Ecology Law Currents

Enough Horsing Around

Joseph Godio

Joseph Godio is the Senior Editor of Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate (ELRS).

 

I.       Introduction

New York City is a city thought by many to be one of the most incredible, majestic, and beautiful cities in the world.  Its prominence and prosperity has grown just like the skyline, continuously reaching new heights.  Ironically, one of the most beautiful places in New York City, Central Park, is also home to one of the most ugly and archaic realities of not just the city, but of the country.  Walking through midtown Manhattan you will find iconic buildings, thousands of business professionals and tourists, and incredible culture.  The ugliness that you will also find is animal cruelty, on full display.

There is a large horse and carriage industry in New York City and carriage drivers are able to exploit horses for upwards of fifty dollars for a short twenty-minute ride.[1]  Under the Animal Welfare Act, horses do not receive any federal protection.[2]  As such, day in and day out, horses are treated in an inhumane manner by the carriage industry in New York City.[3]  The American Society for the Prevention of Cruelty to Animals (“ASPCA”), stated “[t]he life of a carriage horse on New York City streets is extremely difficult and life threatening . . . carriage horses were never meant to live and work in today’s urban setting.”[4]

Carriage horses are forced to work in a harsh environment, foreign to their natural habitat.  They work roughly nine hours per day, seven days a week, walking on hard pavement, pulling a carriage weighing hundreds of pounds, and inhaling unhealthy air from cars, buses, and taxis.[5]  Among the many effects of working in this unnatural environment are incidents where horses will react by taking off at full speed into the busy city streets.[6]  These horses are denied the their fundamental needs to live healthy lives, such as pasture time to “graze, stroll and socialize freely on grass.”[7]

Bridging the Divide: Incorporating Interflow into Legal Discourse on Surface Water-Groundwater Interactions

Reshmina William* and A. Bryan Endres** 

[ download PDF ]

Introduction

Despite the traditional separation of groundwater and surface water in academic and legal literature, both systems are in fact tightly interconnected. This artificial distinction persists due to the idea that groundwater movement takes place on a much larger timescale than surface water flows.[1] While this differentiation is true to some extent, it ignores the significant impact that subsurface flows can have on surface stream baseflow during droughts and peak flow floods.[2] In addition, the differentiation between surface water and groundwater flows has historically led to confusion over how to legally address water quality concerns in systems that handle subsurface flows.  As discussed below, the pending Des Moines Water Works litigation[3] regarding pollution outflows from subsurface drainage infrastructures provides an excellent case study in the importance of legal distinctions between the different types of flow. Such distinctions may fundamentally alter the Clean Water Act’s application in the agricultural context.

Characterization of Hydrologic Regimes

Hydrologic regimes can be characterized by three different primary types of flow. Surface water, or overland flow, is simply water that runs off the surface of the ground. Because this layer of water is visible, it tends to be the most regulated of the three types. Groundwater is defined as water present below the surface, typically contained within porous materials or fractures in rock such as limestone karst systems.[4] However, groundwater can be subdivided further into different categories. The saturated zone is defined as the layer of soil below which the pores are filled completely with water.[5] The top of the saturated zone, where the pore-water pressure is equal to atmospheric pressure, is called the water table.[6] Water flowing through this saturated zone—groundwater flow—typically moves very slowly compared to overland flow, and thus can be fairly easily separated from overland flow.[7] Above the water table, the soil is no longer completely saturated. This layer is called the unsaturated, or vadose, zone. The soil in this layer typically provides the water uptaken by plant roots. The hydraulic properties of the unsaturated zone are also crucial in determining the quantities of water which infiltrate, percolate to groundwater, or run off.[8] Interflow is defined as the lateral movement of water through the vadose zone.

Interflow often is caused by flow through ‘macropores’ left behind by plant roots, or by sudden changes in soil permeability at a soil horizon. Small changes in soil properties can cause subsurface piping, or the build-up of a saturated wedge above the soil horizon surface,[9] which then moves laterally.[10] The processes driving interflow are illustrated in Figure 1. This water may move to the surface before re-infiltrating and becoming groundwater again.[11] As a result, interflow (often referred to as subsurface flow) provides a powerful example of the close connection between groundwater and surface water and the conceptual difficulty of treating these flows separately under different legal regimes.

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]

The Legislative History of the National Park Service’s Conservation and Nonimpairment Mandate

Caitlin Brown

Caitlin Brown is a 3L at Berkeley Law and Co-Editor in Chief of Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate (ELRS).

 

Introduction

The National Park Service manages over 84 million acres of land divided between 413 different sites, and in 2015 alone, served 307.2 million visitors.[1] Their management goals are based on the 1916 National Park Service Organic Act (“the Act”). Section 1 of the Act defines the Park Service’s purpose as “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[2] How are conservation and impairment from section 1 of the Act defined in the legislative history? How did these concepts originally enter the legislation, and what did Congress think the implications of the standards were? Professor Eric Biber of Berkeley Law posed these questions to me to assist with his research for an article he wrote with Elisabeth Long Esposito, The National Park Service Organic Act and Climate Change.[3] Given that 2016 is the centennial of the National Park Service’s founding by the Organic Act, a deep dive into the legislative history of the National Park Service seemed timely.

In the legislative history, Congress never explicitly defined conservation or impairment. However, the concerns of the Congressmen and the experts who influenced the legislation allow inferences about what these provisions mean. Generally, one can interpret these terms by reference to the differences between National Parks and National Forests. In comparison to National Forests, managed for consumptive use of their resources, National Parks were to be preserved for their scenic value and protected for the benefit of future generations.

As the Park Service manages millions of acres of land vulnerable to the impacts of climate change, these questions are important.[4] The Organic Act and subsequent amendments could offer leeway to Park Service managers as they try to respond to those impacts. Because neither the Organic Act nor its amendments set out specific management directives, I searched the legislative history for any evidence from the debates, conferences, and hearings that was useful in interpreting the extremely broad language of section 1. Ultimately, nothing in these documents prohibits active management by the Park Service to conserve and protect against the effects of climate change.

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.

The Importance of GIS in Emergency Management

Monika Holser

Monika Holser is a 2L at UCLA School of Law. This post is part of the Environmental Law Review Syndicate (ELRS).

GIS (geographic information system) is a computer system for “capturing, storing, checking, and displaying data related to positions on the Earth’s surface.”[1]  It allows multiple layers of information to be displayed at once, enabling one to visualize and understand relationships on a map.[2]  Different types of information can be overlaid in the program regardless of their original format or source.[3]  According to ESRI, GIS is described as the “go-to technology” for location-based decisions and is fundamental in understanding the current and future issues involving geographic space.[4]

The modern growth of geospatial technology positively interacts with, and influences all aspects of disaster management – such as mitigation (modeling hazards and vulnerability to develop strategies), preparedness (formulating emergency response and evacuation plans), response (executing such plans), and recovery (assessing damages, rebuilding, preventing recurrence, and educating the public).[5]  Considering we cannot prevent natural disasters, it is important to determine potential hazards and where they stand in relation to our communities.  As a visualization tool, GIS can assist in locating, identifying, and understanding relationships between areas of social vulnerability and potential hazard exposure.  For example, available U.S. census data can be layered onto a map to include the distribution of age, income, ethnicity, housing quality, transportation capacity, etc.[6]  This information can be used to create appropriate mitigation strategies, to identify how or where certain areas should be evacuated, or even how first responders (law enforcement, medical personnel, fire service etc.) should approach certain areas during a disaster.[7] 

Furthermore, with advances in GIS and computer technology today, individuals and communities can potentially use the increasingly accessible tools to manage their own knowledge and community data.[8]  If promoted within communities, GIS can be utilized to communicate risks and hazards to the population with no requisite specialized knowledge.[9]  Currently, many communities and homeowners lack the knowledge and motivation to take appropriate cautions or mitigate potential hazards.  Having access to personalized and compelling visuals may ameliorate the issue, while providing local governments invaluable information for disaster management and preparedness.[10]

Judging a Book by its Cover: The Tension between Evidentiary Gatekeeping and Compensatory Theories of Tort

 Julie Amadeo

Julie Amadeo is 2016 J.D. graduate of New York University School of Law. This article has been adapted from a larger work for the purposes of the Environmental Law Review Syndicate (ELRS).

 

           I.              Introduction

Human minds are primed to jump to conclusions. Call them intuitions, or things we just know, our ability to draw conclusions is a survival instinct, developed over many years of evolutionary progress. Now assume a man has been largely healthy his entire life. Maybe this man is a line worker at a factory, or a firefighter, or even just a soccer player. Suddenly, he learns that he has a fatal disease that will cause him to suffer for various years before finally killing him. He sees his co-workers falling ill with the same sickness and they all begin to think it must be something they were doing in common. Perhaps it was the chemicals they produced at work, or something burning in the fires, or maybe the turf they played on. But, there’s no evidence of this, it is just a hunch. Producing conclusive scientific evidence is costly and would take years. Perhaps the only way of getting any sort of evidence is to sue the employer, or products producer which would lead to discovery and possible answers. The man approaches a lawyer who is well known in the field of toxic harms and asks him to take on his case. The lawyer, however, declines and informs the man because of the lack of epidemiological – human study—evidence available on the topic, his case would likely be decided in favor of the defendant on summary judgment and he would never get the closure he is looking for.

Constitutions and the Environment: Comparative Approaches to Environmental Protection and the Struggle to Translate Rights into Enforcement

Kyle Burns*

Kyle Burns is a 3L at the University of Virginia School of Law. This post is part of the Environmental Law Review Syndicate (ELRS).

 

Introduction

Every nation around the world faces ecological hardships. Almost every nation has responded with a legal regime that attempts to ensure environmental protection. These environmental law schemes come in various forms. Some nations place environmental protection at the highest level, securing it within a national constitution, while others relegate it to the statutory level. Some nations have positive rights, placing a duty on the government to protect the environment, while others create negative rights, preventing discharges of pollution into the air and water. What becomes clear upon analyzing different regimes is that neither the source of the right (i.e. constitutional or statutory) nor the form of the right (i.e. positive or negative) is the dispositive factor determining how protective a nation’s environmental law regime is. I submit that it is the manner in which those rights are enforced that controls the end result. Thus, even the loftiest promise of environmental quality can go unrealized in the face of substandard enforcement or outright non-justiciability, while seemingly less important statutory restrictions on pollution may achieve greater benefits.

My conclusion is supported in three parts. Part I briefly describes environmental law in the United States, providing a backdrop for the remainder of the analysis. Part II describes major features of environmental law in six nations around the world, chosen as illustrative case studies of nations with environmental provisions in their constitutions. Part II makes a point to touch upon judicial interpretation and enforcement in those nations. Finally, Part III further discusses enforcement (or lack thereof) in environmental law, returning to the United States and directly comparing the American experience to those of other nations.

With Energy Law Federalism Under Construction, State Policymaking May Be Delayed

John Bullock*

John Bullock is a J.D. Candidate at Harvard Law School. This post is part of the Environmental Law Review Syndicate (ELRS).

 

Introduction

As the public has become more aware of the intense connection between the practices of electric utilities and greenhouse gas emissions, interested groups have shone a brighter spotlight on the regulation of utilities in the United States. Some have called on the Federal Energy Regulatory Commission (“FERC”) to take on a more environmentally conscious role when exercising their authority to set wholesale rates.[1] While FERC still hasn’t explicitly taken environmental considerations into wholesale rate setting, it has taken steps to continue to ensure reliability as the nation’s energy portfolio composition shifts.[2]

Generally, under the Federal Power Act, FERC has jurisdiction over sales of electricity for resale in interstate commerce (wholesale sales), electricity transmission, and practices “affecting” rates.[3] The Supreme Court recently authorized a construction of FERC’s jurisdiction in FERC v. Electric Power Supply Association (“EPSA”) to include practices that “directly affect” wholesale rates.[4] This decision was seen as good for clean energy, as it removed barriers for demand response resources[5] to compete in the wholesale market in the short-term, while allowing FERC to have more regulatory flexibility in the long-term.[6]

At the state level, legislators and regulatory bodies generally retain the authority to set retail rates, maintain and site local facilities, and to establish resource portfolios.[7] There are a wide range of potential policies that can be used to foster clean energy, including feed-in tariffs,[8] renewable portfolio standards,[9] rebates for renewables,[10] a carbon tax,[11] a ban on carbon imports and new coal plant construction,[12] and net-metering policies.[13] A majority of states in the country have passed some form of a renewable portfolio standard mandating a certain percentage of the state’s electricity come from renewable resources.[14] These policies can originate in the state legislature or can come from the state utility regulator directly.[15] These state policies use several different regulatory tools, from market-based incentives like renewable energy credits to other state law mechanisms such as long-term power purchase agreements or mandated utility-owned renewable generation.

Some of these state clean energy policies have recently been challenged or are currently being challenged in the federal courts on preemption and dormant commerce clause grounds.[16] Challenges to these policies typically allege that the state programs are either preempted by the Federal Power Act, or are an impermissible intrusion into Congress’s exclusive power to regulate interstate commerce.

The Court, by authorizing an expansion of FERC’s jurisdiction in EPSA, and by failing to clarify the preemption analysis under the Federal Power Act in another recent case, Hughes v. Talen Energy Marketing LLC, may have inadvertently created considerable uncertainty about the extent of federal and state authority—or at least failed to remedy existing uncertainty. More thorough discussions on the shifting approach to the division of state and federal authority in energy law can be found elsewhere.[17] This Article will instead offer some speculation about the impacts of EPSA and Hughes on state policymaking.

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]

Science and Deference: The “Best Available Science” Mandate is a Fiction in the Ninth Circuit

Elizabeth Kuhn 

Elizabeth Kuhn is a 3L at Lewis & Clark Law School. This post is part of the Environmental Law Review Syndicate (ELRS).

I.       Introduction

Many recent decisions by the Ninth Circuit[1] have required the court to review agency actions under the Administrative Procedure Act[2] (APA) arbitrary or capricious standard.[3]  The Supreme Court has held that the arbitrary or capricious standard is a “highly deferential” standard of review, though the inquiry must nonetheless “be searching and careful.”[4] Furthermore, the agency's decision is “‘entitled to a presumption of regularity,’ and [the Court] may not substitute [its] judgment for that of the agency.”[5] For purposes of this discussion, it is important to note that “traditional deference to the agency is at its highest where a court is reviewing an agency action that required a high level of technical expertise.”[6]

In cases where a petitioner is challenging an agency action under the Endangered Species Act[7] (ESA) the court will usually be tasked with reviewing whether the action was arbitrary or capricious in light of the ESA’s “best available science” mandate.[8] The ESA requires an agency to insure that its actions will not jeopardize the continued existence of any endangered species,[9] and the best available science mandate requires the agency to utilize the best available scientific data to inform its no jeopardy review.[10] Challenges to an agency action as arbitrary and capricious for failing to utilize the best available science must show that the agency ignored the relevant available science.[11]

Given the heightened level of deference for decisions based on science and the low standard of what constitutes the best available science, the ESA mandate rarely threatens to invalidate an agency’s decision.[12] In fact, none of the Ninth Circuit cases in the last year that have considered the issue have substantively evaluated an agency decision under the best available science mandate.[13] Rather, the agencies were given heightened deference to make their own decisions as to what constituted best available science.[14] This leaves us to wonder whether the ESA’s best available science mandate serves as a purposeful requirement in the Ninth Circuit.

WWII-Era Government Contractor Indemnification Clauses Come to the Fore in CERCLA Litigation as Other Grounds to Shift Costs to the Government Narrow

Hume Ross

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

 

I.       Introduction

Before World War II, Japanese Admiral Yamamoto wrote: “Because I have seen the motor industry in Detroit and the oilfields of Texas, I know Japan has no chance if she goes to war with America, or if she starts to compete in building warships.”[1] As he anticipated, after hostilities broke out the United States government quickly began to mobilize the nation’s considerable natural resources and manufacturing capacity.

The War Production Board (WPB) was established in 1942 in order to "increase, accelerate, and regulate the production and supply of materials, articles and equipment and the provision of emergency plant facilities . . . required for the national defense."[2] The WPB and similar entities had the ability to determine how various raw materials would be used, set prices, and enter into novel contractual arrangements with defense contractors. Some contracts provided that contractors would operate temporary facilities owned by the government,[3] or be subject to recapture of excess profits.[4] Profit margins were typically low, but in return contractors sometimes received favorable contract terms to insulate them from unexpected costs.[5]

The Contract Settlement Act of 1944 (CSA) recognized that, because of the extent to which American industry had been integrated into the war effort, any issues with the payment of claims when the war ended could imperil the entire economy. The CSA provided procuring agencies with authority “notwithstanding any provisions of law” to “agree to assume, or indemnify the war contractor against, any claims by any person in connection with such termination claims or settlement.”[6]

As was the intent of these legislative and executive acts, American industry roared to life, flooding the operational theaters with ships, planes, tanks, ordnance and fuel, and propelled the Allies to victory. But this overwhelming effort had ill effects as well. Due in part to both the extraordinary pace of production, and the less stringent environmental regulations of the time, large amounts of toxic chemicals were released at hundreds of sites around the country.

Three-and-a-half decades later, in the face of mounting public concern about environmental pollution, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[7] CERCLA authorizes the Environmental Protection Agency, if it determines a site poses “an imminent and substantial endangerment to the public health," to sue certain responsible parties for the costs of cleanup.[8] Many of the sites identified by the EPA under CERCLA (commonly called “Superfund” sites) are the product of the extraordinary wartime effort, and the extraordinary defense contracts that enabled it. This set the stage for decades of litigation to allocate financial responsibility for the cleanup between the contractors (and often their corporate successors) and the government.

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.

A Primer on Rails-to-Trails Conversions in the Eastern U.S.

Garrett M. Gee

Garrett M. Gee is a 3L at William & Mary Law School and staff member of William & Mary Environmental Law and Policy Review. This post is part of the Environmental Law Review Syndicate.

 

The Rails-to-Trails Act ("Trails Act") provides localities and nonprofits with a useful tool for transforming dormant rail rights-of-way (“ROWs”) into recreational trails.  16 USC § 1247(d).[1]  The Act streamlines the legal complexity of trail conversion by providing a clear and systemic framework for the railroad to transfer ownership of the corridor to a third party sponsor organization (known as the “interim trail manager”).  Only a ROW in the interstate, common carrier rail network (hereinafter, a “common carrier line”) [2] is eligible for trail conversion under the procedures of the Trails Act.  16 USC § 1247(d).[3]  All railbanked ROWs are subject to reactivation for rail service,[4] so potential trail sponsors should consider this risk when drafting the railbanking agreement and investing in the trail corridor.  Finally, railbanking is a voluntary transaction between the railroad and the trail manager—nothing in the statute obligates the railroad to negotiate or agree to railbanking.[5]  However, because the Act allows railroads to shed property tax liability without foreclosing the possibility of future rail service along the corridor, it is often an attractive proposition for inactive common carrier lines.

When analyzing a potential Rails-to-Trails conversion, the potential trail sponsor should ask the following questions:

1.     Is the rail corridor in question a part of the interstate, common carrier rail network?   If so, STB jurisdiction and federal preemption still govern, even if that ROW is not in active freight or passenger service.  Such common carrier lines are ideal for trail conversions.  The Trails Act provides a clear procedure for conversion, and federal law preempts potentially problematic adverse property claims.[6]  Trail managers should ensure that this federal jurisdiction has not been ceded through a consummated abandonment prior to railbanking.[7] 

2.     If state law governs, does the interim trail use terminate the railroad’s original property interest?  If so, those interests conveyed to the trail manager may be subject to quiet title litigation by residual interest holders. 

3.     Finally, was the original ROW assembled through a federal land grant?  If so, certain federal laws may apply.[8]

I. Background on the Rails-to-Trails Act.[9]

The Interstate Commerce Act of 1887, as amended (“ICA”), vests in the Surface Transportation Board (“STB”) exclusive jurisdiction over rail transportation in the interstate commerce.  49 USC § 10501.[10]  As a result, many state law claims (primarily property, tort, and contract claims) brought against a common carrier railroad and its subject property are preempted by STB.[11]  This exclusive jurisdiction only applies to railroad lines in the interstate commerce (“common carrier lines”), certified by the STB under 49 USC § 10901, et. seq.[12]  Once authorized as common carrier railroad lines, STB jurisdiction and preemption applies to that ROW, even if the railroad ceases operation along that line or transfers it to another party.[13]  The only way to remove a common carrier line from the interstate network is through “abandonment authority” pursuant to either 49 USC § 10903 or 49 CFR pt. 1152.50.  Once abandoned, state law controls, and myriad state property issues may arise.[14]

Railbanking sets aside inactive railroad ROWs for interim use as parks and recreational trails, preserving contiguous rail corridors for future freight service.  Trails Act, 16 USC § 1247(d).  Congress passed the Trails Act in response to a rapid increase in railroad abandonments in the late 20th century.[15]    While all common carrier railroads operating in the interstate commerce fall under the exclusive jurisdiction of the federal government,[16] deregulation of the transportation industry throughout the 1970s and 1980s gave railroads increased flexibility to discontinue service on redundant and unprofitable railroad lines.  Ferster, at 4.[17]  Because abandonment cedes federal preemption over rail ROWs, state property law took hold along large stretches of these corridors.  Id.  Originally, many rail ROWs were assembled through contingent-use easements or reversionary (defeasible) fee interests—residual interests that are often triggered once railroad use ends on the line.[18]  Thus, once abandonment ceded federal preemption over these residual state-law property claims, many rail corridors were irreversibly severed, to the detriment of the contiguous, interstate rail network.  The Trails Act prevents such severance by maintaining federal preemption over the ROW during interim trail use. 

The Trails Act allows railroads to transfer dormant rail ROWs to local governments or qualified non-profit organizations, known as “interim trail managers.”  Ferster, at 5.   The trail manager serves as a trustee for the ROW, assuming all legal and financial liability for the property.  16 USC § 1247(d).  When a railroad initiates an abandonment proceeding, interested potential trail managers can submit a railbanking request to the STB.[19]   All railbanking agreements are voluntary—if the parties cannot reach an agreement, the railroad may choose to consummate abandonment of the rail line.[20]  However, railroads often enter into railbanking agreements to shed tax liabilities without foreclosing the possibility of future freight service.[21]  Railroads may transfer ROWs to trail managers by sale, donation, or lease.  Ferster, at 5.

II. Federal jurisdiction over rail ROWs in the interstate commerce.

Federally regulated, common carrier rail lines are ideal for trail conversion under the Trails Act.  As discussed above, the STB regulates common carrier railroad lines in the interstate commerce, preempting many state property law claims.  ICA, 49 USC § 10901.[22]  Federal preemption provides a clear procedure for trail conversion under 16 USC § 1247(d), ensuring that reversionary property interests do not cloud the transaction.  This procedure and potential legal issues arising under the Trails Act, the ICA, and accompanying regulations are discussed below.

A. The railbanking procedure.

Railbanking provides a procedural alternative to abandonment for railroads that wish to shed tax and potential tort liability on dormant corridors.  Unlike abandonment, railbanking allows railroads to preserve contiguous rail corridors for potential reactivation.[23] 

If a railroad moves for abandonment,[24] a prospective trail manager can request a railbanking order from the STB.  49 CFR pt. 1152.29.  The trail manager must reach an agreement with the railroad for the transfer of the line before the railroad abandons that line.[25]  Until a carrier has consummated abandonment of a common carrier line, disposition of that ROW remains under the sole jurisdiction of the STB.[26]  The STB’s role in the railbanking process is largely ministerial—it will issue a railbanking order if (1) the parties agree,[27] and (2) jurisdiction is proper.[28]  Procedural requirements for railbanking are enumerated in 49 CFR pt. 1152.29.  

1.     The trail manager requests a railbanking order from the STB within 45 days of an abandonment filing, or within 10 days of a 49 CFR pt. 1152.50 Notice of Exemption.  Late filed requests may be considered by the STB if the railroad has not consummated abandonment.

2.     The trail manager simultaneously serves the railroad with a copy of that railbanking request.

3.     If the railroad agrees to negotiate a railbanking agreement, that railroad must respond within 60 days of its application for abandonment authority.  The STB then issues a Notice or Certificate of Interim Trail Use (“NITU or CITU”) in lieu of abandonment authorization or notice.  The trail manager and railroad have 180 days to negotiate an agreement for transfer of the ROW.[29] 

4.     The railbanking agreement memorializes the legal from of conveyance.  Prudent trail managers should stipulate a contractual compensation rights within this document in case the rail line is reactivated, in order to protect investments in the trail.[30]

5.     Once the parties notify STB that they have reached an agreement, the ROW is added to the national railbank.  That corridor is preserved for trail use until that rail line reactivated or the trail manager fails to meet its obligations under 16 USC § 1247(d). 

49   CFR pt. 1152.29.  Once railbanked, the ROW remains under federal jurisdiction.  49 USC § 1247(d). However, from the railroad’s perspective, the line is essentially abandoned.  The only difference is that the railroad retains the right to reactivate the line.

In Virginia, potential trail managers should coordinate and submit railbanking requests through the Virginia Department of Conservation and Recreation (DCR).[31] 

B. Reactivation

Railbanked corridors may be reactivated and returned to railroad service at the request of the abandoning rail carrier.[32]  If a railroad demonstrates that common carrier rail service is consistent with “the pubic convenience and necessity,” pursuant to 49 USC § 11901, the STB must vacate any existing Certificate of Interim Trail Use for that corridor.  49 CFR pt. 1152.29(c)(3).[33]  This is a relatively rare occurrence.[34]  However, trail managers should be aware that railbanked trails are subject to reactivation, regardless of past investments or impacts to the existing trail. 

