrigated crops by reducing plant transpiration).

[5]. See Godfray et al., supra note 1, at 813 (noting the Green Revolution using plant breeding to increase crop production); Eyal Fridman & Dani Zamir, Next-generation Education in Crop Genetics, 16 Current Op. Plant Bio. 218, 219 (2012) (reporting on the dramatic increases in yields due to hybrids); Mark Tester & Peter Langridge, Breeding Technologies to Increase Crop Production in a Changing World, 327 Sci. 818, 818 (2010) (calculating a linear increase in food production globally of 32 million metric tons per year due to breeding and agronomic improvements).

[6]. Genetically modified crops can decrease losses from pests and increase yields by eliminating competition from weeds. See Parvaiz Ahmad et al., Role of Transgenic Plants in Agriculture and Biopharming, 30 Biotech. Advances 524, 525 (2012) (identifying wheat, rice, and soybean as important transgenic crops that have increased food supplies).

[7]. Technologies enable agricultural production to be intensified through the employment of more water, fertilizer, pesticides, and machinery. Schneider et al., supra note 3, at 205.

[8]. For example, improvements in a crop’s ability to use less water or saline water may lead to greater yields. Tester & Langridge, supra note 5, at 818 (reporting ideas for production increases).

[9]. See Charles M. Benbrook, Impacts of Genetically Engineered Crops on Pesticide Use in the U.S —The First Sixteen Years, 24 Envtl. Sci. Eur. 1, 1–13 (2012) (reporting on genetically engineered plants and the usage of pesticides in the production of food crops).

[10]. See, e.g., Adriane J. Busby & Gabriel Eckstein, Organophosphates, Friend and Foe: The Promise of Medical Monitoring for Farm Workers and Their Families, 27 UCLA J. Envtl. L. & Pol’y 39, 50–68 (2009) (discussing the protection of farm workers from pesticides).

[11]. 7 U.S.C. § 136j(a)(1) (2014). However, nonregistered pesticides may be produced and exported to other countries. 7 U.S.C. § 136o (2014). See Michael Holley, The EPA’s Pesticide Export Policy: Why the United States Should Restrict the Exports of Unregistered Pesticides to Developing Countries, 9 N.Y.U. Envtl. L.J. 340, 343–48 (2001) (discussing the requirements for exporting unregistered pesticides).

[12]. 7 U.S.C. § 136d(b)-(c) (2014). See Christopher M. Iaquinto, Note, A Silent Spring in Deep Water?: Proposing Front-end Regulation of Dispersants after the Deepwater Horizon Disaster, 39 B.C. Envtl. Aff. L. Rev. 419, 437 (2012) (noting the ability of EPA to cancel or suspend the registration of a pesticide).

[13]. 7 U.S.C. § 136j(a)(2)(G) (2014). See Peconic Baykeeper, Inc. v. Suffolk Cnty., 600 F.3d 180, 188 (2d Cir. 2010) (finding that the district court did not explain how it found the spraying to be in compliance with the FIFRA label).

[14]. See, e.g., John Wargo, Our Children's Toxic Legacy: How Science and Law Fail to Protect Us from Pesticides, Yale Univ. Press, 1998 (arguing that the U.S. government’s policies on pesticides have neglected adequate consideration of exposures and the risks faced by children).

[15]. See, e.g., Theodore A. Feitshans, An Analysis of State Pesticide Drift Laws Revisited, 20 San Joaquin Agric. L. Rev. 23, 23–29 (2010–2011) (recounting state regulations governing pesticide spray drift); Theodore A. Feitshans, An Analysis of State Pesticide Drift Laws, 9 San Joaquin Agric. L. Rev. 37, 40–67 (1999) (introducing the issue of state regulation of pesticide spray drift).

[16]. 40 C.F.R. § 158.130(g) (2014) (requiring data that evaluates pesticide spray drift derived from studies of droplet size spectrum and spray drift field evaluations). Further regulatory provisions delineate a table for determining spray drift data. 40 C.F.R. § 158.1100 (2014).

[17]. See Constantino Vischetti et al., Measures to Reduce Pesticide Spray Drift in a Small Aquatic Ecosystem in Vineyard Estate, 389 Sci. Total Env’t 497, 497 (2006) (reporting on the need to employ spray drift management to reduce damages from drift).

[18]. Plaintiffs have the burden of proving that a pesticide applicator failed to follow directions. See Orkin Exterminating Co. v. Carder, 575 S.E.2d 664, 666 (Ga. Ct. App. 2002) (affirming damages for pesticide applications where evidence showed the defendant had failed to comply with label instructions); Kleiss v. Bozdech, 811 N.E.2d 330, 354 (Ill. Ct. App. 2004) (observing it would be a breach of duty to fail to follow label instructions in the application of pesticides); Bennett v. Larsen Co., 348 N.W.2d 540, 549 (Wis. 1984) (overturning a judgment that dismissed a complaint alleging a breach of a duty of care for pesticide users established by administrative regulation).

[19]. See Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 700–01 (Minn. 2012) (considering claims for losses from spray drift); see also Alexandra B. Klass, Bees, Trees, Preemption, and Nuisance: A New Path to Resolving Pesticide Land Use Disputes, 32 Ecology L.Q. 763, 792–805 (2005) (discussing liability for property damage, crop damage, and/or personal injury).

[20]. See, e.g., Macalpine v. Hopper, No. 10CV220, *9–10 (Colo. Dist. Ct., Delta Cnty., July 5, 2012) (enjoining spraying because the defendants’ drift caused throat and lung irritation and difficulties in breathing).

[21]. See, e.g., United States v. Tropical Fruit, S.E., 96 F. Supp. 2d 71, 76–77 (D.P.R. 2000) (finding a violation of FIFRA due to the use of a registered pesticide in a manner inconsistent with its labeling). As scientists search for responses for herbicides that may be used on herbicide-resistant weeds, they may resort to herbicides such as dicamba that are known to present vapor drift damages. J. Franklin Egan & David A. Mortensen, Quantifying Vapor Drift of Dicamba Herbicides Applied to Soybean, 31 Envtl. Toxicol. & Chem. 1023, 1023 (2012) (studying vapor drift from applications of dicamba due to past experiences with damages to neighboring crops).

[22]. See, e.g., Jacobs Farm/Del Cabo, Inc. v. W. Farm Serv., Inc., 119 Cal. Rptr. 3d 529, 551 (Cal. Ct. App. 2010) (concluding that plaintiff’s nuisance claim was viable for pesticide volatilization that harmed neighboring organic herbs); Johnson, 817 N.W.2d at 701 (precluding a trespass claim but finding evidence of a nuisance for damages related to spray drift).

[23]. See Terence J. Centner, Securing Recompense under Nuisance Law for Crop Damages from Pesticide Applications, 432 Sci. Total Env’t 78, 79–80 (2012) (discussing nuisance law actions for pesticide drift).

[24]. See Tropical Fruit, S.E., 96 F. Supp. 2d at 77–78 (alleging a violation of the pesticide label requirements); Ark. State Plant Bd. v. Bullock, 48 S.W.3d 516, 520 (Ark. 2001) (upholding a penalty imposed for violating a state regulation by allowing drift to enter nontarget properties); Patterson Flying Serv. v. Dept. of Pesticide Regulation, 74 Cal. Rptr. 3d 290, 303–04 (finding substantial drift from the target site in conflict with the proscription of the pesticide’s labeling requirement); In re N.C. Pesticide Bd., 509 S.E.2d 165, 169 (N.C. 1998) (acknowledging a violation of state pesticide regulations by applying a pesticide inconsistent with its label); Henderson v. Dept. of Agric., 875 P.2d 487, 489–90 (Or. Ct. App. 1994) (finding that the applicator and his employer applied pesticides in a manner inconsistent with the labels causing drift onto neighboring properties); see also Feitshans (1999), supra note 15, at 40–67 (summarizing liability for spray drift under statutory and regulatory authority).