This reactivation right is not exclusive to the abandoning carrier.  Third parties, including the trail manager, may petition the STB for authority to acquire the abandoning railroad’s residual common carrier rights and obligations over the railbanked corridor.[35]  Further, any other “bona fide petitioner” may move to reactivate a railbanked line.  Ballard Terminal R.R. Co, FD 35731, at 5.[36]  However, the disposition of the railbanked corridor is subject to the discretion of the STB.  Id.  The STB will consider the costs of restoring service, including the cost of refurbishing tracks along the ROW and obtaining the necessary easements from the ROW owner.  See, e.g., id.[37]  Therefore, trail managers may be able to indirectly prevent reactivation by acquiring as much of the underlying interest in the ROW as possible (and thereby increasing the costs of reactivation).

C. Abandonment of a common carrier rail line

The Trails Act codifies federal preemption for properly railbanked ROWs, even after the railroad legally abandons a line.  16 USC § 1247(d).[38]  However, if a railroad consummates abandonment authority prior to railbanking, state law controls.  Abandoned ROWs may be subject to quiet title litigation or other state law claims, discussed below in Part III.

In order to abandon a ROW, the operating railroad must either petition the STB for a Certificate of Convenience and Necessity pursuant to 49 USC § 10903,[39] or provide the STB with a Notice of Exemption that meets the requirements of 49 CFR pt. 1152.50 (essentially, a provision for bankrupt or inactive railroads).  Once the STB issues abandonment authority, the railroad must take steps to consummate that authority, judged by that railroad’s intent.  Birt, 90 F.3d, 585.[40] Abandonment vacates federal jurisdiction and preemption; as a result, state property law governs title disputes along that ROW.  Preseault v. ICC, 494 U.S. 1, 6 n.3 (1990).[41]  

D. Environmental liability from conversion to trail use. 

Railbanking itself does not trigger the National Environmental Policy Act.  Goos v. ICC, 911 F.2d 1283 (8th Cir. 1990).  Rather, environmental review is conducted during the abandonment proceeding.[42]  Likewise, the original abandonment proceeding triggers compliance with the National Historical Preservation Act, not any subsequent railbanking.  See Friends of the Atglen-Susquehanna Trail v. STB, 252 F.3d 246 (3rd Cir. 2001). 

Toxic contamination from legacy railroad use can present other environmental issues for trail managers.[43]  Soils removed during construction may be subject to state and federal hazardous waste disposal requirements.[44]  Trail managers should shield themselves from legacy liability by conducting the appropriate environmental review of the property prior to acquisition and negotiating apportionment of any cleanup costs or potential liability in the railbanking agreement.  For a survey of environmental issues and remediation strategies for rail-trails, see generally Trail Development Assistance Response Team, Understanding Environmental Contaminants: Lessons Learned and Guidance to Keep Your Rail-Trail Project on Track, Rails-to-Trails Conservancy (Sept 24, 2004).[45] 

Virginia DCR recommends that potential trail managers in Virginia should conduct a primary environmental assessment of the ROW, described in VDCR, Greenways and Trails Toolbox, Ch. 4-7, Operations & Management.  Trail managers should also ensure to abide by construction Best Management Practices to prevent soil runoff, whether or not hazardous substances are present.  Id., at 4-32—41.

E. General liability for the trail manager during trail use.

One of the requirements of the Rails-to-Trails Act is that the trail manager assumes all legal and financial liability for the ROW.  16 USC § 1247(d).  The trail manager must satisfy all tax obligations, otherwise the STB may invalidate the CITU / NITU.[46]     

Once a ROW has been transferred to the trail manager and converted to trail use, managers may be liable under general tort liability arising from maintenance and use of that facility, according to state law.  Rail trails are no different than any other public facility.  Whether the trail manager is a government entity or NGO and the laws of the particular state determine if that entity is shielded from tort liability by the doctrine of sovereign immunity.[47]  Finally, NGO trail managers should obtain insurance to mitigate any liability risks.  For a general survey of potential liability issues involving trails, see generally Hugh Morris, Rail-Trails and Liability: A Primer on Trail-Related Liability Issues and Risk Management Techniques, Rails-to-Trails Conservancy (Sept. 2000), available at http://www.railstotrails.org/resourcehandler.ashx?id=3501. 

 F. “Tucker takings” for ROWs under federal jurisdiction. 

The Rails-to-Trails Act preempts any challenges to the ownership or use of properly railbanked ROWs, eliminating the specter of adverse claims.  16 USC § 1247(d).[48]  Because federal law controls, railbanking does not terminate easements or trigger any defeasible interests.  However, plaintiffs may be able to obtain just compensation from the federal government under a takings theory, pursuant to the Tucker Act.  28 USC § 1491(a)(1).[49]  Proper jurisdiction for such claims is Federal Clams Court.  Id.  However, plaintiffs seeking less than $10,000 can file in federal district court.  28 USC § 1346(a)(2).  An adverse Tucker judgment does not implicate either the trail manager or the former railroad.  The federal government is solely responsible for paying just compensation, and no equitable remedy is available to the plaintiff.  See Preseault v. US, 100 F.3d 1525 (Fed. Cir. 1996).

III. State jurisdiction over ROWs outside of the interstate commerce, including former federal lines formally abandoned by the railroads.

If a particular rail line is governed by state law, various state property laws may apply and will determine whether that line can be converted to trail use.  Rail lines that were never a part of the interstate commerce, such as private or excepted track, are governed by state property law.[50]  Further, once a carrier has consummated abandonment of a railroad line in the interstate commerce, federal preemption is vacated, and state property law again controls.[51]

Conversion to trail use might invalidate the conditions of the original ROW grant to the railroad.  Whether a conversion terminates the property interests turns upon the instrument, method of conveyance, and applicable state law.  Ferster, at 7.  Railroads usually acquired their original interests through one of three methods:[52] (1) private grants from willing property owners, usually for valuable consideration; (2) condemnation proceedings; and (3) prescription.[53]  Id., at 7-8.

Private grants of property interest often turn upon language, instruments, and circumstances of conveyance and require case-by-case analysis.[54]  For instance, many original landowners granted carriers ROW easements “for railroad use.”  Other landowners conveyed “defeasible fees” to railroads, with a reversionary interest upon either a change of use or ownership.  The practical implication either conveyance is typically the same: a change in ownership or a termination of railroad use will either extinguish a contingent easement or trigger a reversionary interest, allowing the fee simple property owner to take free and clear of any encumbrances.  Id.[55]  This concept, known as abandonment of use, flows from state property law and must not be conflated with the STB abandonment procedure described in Part II.a. above. 

Neighboring property owners may also have acquired a property interest in the railroad ROW through adverse possession or prescription.  However, many state adverse possession statutes explicitly bar railroad ROWs from adverse possession, and leftover ties, tracks, and signage often place potential adverse possessors on notice of the railroad’s ownership interest.  

Where ownership questions are left open to state law, trail managers should attempt to settle any disputes to the ownership by obtaining quitclaim deeds or initiating quiet title actions before undertaking any improvements.  Otherwise, trail managers could be subject to takings claim, the outcome of which may not only jeopardize improvement investments, but also segment the proposed trail ROW beyond effective use.   

Conclusions

The Rails-to-Trails Act provides a clear procedural pathway for governments and non-profits to repurpose inactive rail corridors for public use.  However, interested parties should ensure that the rail corridor is a common carrier railroad line under STB jurisdiction before attempting to proceed with a trail conversion project under the Trails Act.  Attempts to acquire corridors governed by state law may open the trail sponsor to costly and time consuming quiet title litigation.  Even when a corridor is properly railbanked pursuant to the Trails Act, the trail sponsor should also be aware of the possibility of reactivation and liabilities arising from various federal and state environmental regulations.  However, if undertaken properly, trail conversions can facilitate adaptive reuse of these corridors as inspiring public spaces.

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[1] Section 8(d), National Trails Systems Act of 1983.

[2] Common carrier rail lines and the implications of federal jurisdiction are explained infra, at notes 9-11 and accompanying text.

[3] This procedure is codified at 49 CFR pt. 1152.29.  See infra, Part II.a. 

[4] Any “bona fide petitioner” may move to reactivate a railbanked corridor pursuant to 49 USC § 10901.  49 CFR pt. 1152.29(a).  See infra, Part II.b., for an explanation of this procedure. 

[5] Infra, notes 19 and 24.

[6] The issues presented by reversionary property interests are discussed infra, at Part III.

[7] Abandonment procedure of common carrier lines is discussed infra, at Part II.c.

[8] Land grants in the Eastern United States are limited to Alabama and Florida.  Therefore, these issues fall outside the scope of this memorandum. 

[9] For a comprehensive background and summary of the Rails-to-Trails Program, see Andrea C. Ferster, Rails-to-Trails Conversions: A Review of Legal Issues, 58, no. 9 Planning and Env. L. 3 (Sept. 2006).

[10]See Norfolk S. Ry.—Petition for Declaratory Order, FD 35701 (STB Served Nov. 4, 2013) (“The ICA, as revised, is among the most pervasive and comprehensive of federal regulatory schemes.  It vests in the [STB] exclusive jurisdiction over transportation by rail carrier . . . . [The ICA] specifically provides that the remedies provided . . . with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” (emphasis added) (internal citations omitted)).

Until 1995, the ICA vested this authority in the Interstate Commerce Commission (“ICC”).  That authority has since been transferred to the STB.  ICC Termination Act, 109 Stat. 803 (1995). 

[11] Supra, note 9. 

[12] Contrast common carrier lines with private track (used for the owner’s private transportation purposes, rather than held out for common carriage) and excepted track (“spur, industrial, team, switching, or side tracks”), which are typically governed by state law.  See 49 USC § 10906 Hanson Natural Resources—Non-Common Carrier Status—Pet. for Declaratory Order, FD 32248 (ICC served Dec. 5, 1994).

[13] Infra, note 38. 

[14] These issues are discussed infra, at Part III.  Some of the most common issues include reversionary property interests revived by the termination of federal preemption.  Many railroad ROWs were conveyed via easement or conditional fees—these reversionary interests may be triggered by abandonment. 

[15] “[I]n furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service [and] to protect rail transportation corridors. . . interim use [for trails] shall not be treated . . . as an abandonment of the use of such rights-of-way for railroad purposes.”  16 USC § 1247(d).

[16] Supra, notes 9-11 and accompanying text. 

[17] Many railroads elected to abandon extensive segments of the national rail network in order to cut costs and redundancy.  Id.  Deregulation increased efficiency, allowing railroads to compete with other modes of freight transportation.  However, abandoned rail lines irreparably segmented much of the national rail network. 

[18] Nat’l Wildlife Federation v. ICC, 850 F.2d 694, 702 (D.C. Cir. 1988) (“The language and legislative history of the Trails Act, as amended, plainly enough demonstrate that Congress intended to promote the transfer of railroad rights-of-way to trail operators by removing the impediment posed by existing reversionary interests.”). 

Issues regarding reversionary interests are discussed infra, at Part III. 

[19] See infra, Parts II.a. and c. 

[20] See Rail Abandonments—Use of Rights-of-way as Trails (49 CFR Parts 1105 and 1152), 2 ICC 2d 591, 597-98 (1986). 

[21] Railbanking allows railroads to shed tax obligations and legal liability—the benefits of abandonment—while preserving a contiguous corridor for possible future rail service. 16 USC § 1247(d); Rail Abandonments, 2 ICC 2d 597 and nn.8 & 12. 

Since the passage of Rails-to-Trails, hundreds of corridors and thousands of route-miles have been successfully railbanked or are currently subject to railbanking negotiations.  See Public Hearing, Twenty-Five Years of Rail Banking: A Review and Look Ahead, at 16, STB Ex Parte No. 690 (July 8, 2009) available at http://www.stb.dot.gov/TransAndStatements.nsf/8740c718e33d774e85256dd500572ae5/b69b42474f5e558c852575f5005d8c5a/$FILE/EX%20PARTE%20NO.%20690%20TRANSCRIPT.pdf (testimony of Marianne Fowler, Rails-to-Trails Conservancy).

[22] Supra, notes 9-11 and accompanying text.

[23] See Birt v. STB, 90 F.3d 580, 583 (D.C. Cir. 1996) (“Because this transfer is deemed by statute not to constitute an abandonment of the line, the reversionary interests of adjoining landowners do not vest, even though the railroad ceases service and takes up the tracks. The rail line instead retains the right to reassert control over the easement at some point in the future if it decides to revive rail service.”).

Residual property interests triggered by abandonment may make either trail or future rail use unnecessarily complicated, expensive, or even impossible.  See supra, note 20 (benefits of railbanking); infra Part III (complications arising from state law claims).

[24] Abandonment procedure is discussed infra, at Part II.c.

[25]  Nat’l Wildlife, 850 F.2d, 699-702 (clarifying that railbanking agreements are voluntary, not mandatory). 

[26] Infra, notes 37-39, and accompanying text.  In the interim period, the carrier may begin to remove tracks and ties from the ROW without consummating abandonment. Ferster, at 3. 

[27] Supra, notes 20 and 25.

[28] Rail Abandonment: Supplemental Trails Act Procedures, 4 ICC 2d 152, 156-58 (1987).  The test for STB jurisdiction is whether the carrier retains the right to reactivate service on that line.  Buffalo Twp. v. Jones, 813 A.2d 659, 665 (Pa 2002), cert denied, 124 S. Ct. 143 (2003) (“Mere nonuse by the railroad does not amount to abandonment.”). This reactivation right is voided by either (1) consummated abandonment, as described infra, at notes 37 and 38, and accompanying text, or (2) severance of the rail corridor, such that it no longer connects to the interstate rail system.  RLTD Ry. Corp. v. STB, 166 F.3d 808, 813-14 (6^th Cir. 1999) (STB properly determined a line severed from the interstate network because a large segment had been paved over.).

[29] The parties may continue to negotiate after 180 days, but the carrier has the authority to abandon the rail line. 49 CFR 1152.29 (c)(1).

[30] As discussed below, the STB must vacate railbanking orders upon an “appropriate and necessary” request to reactive service.  Infra, Part II.b.  Compensation for any improvements depends on the terms stipulated in the contract.  Georgia Great S.—Exemption, infra, note 33. 

[31] VDCR, Greenways and Trails Toolbox, Ch. 4-4, Land Acquisition & Trail Development (2011), available at http://www.dcr.virginia.gov/recreational_planning/greentrailtools.shtml.  

For a roadmap of the recommended railbanking procedure in Virginia, see generally Dept. of Rail and Public Transportation, Rails with Trails / Pedestrian Crossing Project Initiation, Coordination and Review, Report Doc. No. 404 (2009), available at http://www.dcr.virginia.gov/recreational_planning/documents/house-bill-2088.pdf. 

[32] See Norfolk & W. Ry.—Abandonment Between St. Marys & Minister in Auglaize Cnty., Ohio, 9 ICC 2d 1015 (1993) (explaining that the abandoning carrier retains both the residual right and the common carrier obligation to reactivate service upon reasonable request) (emphasis added).

[33] The STB will vacate a CITU without considering the trail manager’s investments along the corridor.  Georgia Great S. Div., S. Carolina Central R.R. Co.—Abandonment Exemption—between Albany and Dawson in Terrell, Lee, and Dougherty counties, Georgia, AB 389 (Sub-no. I 1X) (STB served May 16, 2003).  Any compensation for improvements must be stipulated in the railbanking agreement between the parties.  Id.

[34] As of 2015, only eleven of hundreds of railbanked ROWs have been reactivated since passage of the Act.  Matthew J. McGowan, Locomotives v. Local Motives: The Coming Conflict, Statutory void, and Legal Uncertainties riding with Reactivated Rails-to-Trails, 16 Vt. J. Env. L 482, 85 (2015), available at http://vjel.vermontlaw.edu/publications/locomotives-v-local-motives-coming-conflict-statutory-void-legal-uncertainties-riding-reactivated-rails-trails/.

[35] See, e.g., King Cnty., Wash—Acquisition Exemption—BNSF Ry., FD 35148 (STB served Sept. 18, 2009).  In King County, the STB granted the locality trail manager authority to acquire BNSF’s residual common carrier obligation to build a transit line, subject to the terms of the railbanking agreement.  Id.

Note that the right to reactivate service includes the common carrier obligation to provide rail service upon reasonable request.  49 USC § 11101(a).

[36] Ballard Terminal R.R. Co.—Acquisition & Operation Exemption—Woodinville Sub., FD 35731, at 5 (STB served Dec. 30, 2014) (“A bona fide petitioner is one that has sufficient financing and demonstrates a sufficient shipper demand to warrant the proposed reactivation.”); see also Georgia Great S.—Abandonment & Discontinuation of Service, 6 STB 902, 907 (2003).  

[37] In Ballard Terminal, a proceeding related to the transaction in King County, supra note 34, a third party railroad petitioned the STB for authorization to reactivate a railbanked ROW.  Id.  In the railbanking agreement, the trail manager acquired both ownership of the corridor and the residual common carrier obligation.  Id.  Afterward, the trail manager transferred the common carrier obligation to the Port of Seattle.  Id., at 3.  The Port conveyed a transportation easement to the local mass transit authority over a portion of the ROW, conveyed a small portion of the ROW to a neighboring locality, and transferred the remaining common carrier obligation back to the trail manager.  Id. 

The STB determined that Ballard did not demonstrate that sufficient demand existed to justify reactivating freight service, and that Ballard was not in a financial position to provide rail service, even if such demand did exist.  Id.  In making this determination, the STB considered the fair compensation to the corridor owner (primarily the trail manager) for the use of that property and replacing the removed tracks.  Id., at 6. 

[38] “[I]nterim [trail] use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.”  Id.

[39] Implemented at 49 CFR pt. 1152.  Convenience and Necessity is a legal determination that the line is not necessary to the interstate rail network no, nor will it be in the future.  See pt. 1152.1.

[40] STB abandonment authorization does not automatically consummate that abandonment.  Id. (no abandonment where the railroad continues to negotiate with a prospective trail manager); Buffalo Twp., 813 A.2d 665 (“[T]he filing of the [abandonment] certificate must be coupled with external acts in furtherance of abandonment.”).

[41] “Once a carrier ‘abandons’ a rail line pursuant to authority granted by the Interstate Commerce Commission [now, the STB], the line is no longer part of the national transportation system, and . . . as a general proposition [STB] jurisdiction terminates.”  Id.

[42] STB satisfies NEPA by completing an Environmental Assessment for abandonment orders.  49 CFR 1105.6(b)(2)). 

[43] Common contaminants include Polycyclic Aromatic Hydrocarbons (PAHs) from creosote treated railroad ties, pesticides, arsenic, petroleum products, heavy metals, and coal ash.  Trail Development Assistance Response Team, Understanding Environmental Contaminants: Lessons Learned and Guidance to Keep Your Rail-Trail Project on Track, Rails to Trails Conservancy, 5 (Sept 24, 2004), available at http://www.railstotrails.org/resourcehandler.ashx?id=3762.

[44] Removal of waste may trigger state hazardous materials regulations, or federal laws such as the Resource Conservation and Reclamation Act (RCRA), Comprehensive Environmental Response Compensation Liability Act (CERCLA), Federal Water Pollution Control Act (FWPCA or CWA), or Clean Air Act (CAA).  Id., at 9.  Rail trails are no different than any other brownfield construction project in this regard. 

[45] Available at http://www.railstotrails.org/resourcehandler.ashx?id=3762.  This source also discusses several case studies and lists other helpful resources and potential funding sources for cleanup costs.  Id., at 26-27.

[46] See Jost v. STB, 194 F.3d 79, 88-89 (D.C. Cir. 1999) (The decision to issue or revoke a NITU lies solely with STB and is judged under the deferential “arbitrary and capricious” standard.).

[47] In Virginia, sovereign immunity shields government actors from certain tort claims.  Fox v. Deese, 234 Va. 412, 423-24 (1987) (Intentional torts and torts outside the scope of government functions are not covered by sovereign immunity.).  Thus, municipalities or other government offices may be better positioned than other non-profits to undertake trail management. For a full discussion on best practices for potential trail managers (either municipalities or NGOs), see VDCR, Greenways and Trails Toolbox, Ch. 4, Operations & Management.

[48] The Act expressly prohibits any conflicting state law by ensuring that railbanked corridors “shall not be treated for purposes of any law or rule of law, as an abandonment of the use of such rights-of-ways for railroad purposes.”  Id.  This provision is predicated on federal preemption of state property law.  Grantwood Village v. Missouri Pacific R.R. Co., 95 F.3d 654 (8^th Cir. 1996), cert. denied, 519 U.S. 1149 (1997) (transferring that state property claim to federal court and dismissing it for lack of jurisdiction).   

[49] Preseault, 494 U.S. 11-12. 

[50] See, e.g., supra, note 12.

[51] Supra, Part II.a.

[52] A fourth method, federal land grants, was used to acquire ROWs primarily in the Western U.S.  ROWs conveyed through federal land grants implicate unique legal issues outside the scope of the memorandum.

[53] A prescriptive easement is an interest in a particular use acquired through adverse possession.  The elements typically mirror those for standard adverse possession, requiring open, adverse use over the parcel for a set statutory period.  See, e.g., Rives v. Gooch, 157 Va. 661, 663 (1932) (In Virginia, the elements are: (1) adverse, exclusive use of the easement; (2) under claim of right; (3) continuous and uninterrupted for at least 20 years; and (4) with the knowledge and acquiescence of the property owner.

[54]See American Law Institute, § 8.3 Availability and Selection of Remedies for Enforcement of a Servitude, Restatement (Third) of Property (Servitudes) § 8.3 (2000).

[55] Note that in some states, trail use falls within the scope of a railroad easement.  Ferster, at 7. 

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/.

 

Rising Seas in the Holy City: Preserving Historic Charleston in the Face of Global Climate Change

Will Grossenbacher

Will Grossenbacher is a 3L at the University of Virginia School of Law and is the former Editor-in-Chief of the Virginia Environmental Law Journal. This post is part of the Environmental Law Review Syndicate.

From October 2–5, 2015, the State of South Carolina, and the City of Charleston in particular, experienced historic rains: sites in the Charleston area reported up to twenty-six inches of rain.[1] The downpour combined with high tides to create flooding that closed dozens of streets throughout the City. Then, at the end of October, Charleston experienced the fourth-highest tide ever recorded in the City.[2] Persistent winds combined with the bi-monthly spring tide to create a high tide that reached 8.7 feet above mean lower low water level in Charleston Harbor.[3] The two unrelated events in the same month show just how vulnerable the City is to flooding. When rising sea levels and other climate-change-induced flooding are added to the mix, the flood risk will only increase, especially for the Charleston’s numerous historic properties.

Charleston is a city rich in historic resources. In fact, the City’s Historic District contains more than 1400 “historically significant buildings.”[4] Additionally, of the seventy-seven National Historic Landmarks (“NHLs”) in the State of South Carolina, thirty-three are located in Charleston.[5] While the City of Charleston has begun working to address flooding issues,[6] it has yet to address specific climate-change-related threats to its historic resources.[7] Charleston should therefore look to the example provided by other coastal cities and begin implementing law and policy changes designed at protecting historic resources from the impacts of global climate change.

I. The Impact of Sea Level Rise

Although the exact amount of sea level rise is difficult to predict, Charleston is one of the five cities in the Southeastern U.S. “most at risk” from higher sea levels.[8] By 2100, relative sea levels for Charleston are predicted to rise at least a foot, if current rates of sea level rise remain the same.[9] However, if rates of sea level rise increase, Charleston could see anywhere from 2.5 to six feet of relative sea level rise.[10] At these levels of relative rise, higher seas would likely inundate between 250 and 1100 square miles of land throughout South Carolina.[11]

Even modest sea level rise could be detrimental to Charleston’s historic district. With sea level rise of 1.6 feet and a seven-foot high tide, several NHLs would likely be inundated, along with numerous other historic structures.[12] If there are higher rates of sea level rise, the threat only increases. With ten feet of sea level rise, most of the Charleston peninsula would be under water at high tide.[13] Since Charleston’s storm water drainage system empties into coastal waters,[14] increased sea levels will also make drainage during storms more difficult, further increasing the flood risk.

II. Adapting to the Threat

Because the City of Charleston has significant control over historic properties through the power of the Board of Architectural Review (“BAR”),[15] the City must begin developing a climate change adaptation plan with specifically designed with historic structures and the historic preservation district in mind. While the Charleston City Code contains provisions regarding construction in flood zones,[16] the historic preservation ordinances make no mention of flooding.[17] The City should rectify this by amending the Zoning Ordinance to recognize the threat of flooding for historic properties. Aside from amending the Zoning Ordinance, the City should provide guidance to historic property owners regarding modifications of historic properties. Such guidance could be included in city plans or issued by the BAR. At least two other East Coast cities are well ahead of Charleston in implementing climate-change readiness plans with historic resources in mind. These cities provide examples of the kind of changes the City of Charleston should consider adopting.

In the wake of Superstorm Sandy, the City of Somers Point, New Jersey, which is located on a small coastal peninsula, implemented a comprehensive recovery plan.[18] The plan recognizes the growing threat that rising sea levels will pose to much of the city through increased flooding, including to it’s historic properties. While city zoning ordinances exempt historic properties from requirements to elevate or storm proof, the plan nonetheless includes recommendations for protecting historic properties from flood damage.[19] These include locating mechanical equipment above flood levels and elevating or flood proofing any additions.[20] Additionally, the plan recognizes that homes in the City’s historic district may nonetheless have to be elevated five or more feet.[21] Charleston’s BAR should take similar steps in recognizing the inevitable fact that sea level rise may necessitate raising historic properties in order to preserve them.