[25]. See, e.g., Mangrum v. Pigue, 198 S.W.3d 496, 500 (2004) (holding that the aerial spraying of an herbicide is not an ultrahazardous activity so the plaintiff could not maintain a strict liability cause of action); Dow Chem. Co. v. Ebling, 723 N.E.2d 881, 908–09 (Ind. Ct. App. 2000) (weighing factors pertaining to ultrahazardous activity and deciding that strict liability was not applicable to the use of the pesticide); see also Keith Cunningham-Parmeter, A Poisoned Field: Farmworkers, Pesticide Exposure, and Tort Recovery in an Era of Regulatory Failure, 28 N.Y.U. Rev. L. & Soc. Change 431, 478–80 (2004)  (discussing liability for pesticide drift under strict liability for abnormally dangerous activities); Robert W. Luedeman, A Tale of Three States: Liability for Overspray and Chemical Drift Caused by Aerial Application in Arkansas, Louisiana, and Mississippi, 10 S.J. Agric. L. Rev. 121, 128 (2000) (observing that strict liability seems to be “more interesting to scholars than anyone else”).

[26]. Every state has enacted anti-nuisance legislation known as right-to-farm laws. Terence J. Centner, Governmental and Unconstitutional Takings: When Do Right-to-Farm Laws Go Too Far?, 33 B.C. Envtl. Aff. L. Rev. 87, 87 (2006). See Stickdorn v. Zook, 957 N.E.2d 1014, 1024 n.5 (Ind. Ct. App. 2011) (observing that the state’s right-to-farm law offers a defense against nuisance actions); Kanna v. Benton Cnty., No. 17270-8-III, 1999 WL 219783, *9-10  (Wash. Ct. App. 1999)  (observing that pesticide drift could be lawful under the state’s right-to-farm law).

[27]. Bates v. Dow Agrosci., LLC, 544 U.S. 431, 447 (2005) (preempting state labeling requirements that are different from or in addition to labeling and packaging requirements).

[28]. Trial courts have not been very receptive to claims for spray drift. See Mangrum, 198 S.W.3d at 500–03 (granting a directed verdict to the defendants on the negligence claim due to the absence of any evidence of a breach of a duty of care and no proximate causation); Kleiss v. Bozdech, 811 N.E.2d 330, 343–44 (Ill. Ct. App. 2004) (reversing a trial court’s finding that there was no negligence in the application of a pesticide); Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 714 (Minn. 2012) (reversing a trial court's finding that there was no negligence in the application of a pesticide); Lesiak v. Cent. Valley Agric. Coop., Inc., 808 N.W.2d 67, 86 (Neb. 2012) (reversing a trial court’s finding that there was no negligence in the application of a pesticide).

[29]. See, e.g., Fletcher v. Conoco Pipe Line Co., 129 F. Supp. 2d 1255, 1263 (S.D. Mo. 2001) (finding that stray voltage contamination causing physical damage to property presented evidence of a trespass); Ramik v. Darling Int’l, Inc., 60 F. Supp. 2d 680, 688 (S.D. Mich. 1999) (finding that noxious odors without damage to the res does not constitute a trespass).

[30]. While state law and judicial decisions agree with this requirement, it does not address the issue of the character of invasions of intangible objects and their effect on exclusive possession. See In re Chi. Flood Litig., 680 N.E.2d 265, 277 (Ill. 1997) (concerning a physical invasion by water); Wendiger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn. Ct. App. 2003) (denying a trespass claim for odors); Beal v. W. Farmers Elec. Coop., 228 P.3d 538, 541 (Okla. Ct. Civ. App. 2010) (dismissing a trespass claim for stray electricity); Babb v. Lee Cnty. Landfill S.C., LLC, 747 S.E.2d 468, 476 (S.C. 2013) (rejecting a trespass claim for odors due to the absence of “an invasion by a physical, tangible thing”); John Larkin, Inc. v. Marceau, 959 A.2d 551, 556 (Vt. 2008) (rejecting a trespass claim involving air particulates).

[31]. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 12 n.36 (Tex. 2008) (noting injury may be slight or no damage at all); Johnson, 817 N.W.2d at 704 (noting no damages were required for trespass actions); Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 201) (noting that trespass actions do not require damages).

[32]. See Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 701 (Minn. 2012) (noting the Restatement (Second) of Torts approves trespass actions for entry of things); Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782, 785 (Wash. 1985) (quoting a comment from § 158 of the Restatement (Second) of Torts on what constitutes trespass).

[33]. See, e.g., State v. Courchesne, 998 A.2d 1, 103 (Conn. 2010) (noting that “the fact finder may infer intent from the natural consequences of one’s voluntary conduct”) (citing State v. Cobb, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, (2000)); In re Methyl, Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 379 F. Supp. 2d 348, 417–18 (S.D.N.Y. 2005) (noting that intent under trespass does not require consequences that are desired); Brutsche v. Kent, 193 P.3d 110, 116 (Wash. 2008) (citing § 8A of the Restatement (Second) of Torts under which intent infers consequences that are substantially certain to result).

[34]. See, e.g., Royal Ins. Co. v. Pinette, 756 A.2d 520, 523 (Me. 2000) (noting that defendant’s mistake, inadvertence, or negligence is immaterial if there was intent to be on the land).

[35]. Judicial decisions on intangible objects focus on noise, odor, and light. See, e.g.,San Diego Gas & Elec. Co. v. Orange Cnty., 920 P.2d 669, 695 (Cal. 1996) (describing intangible invasions to include “noise, odor, or light”); Abington Ltd. P’ship v. Talcott Mountain Sci. Ctr. for Student Involvement Inc., 657 A.2d 732, 734 (Conn. Ct. App. 1994) (noting “noise, odor, or light” as intangible intrusions); Ramik v. Darling Int’l Inc., 60 F. Supp. 2d 680, 687 (E.D. Mich. 1999) (identifying intangible intrusions to include “noise, odor, or light”) (citing Wilson v. Interlake Steel Co., 32 Cal.3d 229, 233 (1982)). The Fifth Circuit Court of Appeals found that “airborne particles are neither direct nor tangible.” Stevenson v. E.I. DuPont de Nemours & Co., 327 F.3d 400, 405 (5th Cir. 2003). See Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 220 (Mich. Ct. App. 1999) (discussing differences between tangible and intangible invasions); Johnson, 817 N.W.2d at 702 (finding that the particulate matter of spray drift was an intangible substance).

[36]. See infra notes 109–130 and accompanying text.

[37]. See Ramik, 60 F. Supp. 2d at 688 (holding that odor without damage to the res is not an interference with possession and therefore does not constitute a trespass); Johnson, 817 N.W.2d at 702–03 (applying the results of an odor case to allegations of pesticide spray drift); Babb v. Lee Cnty. Landfill S.C., LLC, 747 S.E.2d 468, 476 (S.C. 2013) (finding “that odors cannot give rise to a trespass claim”).

[38]. See Darney v. Dragon Prods. Co., 771 F. Supp. 2d 91, 105–07 (D. Me. 2011) (considering allegations of a trespass by airborne dust and blasting tremors).

[39]. See Maddy v. Vulcan Materials Co., 737 F. Supp. 1528, 1540 (D. Kan. 1990) (observing that smoke without substantial damage to property is not a trespass); Paris v. Lussier, No. 2010-034, 2010 WL 7791942 (Vt. July 16, 2010) (considering allegations of a trespass by smoke, particulates, and/or carbon monoxide).

[40]. See Wilson v. Interlake Steel Co., 649 P.2d 922, 924 (Cal. 1982) (finding that noise not damaging property does not constitute a trespass); Maddy, 737 F. Supp. at 1540 (observing that noise without substantial damage to the plaintiff’s property is not a trespass).

[41]. See Barnett v. Conn. Light & Power Co., 900 F. Supp. 2d 224, 245–46 (D. Conn. 2012) (finding that alleged intrusions by intangible electromagnetic fields did not constitute a trespass).

[42]. See infra notes 45–65 and accompanying text.

[43]. See infra notes 66–84 and accompanying text.

[44]. See infra notes 87–110 and accompanying text.

[45]. Trespass is identified as an interference with exclusive possession while nuisance interferes with use and enjoyment. Martin v. Reynolds Metals Co., 342 P.2d 790, 792 (Or. 1959). This leads to a conclusion that intrusions interfering with the right to exclusive possession of property involve the law of trespass while intrusions to the interest in use and enjoyment of property involve nuisance law. Adam Mossoff, Spam—Oy, What a Nuisance, 19 Berkeley Tech. L.J. 625, 646 (2004). See San Diego Gas & Elec. Co. v. Orange Cnty., 920 P.2d 669, 695 (Cal. 1996) (finding intangible objects are not trespasses because they are actionable under nuisance law); John Larkin, Inc. v. Marceau, 959 A.2d 551, 553–54 (Vt. 2008) (noting that smoke, gas, noise, and invisible particles are only actionable as a private nuisance).

[46]. See, e.g., Babb v. Lee Cnty. Landfill S.C., LLC, 747 S.E.2d 468, 479  (S.C. 2013) (observing that intangible invasions giving rise to nuisances cannot give rise to a trespass claim); Padilla v. Lawrence, 685 P.2d 964, 971 (N.M. Ct. App. 1984) (observing that intangible intrusions such as noise and odor are actionable under nuisance law rather than trespass) (citing Wilson v. Interlake Steel Co., 32 Cal.3d 229, 233 (1982)).

[47]. Johnson v. Paynesville Farmers Union Coop Oil Co., 817 N.W.2d 693, 702–03 (Minn. 2012).

[48]. Id. at 702 (noting that the disruption to a landowner’s exclusive possessory interest is different for intangible spray drift).

[49]. Id. at 704.

[50]. Id. at 702. (citing Wendiger v. Forst Farms, Inc., 662 N.W.2d 546 (Minn. Ct. App. 2003)).

[51]. Id. at 703–05 (citing Borland v. Sanders Lead Co., 396 So. 2d 523 (Ala. 1979) and Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782 (Wash. 1985)).

[52]. Wendiger v. Forst Farms, Inc., 662 N.W.2d 546, 550 (Minn. Ct. App. 2003).

[53]. Johnson v. Paynesville Farmers Union Coop Oil Co., 817 N.W.2d 693, 705 (Minn. 2012).

[54]. Barnett v. Conn. Light & Power Co., 900 F. Supp  2d 224, 245–46 (D. Conn. 2012).

[55]. Id.

[56]. Id. at 246.

[57]. Adams v. Cleveland-Cliffs Iron Co., 602 N.W.2d 215, 221 (Mich. Ct. App. 1999) (rejecting the modern view of trespass that would eliminate the requirement of a direct invasion by a tangible object).

[58]. Id.

[59]. See Restatement (Second) of Torts§ 821D cmt. e (1977); see also Lhotka v. U.S., 114 F.3d 751, 754 (8th Cir. 1997) (finding the plaintiffs had established a prima facie case in both nuisance and trespass); Borland v. Sanders Lead Co., 369 So. 2d 523, 527 (Ala. 1979) (maintaining that the same conduct of defendants may result in actionable invasions under both nuisance and trespass law); Cook v. Rockwell Int’l Corp., 564 F. Supp. 2d 1189, 1198 (D. Colo. 2008) (acknowledging that both the nuisance and trespass actions supported damages).

[60]. Borland, 369 So. 2d at 527 (noting that nuisance and trespass are separate torts for the protection of different interests invaded by a defendant.

[61]. Trespasses may involve invasions causing an interference with possession of property while nuisances consider invasions of personal rights and privileges. Lhotka v. U.S., 114 F.3d at 753–54.

[62]. See Hoery v. U.S., 64 P.3d 214, 222 (Colo. 2003) (finding that “[t]he daily migration and presence of those chemicals on Hoery’s property constitute the continuing torts of trespass and nuisance”); Walker Drug Co. v. La Sal Oil Co., 902 P.2d 1229, 1234 (Utah 1995) (acknowledging that the plaintiffs could sue in trespass and nuisance); Stickdorn v. Zook, 957 N.E.2d 1014, 1024 (Ind. Ct. App. 2011) (allowing both nuisance and trespass actions for damages).

[63]. See Wilson v. Interlake Steel Co., 649 P.2d 922, 925 (Cal. 1982) (observing that a trespass requires an invasion of exclusive possession while nuisance requires an interference with private use and enjoyment of property (quoting Prosser, Torts § 89 (4th Ed. 1971)).

[64]. The most significant statutory defense that could affect actions for damages from spray drift involve state right-to-farm laws that operate to defeat nuisance lawsuits. See Kanna v. Benton Cnty.,, No. 17270-8-III, 1999 WL 219783, *9-10 (Wash. Ct. App. 1999) (observing that defendant could be shielded by the state’s right-to-farm law); Stickdorn v. Zook, 957 N.E.2d 1014, 1024 (Ind. Ct. App. 2011) (observing that the state’s anti-nuisance law offers a defense against nuisance actions but did not apply given the facts of the case).

[65]. In some states, the statute of limitations for nuisance is shorter than for trespass actions. See Ex Parte Brian Nelson Excavating, LLC, 25 So. 3d 1143,1146 (Ala. 2009) (noting that there is a two-year statute of limitations for nuisance actions, but six year statute of limitations for trespasses).

[66]. See Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 701 (Minn. 2012); John Larkin, Inc. v. Marceau, 959 A.2d 551, 554 (Vt. 2008).

[67]. See John Larkin, Inc., 959 A.2d at 554 (observing that absent a demonstrated physical impact, the airborne particles had not interfered with “the landowner’s right to exclusive possession of the land”).

[68]. See Johnson, 817 N.W.2d at 701.

[69]. See Kramer v. Angel’s Path, LLC, 882 N.E.2d 46, 56 (Ohio Ct. App. 2007) (declining to find that light involved a physical intrusion needed to support a trespass allegation).

[70]. See Macalpine v. Hopper, No. 10CV220, at *3 (Colo. Dist. Ct., Delta Cnty., July 5, 2012) (finding that the plaintiffs had felt the spray drift); Stevenson v. E.I. DuPont de Nemours & Co., 327 F.3d 400, 406 (5th Cir. 2003) (acknowledging that airborne particulates can show a substance entering property to support a cause of action in trespass).

[71]. Macalpine, at *3.

[72]. Johnson, 817 N.W.2d at 702.

[73]. Id. at 701–02 (citing James A. Henderson, Jr. et al., The Torts Process 386 (7th ed. 2007)).

[74]. Id. at 705 (observing there was no claim that a tangible object invaded plaintiffs’ property).

[75]. Id. at 713 (finding the plaintiffs still had a viable nuisance claim).

[76]. 959 A.2d 551 (Vt. 2008).

[77]. Id. at 556.

[78]. Id.

[79]. Id. at 555.

[80]. No. 2010-034, 2010 WL 7791942, *1 (Vt. July 16, 2010)

[81]. Id. at *3.

[82]. Id.

[83]. Id.

[84]. No. 10CV220 (Colo. Dist. Ct., Delta Cnty., July 5, 2012).

[85]. Id. at *2.

[86]. Id. at *5.