Annapolis, Maryland, is another historic East Coast city that is facing the threat of flooding caused by sea level rise. In recent years Annapolis has experienced “regular flooding resulting from rising sea levels and increasing storm surges.”[22] Additionally, the entire Chesapeake Bay region is sinking due to a the slow depression of a “glacial forebulge” created during the last ice age, which will increase relative sea level rise in the region.[23] In response to the almost certain threat of sea level rise to its City Dock and Historic District, the Annapolis has collaborated with a variety of stakeholders to develop a climate change resiliency plan.[24] In order to protect Annapolis’s historic core, which contains “one of the largest collections of 18th-century buildings in the country,” the City is working to provide property owners with resources to protect those structures.[25] Annapolis also plans to add back flow preventers where draining pipes empty into the bay in order to keep high tides from flowing back up the pipes.[26] Additionally, the City has begun a comprehensive survey of properties in the 100-year floodplain, which can be used to identify those historic properties that are most at risk.[27]

Charleston should follow examples of Somers Point and Annapolis and begin to tackle sea level rise head on. In addition to modifying historic preservation laws and providing guidance to historic property owners, an important first step would be to begin surveying properties in the city that are most vulnerable to flooding. Additionally, the City should begin to develop a comprehensive plan to protect its infrastructure and historic properties from sea level rise. Charleston has built a multi-million dollar tourism industry based on its image as a center for historic architecture. Any additional delay may put that industry, and many sites that are integral parts of our history, at risk of destruction.

---

[1] Dustin Waters, Monday Flooding Update: Peninsula Reopened but Many Roads Closed, Charleston City Paper (Oct. 5, 2015, 9:01 AM), http://www.charlestoncitypaper.com/ TheBattery/archives/2015/10/05/monday-flooding-update-peninsula-reopened-but-many-roads-closed.

[2] Jon Erdman, Homes Damaged From Highest Tides in Decades Along Parts of Georgia, South Carolina, Weather.com (Oct. 27, 2015, 12:45 PM), http://www.weather.com/ storms/severe/news/charleston-south-carolina-georgia-coastal-flooding.

[3] Id. By comparison, the highest high tide ever recorded in Charleston Harbor, 12.6 feet, occurred during Hurricane Hugo in 1989. Id.

[4] Community History, Nat’l Park Serv., http://www.nps.gov/nr/travel/charleston/ community.htm (last visited Dec. 15, 2015).

[5] Nat’l Park Serv., Spreadsheet of National Historic Landmarks (2015). Of these 33 NHLs, only Drayton Hall, a Colonial plantation located up the Ashley River from Downtown, is not on the Charleston Peninsula.

[6] Charleston’s previous mayor Joseph Reilly made drainage improvements a key part of his public works strategy and he was instrumental in two massive drainage projects which being constructed under the City Market and the intersection of Spring and Fishburne streets. Paul Bowers, New Interactive Map Shows Effects of Sea Level Rise on Charleston, Charleston City Paper, (Aug. 13, 2014) http://www.charlestoncitypaper.com/charleston/new-interactive-map-shows-effects-of-sea-level-rise-on-charleston/Content?oid=4972978. Charleston’s newly elected mayor John Tecklenburg’s drainage and flooding relief plan proposes completing existing drainage and pumping projects, a neighborhood “gutter watch” program, green roofs, drainage outlet backflow preventers, and smaller portable pump systems for spot local flooding. Part 1: Livability and Quality of Life, Tecklenburg for Mayor, http://www.tecklenburgformayor. com/part_i_livability_and_quality_of_life (last visited Mar. 17, 2016).

[7] See generally Melanie Weston, Washing Away Our Heritage: The Impacts of Rising Sea Levels on National Historic Landmarks in Boston Massachusetts and Charleston, South Carolina, 22 (Aug. 2015) (unpublished masters thesis, College of Charleston and Clemson University) (on file with Tiger Prints, Clemson University).

[8] Lynne M. Carter et al., U.S. Global Climate Change Research Program, Chapter 17: Southeast and Caribbean, in Climate Change Impacts in the United States (J.M. Melillo et al., eds.) 396, 400 (2014). The other four are New Orleans, Virginia Beach, Miami, and Tampa. Id.

[9] See Toon Haer, Impact of Sea Level Rise for the Conterminous United States:

An analysis on Inhabitant Displacement and GDP Production Impediment due to Land Inundation, 20 (2012) (unpublished masters thesis, University of Gronigen) (on file with the author).

[10] See id.

[11] Id. at 26.

[12] Weston, supra note 8, at 40–41 (superimposing a map of Charleston NHLs over a NOAA map of inundation which would occur with 1.6 feet of sea level rise and a 7 foot high tide). These include the Robert William Roper House, the Denmark Vesey House, the Old Marine Hospital, the William Gibbes House, and the Charleston City Market.

[13] See Bowers, supra note 8 (set interactive map to 10 feet sea level rise).

[14] Why Does It Seem Like Charleston Always Floods When It Rains? The Challenges of Draining a City That is Low, Flat, and Next to the Ocean, City of Charleston, https://sc-charleston.civicplus.com/DocumentCenter/View/574 (last visited Dec. 15, 2015).

[15] To protect historic properties in the city, Charleston has enacted two historic preservation districts: the Old and Historic District and the Old City District. Charleston, S.C., Zoning Ordinance, art. 2, pt. 6, § 54-231 (2005). Most importantly for the climate change context, the districts grant the city’s Board of Architectural Review (“BAR”) the authority to review exterior modifications to some historic structures. Id. § 54-232. For all structures in the Old and Historic District, the BAR review and approval is required for all alterations to “the exterior architectural appearance of any structure which is visible from a public right-of-way.” Id. § 54-232(a). Owing to its extensive powers, BAR support will be crucial for the success for any climate change adaptation plans for either individual historic properties or either of the historic districts.

[16] See generally Charleston, S.C., City Code ch. 27 (2015) (Stormwater Management and Flood Control).

[17] See generally Charleston, S.C., Zoning Ordinance, art. 2, pt. 6 (2015).

[18] See City of Somers Point, N.J., Strategic Recovery Planning Report Building a Stronger, More Resilient City (2014), available at http://www.somerspointgov.org/ main/documents/StrategicRecoveryPlanningReportSP.pdf.

[19] Id. at 29.

[20] Id. at 30.

[21] Id.

[22] Mapping the Risk of Sea Level Rise, Pres. Leadership F. Blog (Aug. 4, 2015), http://blog.preservationleadershipforum.org/2015/08/04/mapping-the-risk-of-sea-level-rise/#.VnLC5BNViko.

[23] Dan Satterfield, USGS- The Chesapeake Bay Region Is Sinking While The Sea Rises, Am. Geophysical Union (Jul. 29, 2015), http://blogs.agu.org/wildwildscience/2015/07/29/usgs-the-chesapeake-bay-region-is-sinking-while-the-sea-rises/. The forebulge is an uplifting of the tectonic plate underlying the Bay, caused by the weight of the ice sheet, which extended as far south as Pennsylvania. Id.

[24] E.B. Furgurson III, Rising Waters, Rising concerns: Annapolis Town Hall Addresses Flooding, Capital Gazette (July 9, 2015, 10:16 PM), http://www.capitalgazette.com/news/ environment/ph-ac-cn-flood-plan-confab-0710-20150709-story.html.

[25] Id.

[26] Id. The city is also analyzing the feasibility of floodwalls and additional pumps and draining systems.

[27] Weston, supra note 8, at 49.

Implementing Supplemental Environmental Project Policies to Promote Restorative Justice

Eric Anthony DeBellis

Eric DeBellis is a 3L at Berkeley Law, where he is Senior Executive Editor of the Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate.

Introduction

The overwhelming majority of environmental enforcement actions settle out of court, but overlooking settlements as merely a mechanical means to save time and court costs is a mistake. An agency’s approach to settlement has tremendous environmental justice implications that go largely unnoticed.

In a traditional enforcement settlement model, the government claims the exclusive right to speak for the people. It brings an enforcement action against the defendant, and the two parties negotiate a penalty amount. The defendant signs a settlement agreement and pays the penalty to the Treasury. This is the “Speeding Ticket” settlement model. This model is expedient, but it excludes affected communities. The Speeding Ticket model remains the norm today, but several state and federal agencies have begun to explore an alternative tool: the supplemental environmental projects (SEP).

A SEP is an environmentally beneficial project that a defendant undertakes voluntarily as part of a settlement agreement; in exchange, the violator pays a reduced penalty amount.[1] Agencies credit defendants for improving environmental conditions that otherwise go unaddressed.[2] Rather than only writing a check, the defendant invests a portion of the would-be penalty amount in the affected community.[3] SEPs shift focus toward a model where an offender works to right harms caused by her actions, an enforcement paradigm more closely resembling restorative justice.[4]

Through the lens of restorative justice, I evaluate SEP policies the U.S. Environmental Protection Agency (EPA) and the California Legislature issued earlier this year. Part I introduces restorative justice as a framework for evaluating agency settlement policies. Part II illustrates the failures of the Speeding Ticket settlement model as a means to achieve justice. Part III introduces the new federal and California SEP policies. Part IV makes recommendations for how EPA and the California Environmental Protection Agency (Cal EPA) can administer their SEP policies to better reflect restorative justice values.

Scalia’s Swan Song: The “Irreconcilability Canon” Resolves the Clean Air Act’s Section 111(d) Drafting Error and Encourages Good Lawmaking

Brenden Cline

Brenden Cline is Editor-in-Chief of the Harvard Environmental Law Review. This post is part of the Environmental Law Review Syndicate.

[This] is a ‘rare case.’ It is and should be . . . . But every generation or so a case comes along when this Court needs to say enough is enough.

— Chief Justice Roberts[1]

As my law school graduation nears, I’d like to advance a common-sense argument for the Clean Power Plan’s statutory authority that only a law student could make: the D.C. Circuit and Supreme Court should reject EPA’s and challengers’ strained readings of the duplicative amendments to Clean Air Act section 111(d) and instead follow the late Justice Scalia’s “irreconcilability canon” to give these amendments no effect. To date, just one brief filed in the torrent of Clean Power Plan litigation mentions the irreconcilability canon in passing.[2] I think this interpretive tool warrants more attention.

So quit the jiggery-pokery, put down the applesauce, and take your head out of a bag. Justice Scalia may no longer be with us, but his immortal words endure.

Plugging the Regulatory Holes: How to Prevent the Next Aliso Canyon Catastrophe

Myles Osborne

Myles Osborne is a 1L and General Member of the Michigan Journal of Environmental & Administrative Law. This post is part of the Environmental Law Review Syndicate.

         In late October 2015, the Southern California Gas Company’s Aliso Canyon Natural Gas Storage Facility began spewing natural gas into the air over the San Fernando Valley at a rate of 110,000 pounds per hour.[1] Composed primarily of methane, a “short-lived” climate pollutant[2] with twenty-five times the global warming impact of carbon dioxide,[3] the leak effectively doubled the methane emissions rate for the Los Angeles Basin.[4] With substantial environmental costs and several botched attempts at containment, the leak did not escape comparisons to 2010’s disastrous Deepwater Horizon oil spill[5] as stinking clouds of methane entered the atmosphere, displacing families and businesses in the nearby community of Porter Ranch.

         While it took engineers nearly four months to contain the leak, most agree that the crisis could have been averted easily, were it not for California’s outmoded regulatory approach to underground natural gas storage. Adding insult to injury, eleven months prior to the Aliso Canyon leak, the Southern California Gas Company (SoCalGas) seems to have come to the same conclusion. In a report directed to the California Public Utilities Commission in November 2014, SoCalGas acknowledges the dozens of maintenance concerns[6] in its aging gas storage systems,[7] ultimately conceding that “without a new inspection plan, SoCalGas . . . could experience major failures and service interruptions from potential hazards that currently remain undetected.”[8] Yet, despite the precarious state of its storage facilities, at the time it released its report, SoCalGas was in compliance with all California state regulations concerning underground natural gas storage.[9] That an up-to-code facility could bear responsibility for a methane leak of unprecedented proportions suggests existing regulations warrant review.

BioTransport: Moving Wildlife in Response to Climate Change

Stacy Shelton

Stacy Shelton is a Staff Editor for Vermont Journal of Environmental Law. This post is part of the Environmental Law Review Syndicate.

“If climate change continues unabated and as rapidly as a few models predict, saving at least some species will require solutions more radical than creating parks and shielding endangered species from bullets, bulldozers, and oil spills: It will require moving them.”[1]

Introduction

With millions of gallons of oil gushing into the Gulf of Mexico from a blown-out well in the summer of 2010, the U.S. Fish and Wildlife Service and its partners settled on a Hail Mary plan to save a generation of sea turtles: Translocation. Using specially outfitted FedEx trucks, federal and state biologists moved about 25,000 turtle eggs from Gulf of Mexico beaches to the Kennedy Space Center on Florida’s Atlantic Coast, away from the oil’s path. About half the eggs hatched, and the hatchlings were released into the Atlantic Ocean.[2] In their calculation, the biologists had weighed the risks of reduced hatchling success and interfering with their ability to imprint on natal beaches by moving the turtles against the probability the hatchlings would swim into the oil and certain death if they remained in place.[3]

Today, climate change has biologists working out similar but exponentially more complicated calculations in deciding whether to move species. Instead of simple translocation–which is the human-assisted movement of a species within its historic range[4]—biologists are considering whether the ecological disruptions due to rising temperatures will necessitate moving species outside their historic range as their native habitats become inhospitable. Such assisted movement has been termed “managed relocation,” defined by scientists as the intentional act of moving a species outside its historic range in response to climate change.[5] Similar terms for managed relocation are “assisted migration” and “assisted colonization.”[6] The focus of this paper is on managed relocation and the legal, scientific, and political issues it raises.

What the Supreme Court’s Stay of the Clean Power Plan Means for the EPA’s Greenhouse Gas Regulation Moving Forward

Benjamin Harris

Benjamin Harris is a 3L at UCLA School of Law and serves as Executive Editor of the UCLA Journal of Environmental Law & Policy. This post is part of the Environmental Law Review Syndicate.

The Clean Power Plan (“CPP”), announced and promulgated in late 2015 by the Environmental Protection Agency (“EPA”) and backed by President Barack Obama, seeks to develop a comprehensive regulatory scheme over the nation’s power plants in an effort to promote cleaner energy development and reduce greenhouse gas emissions. On February 10, 2016, the Supreme Court granted a petition to stay the Clean Power Plan until a legal challenge against it can proceed on the merits. This post 1) provides a short overview of the CPP, 2) explores the history of CPP litigation and the Supreme Court’s recent decision to stay, 3) predicts the future outlook of the CPP, and 4) provides an alternate arrangement by which the EPA could conceivably seek to regulate greenhouse gas emissions in the event that the CPP is struck down.

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]

Getting to the Root of Environmental Injustice

Shea Diaz

Shea Diaz is on the Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate.

In the United States, poor people and people of color experience higher cancer rates,[1] asthma rates,[2] mortality rates,[3] and overall poorer health than their affluent and white counterparts.[4] The Environmental Justice Movement (EJM) links these health disparities to higher concentrations of environmental pollution sources in these communities.[5] This disproportionate exposure to environmental harms in low-income, minority communities is known as “environmental injustice.”[6] Since the EJM’s inception in the 1960s, empirical evidence of environmental injustice along racial and socioeconomic lines has been produced time and again.[7] Vulnerable populations, however, continue to bear a disproportionate burden of society’s environmental harms, as illustrated in the recent water crises in Flint, Michigan[8], and St. Joseph, Louisiana.[9]

A commitment to eradicating environmental injustice requires a nuanced understanding of its causes. EJM activists often highlight corporations’ role in creating environmental injustices, arguing that firms actively discriminate against racial minorities when making decisions about where pollution sources will be placed.[10] More recently, however, many in the movement have recognized the causal complexity of environmental injustice.[11]

ADMINISTRATIVE NECESSITY: ORIGIN AND APPLICATION TO THE EPA TAILORING RULE

David Williams

David Williams is a 3L at University of Virginia School of Law and serves as Editor of Virginia Environmental Law Journal. This post is part of the Environmental Law Review Syndicate.

In the wake of Massachusetts v. EPA,[1] the EPA fashioned new regulations to cover greenhouse gasses. As part of the new suite of regulations, the agency promulgated a “Tailoring Rule”[2] that departed from the plain text of the Clean Air Act (“CAA”).[3] The EPA justified this rule with reference to two canons of interpretation: absurd results[4] and administrative necessity.[5] The EPA describes the canon of administrative necessity as a three part test:

When an agency has identified what it believes may be insurmountable burdens in administering a statutory requirement, the first step the agency must take is to evaluate how it could streamline administration as much as possible, while remaining within the confines of the statutory requirements. The second step is that the agency must determine whether it can justifiably conclude that . . . the remaining administrative tasks are impossible for the agency because they are beyond its resources, e.g., beyond the capacities of its personnel and funding . . . .Then the agency may take the third step, which is to phase in or otherwise adjust the requirements so that they are administrable.[6]

The way the agency describes and applies the administrative necessity doctrine suggests that it is a well-established, clearly defined doctrine that has been used often to justify agency departures from statutory requirements. I argue to the contrary. The doctrine of administrative necessity is actually a recently assembled collection of disparate statements from a small handful of D.C. Circuit cases. Never has a regulatory scheme that departs from statutory requirements been justified by administrative necessity. Such a piecemeal rule is inadequate to justify the EPA’s regulatory departure from the Clean Air Act.

La Vie en Vert

Daniel Carpenter-Gold

Daniel Carpenter-Gold is Managing Editor of Harvard Environmental Law Review.This post is part of the Environmental Law Review Syndicate.

It’s done. Like a reluctant Odysseus, we have fastened ourselves to the mast of emissions reductions with Bungee cords (not too tight, now!) and stuffed one ear full of wax—just in case those cheap, dirty fossil-fuel Sirens have something interesting to say. But what is this “Paris Agreement”?

What did we promise?

After some initial optimism, debate over the outcome document has been mostly about precisely what flavor of evil the negotiators have handed us. There are interesting framing moves in the document—the target for a cap on temperature increases is being nudged down from 2°C to 1.5°C, the net-zero “carbon neutrality” approach makes carbon sinks and carbon-capture technology more prominent, and the $100 billion promised in the Copenhagen Accord ended up in the non-binding Paris Decision rather than the Agreement itself—but the real action is in Art. 4, dealing with Nationally Determined Contributions (“NDCs”).

Since Luke Grunbaum at the UCLA Journal of Environmental Law & Policy has already put out a great breakdown of the NDC approach, I’ll keep it short: the NDCs are statements from each country (or group, in the case of the EU) laying out how much they will decrease their greenhouse gas emissions. Unlike the Kyoto Protocol, the Paris Agreement does not require specific emissions reduction from each country. Instead, Art. 4.9 requires each nation to issue an NDC every five years, and Art. 4.3 demands that each new NDC “will represent a progression beyond” the country’s previous commitment. (NDCs are also supposed to represent each country’s “highest possible ambition”—which raises the question whether countries might overpromise and get stuck with an unattainable goal. Then again, overly ambitious goals have not historically been a problem for the UNFCCC.)

Nearly all UNFCCC parties submitted Intended NDCs (“INDCs”) prior to the Paris negotiations, so we already have an idea of what NDCs will look like. The first impression is that they are too little, too late, but this is not news (which the head of the Secretariat made clear by threatening to “chop the head off” of any reporter that treated the INDCs’ shortcomings as new information). For our part, the U.S. INDC has promised a 26–28% reduction in greenhouse gas emissions by 2025 (measured against 2005 levels), which is roughly equivalent to the 32% reduction by 2030 that the White House says the Clean Power Plan will provide.

From the Well Up: A California CALIFORNIA COUNTY CONFRONTS FRACKING AT THE POLLS

Malia McPherson

Malia McPherson is a 3L at Stanford Law School. This post is part of the Environmental Law Review Syndicate.

Introduction

On November 4, 2014, the voters of San Benito County passed Measure J, a voter initiative banning hydraulic fracturing (‘fracking’) and all other high-intensity petroleum operations within county lines. Under California law, only a subsequent voter initiative can overrule this fracking ban. While it is not the first county or city within California to take a stand against fracking, San Benito’s path to a successful ballot initiative was unique. Despite being dramatically outspent in the run-up to the election, the San Benito anti-fracking coalition San Benito Rising defeated industry interests through a simple strategy of basic grassroots organization. The movement was largely leaderless, it was community focused, and it represented both minority and majority interests. How did it succeed? Given the potential risks posed by fracking, and the legal context that left a regulatory ‘gap’ for Measure J to fill, the San Benito experience shows that it is indeed possible for community-centered lawyering and the voter initiative process to protect community environmental integrity on a precautionary basis against encroachment from outside interests.

I. THE RISKS POSED BY FRACKING

“Fracking” is the collective and colloquial term for the use of high volume hydraulic fracturing for fossil fuel extraction.[1] Its purpose is to extract oil and gas from rock formations deep underground (in deep shale formations) with high-pressure ‘fracking fluids’. These fluids contain “significant amounts of water, sand, and chemicals” that fracture the rock layers to free the trapped oil or gas so it can be pumped out.[2]

Although fracking as a process has been in use for decades, its environmental consequences remain significant. First, fracking is an intensive activity that requires large access roads, acres of clearing sites, drilling rig access, and storage and processing structures.[3] Once a well is drilled, millions of gallons of water are brought into the site and mixed with chemical agents, sand and emulsifiers.[4] Although the fracking fluid is 98% water, the oil and gas industries have reported that between 2005 and 2009, 29 chemicals were used in fracking fluids that were “(1) known or possible human carcinogens, (2) regulated under the Safe Water Drinking Act for their risks to human health, or (3) listed as hazardous air pollutants under the Clean Air Act.”[5] These fluids have to be kept out of normal watersheds in surface containments, or be sequestered underground – in either location these fluids have the potential to “eventually . . . migrate into and contaminate groundwater sources for waterways and drinking supplies.”[6]

EPA Unveils Final Clean Power Plan: So What’s All the Fuss About?

Eric DeBellis

Eric DeBellis is a 3L at Berkeley Law, where he is Senior Executive Editor of the Ecology Law Quarterly. This post is part of the Environmental Law Review Syndicate.

On August 3, 2015, the EPA released its highly anticipated Clean Power Plan, establishing the nation’s first greenhouse gas emissions standards for existing power plants.[1] The Clean Power Plan (“the Rule”) also is the first of its kind in another sense: it employs a unique new regulatory framework that has drawn both praise and criticism. Here, I explain the legal controversy around the Rule and preview arguments both supporters and opponents are likely to raise in court.

Background

Traditionally, the EPA has regulated air pollutants from stationary sources through region-by-region air quality standards and source-by-source emissions permits.[2] The Clean Power Plan takes a broader approach. The EPA enacted the Rule under the Clean Air Act’s seldom-invoked section 111(d).[3] As section 111(d) prescribes, the EPA set an emissions reduction target in the Rule—cutting national power sector carbon emissions to 32 percent below 2005 (historical peak) levels by 2030—and identified the “best system of emission reduction” (BSER) that makes the target attainable. The EPA then established a target for each state[4] based on that state’s potential to reduce power sector emissions through three “building blocks:” improved efficiency at fossil fuel plants, increased utilization of existing low-emitting power sources, and development of new zero- and low-emitting power sources.[5] The greater the state’s potential to improve in any of these areas, the more ambitious its target. The EPA painstakingly detailed how it calculated each state’s target to be attainable and, according to the building blocks approach, fair.[6] However, the Rule leaves compliance plan specifics to the states.

Each state has broad discretion in determining how best to achieve its target. To reduce compliance costs, states may implement a wide array of tools, including traditional source-by-source command-and-control measures, interstate cap and trade, renewable portfolio standards, energy efficiency improvements, and an abundance of other options.[7] Once a state has determined which tools will best achieve its emissions target, that state must submit an implementation plan for EPA approval. The agency will devise its own plan for any state that refuses to do so itself. Supporters have praised the Rule’s flexibility for empowering states to devise innovative strategies to minimize compliance costs.[8] Opponents have questioned whether the Clean Air Act authorizes this unorthodox, broad-sweeping approach.[9]

Supporters: A Unique Challenge Calls for a Unique Solution

The Clean Power Plan’s supporters present the Rule’s unconventional aspects as necessary to properly address the realities of climate change.[10] Regulating greenhouse gas emissions to combat climate change presents several challenges that regulating traditional pollutants does not. Generally, the EPA regulates an air pollutant because it is toxic or otherwise harmful to ingest. The agency sets a limit on the concentration of each pollutant that may persist in any region’s air and tasks states with regulating individual major sources through emissions permits.[11] This regional air quality standards approach makes sense for toxic air pollutants because emissions distribution matters. Even if the nation as a whole has low emissions levels, if one city’s air quality is poor enough to pose a health hazard, the Clean Air Act obligates the EPA and states to devise a means to improve that city’s air quality.