[87]. See supra note 29 and accompanying text. See also Randall Bezanson & Andrew Finkelman, Trespassory Art, 43 U. Mich. J.L. Reform 245, 290 (2010) (concluding that the new rubric for intangible trespasses under Oregon law requires substantial injury); Woodrow Barfield, Commercial Speech, Intellectual Property Rights, and Advertising Using Virtual Images Inserted in TV, Film, and the Real World, 13 UCLA Entertain. L. Rev. 153, 171 (2006) (noting that a damage requirement applied to an invasion of noise); Borland v. Sanders Lead Co., 396 So. 2d 523, 529 (Ala. 1979) (delineating four requirements for trespasses involving intrusions of particulate matter); Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 390 (Colo. 2001) (requiring physical damage to property).

[88]. See, e.g., Borland, 396 So. 2d at 529 (delineating a requirement of substantial damages to a res); In re Worldcom, Inc., 546 F.3d 211, 219 (8th Cir. 2008) (noting that substantial damage to land is needed before a light pulse could be found to effect a trespass).

[89]. See, e.g., Van Scoy v. Shell Oil Co., No. 95-15961, 1996 WL 563449, *1-2 (9th Cir. 1996) (noting the absence of proof of excess material being deposited on plaintiff’s property so that there was no action in trespass).

[90]. See Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 703 (Minn. 2012); John Larkin, Inc. v. Marceau, 959 A.2d 551, 555 (Vt. 2008).

[91]. See, e.g., John Larkin, Inc., 959 A.2d at 551. See also supra note 30.

[92]. 396 So. 2d 523, 527–28 (Ala. 1979). The Borland court relied on the earlier Martin v. Reynolds Metals Co. case, 342 P.2d 790, 794 (Or. 1959).

[93]. 396 So. 2d at 529.

[94]. Id. at 528–29 (relying on Martin v. Reynolds Metals Co., 342 P.2d 790 (Or. 1959)).

[95]. Id. at 529.

[96]. See, e.g., Darney v. Dragon Prods. Co., 771 F. Supp. 2d 91, 105–07 (D. Me. 2011) (discussing the modern view of trespass law for airborne dust and the requirement of “proof of damage to the invaded property”) ; Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782, 689 (Wash. 1985) (declining to cling to outdated doctrines and recognizing the abandonment of distinguishing between direct and indirect invasions).

[97]. See Bradley, 709 P.2d at 690 (accepting the Borland elements of trespass law that include substantial damages to the res).

[98]. See, e.g., id. at 691 (accepting and approving the four elements set forth in Borland for airborne particulates); In re Worldcom, Inc., 546 F.3d 211, 219 (8th Cir. 2008) (noting that invasions by intangibles may not interfere with possession unless there is substantial damage to the res). The justification for requiring substantial damage to a res for intangible invasions is to preserve trespass’s focus on interferences with rights of possession. Id.

[99]. See In re Worldcom, Inc., 546 F.3d at 219 (noting that a trespass of light pulses would require an allegation of substantial damage to land).

[100]. See San Diego Gas & Elec. Co. v. Orange Cnty., 920 P.2d 669, 695 (Cal. 1996) (noting that intangible intrusions of light, noise, and odor alone were not trespasses); Ramik v. Darling Int’l, Inc., 60 F. Supp. 2d 680, 688 (S.D., Mich. 1999) (finding odors were not trespasses); Babb v. Lee Cnty. Landfill S.C., LLC, 747 S.E.2d 468, 476 (S.C. 2013) (finding that odors do not give rise to a trespass claim).

[101]. See Barnett v. Conn. Light & Power Co., 900 F. Supp. 2d 224, 239 (D. Conn. 2012) (noting that an intangible intrusion of an electromagnetic current is not a trespass). Yet if a plaintiff pleads a physical presence causing damages, stray electric voltage may raise a claim for trespass. Fletcher v. Conoco Pipe Line Co., 129 F. Supp. 2d 1255, 1263 (S.D. Mo. 2001) (observing that the claim of accelerated corrosion of metal structures and other damages presented evidence of a trespass).

[102]. See Beal v. W. Farmers Elec. Coop., 228 P.3d 538, 541 (Okla. Ct. App. 2009) (noting that intangible invasions must cause physical damage to property) (citing 75 Am. Jur. 2d Trespass § 27 (2000)).

[103]. See id. (coupling exclusive possession with an intentional invasion, foreseeability, and substantial damage to property for intangible intrusions). An interference with exclusive possession may require substantial damages. See Paris v. Lussier, No. 2010-034, 2010 WL 7791942 (Vt. July 16, 2010), *1 (differentiating intangible trespass actions to require substantial damages).

[104]. Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1148–49 (10th Cir. 2010).

[105]. Id.

[106]. Id. at 1149.

[107]. Fletcher v. Conoco Pipe Line Co., 129 F. Supp. 2d 1255,at 1263 (S.D. Mo. 2001).

[108]. Stevenson v. E.I. DuPont de Nemours & Co., 327 F.3d 400 (5th Cir. 2003).

[109]. Id. at 406. The court rejected the argument that substantial damage to the property was required. Id.

[110]. Id. at 403 (affirming the jury verdict that defendant was liable for a trespass).

[111]. Macalpine, at *6 .

[112]. Id. at *5.

[113]. See Mayeux v. Cane-Air, Inc., 426 So. 2d 305, 308 (5th Cir. 1983) (involving damages to a soybean crop); Schoppe v. Applied Chems. Div., Mobley Co., Inc., 418 So. 2d 833, 835 (Miss. 1982) (considering damage to cotton and soybean crops).

[114]. See John Larkin, Inc. v. Marceau, 959 A.2d 551, 555 (Vt. 2008) (finding that in the absence of “a demonstrated physical impact” on plaintiffs’ property, there could not be a trespass).

[115]. U.S. Dep’t of Agric., 2010 – 2011Pilot Study Pesticide Residue Testing of Organic Produce, at 2, Nov. 2012 (last visited Feb. 3, 2014) (noting the use of testing to determine the presence of pesticide residues).

[116]. A&L Can. Labs., Inc., Pesticide Residue Analysis. A&L Can. Labs. Inc., at 2 (last visited Feb. 3, 2014) (delineating a sampling procedure for plant tissues).

[117]. A&L Can. Labs., Inc., id.; European Comm’n Health & Consumer Protection Directorate-General, Guidance document on analytical quality control and validation procedures for pesticide residues analysis in food and feed, SANCO/12571/2013, Nov. 19, 2013, at 2 (last visited Feb. 3, 2014).

[118]. See, e.g., Williams v. Illinois, 132 S. Ct. 2221, 2239 (2012) (delineating conventional chain-of-custody evidence).

[119]. Applicators of restricted use pesticides will have these records due to a requirement under FIFRA. See 7 C.F.R. § 110.3 (2013).

[120]. See F.M. Fishel & J.A. Ferrell, Managing Pesticide Drift, Univ. of Fla. Inst. of Food and Agric. Sci. Extension, 3–5 (last visited Feb. 3, 2014) (discussing how wind, air temperature, and relative humidity affect spray drift).

[121]. See Mayeux v. Cane-Air, Inc., 426 So. 2d 305, 308 (5th Cir. 1983) (demonstrating how an expert witness testifies to establish damage to a crop from exposure to a pesticide); Schoppe v. Applied Chems. Div., Mobley Co., Inc., 418 So. 2d 833, 835 (Miss. 1982) (using expert witnesses to establish the amount of loss from pesticide drift).

[122]. John Larkin, Inc. v. Marceau, 959 A.2d 551, 555 (Vt. 2008).

[123]. The unauthorized physical changes to plant materials caused by a defendant’s spray drift, identifiable through testing and records of spray applications, would establish that the defendant’s use of a pesticide caused the damage.

[124]. Darney v. Dragon Products Co., LLC, 994 A.2d 804, 807 (ME 2010).

[125]. E.g., Johnson v. Paynesville Farmers Union Coop. Oil Co., 817 N.W.2d 693, 702 (Minn. 2012) (equating spray drift with smells).

[126]. Stevenson v. E.I. DuPont de Nemours & Co., 327 F.3d 400, 406 (5th Cir. 2003).

[127]. Macalpine v. Hopper, No. 10CV220, *9–10 (Colo. Dist. Ct., Delta Cnty., July 5, 2012).

[128]. However, many states have rejected the modern theory. See In re Worldcom, Inc., 546 F.3d 211, 217 (8th Cir. 2008) (discussing the modern view of trespass that recognizes intangible invasions but finding the invasion had not caused substantial damage to plaintiff’s land); Darney v. Dragon Prods. Co., 771 F. Supp. 2d 91, 105–07 (D. Me. 2011) (considering the modern view of trespass for an intrusion of dust particles but finding no viable trespass claim given the absence of proof of damage to the invaded property); John Larkin, Inc. v. Marceau, 959 A.2d 551, 554–55 (Vt. 2008) (acknowledging the modern theory of trespass allowing claims for intangible airborne particulates but dismissing the trespass claim due to the absence of a physical impact interfering with exclusive possession).

[129]. See In re Tenn. Valley Auth. Ash Spill Litig., 805 F. Supp. 2d 468, 484 (E.D. Tenn. 2011) (finding that invasions of intangible particles in Tennessee are trespasses without a showing of actual or substantial harm); Stephens v. Koch Foods, LLC, 667 F. Supp. 2d 768, 794–96 (E.D. Tenn. 2011) (adopting the modern view of trespass to allow a claim for trespass of gasses to proceed).

[130]. See Restatement (Second) of Torts§ 821D cmt. e (1977).

Copyright 2014 Terence J. Centner. All rights reserved.

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The Berkeley Exchange: Celebrating Berkeley’s Contribution to Environmental Law Scholarship

The Berkeley Exchange: Celebrating Berkeley’s Contribution to Environmental Law Scholarship

Friday, February 7, 2014
Symposium 8am-5:30pm
All-Alumni Reception 6pm-8pm

[Download the Berkeley Exchange event flyer]

On Friday, February 7^th, Berkeley Law’s Ecology Law Quarterly and Center for Law, Energy, and the Environment are proud to host their symposium, The Berkeley Exchange: Celebrating Berkeley’s Contribution to Environmental Law Scholarship. This academic symposium will feature Berkeley Law alumni discussing their latest research, followed by an evening reception.

Symposium
Warren Room, UC Berkeley School of Law

8:00 a.m.        Breakfast

8:30 a.m.        Welcome Remarks
                         Dean Gillian Lester, UC Berkeley School of Law
                         Holly Doremus, UC Berkeley School of Law

9:15 a.m.        Panel 1: Evaluating International Environmental Goals and Progress
                         Daniel Farber, UC Berkeley School of Law (Moderator)
                         Cinnamon Carlarne, Moritz College of Law, The Ohio State University
                         Anastasia Telesetsky, Idaho Law School
                         Tse-Ming Yang, Santa Clara Law School

10:45 a.m.      Break

11:15 a.m.      Panel 2: Putting Environmental Justice at the Center of Environmental Law
                         Michelle Anderson, UC Berkeley School of Law (Moderator)
                         Maxine Burkett, William S. Richardson School of Law
                         Tony LoPresti
                         Alan Ramo, Golden Gate University School of Law

12:45 p.m.      Lunch
                         Marc Mihaly, Vermont Law School

2:15 p.m.        Panel 3: Environmental Law in an Interdisciplinary Context
                         Eric Biber, UC Berkeley School of Law (Moderator)
                         Dave Owen, Maine Law School
                         Jessica Owley, SUNY Buffalo Law School
                         Ryan Kelly, University of Washington, School of Marine and Environmental Affairs
                         Melissa Scanlan, Vermont Law School

3:45 p.m.        Break

4:00 p.m.        Panel 4: Energy and Climate Change
                         Bruce Huber, University of Notre Dame Law School
                         Steve Ferrey, Suffolk University Law School
                         Tim Duane, University of San Diego School of Law

6:00 p.m.        Reception
                         Steinhart Courtyard, UC Berkeley School of Law

We invite all Berkeley Law and ELQ alumni to join us for a celebration and reunion after the close of the symposium. Even if you cannot attend the symposium, we invite you to join us. 

Register
Symposium registration is free. Reception by donation. To register for the symposium or reception, please click here and fill out the form.

Location
UC Berkeley School of Law
215 Boalt Hall
Berkeley, CA 94720
(510) 642-1741

Contact
Questions? Comments? Please contact Symposium Co-Director Patrick Metz at [email protected].

The Obsolescence of Environmental Common Law

by R. Trent Taylor*

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Obsolescence, the process of becoming obsolete, is a staple of our lives in the twenty-first century. As new and better technologies develop at a faster and faster pace, our existing technologies—smartphones, televisions, computers—become obsolete almost as soon as they are released to the public. Entire technologies, like the fax machine, emerge rapidly and then disappear just as quickly with the advent of a faster and easier alternative. With respect to technology, we have come to expect, even welcome, obsolescence, as it carries with it better alternatives.

Photo credit to umjanedoan.

The law, however, is another matter. By its very design, it is meant to change slowly. Justice Benjamin N. Cardozo once said, “the encroachments [to the established common law] are so gradual that their significance is at first obscured.”[1] As a result, obsolescence is rare in the law. Once the law incorporates a particular doctrine, it is slow to discard it. Indeed, legal treatises of tort law published recently and those published hundreds of years ago show many similarities.

Surprisingly, one of the oldest and most utilized areas of our legal system, environmental common law, is currently on the verge of obsolescence. Environmental common law dates back to the seventeenth century.[2] It survived the passage of seemingly comprehensive environmental statutes four decades ago.[3] Now, however, a series of court decisions from the past three years hold that environmental common law actions, regardless of whether they are seeking injunctive relief or monetary damages, are preempted and displaced by federal statutes and regulations.

Sulfuric Acid Mist: Regulating Uncertainties

Matthew Thurlow*

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<<< See Update, January 2, 2013, below >>>

Sulfuric acid mist, also known as H₂SO₄ or SO₃,[1] is one of the least publicized air pollutants associated with emissions from coal-fired power plants. Long overshadowed by nitrogen oxides, sulfur dioxide, and carbon dioxide, sulfuric acid mist is typically not emitted in the boundary-crossing and globe-altering quantities of the more frequently discussed air pollutants. In the whirlwind of the United States Environmental Protection Agency’s (EPA) recent air regulations of coal-fired power plants including the Mercury and Air Toxic Standards for power plants (MATS), the New Source Performance Standards and the Tailoring Rule for greenhouse gases, and the recently vacated Cross-State Air Pollution Rule, sulfuric acid mist has remained relatively untouched.[2] But EPA’s regulations, which have imposed dramatic new emission limits on sulfur dioxide, nitrogen oxides, greenhouse gases, mercury, and hydrochloric acid, are likely to have a significant impact on sulfuric acid mist emission control strategies at coal-fired power plants.[3]

Sulfuric acid mist emissions from coal-fired power plants, which creates tell-tale blue plumes (not pictured here), has increasingly been under scrutiny by the EPA over the past decade. Photo credit to ribarnica.