But the EPA is not regulating greenhouse gases for toxicity. The EPA is regulating greenhouse gases because they contribute to climate change.[12] The greenhouse gases responsible for the bulk of climate impacts mix uniformly into the atmosphere regardless of origin.[13] As a consequence, the impacts of local greenhouse gas emissions contribute to climate change on a global scale.[14] To decrease the United States’ contribution to climate change, the nation must decrease its total emissions, regardless of where those emissions cuts happen.[15] In light of this distinction, the EPA eschewed the traditional regional air quality standards approach in favor of a national reduction target.[16] Unhindered by regional distribution considerations, the agency designed the Clean Power Plan to allow states to focus their emissions reduction efforts wherever is most cost-effective.[17]

The Clean Power Plan’s other major departure from the traditional air pollution control paradigm is its “beyond the fenceline” approach. Conventional power plant air pollution regulation imposes technological and operational requirements onsite (within the plant’s “fenceline”). Many means to reduce power sector greenhouse gas emissions, such as substation and transmission line improvements, energy efficiency, carbon taxation, and connecting more renewables to the grid, lie beyond the fenceline and often are more cost-effective than a strictly on-site approach.[18] To capitalize on these opportunities to further reduce emissions at lower costs, the Clean Power Plan credits states for emissions reductions achieved through offsite measures. Further, the EPA calculated state targets under the assumption that plant operators will employ the most cost-effective methods available, regardless of whether it requires them to act outside of a plant’s fenceline. Rule proponents justify this unorthodox approach as providing needed flexibility and facilitating innovation to minimize both emissions and costs.[19] Nevertheless, critics have raised concerns that the Rule’s unorthodox approach oversteps the limits of the agency’s authority under the Clean Air Act.[20]

Opponents: The EPA May Be Exceeding Its Jurisdiction Under the Clean Air Act

Two days after the EPA published the final Clean Power Plan, sixteen states filed for an administrative stay of the Rule. The states challenging the Rule characterized it as requiring states to “entirely reorder their energy economies” or face “a potential federal takeover of significant State authority.”[21] Furthermore, the EPA rarely invokes section 111(d), leaving the scope of the agency’s authority under the provision largely unsettled. The lack of precedent on section 111(d) makes projecting a legal challenge’s outcome difficult.

Seizing upon this uncertainty, Clean Power Plan opponents have questioned the Rule’s legality since its inception.[22] Despite the long-established administrative law principle that regulations cannot be challenged until an agency promulgates a final rule, fifteen states challenged the proposed Clean Power Plan upon its publication.[23] The courts promptly dismissed these cases as premature,[24] but these states’ eagerness to align against the Clean Power Plan demonstrates that the EPA is in for a long court battle.[25] The debate over the scope of the EPA’s authority is still developing, but certain legal objections that have arisen already seem likely to arise in court as well. Here, I focus on “beyond the fenceline” jurisdiction, dueling amendments, and broader federalism concerns.

First, opponents likely will challenge the EPA’s beyond the fenceline jurisdiction.[26] The EPA calculated state targets under the assumption that it had the authority to require states to implement emission reduction strategies that go beyond on-site modifications to power plants themselves. Though the agency maintains that states can attain their targets without requiring any actions outside the energy sector’s control, the courts likely will have to decide whether BSER may include beyond the fenceline measures.[27] The EPA dropped energy efficiency—the fourth building block in the proposed rule—from the final rule in response to these jurisdictional concerns.[28] In the proposed rule, the EPA considered each state’s potential to reduce emissions via energy efficiency measures, like insulation and energy-saving appliances, with little if any nexus to power plants themselves in setting state targets.[29] By excluding the energy efficient building block from its calculations, the EPA not only adjusted some states’ targets but also made the Clean Power Plan less susceptible to a jurisdictional challenge.[30] However, even after this adjustment, the scope of the EPA’s beyond the fenceline jurisdiction remains an open question.

Second, challengers likely will highlight a drafting error by Congress when it passed section 111(d) to question whether the EPA may regulate greenhouse gas emission from power plants under the provision at all.[31] The Clean Air Act’s authors included section 111(d) as a catchall provision to cover pollution that did not fit neatly into the Act’s other categories,[32] but the Senate and the House of Representatives each passed its own version of the section. Accordingly, both versions contain language intended to prevent redundant application of 111(d) and another Clean Air Act provision to the same emissions. Due to an oversight by the members of both houses, Congress never reconciled the two versions.[33] The House version makes 111(d) inapplicable to any emission source already subject to regulation under section 112.[34] The EPA already regulates power plants under rule 112, and so does the Clean Power Plan.[35] Thus, the House language would invalidate the Clean Power Plan outright.[36] The Senate version bars the EPA from regulating the same pollutant from the same source under two rules.[37] The EPA never has regulated greenhouse gases from existing power plants before, so the Senate version would allow the Clean Power Plan.[38] Naturally, the EPA follows the Senate language.[39] The agency maintains that its choice of the Senate version is a reasonable resolution of a genuine legal ambiguity,[40] which rule proponents argue entitles the EPA’s choice to judicial deference under the Chevron doctrine.[41] Opponents argue that a legislative drafting error does not give the EPA the authority to ignore the version it disfavors.[42]

Third, opponents likely will invoke constitutional federalism concerns.[43] Critics have emphasized one core principle in particular: the anti-commandeering doctrine.[44] According to the anti-commandeering doctrine, the federal regulation may not so coerce state agencies as to reduce them to mere extensions of the federal government.[45] Rule opponents argue that the Clean Power Plan runs afoul of the anti-commandeering principle by imposing a federal mandate to abandon certain energy sources (i.e., fossil fuels) in favor of other fuels (i.e., renewables).[46]

One potential counterargument would be that regulating any air pollutant under the Clean Air Act necessarily nudges the scales against energy generation methods that heavily emit the pollutant. Burning fossil fuels produces far more greenhouse gas emissions than generation from renewable fuels like solar and wind, so the EPA cannot limit greenhouse gas emission without putting fossil fuels at a competitive disadvantage. The states challenging the Clean Power Plan likely will argue that the EPA crossed the line by effectively ordering states to phase out fossil fuel generation, particularly from coal, in favor of lower-emitting power sources. In response, the EPA likely will maintain that the Clean Power Plan respects the anti-commandeering principles by leaving compliance specifics to states.

Conclusion

The Clean Power Plan is as ambitious as it is unique, and the legal challenges to the Rule raise many unsettled questions. The looming court battle over the Clean Power Plan will have tremendous implications for U.S. climate change policy as well as broader matters of federal agency jurisdiction. The legal community has been discussing the Clean Power Plan for over a year now, and it appears that the conversation will continue for years to come. The impending litigation should prove fascinating and will culminate in the most highly anticipated ruling on environmental law in recent memory. Clean Power Plan proponents and detractors alike eagerly await the outcome.

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[1] Press Release, White House, Fact Sheet: President Obama to Announce Historic Carbon Pollution Standards for Power Plants (Aug. 3, 2015), https://www.whitehouse.gov/the-press-office/2015/08/03/fact-sheet-president-obama-announce-historic-carbon-pollution-standards. For the full text of the final rule, see Carbon Pollution Emission Guidelines for Existing Stationary Sources; Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60).

[2] See generally Justin E. McCarthy, Cong. Research Serv., RL30853, Clean Air Act: A Summary of the Act and Its Major Requirements (2005), http://fpc.state.gov/documents/organization/47810.pdf (surveying EPA regulation under the Clean Air Act and thereby predominantly describing regional air quality standards and source-specific emissions permits).

[3] For the exact language of Clean Air Act section 111(d), see 42 U.S.C. § 4711(d) (2012).

[4] For a map listing state targets, seeCtr. for Climate & Energy Solutions, Final State Rate-Based Targets (2015), http://www.c2es.org/federal/executive/epa/carbon-pollution-standards-map.

[5] Final Clean Power Plan vs. Draft Plan: What Has Changed?, Envtl. & Energy Study Inst. (Aug. 21, 2015), http://www.eesi.org/articles/view/final-clean-power-plan-vs-draft-plan-what-has-changed.

[6] See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,820–26 (Oct. 23, 2015) (explaining the EPA’s methodology for calculating State targets).

[7] See, e.g., Nat’l Ass’n of Clean Air Agencies, Implementing EPA’s Clean Power Plan: A Menu of Options (2015) (explaining in detail a variety of potential compliance strategies available to States).

[8] E.g., Nat. Res. Def. Council, Understanding the EPA’s Clean Power Plan 1 (2015), http://www.nrdc.org/climate/files/cpp-national-compliance-IB.pdf; Robert Sussman, Obama’s Final Clean Power Plan: Merging Strong Climate Goals with Flexible Implementation, Brookings (Aug. 4, 2015, 4:00 PM), http://www.brookings.edu/blogs/planetpolicy/posts/2015/08/04-obama-clean-power-plan-sussman.

[9] E.g., Mitch McConnell, States Should Reject Obama Mandate for Clean-Power Regulations, Lexington Herald-Leader (Mar. 3, 2015), http://www.kentucky.com/2015/03/03/3725288/states-should-reject-obama-mandate.html; Press Release, Office of W.V. Attorney Gen., Attorney General Patrick Morrisey Denounces EPA’s Illegal, Over-Reaching Clean Power Plan (Aug. 3, 2015), http://www.ago.wv.gov/pressroom/2015/Pages/Attorney-General-Patrick-Morrisey-Denounces-EPA's-Illegal,-Over-Reaching-Clean-Power-Plan.aspx; Laurence H. Tribe, The Clean Power Plan Is Unconstitutional, Wall St. J. (Dec. 22, 2014, 7:06 PM), http://www.wsj.com/articles/laurence-tribe-the-epas-clean-power-plan-is-unconstitutional-1419293203.

[10] E.g., Nat. Res. Def. Council, supra note 8;Sussman, supra note 8.

[11] See McCarthy, supra note 2, at CRS-3 to CRS-4 (explaining the national ambient air quality standards and state implementation plan provisions of the Clean Air Act).

[12] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,497 (Dec. 15, 2009) (finding that greenhouse gases threatened human health and the environment, warranting regulation under the Clean Air Act, because of their contribution to climate change).

[13] Id. at 66,514.

[14] Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,354, 44,367 (July 30, 2008).

[15] Id.

[16] Id. at 66,514–15.

[17] Carbon Pollution Emission Guidelines for Existing Stationary Source: Electric Utility Generating Units, 79 Fed. Reg. 34830, 34,832 (June 18, 2014).

[18] David Roberts, Obama’s Carbon Rule Hangs on This One Legal Question, Grist (Feb. 9, 2015), http://grist.org/climate-energy/obamas-carbon-rule-hangs-on-this-one-legal-question/.

[19] See, e.g., id.

[20] E.g., supra note 9.

[21] Application for Administrative Stay by the State of West Virginia and 15 Other States at 2, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electricity Generating Units; Final Rule, EPA Docket No. EPA-HQ-OAR-2013-0602 (Aug. 5, 2015), available at http://www.ago.wv.gov/Documents/WV%20-%20Administrative%20Request%20for%20Stay%20CPP.PDF.

[22] See, e.g., Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,760 n. 463 (Oct. 23, 2015).

[23] Neela Banerjee, 12 States Sue the EPA over Proposed Power Plant Regulations, L.A. Times (Aug. 4, 2014, 6:46 PM), http://www.latimes.com/business/la-fi-epa-lawsuit-20140805-story.html.

[24] Andrew Childers, Challenged to Proposed Clean Power Plan Are Premature, D.C. Circuit Says in Dismissal, Bloomberg BNA (June 10, 2015), http://www.bna.com/challenges-proposed-clean-n17179927524/.

[25] See Legal Challenges—Overview & Documents, E&E News, http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal (last updated Nov. 3, 2015) (predicting the D.C. Circuit will not rule on the merits until at least late 2016 and that an appeal to the Supreme Court likely will follow).

[26] Full disclosure: I disputed the fenceline distinction’s relevance in a piece I wrote for Ecology Law Quarterly’s annual review issue. Eric A. DeBellis, Note, In Defense of the Clean Power Plan: Why Greenhouse Gas Regulation Under Clean Air Act Section 111(d) Need Not, and Should Not, Stop at the Fenceline, 42 Ecology L.Q. 235 (2015).

[27] See Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. at 64,767 (the EPA’s response to commenters’ arguments that section 111(d) only authorizes the agency to require pollution control measures that are “integrated into the design or operations of the source itself.”).

[28] Id. at 64,673.

[29] Brian Palmer, Is Energy Efficiency Still a Part of the Clean Power Plan?, onEarth, http://www.onearth.org/earthwire/clean-power-plan-energy-efficiency (last visited Nov. 3, 2015).

[30] Id.

[31] The academic literature on the dueling amendments debate has been prolific and, at times, heated. See, e.g., Dan Farber, Dueling Laws and the Clean Power Plan, Legal Planet (Aug. 17, 2015) (characterizing the dueling amendments argument as industry “trying to make too big a case turn on too small a technicality”);Laurence Tribe, Professor Tribe’s Reply, Harv. L. Sch. Envtl. L. Program (Mar. 22, 2015), https://hlsenvironmentallaw.wordpress.com/professor-tribes-reply/ (rebutting Jody Freeman and Richard Lazarus by arguing that the Senate version was merely clerical in nature and Congress clearly intended to adopt the substance of the House’s version, which would not authorize the Clean Power Plan).

[32] Coral Davenport, Brothers Battle Climate Change on Two Fronts, N.Y. Times (May 10, 2014), http://www.nytimes.com/2014/05/11/us/brothers-work-different-angles-in-taking-on-climate-change.html.

[33] Jeremy P. Jacobs, Both Side Ready Arguments for Case that Could Scotch EPA Power Plants Rule, Greenwire.(Apr. 13, 2015), http://www.eenews.net/stories/1060016647.

[34] Clean Air Act Amendments of 1990, Pub. L. 101-549, § 302(a), 104 Stat. 2399, 2574 (1990).

[35] Tribe, supra note 31.

[36] Id.

[37] Clean Air Act Amendments of 1990, Pub. L. 101549, § 108(g), 104 Stat. 2399, 2467 (1990). The U.S. Code, 42 U.S.C. 7411(d) (2012), reflects the Senate language, but this is not dispositive. To quote the Supreme Court, “Though the appearance of a provision in the current edition of the United States Code is ‘pima facie’ evidence that the provision has the force of law, it is the Statutes at Large that provides the ‘legal evidence of laws.’” U.S. Nat’l Bank of Ore. v. Indep. Ins. Agents of Am., 508 U.S. 439, 448 (1993) (internal citations omitted). The Statutes at Large contains both versions, leaving the matter of which version controls open to debate.

[38] Farber, supra note 31.

[39] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units; Final Rule, 80 Fed. Reg. 64,662, 64,715 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60).

[40] Id.

[41] E.g., David Doniger & Benjamin Longstreth, Grasping at Straws: Why a Legislative Glitch Will Not Exempt Power Plants from Carbon Standards, Nat. Res. Def. Council: Switchboard (Nov. 1, 2013), http://switchboard.nrdc.org/blogs/blongstreth/grasping_at_straws_why_a_legis.html.

[42] E.g., Tribe, supra note 31.

[43] See, e.g., Mario Loyola, Federal Coercion and the EPA’s Clean Power Plan, The Atlantic (May 17, 2015), http://www.theatlantic.com/politics/archive/2015/05/federal-coercion-and-the-epas-clean-power-plan/393389/ (arguing the Clean Power Plan unconstitutionally coerces States to abandon certain fuel sources in favor of others).

[44] See, e.g., Scott C. Ostdyk, A Constitutional Challenge to EPA’s “Clean Power Plan”, Law360 (Oct. 27, 2014, 2:42 PM), http://www.law360.com/articles/590762/a-constitutional-challenge-to-epa-s-clean-power-plan.

[45] Id.

[46] See, e.g., id.

From Kyoto To Paris: How Bottom-Up Regulation Could Revitalize the UNFCCC

Luke Grunbaum

Luke Grunbaum is a 3L at UCLA School of Law, where he is Editor-in-Chief of the UCLA Journal of Environmental Law and Policy. This post is part of the Environmental Law Review Syndicate.

The United Nations Framework Convention on Climate Change (UNFCCC) establishes the basic principles and goals for future international agreements on climate change. However, incorporating the ambitious policies and provisions of the UNFCCC into a binding global agreement has proven incredibly challenging. Previous attempts to create a comprehensive international climate agreement (most notably the Kyoto Protocol) have been largely unsuccessful, and many believe that the top-down approach of prior eras must either be updated or completely abandoned. This article will briefly explain some of the inadequacies of prior top-down regimes, examine the shift towards a more bottom-up approach in UNFCCC negotiations, and elaborate on some of the strengths and weaknesses of this new approach.

The Inadequacies of Top-Down Regimes in the Context of Climate Change

Adopted in 1992, the UNFCCC is an incredibly ambitious international agreement that seeks to “achieve . . . stabilization of greenhouse gas concentrations . . . at a level that [will] prevent dangerous anthropogenic interference with the climate system.”[1] With over 150 signatories (Parties) by the time it went into effect in 1994, the UNFCCC has received remarkable acceptance within the international community and today it “has near universal membership.”[2] But despite its ambitious goals, the UNFCCC is essentially a guidance document; the treaty outlines objectives, principles, and general commitments, but is comparatively lacking in terms of implementation strategies and precise policy solutions.[3] Thus, although the UNFCCC has created a general consensus on core principles and objectives, it also leaves many important decisions and details unresolved.

Passed and adopted in December 1997, the Kyoto Protocol represents the first comprehensive agreement for the reduction of global greenhouse gas emissions under the UNFCCC framework.[4] However, despite strong initial support from the international community, the Kyoto Protocol ultimately failed to induce significant emission reductions on a global scale.[5] And while the relative failure of the Kyoto Protocol is often attributed to a variety of factors, one of the Protocol’s most significant flaws was its failure to promote participation by all UNFCCC parties.[6]

The lack of comprehensive participation under the Kyoto Protocol is largely a byproduct of the agreement itself. By its explicit terms, the Kyoto Protocol only requires emission reductions from thirty-three countries during the first period of Kyoto commitments (2005-2012). Additionally, the emissions reductions required under subsequent Kyoto periods (2012-2020) have yet to enter into force due to insufficient ratification by member Parties.[7] So while it is true that the Kyoto Protocol encourages all parties (including developing countries) to adopt emission reduction targets, the agreement ultimately failed to obtain emission reduction commitments from the some of the world’s largest greenhouse gas emitters, including the United States, China, Brazil, India, South Africa and various other countries. As a result, the Kyoto Protocol has failed to provide a truly comprehensive and effective solution to this increasingly pressing issue.

INDCs: A Bottom-Up Approach Under the UNFCCC

Citing the failure of the Kyoto Protocol and the international community’s subsequent inability to reach a successive agreement, some experts have called for a fundamental overhaul of the global climate change debate. Various sources suggest that the traditional top-down approach[8] as exemplified in the Kyoto Protocol might not be the best strategy for addressing global climate change today.[9] Instead, many believe that to stand any chance of global acceptance in the near term, future climate change agreements must be significantly more flexible and provide all Parties with the opportunity to pursue those strategies and solutions that best accommodate their unique interests and priorities.[10]

Indeed, even the UNFCCC acknowledges the limitations of a traditional top-down approach in the context of climate change. At COP17 in 2011, UNFCCC Parties created the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), an organization responsible for “[developing] a protocol, another legal instrument or an agreed outcome with legal force under the [UNFCCC] applicable to all Parties” that will be adopted “no later than 2015.”[11] And while the desire to replace the Kyoto Protocol is not surprising, some of the main features of this new agreement signify a paradigm shift in global climate change negotiations.

To ensure an agreement is reached by 2015, the ADP devised a radical new method that attempts to encourage greater levels of participation by all UNFCCC Parties. Rather than relying upon a more formalistic top-down approach as used in the Kyoto Protocol, the ADP has asked all member Parties to create voluntary emission reduction targets that are not only achievable, but also reflect the basic policies and priorities of the UNFCCC.[12] Known as Intended Nationally Determined Contributions (INDCs), these proposals require parties to “outline national efforts towards low emissions and climate resilient development,” and identify specific policies and practices that will enable the country to reach its intended targets. [13] Moreover, there is no standard definition of what should be included in INDCs, a feature that allows Parties to formulate creative adaptation and mitigation strategies that take full advantage of their unique institutional capacities.

Strengths and Weaknesses of INDC Approach

The ADP’s new bottom-up INDC approach is noteworthy in that it is entirely voluntary; INDCs afford each Party the opportunity to set emission reduction targets independently and without regard to the efforts of other Parties. And because INDCs are completely discretionary, these commitments are likely to accurately reflect each Party’s inclination and ability to undertake climate policies in the near future. In fact, the ADP hopes that these INDCs will play an integral role in future climate change negotiations and serve as the starting point for any agreement coming out of the negotiations in Paris this year.[14]

Moreover, there are at least two reasons why this bottom-up approach may be a preferable alternative to a more legalistic top-down approach at the present time. First, INDCs offer substantial flexibility when it comes to setting emissions reductions targets and implementing policies to achieve this goal.[15] This flexibility allows the Parties to prioritize their efforts based upon their own unique economic, political, and geographic considerations and ensures that all Parties begin the transition towards a low-carbon economy at their own pace and in a cost-efficient and predictable manner.

A second important feature of the INDC system is that it poses relatively little threat to the sovereignty of individual nations. Because INDCs are not legally binding commitments, the INDC program is a far more attractive alternative for those countries that are most wary of international meddling in domestic affairs. Indeed, both the United States and China – two countries that have up until this point refused to commit to any emission reductions in formal international agreements – have submitted INDCs under the Durban platform.[16]

Yet despite its potential benefits, the INDC model cannot be considered a perfect solution since it will ultimately fail to achieve all of the ambitious policies and objectives outlined in the UNFCCC. Perhaps the biggest issue with the INDC approach is that despite widespread participation by UNFCC Parties, the current set of INDCs fail to achieve the emission reductions needed to keep climate change at manageable levels. Under the 2010 Cancun Agreements, UNFCCC Parties acknowledged that one of the main objectives of any future UNFCCC agreement should be to keep global average temperature increases below two degrees Celsius.[17] According the UNFCCC’s own estimates, however, the current INDC pledges (assuming the Parties achieve their stated goals) will only limit projected warming to 2.7 degrees Celsius (4.9 °F) – and that projection includes fairly generous assumptions regarding the post-2050 actions of UNFCCC Parties.[18]

A second potential issue with the INDC method is that it completely overlooks several key issues that have traditionally prevented the formation of a truly comprehensive climate change agreement under the UNFCCC. The UNFCCC explicitly acknowledges that developed countries are primarily responsible for the steady increase in greenhouse gas concentrations over the previous centuries, and as such, these developed countries must play a leading role in addressing climate change.[19] But despite its inherent logic, this notion of “common but differentiated responsibilities” has been notoriously difficult to operationalize within the framework of a global agreement.[20] INDCs do very little to address this contentious issue since their non-binding and unilateral nature fails to ensure that developed countries bear a disproportionate share of emission reductions and provide sufficient funding to aid in the global transition towards a low-carbon economy. Therefore, since these INDCs will serve as the foundation for future negotiations, it can be argued that the inward-looking INDC model will ultimately prevent the resolution of certain controversial issues in the near future.

Conclusion

The INDC system represents a novel solution to the previously intractable issue of global climate change. This bottom-up approach has already received unprecedented support from the international community, with over 147 Parties (75% of all UNFCCC Parties) having submitted INDCs as of October 1, 2015. Unlike prior agreements under the UNFCCC such as the Kyoto Protocol, the INDC system currently covers “approximately 85% of global greenhouse gas emissions in 2010,” including all of the top ten largest emitters.[21] But even though the INDC process is largely responsible for enhancing the scope and pace of global negotiations, we must bear in mind that this approach is not the final solution to this incredibly complicated issue. Nonetheless, it appears that the INDC system has been a success in terms of increasing participation from all Parties, and there is hope that these proposals will form a strong foundation for an agreement coming out of Paris this December.

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[1] United Nations Framework Convention on Climate Change, Article 2, May 29, 1992, U.N. Doc. A/AC.237/18 (1992), available at http://unfccc.int/files/essential_background/
convention/background/application/pdf/convention_text_with_annexes_english_for_posting.pdf) [henceforth referred to as “UNFCCC”].

[2] UNFCCC, “First steps to a safer future: Introducing The United Nations Framework Convention on Climate Change,” available at: http://unfccc.int/essential_background
/convention/items/6036.php.

[3] UNFCCC, supra note 1.

[4] Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998) (entered into force Feb. 15, 2005) [hereinafter Kyoto Protocol]. See also Andrew Long, Global Integrationist Multimodality: Global Environmental Governance and Fourth Generation Environmental Law, 21 J. Envtl. & Sustainability L. 169, 183 (2015).

[5] See e.g., Jonathan Zasloff, Choose the Best Answer: Organizing Climate Change Negotiation in the Obama Administration, 103 Nw. U. L. Rev. Colloquy 330, 332 (2009) (“The Kyoto Protocol’s failure to achieve emissions reductions from the major greenhouse gas emitters suggests the need for new approaches.”); Lakshman Guruswamy, Climate Change: The Next Dimension, 9 J. Transnat’l L. & Pol’y 341, 367 (2000) (“Current efforts to include developing countries within the emission reducing framework of the Kyoto Protocol have proven unsuccessful. By any analysis, portentous implications arise from the present diplomatic deadlock with regard to the cooperation of developing countries and the rising concentrations of GHGs.”).

[6] See, e.g., Jacquelynn Kittel, The Global “Disappearing Act”: How Island States Can Maintain Statehood in the Face of Disappearing Territory, 2014 Mich. St. L. Rev. 1207, 1218 (2014) (noting that the Kyoto Protocol “has been largely unsuccessful in reducing global greenhouse gas emissions” because over 100 nations, including some of the highest emitters such as the United States and China, are exempt from emission limits under the Protocol).

[7] United Nations Climate Change Secretariat, “Frequently asked questions relating to the Doha Amendment to the Kyoto Protocol,” available at https://unfccc.int/files/
kyoto_protocol/doha_amendment/application/pdf/frequently_asked_questions_doha_amendment_to_the_kp.pdf.

[8] The term “top-down” is defined as “of or relating to a hierarchical structure or process that progresses from a large, basic unit to smaller, detailed subunits.” American Heritage Dictionary of the English Language (5th Ed., 2011).

[9] David A. Wirth, The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?, 39 Harv. Envtl. L. Rev. 515, 521 (2015) (“The first, and to date only, protocol to the [UNFCCC] is the Kyoto Protocol . . . which specifies quantitative emission reductions . . . by thirty-three enumerated industrialized countries . . . [but] no new emission-reduction commitments for [other] Parties.”); Cinnamon P. Carlarne, Rethinking A Failing Framework: Adaptation and Institutional Rebirth for the Global Climate Change Regime, 25 Geo. Int’l Envtl. L. Rev. 1, 2-3 (2012) (“The conventional wisdom that we need one, consensus-based, comprehensive treaty is wrong or – more accurately – woefully incomplete. . . . [T]he optimistic vision of this top-down system as a great enabling device is no longer viable.”); William Boyd, Climate Change, Fragmentation, and the Challenges of Global Environmental Law: Elements of a Post-Copenhagen Assemblage, 32 U. Pa. J. Int’l L. 457, 457 (2010) (“The 2009 United Nations climate conference in Copenhagen has been widely viewed as a failure – a referendum in the eyes of many on the top-down, comprehensive approach to climate embodied in the Kyoto Protocol and carried forward in efforts to negotiate a successor regime.”).

[10] Carlarne, supra note 9 at 2-3 (“[T]he valiant efforts of the global community to negotiate a post-Kyoto treaty system have arrived at a crossroads and . . . instead of focusing on the finding the “right” pathway forward, there is a need to pursue multiple pathways. . . . We need a multilateral framework to respond to climate change and establish a global mitigation strategy.”).

[11] Report of the Conference of the Parties on its seventeenth session (2011), available at: http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf).

[12] The ADP first established this voluntary emissions reduction framework at COP19 in 2013. For more information about this important meeting of the Parties, see “Warsaw Outcomes” (available at: http://unfccc.int/key_steps/warsaw_outcomes/items/8006.php.)

[13] Synthesis Report on the Aggregate Effect of Intended Nationally Determined Contributions (INDCs) (available at: http://unfccc.int/files/focus/indc_portal/application
/pdf/synthesis_report_-_overview.pdf) [henceforth referred to at “INDC Synthesis Report”]. For more information about INDCs and their significance for future climate change agreements, see World Resources Institute, “What is an INDC?,” (available at: http://www.wri.org/indc-definition).

[14] INDC Synthesis Report, supra note 13 (“Parties have submitted their INDCs with the understanding that they would be anchored in a broader new climate agreement that would support sustainable actions nationally and globally.”).

[15] Further Advancing the Durban Platform, Dec. 1/CP.19, U.N. Doc. FCCC/CP/2013/10/Add.1, at 3, para. 2(b) (Jan. 31, 2014).

[16] Mark Landler, U.S. and China Reach Climate Accord After Months of Talks, NY Times, Nov.11, 2014, http://www.nytimes.com/2014/11/12/world/asia/china-us-xi-obama-apec.html. To view copies of the INDCs that have already been submitted, visit the UNFCCC “Submitted INDCs” portal at http://www4.unfccc.int/submissions/indc/Submission
%20Pages/submissions.asp.

[17] UNFCCC, “The Cancun Agreements: An Assessment by the Executive secretary of the United nations Framework Convention on Climate Change,” available at http://cancun
.unfccc.int/cancun-agreements/main-objectives-of-the-agreements/ - c33.

[18] INDC Synthesis Report, supra note 13.

[19] UNFCCC, supra note 1 (“Acknowledging that the global nature of climate change calls for the widest possible cooperation by all countries . . . in accordance with their common but differentiated responsibilities and respective capabilities and their social and economic conditions.”).

[20] See, e.g., Stathis N. Palassis, The IMOS Climate Change Challenge: Application of the Principle of Common But Differentiated Responsibilities and Respective Capabilities, 6 Wash. & Lee J. Energy, Climate, & Env’t 160, 164-71 (2014).

[21] INDC Synthesis Report, supra note 13.

Is CITES Endangered?

Liz Rasheed

Liz Rasheed is a 3L at New York University, where she is Submissions Editor for Environmental Law Journal. This post is part of the Environmental Law Review Syndicate.

Introduction: What is Illicit Wildlife Trafficking?

Illicit wildlife trafficking refers to “any environment-related crime that involves the illegal trade, smuggling, poaching, capture or collection of endangered species, protected wildlife (including animals and plants that are subject to harvest quotas and regulated by permits), derivatives or products thereof.”[1] Many species are targeted by specific international markets, while some are targeted by a multiplicity of markets. For example, tigers are sold live as exotic pets, yet skinned for rugs, while their bones are sold for “medicinal” uses in Asia.[2] Many reptiles and amphibians are commonly targeted for the exotic pet trade, as are primates and tropical birds.[3] Still others are being driven to extinction due to their perception as “fine cuisine” in certain markets.[4] Most notably, illicit animal-derived goods, such as ivory carvings, animal-skin rugs, and taxidermy mountings are seen as status symbols in many parts of the world, and the existence of a market for “canned hunting” of endangered animals on private game reserves makes it increasingly easy for illicit trafficking syndicates to launder illegally poached hides under the façade of legal hunts.[5]

The growth of e-commerce in the global marketplace has made facilitation of illegal transactions increasingly efficient for would-be consumers while protecting their anonymity, and has thus made effective prosecution increasingly difficult. The International Fund for Animal Welfare found in a recent study that the number of online advertisements for CITES Appendix I-listed species in China alone had increased by 279 percent in the past six years, jumping from 544 advertisements identified in 2008 to 2,106 in 2014.[6] Furthermore, the widespread use of social media seems to have facilitated new means of contact between buyers and sellers.[7]

What is Reasonable?: The Consideration of Economic Effects in Reasonable and Prudent Alternatives Under the Endangered Species Act

Gillian Schroff

Gillian Schroff is a 3L at Lewis and Clark Law School, where he is Form & Style Editor for Environmental Law. This post is part of the Environmental Law Review Syndicate.

I. Introduction

Although only a few inches in size, the delta smelt (Hypomesus transpacificus) has become a topic of intense debate in water-scarce California. When the United States Fish and Wildlife Service (FWS or Service) determined that these small fish were a threatened species in 2005, the Service invoked the significant protections of § 7 of the Endangered Species Act (ESA)[1] and water agencies that managed the delta smelt’s habit were suddenly precluded from diverting water in ways that could negatively affect the fish.

The rivers that flow into the delta provide water to around two-thirds of Californians and large amounts of farmland.[2] FWS’s determination that the diversions would endanger the delta smelt and were therefore prohibited was criticized as “put[ting] fish above the needs of millions of Californians.”[3] When the cutback in water diversions began, farmers who had depended on the diversions were forced to institute alternative methods, including abandoning fertile land.[4] The problem was exacerbated by the fact that there was no other source of water in the region to irrigate the fields.[5] As of 2010, estimates suggested that there had been $2.2 billion in agricultural losses as a result of the decrease in water diversions. [6]

FWS proposed Reasonable and Prudent Alternatives (RPAs) that would allow the water diversions to continue, but even those required that the diversions to be limited to protect the delta smelt.[7] According to the plaintiffs, this alternative failed to resolve the water supply problems for farmers who had previously relied on water diversions from the agency.[8] As a result, various water agencies and farmers challenged the Service’s decision in the case San Luis and Delta-Mendota Water Authority v. Jewell.[9]

Because of conflicts like those at issue in San Luis, the ESA has been a source of contention, with environmental groups, private parties, and the courts debating the propriety of protecting endangered species at the expense of economic development. On one end of the spectrum, the Supreme Court held in Tennessee Valley Authority v. Hill (TVA)[10] that economic considerations are not relevant to Reasonable and Prudent Alternative (RPA) determinations.[11] Alternatively, the Fourth Circuit has held that economic considerations must be included in the analysis of RPAs.[12] In San Luis the Ninth Circuit adhered to the holding of TVA and held that the consideration of economic effects on private parties was inappropriate for an RPA analysis.[13]

Despite the complicated nature of the San Luis conflict and the significant economic effects that the FWS’s decision may have on farmers, the Ninth Circuit correctly determined that the economic effects on these private third parties did not need to be explicitly analyzed in the RPAs. The text of the ESA and the stated purpose of the ESA indicate that economics are not relevant to RPAs. In addition, RPAs do not restrict the options of agencies, but simply identify one way for the agency to proceed, despite the jeopardy determination, and the ESA already allows for the consideration of economics in the exemption provision. Finally, allowing for the consideration of economics in the creation of RPAs would impair the functioning of the ESA and would not clearly advance any goal that the private parties could hope to accomplish.

Trying to Find a Balance: Agricultural Land Conservation vs. Development in the Green Mountain State

Kristen Mae Rodgers

Kristen Mae Rodgers is Note Editor for Vermont Journal of Environmental Law. This post is part of the Environmental Law Review Syndicate.

Vermont is leading the nation in the local, sustainable food movement and the new food economy. In fact, Vermont is the frontrunner in farm stands, community supported agriculture (CSA) programs, and farmers’ markets per capita across the entire United States. According to the USDA, Vermont is one of few states to see a boom in new farms. In 2014, Vermont bucked national trends showing growth in large-scale agricultural operations, and instead favored growth in small-scale agricultural operations. These small-scale farms make up the real strength in the local food movement for the state and highlight Vermont’s community-based approach to agriculture.

The rise of new farms coupled with already well-established operations makes agriculture one of the most important facets to Vermont’s economy. Agriculture and other food related activities grew from $6.9 billion in 2007 to $8.6 billion in 2014. According to the 2014 VT Farm to Plate Annual Report, over 60,000 jobs within the state can be attributed to Vermont’s food system. Roughly 12,000 businesses in Vermont partake in the food system. Overall, Vermont is set to continue its agricultural growth into the future.

Vermont owes its booming agricultural economy to one of its most precious natural resources – soil. Soil is a finite resource in the state. Farmland with viable soils are in high demand statewide due to the growth of new farms and continuation of existing farm operations. This demand has especially impacted dairy farmers, who now have to travel substantial distances to grow enough forage for their animals. Soil integrity will play an even larger roll in the demand for farmland in the future, as climate change alters the viability of soils worldwide.

The importance of Vermont’s soils, and thus agriculture, is reflected in Vermont’s signature land use legislation. Act 250, formally named Vermont’s Land Use and Development Law (10 V.S.A. Chapter 151), ensures that development in Vermont will coincide with natural resource conservation. Act 250 specifically calls out for special consideration of “Primary Agricultural Soils”, also known as PAS. PAS as defined by 10 V.S.A. section 6001 are “. . . important farmland soils map unit[s] that the Natural Resources Conservation Service of the U.S. Department of Agriculture (NRCS) has identified and determined to have a rating of prime, statewide, or local importance.” PAS make up the backbone of Vermont’s agricultural economy.

Criterion 9(b) of Act 250 ensures that any development on farmland will be well thought out and least likely to damage PAS. Under Criterion 9(b) exist four subcriteria. The subcriteria of 9(b) call for: (1) any development to not impinge on abutting agricultural operations; (2) no other lands owned or controlled by the applicant be reasonably suited for development; (3) the development plans minimize the reduction of agricultural potential of PAS through compact development patterns; and (4) suitable mitigation will be provided for any reduction of PAS in accordance with 10 V.S.A. section 6093. Section 6093 deals with the flexibility of soil mitigation and whether onsite or offsite mitigation can occur for certain projects. Section 6093 allows for the District Commission to decide if “appropriate circumstances” exist that warrant offsite mitigation measures. The offsite mitigation decision must be consistent with local and regional plans, as well as Vermont’s codified Smart Growth Principals. Overall, this means that any development in Vermont must first and foremost protect the economic and agricultural viability of the land and surrounding villages.

In a series of recent District Commission hearings, Criterion 9(b) is going through the wringer. Act 250 allows for partial review of its 10 criteria to ensure that development plans meet specific criterion before applying for full Act 250 review. As proposed, the Green Mountain Center would create over 1 million square feet of development on rural Vermont countryside in Randolph, Vermont. The Green Mountain Center applicant is currently seeking review of Criteria 9(b) and 10. The hearings regarding Criteria 9(b) and 10 have spanned more than 6 months with no formal decision made by the District 3 Commission yet. Conservation groups like the Conservation Law Foundation and Vermont Natural Resources Council oppose the project due to its impact on farmland. The main issue at the hearings is if the Green Mountain Center developer’s plans will qualify for requested offsite mitigation. Offsite mitigation can only be allowed by the District Commission if appropriate circumstances exist. Current case law and documents from the Natural Resources Board, who oversee Act 250, give little guidance as to what appropriate circumstances mean. However, it is clear that offsite mitigation should only be favored in situations where development occurs in one of six state-designated growth centers. Because the Green Mountain Center is outside a designed growth center, the Commission is entering new territory for offsite mitigation under Act 250. One thing is for certain, the District 3 Commission’s decision will shape the way development in Vermont will occur in years to come.

A Perfect Storm for Michigan’s Renewable Portfolio Standard?

Sarah Stellberg

Sarah Stellberg is a 3L at the University of Michigan Law School, where she is Editor-in-Chief of the Michigan Journal of Environmental & Administrative Law. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

In his June 7, 2013 opinion in Illinois Commerce Commission v. FERC,[1] Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit inserted two lines of dicta on the constitutionality of Michigan’s Renewable Portfolio Standard, or Public Act 295 (PA 295).[2] By discriminating in favor of in-state renewable energy, he opined that Michigan’s law “trips over an insurmountable constitutional objection. Michigan cannot, without violating the Commerce Clause of Article 1 of the Constitution, discriminate against out-of-state renewable energy.”[3] The opinion will have little precedential value—it was not necessary for the holding, not fully briefed by the parties, and not binding on the Sixth Circuit. Nonetheless, the statement sent a ripple through the energy community, casting doubt upon Michigan’s law and the many similar Renewable Portfolio Standards with preferences for homegrown renewables. Twelve of these laws have already faced lawsuits alleging out-of-state discrimination,[4] and Judge Posner’s statement may be a harbinger of things to come in Michigan.

Two years later and several hundred miles away in the state capitol, Michigan legislators began launching their own attack on PA 295. After the RPS targets are met this year, there is no legal mandate for utilities to further increase their share of renewable generation. Republican legislators have introduced a bill that would repeal the renewable portfolio standard altogether.[5] Meanwhile, the Democratic proposal would increase the RPS to 20 percent by 2022.[6]

These efforts to rewrite Michigan’s comprehensive energy policy could spell trouble for the future of the Renewable Portfolio Standard. Yet with complete repeal unlikely, perhaps clean energy advocates should welcome the bills rattling around in Lansing. This legislative debate provides the perfect opportunity to rewrite PA 295 to fend off the constitutional challenge foretold in Judge Posner’s opinion.

Dormant Commerce Clause: The Legal Standard

The Commerce Clause of the U.S. Constitution grants Congress the power “[t]o regulate Commerce . . . among the several states.”[7] While the Clause contains no explicit language to this effect, courts have long recognized a negative implication of this enumerated power, known as the “dormant Commerce Clause,” which prohibits states from discriminating against or unduly burdening interstate commerce.[8]

Dormant Commerce Clause jurisprudence distinguishes between state laws that openly discriminate and those that impose a burden upon interstate commerce. The first category—laws that discriminate facially, purposefully, or in practical effect against out-of-state economic interests—are virtually per se invalid.[9] To uphold a discriminatory law, a court must find that the law is justified by a legitimate state interest unrelated to economic protectionism and that no less discriminatory alternative is available.[10]

The second category, facially neutral statutes, is subject to a lower level of scrutiny under the Pike v. Bruce Church, Inc. balancing test and will be upheld if the law’s putative local benefit outweighs its burden on interstate commerce.[11] In practice, the test is very forgiving to states.

Unless the purported state interest appears to be illusory, courts rarely strike down state laws under the Pike test.[12]

Michigan’s Clean, Renewable, and Efficient Energy Act of 2008

Michigan’s Renewable Energy Standard is part of the 2008 Clean, Renewable, and Efficient Energy Act, or PA 295, signed into law on October 6, 2008 by then-Governor Jennifer Granholm.[13] The RPS requires Michigan electricity providers to supply at least 10 percent of their Michigan retail sales from renewable energy by 2015, with interim targets in 2012, 2013, and 2014.[14] The standard is applicable to Michigan’s investor-owned utilities, electric cooperatives, municipal electric utilities, and alternative electric supplier (AESs).[15]

Under PA 295, electric providers demonstrate compliance through the purchase and/or production of Renewable Energy Credits (RECs).[16] One REC is created for each megawatt-hour of renewable energy generation from qualified technologies, including wind, solar and solar thermal, biomass, hydroelectric, geothermal, municipal solid waste, and landfill gas.[17]

Michigan’s law contains two provisions that raise dormant Commerce Clause questions. First, eligible renewable energy systems must be located either within Michigan or within the service territory of a utility serving customers in Michigan (the “geographic sourcing restriction”).[18] Second, PA 295 grants a 1.1 REC multiplier each megawatt-hour generated from a renewable energy system built using equipment made in Michigan or constructed by a Michigan workforce (the “Michigan incentive multiplier”).[19] These two geographic restrictions lie at the heart of a potential constitutional challenge.

Michigan Incentive Multiplier Trips at Strict Scrutiny

The Michigan incentive multiplier holds little promise of withstanding judicial review under the dormant Commerce Clause. This location-based preference facially discriminates against non-Michigan entities by granting bonus RECs to renewable energy facilities constructed using Michigan equipment or labor. Comparable incentives are not provided to renewable energy producers who do not use Michigan sourced materials and labor. The effect of the multiplier, then, is to limit competition and shift business to in-state entities, thereby impeding the flow of interstate commerce. While a law that evenhandedly promotes investment in renewable power is constitutionally permissible, a preference for in-state industry is not.

Facial discrimination should be enough to strike down the Michigan Inventive Multiplier on Commerce Clause grounds. On top of that, however, contemporaneous evidence provides indications of a protectionist motive. The declared purposes of PA 295 were to promote a diversified fuel mix, promote greater energy security through the use of local resources, improve air quality, and to encourage private investment in renewable energy.[20] Of these, the only goal meaningfully served by the Michigan incentive multiplier is in-state economic development. Indeed, the Michigan Public Service Commission noted in its 2014 report on the implementation of PA 295 that the “Michigan inventive REC provision is meeting its intended purpose to encourage developers to maximize utilization of Michigan equipment and labor.” Governor Granholm was also forthright that a primary goal of PA 295 was to aid Michigan’s manufacturing industry. In an early press event on the bill, she noted: “the package will do a lot of things, but for me the most important thing is the job creation and adding a whole new sector” for Michigan's economy.[21]The dormant Commerce Clause does not prohibit states from promoting local economic development and job growth. As one commentator noted, “[n]o renewable energy mandate passed a state legislature without the promise of thousands of new jobs.”[22]However, while a law that evenhandedly promotes investment in renewable power is constitutionally permissible, one intended to preference in-state industry interests by encouraging increased consumption of local goods or services is not.[23]

Murkier Waters for the Geographic Sourcing Restriction

The constitutionality of Michigan’s geographic sourcing restriction is less certain. Public Act 295 would be easily struck down if the law banned utilities from purchasing out-of-state renewable power altogether. However, the limit on eligible renewable power does not fall into this trap. The RPS permits utilities to satisfy the 10 percent mandate with electricity generated from a renewable energy system (1) located in Michigan or (2) within the nearby service territory of a utility that also serves Michigan, which would include parts of Indiana, Ohio, Minnesota, and Wisconsin.[24] By its plain terms, therefore, the Act does not discriminate based on the territorial boundary of the state.

The Supreme Court has made clear, however, that a state law “need [not] be drafted explicitly along state lines in order to demonstrate its discriminatory design.”[25] Here, Michigan has closed its doors to power from forty-five states and most of Indiana, Ohio, Minnesota, and Wisconsin based purely on location. By limiting eligibility in this way, the state has attempted to “dr[aw] a line around itself and treat[] those inside the line more favorably than those outside the line.”[26] While a few out-of-state generators were swept under Michigan’s protective reach, the vast majority of entities were categorically excluded based on their geographic location outside the Michigan distribution network. This type of geographic Balkanization would likely amount to facial discrimination.

Even assuming that the geographic sourcing restriction is facially neutral, the law undoubtedly has the practical effect of discriminating against out-of-state renewable power producers.[27] Again, PA 295 requires RPS-eligible power to be generated within the Michigan service territory. By severely limiting a supplier's compliance options, the RPS ensures that the renewable power used to satisfy the RPS is generally produced in-state, or at least in close proximity to the state.

The delineation between a “discriminatory effect” sufficient to trigger heightened scrutiny and an “incidental burden” to which the Pike balancing would be applied is imprecise.[28]However, evidence suggests that the Michigan RPS more than “incidentally” burdens the interstate trade in renewable power. A 2015 report from the Michigan Public Service Commission indicates that “[n]inety-three percent of the energy credits used for 2013 compliance were from renewable energy generated in Michigan.”[29] Only seven percent came from renewable energy generated in Indiana, Iowa, Minnesota, and Wisconsin.[30] Furthermore, without the in-state mandate, renewable electricity produced in nearby states could be purchased far below current prices. The most recent contracts for new wind capacity in Michigan have levelized costs in the $50 to $55 per MWh range, according to a 2015 report from the Michigan PSC.[31] This exceeds the cost of other regional wind projects costs by over 30% and the nationwide average by roughly 50%.[32]

While this data does not demonstrate causation—that the RPS led to an appreciably greater use of in-state power and fewer imports than would otherwise have occurred—the data provides powerful evidence that PA 295 established a discriminatory barrier to the interstate sale and transmission of renewable energy into Michigan.

Applying Strict Scrutiny

The practical effect of a finding that PA 295 discriminates against interstate commerce is fatal. In order to uphold the law, a court must find that the law serves a legitimate state interest unrelated to economic protectionism, and that no less discriminatory means to advance its legitimate local interest.[33] The geographic sourcing restriction may be justified by legitimate public health, safety, or environmental goals that go beyond economic motivation. For example, local renewable power generation can displace electricity generated from coal and natural gas plants, thereby reducing conventional air pollutants, such as sulfur dioxide (SO₂), nitrous oxides (NOx), and particulate matter, and improving local air quality and public health.[34]

However, Michigan would ultimately have difficulty mounting any defense that it lacks a non-discriminatory means to achieve these permissible state goals. The geographic sourcing restriction is a blunt method of mitigating line-losses or achieving in-state emissions reductions. Furthermore, many of these goals would arguably be better served by technology-forcing regulations for in-state power plants,[35] subsidies for in-state renewables generators, demand response or energy efficiency regulations, or purchase quotas not relying on homegrown renewable power. This point is only underscored by the decision of most states to enact similar RPSs without relying on in-state preferences. Therefore, if the geographic sourcing restriction were deemed discriminatory, it would almost certainly fail under the rigorous strict scrutiny test.

Pike Test – Finding a Legitimate Local Purpose

If the Michigan RPS is lucky enough to survive strict scrutiny, the next stop is the Pike balancing test. At this stage the court would determine whether the burdens imposed on interstate commerce by Public Act 295 are excessive in relation to a legitimate public interests served.[36]

The burden Michigan’s RPS imposes on the interstate renewable power market is certainly not insubstantial.The practical impact of Michigan’s RPS has been to preclude energy suppliers in 45 states from competing for a share of Michigan’s renewable energy demand. On the other hand, the state has not banned the import of renewable energy for purposes other than meeting the 10 percent mandate. Electricity may continue to move freely across the Michigan border through the MISO or PJM markets. Additionally, it is unclear to what extent leveling the playing field in Michigan would lead to a greater influx of out-of-state power.

At a more general level, Michigan’s law may be seen as an impediment to the goals embodied in FERC Order 888, namely unimpeded and efficient competition in the wholesale power marketplace.[37] As the share of renewable power generation increases nationwide, protectionist Renewable Portfolio Standards threaten to splinter national energy markets. Therefore, even if Michigan’s law has only an incidental burden on the regional trade in renewable energy, a court may reasonably conclude that a patchwork of preferential renewable energy laws across the nation places an unwelcome burden on interstate electricity markets.

However, Michigan should have no trouble establishing sufficient evidence of one or more of the legitimate state interests that outweigh any burden on interstate commerce. Michigan has asserted several local interests in the text of the law. PA 295 expressly aims to:

promote the development of clean energy, renewable energy, and energy optimization through the implementation of a clean, renewable, and energy efficient standard that will cost-effectively do all of the following[:]

(a) Diversify the resources used to reliably meet the energy needs of consumers in this state.

(b) Provide greater energy security through the use of indigenous energy resources available within the state.

(c) Encourage private investment in renewable energy and energy efficiency.

 

(d) Provide improved air quality and other benefits to energy consumers and citizens of this state.[38]

The economic development goal expressed in subsection (c) would not suffice as a legitimate state interest, and advertising this purpose on the face of the statute may compromise the state’s ability to justify its protectionist design on other grounds.