Geographic Indications as a Tool to Promote Sustainability? Café de Colombia and Tequila Compared

Jennifer Barnette*

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Geographical indications (GIs) are a type of intellectual property right associated with place-based names. GIs are used to identify products that come from certain regions and have particular characteristics that indicate the product’s quality or reputation (e.g. “Champagne,” “Roquefort”).[1] While GIs are protected by various legal principles and statutes—including sui generis GI laws, trademarks, certification marks, and collective marks—all GIs function to certify that a product possesses certain qualities, is made according to traditional methods, or enjoys a certain reputation due to its geographical origin.[2] While the oldest and most developed systems of GI protection are found in Europe, other developing countries have recently begun implementing GI legislation domestically and seeking protection in international trade agreements, with the goals of promoting rural development and protecting local heritage and the natural environment.[3]

Geographic indications, when managed to support the interests of local farmers, can bring sustainable economic development to developing countries. However, benefits to farmers are eroded when the focus shifts from regional uniqueness to corporate profits. Photo credit to krembo1.

As technological advances in communication and transportation continue to foster international economic transactions, the global distribution of agricultural products has increased competition among developing countries. In our globalized world of industrial agriculture, where large-scale producers from developed countries often benefit from government subsidies, agricultural producers in emerging economies are forced to achieve greater product differentiation to stand out from competitors and position themselves on more profitable market segments.[4] As part of a comprehensive strategy to increase product differentiation and charge higher prices in the international market, GIs offer a promising avenue for enhancing the value of local products.[5] Indeed, GI products tend to have a reputation for higher quality and therefore command a higher price than similar products that lack unique place-based characteristics.[6]

Will the Wilderness Act Be Diluted in Drakes Estero?

Nell Green Nylen, Elisabeth Long, Mary Loum, Heather Welles,
Dan Carlin, Brynn Cook, and Sage Adams*

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<<< See Update 1, November 29, 2012, Below >>>
<<< See Update 2, December 10, 2012, Below >>>

Introduction and Background

Drakes Bay Oyster Company (DBOC)[1] runs a commercial shellfish farming operation in Drakes Estero, a 2,500-acre network of five finger-like bays that extend into the Point Reyes Peninsula, north of San Francisco, California.[2] In 1976, Congress designated more than 25,000 acres of wilderness and 8,003 acres (including the Estero) of potential wilderness within the Point Reyes National Seashore.[3] This marked the first time Congress used the “potential wilderness” designation, creating a new category for areas that would become full wilderness without further legislative action once temporary uses inconsistent with wilderness values ceased.[4] Since that time, Congress has designated more than 250,000 acres of potential wilderness—referred to in this Article as “congressionally designated potential wilderness areas” (CDPWAs)—associated with twenty-nine different wildernesses in thirteen states.[5] DBOC’s aquaculture business remains the sole nonconforming use preventing Drakes Estero from converting to full wilderness.[6] Its authorization to operate is set to expire before the end of 2012.[7]

Part of the onshore operations of Drakes Bay Oyster Company, which farms nonnative shellfish in Drakes Estero, an area Congress has designated as potential wilderness. Photo credit to Nell Green Nylen.

Hydraulic Fracturing and Groundwater Contamination: Can Disclosure Rules Clarify What’s In Our Groundwater?

Rachel Degenhardt*

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Hydraulic fracturing is a process whereby chemical additives, sand, and water are pumped into underground source rocks at high pressures in order to release natural gas and oil for fuel production.[1] There are a number of potential environmental impacts associated with this process, including risks of groundwater contamination, the mishandling of wastewater, and the potential migration of gases and hydraulic fracturing chemicals to the surface.[2] Despite these concerns, the Safe Water Drinking Act currently provides an exemption for the oil and natural gas industry and excludes the process known as hydraulic fracturing from regulatory efforts of underground injection controls.[3] This lack of regulation, coupled with the recent rise in domestic oil and natural gas production in the United States, has led to intense debate surrounding this controversial extraction process.[4]

Student Review of Selected Panels at the 2012 Water Law Symposium "Water and Growth: The Imperative for Sustainable Approaches to Uncertainty"

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Click here for videos of all sessions or on each session for its video.

All review authors attended the 2012 Water Law Symposium hosted at the University of California, Berkeley, School of Law on January 21, 2012. The panel reviews are based on their own observations and reflections. No citations should be attributed directly to the panelists themselves.

Seawater Desalination: Climate Change Adaptation Strategy or Contributor?

Angela Haren Kelley*

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While droughts and water supply challenges have plagued California for decades, climate change will increase the strain on California’s water management system.[1] Seawater desalination—the process of removing salt and other minerals from seawater—is often hailed as the solution to the state’s water supply challenges.[2] However, proposals to build seawater desalination plants, which demand enormous quantities of energy, could be a shortsighted fix that will ultimately exacerbate climate change due to corresponding greenhouse gas (GHG) emissions. This article explores seawater desalination and alternative strategies for California to adapt to climate change, and concludes that an effective adaptation approach will require strategies to reduce GHG emissions.

Seawater desalination plant in South Korea. Photo credit to roplant.

Acceptability of the Deschutes Groundwater Mitigation Program

Eva Lieberherr*

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“We can’t create water or increase the supply. We can only hold back and redistribute what there is.”[1]

In the last decade, the Deschutes River Basin in Central Oregon has faced growing urbanization, shifting water uses, and increasing ecosystem health concerns. This has led the Oregon Water Resources Department to experiment with a voluntary market-based approach to water management. To meet groundwater demands while maintaining instream flows and upholding prior water allocations, the Oregon Water Resources Department developed the Groundwater Mitigation Program in 2002. A program will be more effective and viable if it is deemed acceptable by its participants. As such, this research focuses on how acceptable the Groundwater Mitigation Program is to its participants.[2] Comparing two hypothetical alternative scenarios to the Groundwater Mitigation Program, I determine acceptability by the following criteria: usability, accountability, enforcement, equity, information dissemination, cost-effectiveness, and utility. The research incorporates a mixed-method approach, conducting interviews and surveys of program participants. Results indicate that although the Groundwater Mitigation Program is more acceptable than the proposed alternatives, a lengthy groundwater permitting process, passive enforcement, and a lack of information nonetheless make the program unfavorable to its participants. Increased awareness could promote acceptance of the Groundwater Mitigation Program, and at the same time, contribute to the effectiveness of the program.

The Deschutes River near Bend, Oregon. Photo credit to MonkeyBoy22.

BP’s Well Evaded Environmental Review: Categorical Exclusion Policy Remains Unchanged

Jaclyn Lopez*

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Introduction

Sea snot, tar balls, and designated oiled carcass holding locations are just a few of the many appalling and lingering consequences of the failure of BP’s Macondo well in the deep waters of the Gulf of Mexico. The catastrophe began on April 20, 2010 when the well’s blowout preventer failed and caused a fiery explosion aboard the Deepwater Horizon, the oil rig owned by Transocean and leased and operated by BP. The accident killed eleven rig workers and led to the largest oil spill in American history. Plugging the well took three months plus an additional two months to kill the well. Called an unprecedented environmental disaster by some and the Crime of the Century by others, BP’s oil spill resulted in an estimated total discharge of 4.9 million barrels (205.8 million gallons) of oil, largely unmitigated, into the Gulf of Mexico. While the precise cause of the well’s failure is still unknown, what has become evident is that the drilling plans for BP’s broken well never underwent full environmental review – a review that could have helped prepare the company and local and federal governments for such an eventual catastrophe.

Smoke plumes from spill-response crews gathering and burning oil in the Gulf of Mexico near the site of the leaking Macondo well. Photo taken June 22, 2010. Photo credit to Dr. Oscar Garcia / Florida State University.

7th Annual EJ Symposium — Hungry for Justice: Growing an Equitable Food System

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A National Injustice: The Federal Government’s Systematic Removal and Eradication of an American Icon

Bruce Wagman[*] & Lisa McCurdy[**]

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Brutal captures and deaths of American wild horses are occurring on the range. This is not a fictional western gone bad but federal policy. The government tries to justify this cruelty with junk science and is sheltered in its actions by procedural barriers and judicial deference. For nearly four decades, federal contractors have been capturing wild horses and burros across the western United States under the guise of “management” pursuant to the Wild Free-Roaming Horses and Burros Act.[1] The horses are often chased down by helicopters, sometimes for miles through rough terrain in the heat of summer, lassoed, and forced to the ground and then into trailers.