However, as suggested by subsections (a) and (b), renewable power does have the distinct advantage of helping insulate consumers and the state economy from electricity or fuel price spikes. Michigan consumers rely on coal and nuclear power for more than 80% of their electricity.[39] The entirety of Michigan’s coal is imported, mostly by rail from Wyoming and Montana, and to a tune of $1.2 billion dollars annually.[40] Michigan’s dependence on coal generation has been declining due to falling natural gas prices and pressure from environmental regulations, but the state also imports 75% of its natural gas needs.[41] This overreliance on imported fuels exposes the state to volatile or increasing fossil fuel prices. Furthermore, pending environmental regulations such as EPA’s Clean Power Plan and Mercury Air Toxics Rule, as well as nuclear waste disposal costs, mean that a large part of the state’s portfolio is subject to considerable regulatory risk. Renewable energy can serve as a financial hedge, reducing the state’s exposure to these risks.

Michigan’s geographic sourcing restriction may also be warranted to achieve local emissions reductions from fossil-fuel power plants, as advanced in subsection (d). The climate change impact of renewable energy accrues globally regardless of where emissions are displaced.Therefore, a state cannot justify in-state preferences on the “local” climate benefits of greenhouse gas emissions reductions. Nonetheless, renewable power generation displaces electricity generated from coal and natural gas plants, thereby reducing conventional air pollutants—sulfur dioxide (SO₂), nitrous oxides (NOx), particulate matter, mercury, and lead—and improving local air quality and public health.[42] The actual effect on air quality depends on how renewable resources are added the supply mix. Constructing a solar energy project in Michigan has a chance of displacing polluting coal plants in Michigan. Buying RECS from an Arizona solar project probably does not. Under the more forgiving Pike Balancing test, however, Michigan would have little trouble establishing a rational connection between its purposes of air quality improvement and the geographic sourcing restriction, despite evidence that in-state location is an imperfect proxy for fossil fuel emission displacement.

While PA 295 does not expressly assert any state interest related to transmission losses and infrastructural costs, this is arguably one of the greatest state interests in the eligibility restriction based on the location of the power within the state’s distribution grid. First, requiring utilities to purchase renewable power from within the state avoids some electricity transmission and distribution losses, increasing the efficiency of Michigan’s generation mix. Transmission lines waste somewhere around 6% of the power they deliver.[43] Under both PJM and MISO’s Locational Marginal Price (LMP) schemes, customers in Michigan end up paying for the cost of these marginal losses.[44] PA 295 theoretically helps minimize the distance power travels to reach its load and thus the costs of delivering renewable electricity to Michigan consumers. Second, ramping up renewable power generation often entails costly transmission investments to move power from areas where renewable power is most abundant to load centers where it will be used. Notably, however, the court in ICC v. FERC itself rejected Michigan’s argument that it should pay a lower share of MISO transmission line investments because it draws little renewable power from outside the state.[45]

Conclusion

Michigan’s geographic sourcing restriction and Michigan incentive multiplier leave the state’s RPS vulnerable to a dormant Commerce Clause challenge. Of course, it is possible that PA 295 may never be contested in court, given the law’s carve-outs for certain existing projects and special interests that would have been most likely to sue. Here, an ounce of prevention was certainly worth a pound of cure. Article III limitations such as standing may also bar a challenge on the merits, as they did in a lawsuit against renewable standards in Connecticut.[46] Nevertheless, until the preferential language in Michigan’s RPS is removed, the law will remain in jeopardy.

For this reason, policymakers in Lansing should take heed. As Public Act 295 is retooled for a new chapter in Michigan’s energy policy, they have an opportunity to shield the state’s Renewable Portfolio Standard from constitutional challenge. Rather than a Michigan incentive multiplier, the state should provide production incentives for in-state renewable energy generators.[47] Rather than a geographic sourcing restriction, the state should condition RPS eligibility on in-state benefit delivery, such as local emissions offsets. These amendments would open Michigan’s borders to a blossoming renewable energy market while maintaining the state’s forward progress on its economic, environmental, and energy development goals.

---

[1] 721 F.3d 764 (7th Cir. 2013).

[2] Mich. Comp. Laws Ann. §§ 460.1001 - 460.1195 (West, Westlaw through P.A. 2008, No. 295, § 1, Imd. Eff. Oct. 6, 2008).

[3] Ill. Commerce Comm’n, 721 F.3d at 776.

[4] State Cases, State Power Project, http://statepowerproject.org/states/.

[5] H.B. 4297, 98th Leg. Reg. Sess. (Mich. 2015), https://www.legislature.mi.gov/documents/2015-2016/billintroduced/House/htm/2015-HIB-4308.htm.

[6] The “Powering Michigan’s Future” bill package, announced by a group of Democratic lawmakers, includes House bills 4055, 4518 and 4519 and Senate bills 295, 296 and 297. See Andy Balaskovitz, Michigan Democrats propose doubling clean-energy standards, Mich. Energy News (Apr. 4, 2015), http://www.midwestenergynews.com/2015/04/23/michigan-democrats-propose-doubling-clean-energy-standards/.

[7] U.S. Const. art. I § 8, cl. 3.

[8] See, e.g.,H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 531 (1949); Pike v. Bruce Church, Inc., 397 U.S. 137, 141-42 (1970).

[9] See Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978) (“[W]here simple economic protectionism is effected by state legislation, a virtual per se rule of invalidity has been erected.”); Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 99 (1994) (“[I]f a restriction on commerce is discriminatory, it is virtually per se invalid.”).

[10] Oregon Waste Systems,511 U.S. 93, 100-01 (1994). The Supreme Court has only once upheld a discriminatory statute under this test. Maine v. Taylor, 477 U.S. 131, 151-52 (1986) (upholding Maine's ban on the import of out-of-state baitfish because Maine had no other way to prevent the spread of parasites and the adulteration of its native baitfish species); see also Erwin Chemerinsky et al., California, Climate Change, and the Constitution, 25 Envtl. F. 50, 54 (July/Aug. 2008) (noting that only one law has survived strict scrutiny analysis).

[11] 397 U.S. at 142 (1970).

[12] Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 449 (1978) (Blackmun, J., concurring).

[13] Mich. Comp. Laws Ann. §§ 460.1001-460.1195 (Westlaw).

[14] Id. § 460.1027.

[15] Id. §§ 460.1021(1), 23(1), 25(1).

[16] Id. § 460.1027(5).

[17] Id. Hydroelectric can include waves, tides, currents or water released through a dam. This does not include “a hydroelectric pumped storage facility or a hydroelectric facility that uses a dam constructed after the effective date Act 295 unless the dam is a repair or replacement of a dam in existence on the effective date of Act 295 or an upgrade of a dam in existence on the effective date of Act 295 that increases its energy efficiency.” Id. § 460.1011.

[18] Id. § 460.1029(1).

[19] Id. § 460.1039(c)(2).

[20] Id. § 460.1001 (emphasis added)

[21] Nathan Bomey, Granholm Says RPS Would Lead to ‘Tens of Thousands’ of Jobs, Ann Arbor Bus. Rev. (May 30, 2008, 10:57 AM), http://www.mlive.com/business/index.ssf/2008/05/granholm_says_rps_would_lead_t.html.

Governors’ statements have been used to strike down several laws under the dormant Commerce Clause. For example, in Kassel v. Consolidated Freightways Corp.,450 U.S. 662, 671 (1981), the Supreme Court considered the Iowa Governor’s articulation of an impermissible purpose—deflecting burdensome interstate traffic on Iowa’s highways—in striking down an Iowa truck ban purportedly passed for highway safety reasons. Similarly in Waste Management Holdings v. Gilmore, 252 F.3d 316, 336 (4th Cir. 2001), the Fourth Circuit struck down a Virginia cap on landfill waste based on the legislative history and the governor’s statements eliciting an discriminatory intent—to prevent Virginia from “becoming New York’s dumping grounds.”

[22] John Farrell, In-State Renewable Energy Development and the Commerce Clause, Inst. for Local Self-Reliance (Feb. 2, 2011), http://www.ilsr.org/state-renewable-energydevelopment-and-commerce-clause.

[23] See, e.g., Alliance for Clean Coal v. Miller, 44 F.3d 591, 596-97 (7th Cir. 1995) (invalidating the facially neutral Illinois Coal Act, under which coal plants in Illinois were required to install scrubbers so they would be able to continue using Illinois coal as a Clean Air Act compliance option; Illinois legislature could not do an end-run around Commerce Clause restrictions by merely “encouraging” consumption of Illinois coal); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984) (Hawaiian excise tax on liquor sales that exempted local varieties was found purposefully discriminatory, where Hawaii’s stated purpose for the exemption was to “foster the local industries by encouraging increased consumption of their product”

[24] Mich. Comp. Laws Ann. § 460.1029(1) (Westlaw).

[25] Amerada Hess Corp. v. Director, 490 U.S. 66 (1989). In Dean Milk Co. v. Madison, 340 U.S. 349, 350 (1951), for example, the court found that a Madison city ordinance requiring all milk sold in the city to be pasteurized and bottled within a five-mile radius of the city center was facially discriminatory. Similarly, in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 353 (1977), the court struck down a North Carolina statute that banned the sale of apples from any states with a grading system other than USDA, even though the law precluded sales from only some states. Finally, in Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 576 (1997), the court held that a Maine property tax exemption for charitable institutions that serve mostly state residents was facially discriminatory, even though several out-of-state entities benefitted from the statute.

[26]C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 403 (1994) (O’Connor, J., dissenting).

[27] There appears to be some disagreement in the circuits as to whether discriminatory effects alone can trigger heightened scrutiny. However, Brown-Forman makes clear that heightened scrutiny applies not only when legislation is facially discriminatory, but also when a state statute or regulation’s “effect is to favor in-state economic interests over out-of-state interests . . . .” 476 U.S. 573, 579 (1986).

[28] As the Supreme Court has recognized, “there is no clear line separating close cases on which scrutiny [or tier of analysis] should apply.” Wyoming v. Oklahoma, 502 U.S. at 455 n. 12; see also Brown–Forman Distillers, Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986) (“We have . . . recognized that there is no clear line separating the category of state regulation that is virtually per se invalid under the Commerce Clause, and the category subject to the Pike v. Bruce Church balancing approach.”).

[29] Mich. Pub. Serv. Comm’n, Report on the Implementation of the P.A. 295 Renewable Energy Standard and the Cost-Effectiveness of the Energy Standards 7 (Feb. 13, 2015),http://www.michigan.gov/documents/mpsc/PA_295_Renewable_Energy_481423_7.pdf.

[30] Id.

[31] Id. at 30.

[32] U.S. Dep’t of Energy, Energy Efficiency & Renewable Energy, 2014 Wind Technologies Market Report Highlights 4 (Aug. 2015), http://www.energy.gov/sites/prod/files/2015/08/f25/2014-Wind-Technologies-Market-Report-Highlights.pdf.

[33] See, e.g., Hughes v. Oklahoma, 441 U.S. 322, 336 (1979).

[34] See Kristen H. Engel, The Dormant Commerce Clause Threat to Marked-Based Environmental Regulation: The Case of Electricity Deregulation, 26 Ecology L.Q. 243, 266 (1999).

[35] For example, requiring coal-fired power plants to install carbon-capture technologies.

[36] Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

[37] Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities, Order No. 888, 61 Fed. Reg. 21,540 (May 10, 1996).

[38] Mich. Comp. Laws Ann. § 460.1001 (Westlaw).

[39] U.S. Energy Info. Admin.,Michigan, State Profiles and Energy Estimates (2014), http://www.eia.gov/state/?sid=MI.

[40] Id.

[41] U.S. Energy Info. Admin., Michigan, Natural Gas Annual (2014), http://www.eia.gov/naturalgas/annual/pdf/table_S24.pdf.

[42] See Engel, supra note 36, at 268 n.72.

[43] U.S. Energy Info. Admin., How much electricity is lost in transmission and distribution in the United States?, Frequently Asked Questions, http://www.eia.gov/tools/faqs/faq.cfm?id=105&t=3 (last updated July 10, 2015).

[44] See MISO, Electricity Prices: Wholesale Electric Rates, 2014 Transmission Expansion Plan (July 29, 2014), http://www.misomtep.org/electricity-prices/; PJM Markets: Energy and Ancillary Services; PJM Markets: Energy and Ancillary Services, PJM State & Member Training Dep’t Slideshow (Jul. 29, 2014), http://www.naruc.org/International/Documents/Mon%20PJM%20part%202.pdf.

[45] 721 F.3d 764 (7th Cir. 2013).

[46] Allco Finance Ltd. v. Klee, No. 3:13-cv-01874-JBA, 2014 U.S. Dist. LEXIS 170674 (D. Conn. Dec. 10, 2014).

[47] Such direct subsidization does not ordinarily run afoul of the dormant Commerce Clause prohibition on discriminatory treatment of interstate commerce. See New Energy Co. of Indiana v. Limbach, 486 U.S. 269 (1988) (“The Commerce Clause does not prohibit all state action designed to give its residents an advantage in the marketplace, but only action of that description in connection with the State's regulation of interstate commerce. Direct subsidization of domestic industry does not ordinarily run afoul of that prohibition; discriminatory taxation of out-of-state manufacturers does.”).

A Leading Cause of Everything: One Industry That Is Destroying Our Planet and Our Ability to Thrive on It

Christopher Hyner

Christopher Hyner is a 3L at Georgetown University Law Center, where he is a Managing Editor for the Georgetown Environmental Law Review. This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

Climate change. Ocean dead zones. Fisheries depletion. Species extinction. Deforestation. World hunger. Food safety. Heart disease. Obesity. Diabetes. The list goes on. There is one issue at the heart of all these global problems that is too often overlooked by private individuals and policy makers alike—our demand for and reliance on animal products. We can take a substantial step towards addressing all these problems simultaneously through reducing or eliminating our reliance on meat and dairy products. This begs the question — what are the United States’ major governmental environmental policy enforcers doing to address animal agriculture’s contribution to climate change, if anything? This piece briefly highlights two things: (1) animal agriculture is a leading cause of many major environmental problems we face globally and domestically—most importantly, climate change; and (2) animal agriculture is too often left out of the policy discussion.

First, the interconnectedness of animal agriculture and the environment.

A multitude of environmental problems our planet faces share a common instigator: animal agriculture and our reliance on meat and dairy products. According to the United States Department of Agriculture (USDA), global agriculture—dominated by livestock production and the grains grown to support it—accounts for 30% of greenhouse gas emissions.[1] A 2006 study by the United Nation’s Food and Agriculture Organization (FAO) finds that 18% of global greenhouse gas emissions is directly attributable to livestock production, which is more than the emissions attributable to the entire transportation sector.[2] Whichever number is relied upon, agricultural emissions are only going to increase as rising incomes and urbanization drive a global dietary transition towards increased consumption of meat and dairy products.[3] The growing demand for animal agriculture is expected to be a major contributor to a roughly 80% increase in global greenhouse gas emissions from the agricultural sector.[4] This means that animal agriculture must be a central element of our efforts to mitigate climate change.

In addition to being a major contributor to climate change, animal agriculture is also one of the leading causes of many other environmental issues, including overfishing, destruction of wildlife, deforestation, and depletion of freshwater resources to hydrate livestock or irrigate fodder. According the FAO approximately 75% of the world’s fisheries are either exploited or depleted[5] due to fishing, which will likely lead to the complete depletion of currently fished fish stocks by 2048.[6] As to wildlife, in order to protect the interests of primarily the livestock industry, the USDA and Bureau of Land Management sponsor programs to kill or entrap wildlife that threaten the industry’s bottom line.[7] This has led to the decimation of wolf populations in the Pacific Northwest[8] and the mass round up of wild horses in the Midwest, which compete with cattle and sheep to graze on public lands.[9] With regard to deforestation, the World Bank has found that animal agriculture is responsible for roughly 90% of the razing of the Brazilian Amazon.[10] Lastly, but likely most critically, animal agriculture is the number one consumer of fresh water by a significant margin. Animal agriculture consumes on average 55 trillion gallons of water annually—more than 520 times the water used in hydraulic fracturing.[11] On a micro level, it takes roughly 5,000 gallons of water to produce 1lb. of beef.[12]

Enhancing biodiversity on working agricultural lands through environmental mitigation and offsets: Opportunities in Australia and the United States

Matthew Roach*

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Australian agencies have extensive experience managing working agricultural lands to enhance biodiversity. State and Commonwealth agencies are increasingly using environmental offsets as a tool to manage the impacts of development. However, working agricultural lands are generally not considered a source of potential environmental offsets, as agencies prefer that land used for offsets be wholly set aside for environmental management purposes with limited or no agricultural activities. This contrasts with the United States, where efforts are underway to use working agricultural lands for mitigation purposes.

This paper proposes that working agricultural lands can be used for environmental offsets under Australia’s Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act). There are no significant legal barriers to this occurring, and the increased use of working agricultural land for offsets could generate four positive results, by: (1) achieving long-term environmental gains; (2) addressing the shortage of land available for environmental offsets in Australia; (3) providing land owners with additional income; and (4) improving collective expertise in sustainable agriculture.

Introduction

Australia’s degraded agricultural landscapes

Australia is one of twelve biologically mega-diverse nations, but has relatively high rates of extinction and a poor record of conserving biological diversity overall. [1] Over half of Australia’s land area is used for agricultural purposes,[2] and agriculture is commonly associated with increased mortality and loss of habitat for native species, as well as overall biodiversity decline.[3] Agriculture has led—through impacts like salinization and exotic plant invasion—to habitat fragmentation, reduced landscape heterogeneity, and in some cases, complete collapse of ecological processes.[4]

In addition, some ecological consequences of past land use and changes to agricultural processes have not yet fully played out. For example, populations of long-lived trees persist in agricultural areas, giving the impression of reasonable population sizes. However, tree populations are actually declining over time because agricultural practices prevent recruitment of new trees.[5] This affects not only tree species but understory and animals dependent on tree vegetation. Under a business-as-usual scenario, species already in decline are likely to be lost.[6]

Figures 1 and 2 show land use in Australia and illustrate that a significant extent of Australia’s overall land mass is used for agriculture.

Environmental offsets under the EPBC Act

Environmental offsets involve compensating for impacts on the environment or biodiversity at one location through conservation activities at a different site.[7] In some jurisdictions, including in the United States, environmental offsets are more commonly referred to as compensatory mitigation.[8]

Under the EPBC Act, offsets are used to generate benefits through compensatory activities that “offset” the residual impacts of development after all reasonable efforts have been made to reduce, avoid, and mitigate environmental impacts. Offsets are intended to achieve “no-net-loss” to the environment. Currently, the Commonwealth Department of Environment regularly imposes offset conditions on approvals under the EPBC Act and its offsets policy.[9]

Demand for offsets, and the potential for working agricultural lands

There is enormous demand for offsets but a limited supply of suitable land. In 2010, it was estimated that the global demand for offset lands was at least 86,000 hectares per year.[10] EPBC Act offset conditions generally require that land be permanently reserved for conservation purposes and not be used for agriculture on an economic scale. This has been described as a “conservation estate” approach to offsets. Typically, approvals will permit agricultural uses of land only for fire, weed, or pest management purposes.[11] The exclusion of such a large proportion of Australia’s land area as a potential source of offsets has contributed to a shortage of land available to satisfy EPBC Act offset conditions.[12]

The use of private land and the participation of landowners are critical parts of any effort to reduce biodiversity decline. Privately managed land is an important source of biological diversity.[13] Across Australia, approximately 60 percent of land is managed by farmers or graziers.[14] Moreover, 29 percent of native vegetation and 30 percent of Victoria’s threatened species populations rely on private land.[15]

Not using working agricultural lands for offsets also increases pressure to convert agricultural land to the conservation estate, reducing the viability of Australian agriculture.[16] Numerous studies have shown that working agricultural lands can be managed for environmental purposes in a way that improves ecosystem services and prevents biodiversity decline.[17] The biodiversity value of agricultural land is particularly notable when compared to land uses that typically generate requirements for offsets, such as urban development or mining.[18]

Agricultural producers often have choices available between practices that have lesser or greater environmental impacts. One example of this is the environmental impacts of different pasture grasses. About 46 percent, or 355 million hectares of Australia, are used mainly for grazing.[19] Pasture grasses can be native, exotic, support significant biodiversity values, or be noxious and damaging weeds.[20] Choosing and managing pasture grasses according to their capacity to enhance biodiversity is an opportunity to enhance the biodiversity values of working agricultural lands.

In order to enhance biodiversity on agricultural land, land managers should undertake activities that promote beneficial environmental services such as pollination, pest control, soil fertility, and water quality.[21] Land managers should also learn how to protect and expand patches of high-quality natural habitat and retain paddock trees.[22] Moreover, land managers can enhance biodiversity through whole farm planning, changes to tree planting plans, fencing and altering tillage regimes.[23] Environmental offsets incentivize and fund such activities, ensuring that they may occur more frequently.

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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Preservation Is a Flawed Mitigation Strategy

Jessica Owley*

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Introduction

The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which the Army Corps of Engineers (“Corps”) issues with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it acknowledges that wetland destruction will occur. Thus, instead of preventing wetland conversion, developers in this scenario compensate for wetlands lost. Compensatory mitigation can come in the form of restoration, creation, enhancement, and/or preservation of wetlands and other aquatic resources. Wetlands are preserved by prohibiting their conversion, often through property encumbrances like conservation easements and deed restrictions. This scenario exchanges preservation of certain wetlands for a right to degrade or destroy other wetlands.

This Article urges the Corps to eliminate its use of preservation as mitigation and to improve accountability mechanisms where private organizations, like land trusts and private mitigation banks, remain involved in wetlands permitting programs. As even the EPA acknowledges that preservation results in a net loss of wetlands, preservation is unlikely to compensate for the loss in ecological function from wetlands destruction. Additionally, because private land trusts commonly manage, monitor, and enforce preservation areas with little to no oversight by the Corps or the EPA, concerns of accountability and democracy arise. Although this Article focuses on the Clean Water Act’s section 404 program, the arguments and lessons discussed here apply to state and local wetland mitigation programs as well. Indeed, these same issues arise in all types of mitigation schemes, from endangered species habitat to prime agricultural soils.

The Need to Protect Wetlands

Beyond their aesthetic appeal, wetlands serve many ecological functions. They provide habitat to many species of plants and animals, including migratory birds and endangered species. They serve as water recharge areas, protecting lands from flooding while filtering and purifying water. Wetlands trap sediment, providing clean water for fish and reducing water filtration costs for drinking water supplies. Wetlands also carry strong cultural and emotional attachments. For example, strong Tribal, Floridian, and American attachments to the Florida Everglades (dubbed America’s Swamp) spurred its restoration to become one of the most expansive and expensive in history.

Although important, wetlands are not extensive. They cover less than 9 percent of the Earth’s global land area.[1] Wetlands are also at risk. For example, Louisiana wetlands are disappearing at a rate of up to ninety-one square kilometers a year—one of the world’s highest rates of wetland loss.[2] California boasts the highest overall loss; 91 percent of its wetlands were lost by 2000.[3] Pollution,[4] sea-level rise,[5] extreme weather events,[6] and conversion[7] all threaten the continued existence and health of wetlands. Converting wetlands to agricultural use, for example, is a major driver of wetland loss,[8] as is housing and commercial development.[9] The dwindling number of wetlands stresses the need to protect them through mechanisms like the Clean Water Act.

 Clean Water Act Wetland Protection Framework

The Clean Water Act slows wetland conversion by prohibiting dumping material into wetlands without a valid permit. At the time the Act was passed, Congress found a permitting program (instead of imposing a complete ban on dumping) necessary because without one the country’s extensive network of wetlands would prevent desired development.[10] Congress felt that the public interest in development justified a certain level of water pollution. Thus, instead of prohibiting development outright, policy makers favored minimizing development’s impacts on wetlands. To fill a wetland, a person must apply to the local Corps district office, which then consults with the EPA regional office. The Corps then either grants the permit (allowing the project to proceed), denies the permit, or issues a permit with conditions.

The Clean Water Act’s protection of wetlands is limited in three ways. First, the statute only prohibits filling wetlands. It is not a comprehensive wetland protection statute and says nothing, for example, about draining wetlands.[11] Second, the statute only applies to “waters of the United States.” A series of Supreme Court decisions has further limited the wetlands that fall under the statute’s jurisdiction, excluding isolated wetlands from protection regardless of the ecological services and amenities they provide.[12] Finally, despite the strong prohibitory language of the statute, it does in fact allow filling of jurisdictional wetlands—it just requires developers to obtain a permit first.

A. Mitigation Requirements: Avoidance, Minimization, Compensation

A central feature of the wetlands permitting program is a requirement that permit holders mitigate the harm to wetlands caused by their project. Yet the Clean Water Act’s permitting program did not originally involve mitigation. Initially, policy makers assumed that if a proposed project was likely to lead to ecosystem disruption, the permit would be denied.[13] But concessions to politically popular programs undermined this initial assumption. Congress and the Corps reevaluated the permitting program to lessen the likelihood that the presence of wetlands would defeat development. The EPA and the Corps added mitigation requirements to their section 404(b)(1) guidelines in 1990.

The agencies defined mitigation as having three steps: avoidance, minimization, and compensation. To obtain permit approval, an applicant must first demonstrate that the project avoids adverse impacts to waters of the United States to the extent possible.[14] Next, the applicant must minimize any remaining impacts of the proposed project.[15] Finally, after the Corps is satisfied that the only remaining impacts are unavoidable (absent stopping the project), the Corps quantifies the project’s damage to wetlands and may require project proponents to compensate for that damage through “compensatory mitigation.”[16]

The section 404 mitigation scheme has some logical problems. To mitigate something means to reduce its impacts. Minimization and avoidance are thus really pre-mitigation measures. First, permit applicants should do all they can to avoid wetland impacts. Then they should do all they can to minimize any unavoidable impacts. Applicants should then mitigate the remaining unavoidable impacts. Thus, the only component of mitigation that is properly termed “mitigation” is compensation.

B. Compensation Strategies

The vast majority of section 404 permits come with conditions.[17] To issue a permit with conditions, the Corps must assess whether the remaining unavoidable impacts are acceptable. This standard is met if the Corps believes the benefits of the development project outweigh the harm to the wetland. Many permit conditions involve compensatory mitigation. According to Corps regulations, there are four acceptable compensatory mitigation strategies: establishment (or creation), restoration, enhancement, and preservation.[18] These straightforward-sounding approaches can be challenging to implement. For example, establishment involves creating a wetland where one did not exist before.[19] And wetland creation has been beset by a variety of problems with many failed projects.[20]

Restoration and enhancement projects have largely fared better than creation projects, as understandings of restoration ecology are improving these projects’ outcomes.[21] Restoration and enhancement increase the function of an existing, potentially degraded wetland through activities like removing debris and invasive species, planting wetland species, and ensuring adequate water supplies. Yet restoration projects still provide fewer acres and fewer functions than ecologists predicted.[22] After wetlands are created, restored, or enhanced, they are often encumbered with conservation easements in the hopes of preventing degradation or conversion.[23]

The final option for compensatory mitigation is preservation, which involves protecting existing wetlands in exchange for permission to destroy other wetlands. Preservation on its own does not increase wetland function or acreage.[24] Instead, it accepts a decrease in both as justified by the benefits of the development project. The Corps works with the applicant to determine the acceptable ratio of destroyed versus protected wetlands. Preservation of wetlands can occur through fee simple ownership by private preservation organizations or government agencies or, more commonly, by burdening property with conservation easements or deed restrictions.

The Clean Water Act’s language makes permit denial sound like a routine possibility, especially where projects would have significant impacts. Yet the program has not developed that way. Mitigation has become an important component of section 404’s permitting program largely because of the Corps’ and the EPA’s reluctance to deny or veto permits. The Corps processes around sixty thousand permits annually,[25] and the agency rarely denies permits.[26] EPA vetoes are even rarer.

Section 404(c) authorizes the EPA to veto permits where the proposed activity will have an “unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”[27] The EPA defines “unacceptable adverse effect” to mean an impact “likely to result in significant degradation of municipal water supplies (including surface or ground water) or significant loss of or damage to fisheries, shellfishing, or wildlife habitat or recreation areas.”[28] The EPA has only successfully exercised this authority thirteen times since 1972, with only two post-1990 vetoes.[29] The EPA’s decisions not to veto Corps permits indicate that the EPA finds most of the adverse effects to be “acceptable.” Because permit applicants largely get permission to fill wetlands, imposing mitigation requirements is the least the Corps can do.

 Preservation Programs

After several years of section 404 program operation, multiple studies evaluated the success of the program for protecting wetlands.[30] The report card was not a good one. Reports indicated that mitigation sites were often highly degraded.[31] This information came down as developers were pushing for a more streamlined process. This led the George H.W. Bush administration to declare a policy of “No Net Loss of Wetlands” in 1989.[32] The Bush Administration blamed the failures of wetland protection on command-and-control regulations and strongly promoted the adoption of market-based incentives, like mitigation banks.[33] Although the no net loss policy originally sought to maintain wetland acreage, that approach was unsuccessful.[34] Today, the goal seems to be to maintain wetland function, and the struggle to fulfill that policy goal remains.[35]

Preservation as a mitigation strategy is particularly hard to accept in association with the federal no net loss of wetlands policy. The Corps has long noted that preservation, when implemented alone, is the least favored mitigation strategy (although the Corps does endorse preservation of restored, enhanced, and created wetlands) and should only be undertaken in “exceptional circumstances.”[36] Preserved wetlands can qualify as compensatory mitigation when they “(1) perform physical or biological functions, the preservation of which is important to the region in which the aquatic resources are located, and (2) are under demonstrable threat of loss or substantial degradation due to human activities that might not otherwise be expected to be restricted.”[37] The Corps’ reluctance to promote preservation alone is reflected in the fact that pure preservation mitigation banks do not yield as many wetland conversion credits.[38]

In some cases, preservation may protect wetlands that might have otherwise been lost to agricultural conversion or development. For example, a permittee could protect non-jurisdictional wetlands threatened by development. The Clean Water Act’s limited jurisdiction means that it cannot directly protect such areas, so covering them by compensatory mitigation programs may yield a conservation benefit even if it still represents a net loss of wetlands. Nothing requires compensatory mitigation wetlands to be jurisdictional.[39] Arguably, protected wetlands should be in the same watershed (or as some mitigation requirements state, in the same “service area”) and part of the same hydrological system.[40] A geographical or hydrological connection would explain how the protection of such wetlands might mitigate the harm caused by neighboring wetland conversion.[41]

 Conservation Easements

Most wetland mitigation projects involve conservation easements. Conservation easements are an essential tool when using preservation as a mitigation strategy, and they can prevent conversion of wetlands that have been enhanced, created, or restored. Most conservation easement statutes and programs appear to assume conservation easements are created through donations and purchases. However, increasingly, conservation easements are emerging in permitting programs like the Clean Water Act’s section 404 program.[42] In exchange for wetland discharge permits, permit applicants undertake compensatory mitigation that often involves conservation easements.

Conservation easements come into play with most section 404 mitigation plans. The goal of any type of mitigation is to keep the restored, enhanced, created, or preserved wetland a thriving wetland forever.[43] Placing conservation easements over the wetlands enables the prohibition on wetland conversion to remain on the land with subsequent changes in landownership. The conservation easement restrictions are recorded with the deed and appear in title searches. When this works properly, new landowners take ownership of the property with the understanding that the wetlands on the property must be preserved in perpetuity.[44] Where mitigation banks[45] play a role in mitigation, state law may require conservation easements to burden the banked land.[46]

Despite the important role of conservation easements in section 404 compensatory mitigation, there are no regulations or agency guidance regarding conservation easements. Some individual offices have developed templates, but these templates are not based on any specific agency policies and have not been subject to external public review.[47] Even documents like the federal mitigation banking guidelines only indicate that conservation easements can provide the needed perpetual restriction on property and give no further detail regarding the terms or holders of the conservation easements.[48]

Section 404 conservation easements can be held by either a government agency or a land trust. Although the Corps is a qualified holder under most state laws,[49] it cannot hold conservation easements because it has not been granted that ability by Congress. Many section 404 conservation easements are held by land trusts like Ducks Unlimited.[50] Accountability concerns surround the use of conservation easements. When the conservation easement holders are land trusts, these concerns are magnified and accompanied by additional privatization concerns. In particular, land trusts exacerbate problems around the shaping of conservation easement terms and the need for stewardship and enforcement.

 A. Shaping Conservation Easement Terms

Without official agency guidance, each Corps office is left to adopt its own strategy regarding conservation easements. Many offices play an integral role in crafting conservation easement language, and some offices develop model conservation easements. Without agency guidance or unified model conservation easements, land trusts have a heavy hand in shaping the agreements, giving rise to concerns that private organizations are determining section 404 mitigation measures.[51]

When a land trust negotiates the conservation easement instrument, it may have the ability to dictate terms regarding restrictions and amendment or termination.[52] Thus, the land trust, not the Corps, establishes what can and cannot happen on the land. Some conservation easements even allow for changes to the agreement with written consent of the conservation easement holder. Conservation easements that contain such language allow private organizations the opportunity to make changes on mitigation lands without public oversight or Corps approval.

Lack of public oversight is a concern for all section 404 conservation easements, regardless of holder. There is a public notice and comment process for section 404 permits, and mitigation plans often garner the most comments. Yet the permit review process does not usually include a review of the terms of the conservation easement. Often, the conservation easements are not established until after the permit is issued. The permit will include the required mitigation without detailing conservation easement terms or even stating the exact location of conservation easements involved.

Use of a mitigation bank partially alleviates these democracy concerns. The guidance for mitigation banking is more extensive and does include sample conservation easement language.[53] But that does not guarantee that the conservation easement involved will be reviewed. Mitigation banking agreements are subject to public review, but the long list of banking instrument components reviewed during that process does not include conservation easements.[54] Banks sometimes do include conservation easements under the requirements for addressing provisions for long-term management and maintenance.[55] Where mitigation banks are in place in advance of the granting of permits, the public may have some opportunity to view the site and track down the conservation easements before permit issuance.

B. Stewardship and Enforcement

Compliance with mitigation requirements is essential to a successful mitigation program that provides long-term protection of ecosystem services. Ensuring compliance with mitigation requirements involves a continued commitment to stewardship. It requires monitoring parcels, managing ecosystem health, and, perhaps most importantly, enforcing conservation easements.[56]

Evaluations suggest current enforcement strategies are inadequate because of a lack of compliance with permit conditions. A 2007 study showed that permittees only met 73 percent of permit conditions.[57] Some regions have had particular trouble. For example, a 2002 New Jersey study revealed that mitigation projects only met “[48] percent of design requirements and permit specifications.”[58] Monitoring and long-term maintenance seem to be especially problematic, as several studies have cataloged monitoring deficiencies.[59] And while 2008 regulation changes may have improved permit compliance in some respects, wetland mitigation is still beset by problems.[60]

In many cases, the Corps has turned responsibility for stewardship functions like compliance enforcement over to land trusts and private companies. As holders of conservation easements, land trusts not only play an important role in shaping the terms and conditions of the agreements but also determine whether the agreements will be enforced. In many cases, conservation easement holders are the only ones with the ability to enforce the agreements, and there is a lack of consensus on whether land trusts have a duty (as opposed to just a right) to enforce them.

The argument in favor of a land trust duty to enforce is strong.[61] Although conservation easement language does not require enforcement, and state conservation easement law is largely silent on the subject, a land trust’s status as a charitable organization may establish an obligation. Charitable organizations are prohibited from creating private benefits. Where a land trust terminates or modifies a conservation easement, it may not do so in a way that inures private benefit to the landowner or another. Arguably, a decision not to enforce a conservation easement would also give a landowner a significant private benefit, but courts have yet to address this point. Without compensation from the landowner, the land trust could risk the state attorney general’s office revoking the land trust’s charter. Furthermore, if a land trust fails to comply with its charter to protect land, it could also face dissolution by the attorney general. Similar behavior could also jeopardize an organization’s federal 501(c)(3) favorable tax status.

Of course, such repercussions depend upon whether the state attorney general offices or the IRS chooses to pursue the matter. The remedy for lack of stewardship of conservation easements is unclear. The clear threats are to the organization, possibly leading to a loss of 501(c)(3) status or loss of an organization’s charter. In many states, this would lead to a transfer of the conservation easements to another organization. Actions against the land trust, however, do not lead automatically to the preferred remedy of injunctive relief against the conservation easement violation.

None of the above-described actions involve the permit applicant, who is often no longer associated with mitigation measures when enforcement is necessary. Sometimes it is difficult to determine whether the conservation easement even arose from a permitting program. Some conservation easements specifically mention the wetlands permit that they are associated with, but many do not. Some do not even mention the Clean Water Act or indicate that they are part of a compensatory mitigation scheme.

To remedy this lack of information and subsequent lack of enforcement, all Corps offices should adopt the identification method used by the Corps district offices that have model conservation easements. This method requires specifically identifying the conservation easement’s origin, either generally as part of a section 404 permitting scheme or, better yet, naming the individual permit. A further step is to attach the permit to the conservation easement. Including this information about a conservation easement’s origin enables courts and others to understand the role the conservation easement played—that it resulted from wetland degradation and not simply a family donation. This information will be helpful if the conservation easement is ever challenged in court and if amendments are contemplated.

The Corps should also include itself as a third-party enforcer. Most states allow third-party enforcement of conservation easements (although the Corps may be able to include such a provision even if it conflicts with state conservation easement laws because the conservation easement is part of a federal scheme).[62] By establishing itself as a third-party enforcer, the Corps can remain involved throughout the life of a conservation easement and step in if a holder seems uninterested in, or incapable of, carrying out enforcement or other stewardship duties. The Corps does sometimes require third-party enforcer status for conservation easements associated with mitigation banks, and extending that practice to all section 404 conservation easements is good policy.[63]

 Conclusion

The Clean Water Act contains inconsistencies. It is a statute that declares its policy to be the elimination of all discharges into the nation’s waters but then proceeds to explain how to discharge pollutants into navigable waters. While the Clean Water Act has done much to prevent pollution, its chief function appears to be to facilitate pollution. A similar juxtaposition exists for the Clean Water Act’s attitude toward wetlands. The statute appears to prevent filling wetlands but then explains how to obtain a permit to fill wetlands in section 404. To reconcile the Clean Water Act’s goals with its operation, the Executive Branch established a policy of no net loss of wetlands. Despite endorsement by each administration since George H.W. Bush announced the policy, the goal has not been realized. Instead, mechanisms throughout the legal process enable conversion of wetlands.

Protecting wetlands while allowing for growth and development presents a hard problem. And environmental challenges like climate change and water quality degradation only make the problem harder. Faced with this onerous task, the Corps is drawing upon the strengths of private organizations like land trusts. Land trusts play a key role in mitigation programs, particularly those relying upon preservation as a compensatory mitigation technique. As a threshold, the Corps should eliminate its use of preservation as a sole mitigation strategy, even where that might mean denying permits. The Corps already recognizes that preservation is the least-favored mitigation strategy because resulting wetland loss makes it hard to assert that wetlands have been protected. And when preservation programs are used, the Corps should be more systematic by promulgating regulations or issuing guidance regarding the use of conservation easements and the role of land trusts. Land trusts can increase wetland protection, but the Corps must be careful to remain involved with mitigation projects and work to bring public oversight into the creation and long-term stewardship of these projects. In short, the Corps must find a careful balance between harnessing private power and abdicating public responsibility.

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Copyright 2014 Jessica Owley. All rights reserved.

Associate Professor, SUNY Buffalo Law School. I am indebted to the thoughtful comments and careful consideration of this piece by Amanda Leiter, Mike Lewyn, Mike Pappas, Justin Pidot, and Julia Purdy. Nicholas Fischer provided research assistance for early stages of this project. As always, the ELQ staff provided careful editing that undoubtedly improved the piece.

[1] Joy B. Zedler & Suzanne Kercher, Wetland Resources: Status, Trends, Ecosystem Services, and Restorability, 30 Ann. Rev. Env’t & Resources 39, 39 (2005), available at http://www.botany.wisc.edu/zedler/images/ZedlerAnnReview.pdf.

[2] Joel Bourne, Louisiana’s Vanishing Wetlands: Going, Going …, 289 Science 1860, 1860 (2000), available at http://www.sciencemag.org/content/289/5486/1860.full. Louisiana contains 40 percent of the wetlands in the contiguous forty-eight states, and accounts for 80 percent of the current wetland loss.

[3] Richard F. Ambrose, Wetland Mitigation in the United States: Assessing the Success of Mitigation Policies, 19 Wetlands (Australia) 1, 3 (2000), available at http://water.epa.gov/lawsregs/guidance/wetlands/upload/2004_10_28_wetlands_ambrose_wetlandmitigationinus.pdf.

[4] See Leon P.M. Lamers et al., Differential Responses of Freshwater Wetland Soils to Sulphate Pollution, 55 Biogeochemistry 87, 88 (2001) (explaining that sulfur pollution in freshwater wetlands is leading to a loss of biodiversity as sulphide resistant plant species outcompete characteristic plant species).

[5] See Robert J. Nicholls, Frank M.J. Hoozemans & Marcel Marchand, Increasing Flood Risk and Wetland Losses Due to Global Sea-Level Rise: Regional and Global Analyses, 9 Global Envtl. Change S69, S70 (1999), available at http://www.peconsulting.se/wp-content/uploads/2013/05/Increasing-flood-risk-and-wetland-losses-due-to-global-sea-level-rise.pdf (explaining that sea-level rise will exacerbate the 1 percent of global wetlands already being lost to human reclamation each year).

[6] See Joy B. Zedler, How Frequent Storms Affect Wetland Vegetation: A Preview of Climate-Change Impacts, 8 Frontiers Ecology & Env’t 540, 542–43 (2010) (describing how extreme weather events can shape wetland vegetation).

[7] Robert J. Nicholls, Coastal Flooding and Wetland Loss in the 21st Century: Changes Under the SRES Climate and Socio-Economic Scenarios, 14 Global Envtl. Change 69, 70–71 (2004) (stating that while flooding and sea-level rise will lead to greater loss of coastal wetlands, direct human causes are already destroying 1 percent per year).

[8] See John M. Hefner & James D. Brown, Wetland Trends in the Southeastern United States, 4 Wetlands 1 (1985) (explaining that nearly all freshwater wetland losses in the Southeast could be attributed to conversion to agriculture).

[9] See Stephen Faulkner, Urbanization Impacts on the Structure and Function of Forested Wetlands, 7 Urb. Ecosystems 89, 90–91 (2004), available at http://conservation.ufl.edu/urbanforestry/Resources/PDF%20downloads/Faulkner_2004.pdf (detailing the importance of forested wetlands and their loss to urbanization, and noting that 1.2 million hectares of forested wetlands were lost in the United States from 1975 to 1997, but that generally the information on the loss of such natural resources is lacking).

[10] Ambrose, supra note 4, at 4.

[11] The complicated case law on earth-moving operations in wetlands leaves this area of the law muddy. It appears that deep-ripping and sidecasting (methods of moving dirt around and preparing soils for agriculture and development) require a permit, while incidental fallback (where small amounts of soil fall into a wetland during earth-moving activities) does not. Thus, some drainage activities may require a permit while other activities do not, and this boundary is tricky to determine. See Kim Diana Connolly, Keeping Wetlands Wet: Are Existing Protections Enough?, 6 Vt. J. Envtl. L. 169, 186–90 (2004–2005).

[12] Rapanos v. United States, 547 U.S. 715, 759 (2006); see Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, 474 U.S. 121 (1985); see also Envtl. Prot. Agency, Post-Rapanos Caselaw (June 22, 2010),http://water.epa.gov/lawsregs/guidance/wetlands/upload/Post-RapanosCaselaw.pdf (listing cases that debate the definition and scope of the phrase, “waters of the United States,” in light of the 2006 Rapanos decision).

[13] See Palmer Hough & Morgan Robertson, Mitigation Under Section 404 of the Clean Water Act: Where It Comes From, What It Means, 17 Wetlands Ecology & Mgmt 15, 17 (2009) (explaining that “mitigation may not have initially been seen as a priority if it was assumed that permits for work which truly damaged wetlands would either be denied by the Corps or ‘vetoed’ by EPA under its Section 404(c) powers.”).

[14] 40 C.F.R. § 230.91(c)(2) (2014).

[15] Id.

[16] Id. § 230.91(c)(3).

[17] Final Individual Permits, U.S. Army Corps of Eng’rs, http://geo.usace.army.mil/egis/f?p=340:2:0::NO (last visited Oct. 28, 2014) (listing permit issuance decisions since 2008 and revealing few if any permits that did not come with special conditions).

[18] § 230.93(a)(2).

[19] See Alberta Env’t, Guideline for Wetland Establishment on Reclaimed Oil Sands Leases (rev. 2007 ed.), available at http://environment.gov.ab.ca/info/library/8105.pdf (discussing various methods and issues concerning the development [or establishment] of wetlands throughout); Interagency Workgroup on Wetland Restoration, An Introduction and User’s Guide to Wetland Restoration, Creation, and Enhancement 2, available at http://www.habitat.noaa.gov/pdf/pub_wetlands_restore_guide.pdf; C.C. Tanner, M.L. Nguyen & J.P.S. Sukias, Nutrient Removal by a Constructed Wetland Treating Subsurface Drainage from Grazed Dairy Pasture, 105 Agric., Ecosystems & Env’t 145, 147, 159 (2005) (referring to the establishment period as when a new wetland takes root).

[20] See William J. Mitsch & Renée F. Wilson, Improving the Success of Wetland Creation and Restoration with Know-How, Time, and Self-Design, 6 Ecological Applications 77, 78 (1996) (describing various critiques and concerns related to wetland creation and mitigation); Dennis F. Whigham, Ecological Issues Related to Wetland Preservation, Restoration, Creation and Assessment, 240 Sci. Total Env’t 31, 35 (1999) (explaining that wetland restoration projects often lack complete success because they do not “recognize that wetlands are part of larger landscapes,” and asserting that “failures far outnumber successes”); Charlene D’Avanzo, Long-term Evaluation of Wetland Creation Projects, in Wetland Creation and Restoration: The Status of the Science, Vol. II 75, 75 (Jon A. Kusler & Mary E. Kentula eds., 1989) (stating that “a great many . . . artificial wetland projects are problematic or failures” and providing several reasons for failures, including “hydrology, erosion, herbivory, and invasion by upland plants”).

[21] See Anya Hopple & Christopher Craft, Managed Disturbance Enhances Biodiversity of Restored Wetlands in the Agricultural Midwest, 61P Ecological Engineering 505, 508–09 (2013) (describing recommendations regarding soil, hydrology, and vegetation that could improve wetland restoration projects); Zedler & Kercher, supra note 2, at 60 (explaining that restoration techniques are gradually improving while also indicating challenges); see also Robert H. Hilderbrand, Adam C. Watts & April M. Randle, The Myths of Restoration Ecology, 10 Ecology & Soc’y 1, 1 (2005) (noting that many restoration projects are “not successful either in structure or function when compared with reference ecosystems”) (internal citations omitted).

[22] See David Malakoff, Restored Wetlands Flunk Real-World Test, 280 Science 371 (1999) (noting some challenges associated with restoration projects but suggesting that, given enough time, the projects might end up being more successful than current projects have been).

[23] See Interagency Workgroup, supra note 20, at 47.

[24] Indeed, for this reason it is the Corps’ least preferred method of compensation.

[25] Envtl. Prot. Agency, Clean Water Act Section 404(c) “Veto Authority,” http://water.epa.gov/lawsregs/guidance/cwa/dredgdis/upload/404c.pdf (last visited Oct. 25, 2014).

[26] See Alyson C. Flournoy, Section 404 at Thirty-Something: A Program in Search of a Policy, 55 Ala. L. Rev. 607, 644 (2004); Oliver A. Houck, Hard Choices: The Analysis of Alternatives Under Section 404 of the Clean Water Act and Similar Environmental Laws, 60 U. Colo. L. Rev. 773, 782 (1989).

[27] 33 U.S.C. § 1344(c) (2012).

[28] 40 C.F.R. § 231.2(e) (2014).

[29] Envtl. Prot. Agency, supra note 26.

[30] See Rebecca L. Kihslinger, Success of Wetland Mitigation Projects, 30 Nat’l Wetlands Newsl. 14 (2008), available at http://www.wetlandsnewsletter.org/pdf/30.02/kihslinger.pdf (reviewing studies of compensatory mitigation projects).

[31] See, e.g.,Shelley Burgin, ‘Mitigation Banks’ for Wetland Conservation: A Major Success or an Unmitigated Disaster? 18 Wetlands Ecology & Mgmt 49, 51 (2010) (describing inadequacies in wetland mitigation projects); Tammy Hill, et al., Compensatory Stream and Wetland Mitigation in North Carolina: An Evaluation of Regulatory Success 51 Envtl. Mgmt 1077, 1084 (finding lower success rates for recently constructed wetland mitigation projects compared to projects from before 2002); Elizabeth A. Hunter, et al., Improving Wetland Mitigation Site Identification Through Community Distribution Modeling and a Patch-Based Ranking Scheme, 32 Wetlands 841, 841–42 (2012)(suggesting wetland mitigation projects may be unsuccessful because they fail to plan at the watershed scale).

[32] Renee Stone, Wetlands Protection and Development: The Advantages of Retaining Federal Control,10 Stan. Envtl. L.J. 137, 143 (1991)(describing Bush’s announcement of the policy at a Ducks Unlimited event); Morgan M. Robertson, The Neoliberalization of Ecosystem Services: Wetland Mitigation Banking and Problems in Environmental Governance, 35 Geoforum, 361, 363 (2004).

[33] Robertson, supra note 33, at 363.

[34] Kihslinger, supra note 31, at 16.

[35] See R. Eugene Turner, Ann M. Redmond, & Joy B. Zedler, Count It by Acre or Function—Mitigation Adds Up to Net Loss of Wetlands, 23 Nat’l Wetlands Newsl. 5, 5 (2001).

[36] Federal Guidance for the Establishment, Use and Operation of Mitigation Banks, 60 Fed. Reg. 58,605, 58,606 (Nov. 28, 1995), available at http://www.gpo.gov/fdsys/pkg/FR-1995-11-28/pdf/95-28907.pdf.

[37] Id. at 58,609.

[38] See id.

[39] The no net loss of wetlands policy did not say no net loss of jurisdictional wetlands.

[40] Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed. Reg. 19,594, 19,674 (Apr. 10, 2008) (describing the importance of hydrological function in evaluation of compensatory mitigation projects).

[41] How we characterize the benefits of wetland protection from these preservation schemes depends on what we use as our baseline or point of comparison. Do we ask what level of wetland conservation would result without the protections of the Clean Water Act, or do we consider what level of conservation we would get with a complete prohibition on wetland degradation? Most analyses seem to consider the former, then chalk up any prohibited or limited project as a success, regardless of the actual wetlands converted in the process.

[42] See generally Jessica Owley, The Emergence of Exacted Conservation Easements, 84 Neb. L. Rev. 1043 (2006). Conservation easements may also be created by condemnation or judicial proceedings, but to date this has been rare.