Wild horses are driven down a steep slope by a helicopter during the Twin Peaks Roundup, August 15, 2010. Video credit to Humane Observer.

Student Review of Selected Panels at the Thelton E. Henderson Center for Social Justice 2010 Symposium “Empowered Partnerships: Participatory Action Research for Environmental Justice”

Anna Lund, Michelle Ben-David, and Ubaldo Fernandez*

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The following articles are student responses and observations of a selected few panels at Berkeley Law’s 2010 Symposium “Empowered Partnerships: Participatory Action Research for Environmental Justice” hosted by the Thelton E. Henderson Center for Social Justice and co-sponsored by Students for Economic and Environmental Justice at UC Berkeley School of Law; the Center on Race, Poverty & the Environment; Communities for a Better Environment; Asian Pacific Environmental Network; West Oakland Environmental Indicators Project; ¡PODER! - People Organizing to Demand Environmental & Economic Rights; California Rural Legal Assistance, Inc.; Greenaction for Health and Environmental Justice; The Pacific Institute; Environmental Studies Institute at Santa Clara University; Cal Corps at UC Berkeley; La Raza Law Students Association at UC Berkeley School of Law; Berkeley La Raza Law Journal; Ecology Law Quarterly; Central Valley Air Quality Coalition; California Law Review; California Environmental Justice Alliance; and the Women of Color Collective at UC Berkeley School of Law.

Promoting the Urban Homestead: Reform of Local Land Use Laws to Allow Microlivestock on Residential Lots

 

Mary Wood, Jeremy Pyle, Naomi Rowden, & Katy Irwin*

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Introduction

Over the past several decades, Americans have divorced themselves from the ages-old endeavor of growing and harvesting their own food. During this era, the food system has undergone a radical change from its traditional makeup that predominated even just a few generations ago. Today, global distribution systems transport food thousands of miles before it reaches its final destination. While this model provides convenience and selection for consumers, the consolidation and centralization of food production has come at a high price. The U.S. food system is highly polluting, vulnerable to adversity, unsustainable, and, in some cases, unsafe for consumers.[1] For these and other reasons, citizens are increasingly urging their local officials to initiate regulatory and policy changes to encourage local food production on both public and private property. This Article explores some of the law and policy considerations for reforming city codes to allow for “urban homesteading” on residential city lots, focusing in particular on regulations pertaining to husbandry of microlivestock.

Backyard goat.  Photo credit to pinkhippodesign.

Whale of an Opportunity: Coast Guard Study of Los Angeles/Long Beach Port Access Routes Holds Great Potential for Reducing Ship Strikes within Santa Barbara Channel

Brian P. Segee*

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Introduction

As global whale populations slowly recover from historic hunting that brought numerous species to the brink of extinction, the increasing number of whales killed by collisions with ships threatens to slow or even reverse this recovery in some areas. Along the west coast of the United States, this conflict is most clearly evident in the Santa Barbara Channel, which not only provides essential habitat for numerous whales, including the densest seasonal population of blue whales on the planet, but also serves as the primary formal shipping lane for traffic into and out of the nation’s busiest port complex at the Los Angeles and Long Beach Harbors (LA/LB). While ship strikes have been implicated in the deaths of blue whales off the California coast since as early as 1980, the incidence of strikes has steadily risen, and in 2007 an unprecedented five blue whales were struck and killed in the Santa Barbara Channel.[1]

Implementing SB 375: Promises and Pitfalls

Heather Haney*

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Introduction

On September 30, 2008, California passed the Sustainable Communities and Climate Protection Act, or SB 375. The legislation was the first in the country to link land use, transportation, and housing planning with global warming. The nation’s attention was once again focused on California’s efforts to address global climate change through innovative regulation.[1] Three years before, the legislature had passed The Global Warming Solutions Act of 2006, or AB 32, which requires the state to reduce greenhouse gas (GHG) emissions to 1990 levels no later than 2020.[2] Since passenger vehicles account for approximately thirty percent of the state’s total emissions and their numbers have increased drastically from 1990 levels,[3] it was generally accepted that without improved land use and transportation policies, California would not be able to achieve the goals of AB 32.[4] The general concept is that movement away from low-density suburban “sprawl” and toward higher-density, transit-oriented development that is less dependent on the private automobile would lead to lower GHG emissions.

SB 375 has three goals: (1) to use the regional transportation planning process to help achieve the goals of AB 32; (2) to provide possible streamlining of California Environmental Quality Act (CEQA) procedures for residential projects, helping achieve the GHG emissions reduction goals; and (3) to coordinate the regional housing needs allocation process with the regional planning process. It builds upon existing regulatory structures and seeks to incentivize more compact development through project funding and process streamlining.

This Article will discuss the legislative history behind SB 375, the current language of the statute, what compromises were made in developing its final language, what potential obstacles may arise in implementing the law, and suggestions on additional legislative and administrative steps that should be taken to practically achieve its goals.

Lessons Already Learned: An Analysis of Waxman-Markey under Current WTO Case Law

Gregory E. Wannier*

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Introduction

In 2009, the House of Representatives, responding to rising concerns over anthropogenic contributions to climate change, passed the first major piece of climate legislation in U.S. history.[1] This bill, the “American Clean Energy and Security Act of 2009” (ACESA), would cap U.S. carbon emissions and establish a national carbon market where regulated parties trade carbon dioxide emissions rights.[2] However, because many in the developed world fear that carbon markets will hurt domestic industries and lead to job losses and “leakage” of carbon emissions to less-regulated markets in the developing world,[3] ACESA imposes severe quality controls on the importation of energy-intensive manufactured goods that face the highest prospective carbon reduction costs.[4] This provision could dramatically affect trade, and thus could be challenged under the World Trade Organization (WTO), an intriguing possibility given the WTO’s controversial status in the trade community.[5]

 
International shipping containers at the Port of Oakland, Oakland, California.  Photo courtesy of Nell Green Nylen.
 

This Article takes ACESA through a theoretical WTO review, ultimately finding that ACESA would probably pass WTO review with some modifications. WTO consideration of ACESA could serve as an indication of how future unilateral action can be effectively and legally taken. However, the lesson from this analysis goes further; WTO retains the ability to overturn environmental protections, and its decisions are respected (if not always appreciated or adhered to) by the international community. As countries negotiate a balance between economic fears in the developed world and economic growth in the developing world, they may find that norms established and enforced by the WTO provide useful insights.

A New Dawn for the Sacramento-San Joaquin Delta? Assessing the 2009 California Delta/Water Legislation

Richard M. Frank*

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Introduction

The California legislature’s major, substantive achievement of 2009 was the passage of a five-bill package designed to address the multiple ills that have befallen the California Delta[1] and compromised statewide water policy. The bills were signed into law with great fanfare by California Governor Arnold Schwarzenegger last November.

This Article focuses on three related topics: (1) the legal, scientific and political developments that gave rise to this important and controversial legislation; (2) the key features of each of the five bills; and (3) the extent to which the legislation represents sound environmental policy and the likelihood that its broad objectives will be realized.

Why 350? Climate Policy Must Aim to Stabilize Greenhouse Gases at the Level Necessary to Minimize the Risk of Catastrophic Outcomes

Matt Vespa *

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Introduction

After years of inaction, the possibility of substantive federal and international climate policy is finally in sight. With so much time already squandered, insufficient action today will foreclose the ability to prevent catastrophe tomorrow. If we are to avoid saddling future generations with extreme economic and environmental hardships, emerging climate policy must ensure a high probability of keeping future warming below dangerous levels.

Restoring Public Trust in the Public Lands: An Agenda for the New Administration

Eric Biber, Holly Doremus, Dan Farber, Rick Frank, and Joseph Sax *

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Federally-owned and managed public lands occupy approximately thirty percent of the land area of the United States, and anywhere from forty-five percent to over eighty percent of the land area of many of the states of the West, including California.[1] Those federal lands are significant sources of economically important natural resources for the United States, including timber, rangeland, and minerals. In particular, they are an important source of energy resources for the United States, both fossil fuel (oil, natural gas, and coal) and renewable (wind, solar, geothermal).[2] Many communities in the West continue to rely on the extraction of these resources as important components of their economies.

But these lands are not only important for the exploitation of natural resources. They provide unparalleled recreational opportunities for a wide range of Americans, including fishing, backpacking, skiing, and off-road vehicle use. Indeed, those recreational opportunities have become central to the quality of life of many of the residents of rapidly growing Intermountain West cities such as Denver, Salt Lake City, Reno, Boise, and Missoula, and they are a significant reason why so many people have moved to those cities, as well as many rural areas in the West.[3]

A third quality of our public lands system, is the role that federal public lands play as a reserve system: perhaps to an extent unmatched in the rest of the world the federal public lands system protects open space, amazing scenery, functioning ecosystems, wilderness, and endangered species.[4]

A Challenge for the Obama Team: Put Science and Federal Scientists to Better Use

Holly Doremus *

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Introduction

It’s no secret that the outgoing George W. Bush administration has been hostile to environmental interests. By all accounts the Obama administration will be different on that score (as on many others).

Before it can concentrate on its own new environmental priorities, though, the new administration will have to root out the counterproductive work of its predecessor. To some extent that’s just politics as usual and expected. Some degree of “policy whiplash” legitimately accompanies every presidential transition.

But this transition will be more complicated than usual. As it works to reverse a large number of specific Bush administration decisions, the Obama environmental team will also be battling a systemic problem at key federal environmental agencies. Career federal environmental scientists at both regulatory and research agencies are thoroughly demoralized, and a wide range of observers agree that science is not being used effectively in environmental policy decisions. The morale problem will be helped by case-by-case reversal of some of the most extreme Bush-era anti-environmental actions, but morale will not be fully restored until institutional systems are in place to make better use of scientific evidence and scientific personnel. That sounds easy, but it will take more than simply declaring a commitment to scientific integrity.

Stopping the Conversation: Amended ESA Section 7 Regulations Put Species At Risk

Eric Biber and Cynthia Drew *

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The Endangered Species Act (ESA) is the primary legal tool in the United States for the protection of biodiversity. Since its enactment in 1973, it has played a central role in efforts to halt the decline of native species throughout the country. Central to the ESA’s regulatory structure is Section 7 of the Act, which requires federal agencies to consult with federal wildlife agencies to insure that their actions do not “jeopardize” the existence of species listed for protection under the Act, or “adversely modify” designated critical habitat for listed species.

The outgoing Bush Administration proposed significant changes to the regulations implementing Section 7 of the Act on August 15, 2008.[1] Those changes greatly reduce the scope of Section 7’s application in two major ways. First, they reduce the analysis of federal actions pursuant to Section 7 by making it harder to connect federal actions to potential harm to listed species. Second, they give federal agencies the ability to determine whether their actions might harm listed species and accordingly whether Section 7 consultation should occur at all.

The First One Hundred Days: Ten Things President-Elect Obama Should Do to Confront the Climate Crisis

Patrick Parenteau *

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In a recent speech, former Vice President and Nobel laureate Al Gore challenged the nation to produce 100 percent of its electricity from non-carbon sources within ten years.[1] Linking the issues of climate, energy, economy and national security, Mr. Gore stated: “We’re borrowing money from China to buy oil from the Persian Gulf to burn it in ways that destroy the planet. Every bit of that’s got to change.”

Trains Deliver the Goods

Lawrence B. Landman *

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Trucks Pollute, Trains Don’t

Trains carry goods 94 percent more efficiently than do trucks. California should therefore encourage firms to ship goods on trains, not trucks. Yet the California Air Resources Board (CARB), in its draft Scoping Plan, ignores the huge gains the state could enjoy if it simply used more trains.[1]

Land Use and Climate Change: Is it Time for a National Land Use Policy?

Catherine J. LaCroix *

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The immediate and short answer to the question in the title is no. It will never be time for an articulated federal land use policy; the tradition of local control of land use is simply too strong. But consider, for a moment, what this local control policy has produced: a legacy of massive, auto-dependent suburban sprawl nationwide. When we consider that more than one-third of greenhouse gas emissions in the United States come from transportation[1] and that land use patterns perpetuate auto-dependency,[2] we may find that it is time to raise the question: might there be value in a federal land use policy, set by Congress, to attempt to turn the tide of sprawl? The idea deserves consideration.

Enhancing China’s Environmental Governance: Challenges and Opportunities

Fuqiang Yang and Min Hu *

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Introduction

China’s economic and social development has had severe environmental impacts: from land and water resource deterioration to becoming the world’s largest greenhouse gas emitter, pollution has resulted in total losses equivalent to 3.05 percent of China’s Gross Domestic Product (GDP).[1]

Under a strategic plan to pursue a sustainable development path, China has passed a plethora of environmental laws, standards, and regulations in recent years, and adopted ambitious targets aiming at reducing major pollutants by ten percent and improving GDP energy efficiency by twenty percent in its Eleventh Five Year Plan (2006-2010).[2] These ambitious goals were set despite clear evidence that China’s environmental governance system has struggled with enforcement, especially at the local level. Due to a lack of enforcement, less than one percent of China’s urban residents live in cities that meet World Health Organization air quality standards.[3] Failure to enforce environmental regulations has also contributed to rapid motorization and the growth of polluting and energy-intensive industries, undermining GHG mitigation achievements made in other countries of the world.

A breakthrough in dealing with the problems of China’s high speed growth occurred in March 2008. In recognition of the economic and humanitarian need to improve environmental governance, the National People’s Congress upgraded the vice-cabinet level State Environmental Protection Administration (SEPA) to the cabinet level Ministry of Environmental Protection (MEP).[4] This promotion establishes a basis for building environmental governance capacity through increasing staffing and budgets; increases attention paid to environmental and energy policy integration at all levels of government; and continues efforts to internalize the economic impacts on human health and environmental externalities caused by traditional fuels combustion. This paper discusses institutions which are responsible for environmental governance in China and opportunities to restructure these institutions to integrate environmental concerns into China’s national policy-making process and increase enforcement and compliance.

Integrating Land Use and Transportation Policy in California: The Legislature's Response

Dave Jones *

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The Challenge

Accelerated climate change is the preeminent environmental and economic issue of our time. Unless we change course now, it will be the preeminent issue for the next generations also. Recognizing the situation, the Legislature passed Assembly Bill 32, California Global Warming Solutions Act of 2006.[1] This law put California at the forefront of taking action to combat global warming by establishing aggressive goals for reduction of greenhouse gas (GHG) emissions. The goal of AB 32 is to reduce our greenhouse gas emissions to 1990 levels by the year 2020. We cannot just slow down the rate at which GHGs are being emitted—we must go further and in effect turn back the clock.

Greenhouse Gas Emissions under CEQA – Costs and Opportunities

Peter V. Allen *

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The recent enactment of SB 97[1] has codified the California Attorney General’s argument that increased greenhouse gas emissions and their effects constitute an environmental impact that must be considered by a permitting agency under the California Environmental Quality Act (CEQA).

This new measure will make many CEQA reviews more complex, and will require more costly mitigation measures for many projects, but it also provides some potential opportunities, particularly for renewable energy developers. This Article looks at the implementation of SB 97 and some of its possible ramifications.