[43] Such a goal, particularly in light of climate change implications, is questionable. See Jessica Owley, Property Constructs and Nature's Challenge to Perpetuity, in Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach 64 (Keith Hirokawa ed., 2014); Adena R. Rissman et al., Adapting Conservation Easements to Climate Change, Conservation Letters (May 1, 2014), available at http://www.landtrustalliance.org/climate-change-toolkit/adapting-conservation-easements-to-climate-change.

[44] Of course, this does not always work properly, and the stories of landowners being unaware of (or failing to understand) conservation easements burdening their property are more common than we would like. See, e.g., Feduniak v. Cal. Coastal Comm'n, 56 Cal. Rptr. 3d 591, 597 (Ct. App. 2007) (discussing how landowners were unaware of native landscaping and botanic easements on their property despite a diligent title search).

[45] Wetland mitigation banks are wetland conservation sites “designed to offset residual, unavoidable damage to the natural environment cause by development activities.” Burgin, supra note 32, at 49. In many cases, these are sites where entrepreneurs restore and protect a wetland, then sell credits to developers who need to compensate for their projects’ harm to other wetlands. Id. at 49–50.

[46] See Cal. Dep’t of Fish & Wildlife, Conservation and Mitigation Banking Guidelines 5 (2014), available at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=79095&inline=1.

[47] Compare U.S. Army Corps of Eng’rs, Model Conservation Easement for the Wilmington, NC District Office (rev’d Aug. 2003) http://www.saw.usace.army.mil/Portals/59/docs/regulatory/regdocs/Mitigation/conservation_easement_r8-03.pdf, with U.S. Army Corps of Eng’rs, Model Conservation Easement for the Mobile, AL District Office, available at http://www.sam.usace.army.mil/Portals/46/docs/regulatory/docs/Restrictive%20Cov/Model%20Conservation%20Easement%20for%20Individual%20Permits.pdf (last visited Oct. 25, 2014). These two model conservation easements from different Corps offices in the Southeastern United States have many differences. For example, the Wilmington office has more outright prohibitions, while the Mobile office allows modifications on prohibitions with prior approval.

[48] See 60 Fed. Reg. 58,605, 58,613 (Nov. 28, 1995). Some states have their own laws that apply to mitigation banks, and some state agencies provide guidelines and/or templates for mitigation banking conservation easements. See, e.g., Template for Mitigation and Conservation Banks in California (Mar. 2010), available at http://www.spd.usace.army.mil/Portals/13/docs/regulatory/banking/CE.pdf.

[49] Arguably, section 404 conservation easements may not even need to follow state law. See United States v. Albrecht, 496 F.2d 906, 911 (8th Cir. 1974) (holding that conservation easements negotiated and held by the U.S. Fish & Wildlife Service did not have to conform to state law prohibiting perpetual conservation easements because they were part of a federal scheme). Further, some courts might uphold exactions precisely because they are exactions. See, e.g.,Rossco Holdings, Inc. v. State,260 Cal. Rptr. 736, 742–43 (Ct. App. 1989) (holding that a landowner could not challenge a condition imposed on the granting of a permit after acquiescence to the condition). But see Trancas Prop. Owners Ass’n v. City of Malibu, 34 Cal. Rptr. 3d 334 (Ct. App. 2005) (holding that exactions must comply with state property law); Jessica Owley, Exacting Conservation Easements in California, 21 Envtl. L. News 3 (Winter 2012).

[50] See Conservation Easement Program, Ducks Unlimited, http://www.ducks.org/conservation/land-protection/conservation-easements (last visited Oct. 25, 2014).

[51] Of course, some place more faith in land trusts than in the Army Corps. The Army Corps of Engineers district offices sometimes have bad reputations with conservationists and developers alike. See Robert Haskell Abrams, Water Federalism and the Army Corps of Engineers’ Role in Eastern States Water Allocation, 31 U. Ark. Little Rock L.Rev. 395 (2009).

[52] Although the Corps issues the permit, it may simply require a certain acreage of wetlands protected by a conservation easement without dictating the terms. The permit applicant is then responsible for negotiating a conservation easement with the land trust (a conservation easement that may burden the applicant’s land or may be purchased on other land).

[53] See Federal Guidance for the Establishment, Use, and Operation of Mitigation Banks, 60 Fed. Reg. 58,605, 58,609–10 (Nov. 28, 1995), available at http://www.gpo.gov/fdsys/pkg/FR-1995-11-28/pdf/95-28907.pdf.

[54] Id.

[55] Id. at 58,612.

[56] An even more complicating discussion is determining what should be done when the impacts of climatic change or disasters mean that a protected wetland is no longer viable. This raises hard questions both for section 404 mitigation requirements and for laws governing conservation easements generally. See, e.g., Jessica Owley, Conservation Easements at the Climate Change Crossroads, 74 Law & Contemp. Probs. 199 (2011).

[57] Richard F. Ambrose, John C. Callaway & Steven F. Lee, An Evaluation of Compensatory Mitigation Projects Permitted Under the Clean Water Act Section 401 by the California State Water Resources Control Board, 1991–2002 at 40 (2007), available at http://www.waterboards.ca.gov/water_issues/programs/cwa401/docs/mitigation_finalreport_full081307.pdf; see also Kihslinger, supra note 31, at 14 (describing the results of Ambrose et al. and other studies).

[58] Kihslinger, supra note 31, at 14 (citing a study by Balzano et al.).

[59] Ambrose, supra note 4, at 15, 22.

[60] See Diane De Steven, Rebecca R. Sharitz & Christopher D. Barton, Ecological Outcomes and Evaluation of Success in Passively Restored Southeastern Depressional Wetlands, 30 Wetlands 1129, 1138 (2010).

[61] In fact, it may be easier to demonstrate a duty for land trusts, rather than state agencies, to enforce conservation easements. State agencies can generally argue that they are exercising their prosecutorial discretion not to pursue violations of conservation easements.

[62] See Turner, Redmond & Zedler, supra note 36, at 15.

[63] See Davis Urban, Director of Operations, Ecosystem Investment Partners, Michael Dennis, Counsel, Ecosystem Investment Partners, Richard Martin, Director of Forest Protection & Management, The Nature Conservancy, Land Trust Alliance, Land Trusts’ Interaction with Mitigation Banking: A Perspective from Both Sides (Oct. 2, 2012) (Workshop Handouts on file with author and available through the Land Trust Alliance) (presenters explaining that they sometimes had Corps third-party enforcement rights in conservation easements burdening private mitigation banks).

Copyright 2014 Jessica Owley. All rights reserved.

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Celebrating the Many Contributions of Joe Sax

With the passing of Joseph L. Sax this past spring, Berkeley Law and the global environmental community lost a beloved colleague, friend, mentor, and hero. At the time, we offered some words in his honor on Legal Planet. (link: http://legal-planet.org/2014/03/10/in-memoriam-joseph-l-sax-gentleman-scholar-giant-of-environmental-law/) We are very pleased to have another occasion to celebrate him here in Currents. The Environmental Law Section of the State Bar of California has quite appropriately named Joe as the recipient of its inaugural Lifetime Achievement Award in recognition of “his significant and profound role in shaping modern environmental law.” To celebrate Joe’s many and varied contributions we offer here three tribute essays. Joe’s longtime friend and colleague Dan Tarlock celebrates Joe’s role in the founding of environmental law with a remembrance of the Airlie House conference, often considered the field’s founding moment. Joe DiMento, a student of Joe’s at Michigan who became a co-author, friend, and close colleague, captures Joe’s scholarly brilliance and the global importance of his career, as well as his personal influence on students and others. Chris Carr, who also first encountered Joe in the classroom, remembers Joe as a towering figure in the field, a mentor, and an inspiring lunch companion. Together these pieces offer a picture of two vital aspects of Joe Sax: he was, of course, a leading scholar and advocate in the fields of environmental and natural resources for more than fifty years. He was also, just as importantly to the field and those in it, a teacher, mentor, and personal inspiration who brought many of us into the field, helped us develop our own expertise, and encouraged us to make our own contributions. The combination of these two sets of contributions ensures that while Joe is and will be deeply missed, his influence will continue far into the future.

Present and Active at the Creation

A. Dan Tarlock[1]

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Environmental law did not evolve over a period of time, as have almost all areas of law. It was consciously created by a small group of lawyers and academics between the late 1960s and early 1970s. One of the seminal events in the creation of the field was the September 1969 conference held at Arlie House in northern Virginia. The Arlie House Conference was organized and funded by the conservation community. At that time, environmental protection meant primarily the protection of large areas of public land from development and the acquisition of private land for open-space preservation. Thus, it was natural that two pillars of the small conservation community in Washington, D.C., the Conservation Research Foundation and the Conservation Foundation, took the lead in bringing together a group of academics, lawyers, congressional aids, and others struggling to create a new field. The conference was a great success. As the introduction to the published proceedings accurately reported, it was a “fertile exchange among many lawyers who are breaking new ground,” and it helped create the notion that we in what soon became environmental law were part of a special community.[2]

In 1968, when the idea for the conference took shape, the task seemed daunting. Environmental values were ignored by the mission agencies, which were intent on pouring as much concrete and cutting as many trees as possible. The possibilities of obtaining standing to sue them and of finding a legal basis to challenge their New Deal-entrenched discretion seemed remote. As the Santa Barbara oil spill in January of 1969 reminded us, pollution was widespread despite the common law’s prohibition against nuisances.

Joe Sax was the youngest of the three academics on the conference steering committee. In retrospect, it seems almost unthinkable that he was not the lead speaker, but he was not asked (or declined) to prepare a paper. Instead, he moderated the first session, and as he would do so often in his career, he briefly and modestly made major contributions to the issue at hand. Specifically, his contribution to the conference showcased one of the many important characteristics that made him the most influential member of a small group of founders of environmental law. From the start to the untimely end of his extraordinarily distinguished career, Joe was first and foremost a lawyer. He had a clear understanding of reasons why the dice are always loaded against environmental protection, and he thought long and deeply about how to use the existing legal system to give environmental values a fighting chance. In 1969, he was just on the verge of stardom. For example, his name does not appear on the list of 358 existing “environmental” articles compiled for the conference. The paper on the possible use of the public trust, Law in Action: The Trust Doctrine, was written by three lawyers whose practice concentrated on the then-Federal Power Commission.[3] However, the authors did direct readers to Joe’s forthcoming classic article, noting that “the analysis is an absolute necessity both for the availability of precedents and to facilitate an understanding of the doctrine.”[4]

The conference’s first session, Problems of Litigation, featured papers by two “established” figures in the field. The lead paper, The Santa Barbara Oil Spill, was written by one of the forgotten pioneers of environmental law, Malcolm Baldwin.[5] The second, Securing, Examining and Cross-Examining Expert Witnesses in Environmental Cases, was given by the rock star of the conference, David Sive, who died at age 91 just over a week after Joe.[6] Dave had been one of the lead lawyers in the case Scenic Hudson Preservation Conference v. Federal Power Commission, which opened the possibility that courts could play a major role in creating environmental law.[7] For the first time, a court had reversed an agency decision for the failure to adequately consider environmental values and potentially less-destructive alternatives. The session focused on the problems of bringing an action that could have prevented the spill as well as recovering post-spill damages.

In his opening remarks, Joe exhibited wisdom beyond his seven years in law teaching, went right to the heart of the problem of the day, and focused the group on the essential issues of good lawyering:

As someone who has been the victim of conferences that turn out to be nothing more than a lot of chitchat, it is my feeling that our discussion should be a prototype of a strategy session among lawyers trying to decide what to do when confronted with a problem like Santa Barbara. . . .

First, what if anything ought lawyers to do if a client comes to them with this potential problem? Ought there to be some kind of intervention? If so, at what point in the various processes of decision-making, leasing authorization, granting of permits, and so forth?

Second, what expert scientific knowledge do we need and where do we look for it?

And, third, what are the long-range effects of some kind of legal intervention? That is, what are we going to buy for the rather considerable expenditure of time and money that would go into it?[8]

Much of the discussion focused on the problem of quantifying the post-spill damages. The following colloquy between Joe and Norman Sanders, a professor of geography at the University of California Santa Barbara, identified one of the central, unresolved problems of environmental law that haunts the field to this day and added a bit of dark humor:

Mr. Sanders: . . . [Y]ou will find that no ecologist at this time will say that he knows enough to establish what the ecology of the area is or should be . . . . A few of our ecologists say, yes, there has been great damage in the Santa Barbara oil spill. Others say no, there has not been any damage, and many say they don’t know yet, it is too early. . . .

Mr. Sax: Of course in every case we characterize as environmental, the problem of future uncertainties exists. But is it your conclusion that there is really nothing we can do?

Mr. Sanders: No. No. Not nothing. Probably my view is too colored by the Santa Barbara oil issue, which is, of course—

Mr. Sax: Black.[9]

As the session drew to a close, Joe laid out the central thesis of his soon-to-be-published public trust article. The group had been discussing the ethical and practical problems to achieve political ends. Joe’s answer to the dilemma was to recognize that “[a] good deal of environmental litigation, even some of the older cases, is actually a situation in which people say to the court: A different political or a different administrative constituency should have a role or the last word on the issue.”[10] His support for this argument was the California and Wisconsin public trust cases that he brought up from the muddy depths where they had lain for years. “One should never lose sight of litigation as a technique that legitimately feeds into the political process.”[11]

The much-revered Rabbi Hillel was once challenged by a potential convert who asked Hillel to teach him the whole Torah while he stood on one leg. The Rabbi replied: “That which is hateful unto you do not do to your neighbor. This is the whole of the Torah, the rest is commentary.” The same can be said of Joe’s career. All the characteristics that he displayed in his extraordinarily distinguished and justly revered career were on display that warm, northern Virginia morning. Joe was first and foremost a lawyer who acted like a doctor, as the best lawyers do. He diagnosed the illness first and then worked backwards to find a cure. Joe had a clear vision of what a new relationship between humans and nature should be, but he knew how hard it would be to achieve this vision. He saw law as one of many essential tools. He understood law as an envelope that was malleable but not infinitely so. Others in the field have gone further than Joe in trying to re-imagine an alternative environmental law based on a radically new human-nature relationship. But no one has gently but creatively pushed the legal envelope so effectively to advance the project of environmental protection in ways that were both fair and consistent with the rule of law. And he did it with modesty, grace, and humor. He stayed true to the spirit of Arlie House, and, for this, generations of his students, friends, lawyers, and many others will be eternally grateful for his career, even as they mourn his untimely death. Like many others, I am proud to call myself a fifty-year student and friend of Joe’s.

A. Dan Tarlock

Distinguished Professor of Law

Chicago-Kent College of Law

Thoughts on Professor, Mister, Joe, Sax

Joe DiMento

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In his pathbreaking book, Defending the Environment, Joe Sax wrote:

No magic wand can be waved over the multitudinous problems of environmental quality. No elegant declaration of rights will simply and quickly solve our problems. Protracted struggle lies ahead, and the citizen fighting to vindicate his rights will be a central figure in that struggle. Regulation in the name of the public interest can no longer remain a two-party enterprise carried on between the regulated and the professional regulator. Effectuation of the public interest must begin to embrace the active participation of the public.

This passage is characteristic of all the pioneering legal contributions of Professor Sax. His contributions and work were professional, innovative, and profound.

I begin with “professional.” I had the joy of working with Professor Sax as a student, an assistant hearing-officer working for the government, a mentee, and a co-author. He modeled to me, and the many others who had the privilege to learn from him, not only how to be an advocate, but how to do so in a way that respects others' views, performs impressively, delivers superior results, and does so without fanfare or hubris.

Some, when they hear "Joe Sax" or learn that Joe was an avid on-the-trails environmentalist, picture an informal person. But Joe was formal in all of the best connotations of that term. He taught us how to present clearly and impressively, how to articulate arguments persuasively, and even how to look when appearing before agencies, courts, legislators, and hearing boards. He taught us not that we would all reach the ideal standard, but rather how to be elegant in our work and how to represent environmental law.

Professor Sax’s impeccable legal scholarship and advocacy was complemented by his innovation and creativity. He not only drafted the Michigan Environmental Protection Act—the Model Natural Resources and Environmental Protection Act, which demolished obstacles to citizen standing and created substantive rights in the public trust for the protection of the air, water, and other natural resources, as well as the public trust therein—but he also wrote persuasively of its doctrinal roots. And then he looked back—several times—using empirical methods to see how that Act and its many cousins throughout the United States were being used. He drew from his history, literature, and social-science knowledge, which made his work convincing, exciting, and based in critical worldly appreciations.

Professor Sax's thoughts were deep and profound. Millions of words were written during the early decades of the first environmental laws. Many of them will never be read, let alone quoted. But the ideas and the artful expressions in Defending the Environment, in Takings, Private Property and Public Rights, in Mountains Without Handrails, in Playing Darts with Rembrandt, and in Helpless Giants: The National Parks and Regulation of Public Lands have shaped the way we think of the environment, of property, and of our relationships to these concepts. To illustrate, read an excerpt from Professor Sax’s Blue Planet lecture in Japan, where he articulated our relationship to biodiversity:

. . . any notion of the importance of protecting biodiversity builds on what may be thought of as the economy of nature, as contrasted with the transformational or developmental economy. In the economy of nature, land is not a passive entity waiting to be transformed by an owner. Nor is the world composed of distinct tracts of land. Rather the ecological perspective views land as a system defined by function, not by man-made boundaries. Land is already at work performing important functions in its unaltered state. Forests regulate global climate, marshes sustain marine fisheries, and prairie grass holds the soil in place. In the economy of nature, wetlands would be governed by laws based on their ecological role, not on lines drawn on a map. And their protection would be the responsibility of all those whose activities—wherever carried on—adversely affected them. If today we are seriously to protect what remains of our biological heritage, to restore degraded rivers and landscapes, and to redeploy forests to play a positive role in controlling human-induced climate change, we need a legal system that is as well-attuned to achieving those goals as the conventional legal system we have inherited was attuned through transformation of nature to achieving the goals of the industrial revolution.

No jargon, no superfluous phrasing: the passage is clear, communicative, and transformative.

Professor Sax did not write unless he had something important to say, and when he said it, he said it beautifully. One of my lasting memories is of his workmanship. In his lovely wood-paneled office in the Michigan Law Quad, he would type a triple-spaced draft of a manuscript. The editing of that draft would be craft—with handwritten additions noted clearly and precisely in the margins and the interval spacing. Then another draft, then another, and then one read by his wonderful wife Ellie, until every phrase was as clear as possible. Triple spacing and elegant editing. I have tried to emulate and teach this not-so-mysterious method to my students for decades.

When a group of Japanese historians asked me to give a lecture on environmental law with an emphasis on the 1960s, my first thought was “Joe.” Professor Sax represented the roots of the most important thinking on law and the environment, not only in the United States, but in other places, including my host country of Japan, India, and the larger international community. Professor Sax made Minamata a name that would haunt the world and lead to major reforms in environmental safeguards, both in Japan and elsewhere. He made citizen environmental action, then a revolutionary notion, a household concept—something that is talked about on network morning television and described in popular magazines. He added to the public-policy calculus a serious consideration of a public trust in nature. He moved us to think about property in ways that society must consider if our natural environment is to be sustainable.

He was consistently on the cutting edge in his career. More recently, he laid out new ideas for addressing the effects of contemporary environmental challenges by writing about the arcane doctrines of accretion and avulsion in property law, which are deeply relevant in times of climate change.

Professor Sax changed the way the government and private entities can treat our beloved streams and countryside, our water, our mountains, and our wilderness, critters, and patrimony. Very few people influence the way societies approach these kinds of challenges, the challenges that matter most, as Joe did. But Joe also deeply affected the way we think about and view people around us—both friends and enemies.

As the testimonials came in for Joe, who was mentor, teacher, colleague, and opposing counsel, many focused on Joe as a caring, helpful, patient teacher—and friend:

—Who recognized the good efforts, and sometimes unsuccessful attempts, of others, and who offered a different, deeper view of behaviors that were easy to write off;

—Who let the crying baby stay in his classroom—because babies cry;

—Who read manuscripts from young scholars whom he hardly knew;

—Who treated others based on their potential.

Joe was committed to, and confident about, a specific set of values, which directed his choices and actions. No temptations or incentives could change those values. It sounds simple, but how many of us at our life’s end will be described that way?

I end with some memories I will never forget:

—His inspirational love for Ellie and how they cared for one another throughout their long and happy marriage, and most inspirationally, in the last couple of years.

—His guidance and understanding of his three wonderful and very different daughters.

—His handsome bow ties.

—The name of one of his most important contributions: “The Sax Act” (although he was always a bit sensitive to teach it to young students under that name).

And:

. . . something that few can emulate: that expression when he patiently responded to a question that may have not been as well thought-out as one could have hoped . . .

An imperfect approximation. If you knew him, I am sure you can picture it, even if you were never its subject.

Joseph L. Sax: In Memoriam

By Chris Carr

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I am honored to provide the perspective of a student, practitioner, and friend on Joe Sax’s lifetime of contributions to the field of environmental law, so deservedly recognized by the California State Bar in posthumously bestowing upon Joe its inaugural Lifetime Contribution Award. Joe had a profound influence on my life—professional and otherwise—over the last twenty years. Not a day goes by that he does not come to mind. I’m confident that this would be so even if I didn’t happen to be a practitioner of environmental and natural resources law, because Joe’s shining example illuminates many parts of my life.

I will come back to Joe’s powerful influence on my individual professional development, but it is appropriate to begin with a brief comment on Joe’s monumental and revolutionary impact on the course of environmental and natural resources law over the last fifty years. A modest and measured man, Joe would surely resist such a grand characterization. But it is unquestionably true. Joe is in fact the leading figure in the field over this period.

Joe’s role in launching the public trust doctrine is well known, but to this could be added a staggering list of achievements: his responsibility for Michigan’s model environmental review statute, his pathbreaking work in support of citizen suits, his scholarship and advocacy in the field of takings law, his decades-long co-authorship of the leading casebook on water law, his work on important water rights disputes around the United States and as expert consultant to governments around the world on water issues, his scholarship about and support of our national parks (including his pro bono work for the National Park Service), his work (both within government and without) on biodiversity conservation, and, more recently, his scholarship in the area of cultural preservation. The list of important, pressing issues in the field of environmental and natural resources law to which Joe devoted his historical capaciousness, humanistic sensitivity, and formidable powers of analysis goes on.

But Joe’s influence has not been limited to the evolution of environmental law and policy itself. He has profoundly shaped the intellectual and personal approaches of several generations of environmental lawyers, public officials, academics, and others who grapple with the perennial yet ever-changing challenges of how we relate to and interact with the environment. Whether Joe was teaching his students at the University of Colorado, the University of Michigan, or the University of California, Berkeley, one of his core messages—taught by example—was that “these issues are not easy, and working through them requires patience and concerted thought.” I carry this habit of mind with me to this day, as no doubt countless other of Joe’s students do. It informs our professional work and how we relate with our fellow citizens.

My own experiences with Joe are but one data point, but I believe they illustrate his great influence on students. I met Professor Sax in the spring of 1993 as a student at Boalt Hall, where I was also a doctoral student in the Jurisprudence and Social Policy Program. Like many students, I did not have any firm sense of what I wanted to do professionally, but I had done some work on international ocean law as a research assistant the prior year and thought that domestic environmental law might be worth exploring. I signed up for Professor Sax’s Public Land Law course. I only wish I had “discovered” Professor Sax earlier in my law school career. I would have taken more of his classes.

The course proved immensely rewarding, introducing for consideration all of the complexities of managing public lands and resources for multiple uses, within a federal system, in a democratic society. It was an introduction not only to federal resource management, but also to the administrative law system and judicial review of agency action. The course illustrated the intellectually rich confluence of law, science, and policy that characterizes American environmental and natural resources law. Although, as I would later appreciate, Professor Sax had his own views on the appropriate resolution of the issues presented in the course, his teaching conveyed the unmistakable message that the issues needed to be engaged deeply, with rigor, and with an appreciation for the perspectives of others.

My appetite whetted for more, I signed up for Professor Sax’s Public Trust Seminar in the fall 1993 semester. Over the summer, I had learned that Professor Sax was the progenitor of the contemporary public trust doctrine, which was so critical and transformative in California water and resources law. Joe sparked its modern revival with his seminal article in the 1970 Michigan Law Review, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention. Joe’s seminar was an intellectual feast, tracing the doctrine from its origins in Roman law, through its treatment by the U.S. Supreme Court in the Illinois Central Railroad case in the late nineteenth century, to its assertive application and expansion by California courts in the 1970s and 1980s. Joe assigned all seminar students a weekly problem to answer in a one-page paper, which he carefully graded and provided written feedback on. Students also had to produce a seminar paper, to which Joe devoted great time and attention. I finished mine only the next spring, when I had already moved to Washington D.C., because I was (delightedly) responding to Joe’s repeated follow-up questions. This seminar provided another lesson that informs my work (and, again, doubtless that of countless other of Joe’s students) to this day: every day as an environmental lawyer, you play a critical role in helping society mediate, in a thoughtful way consistent with the rule of law, transitions and transformations in what we collectively value about our environment and natural resources.

I next had the privilege of spending time with Joe in 1995 in Washington, D.C. Joe had come to Washington in 1994 to serve as Counselor to Secretary of the Interior Bruce Babbitt. I was completing a year at the State Department’s Office of Marine Conservation, and Joe hired me to work as an assistant to him at the Interior Department at the beginning of 1995. The new Congress had just been elected, and the Gingrich Revolution took aim at the federal Endangered Species Act and included takings legislation as part of its Contract with America. Joe was asked to head up the Clinton Administration’s defense of the ESA and federal environmental regulation generally. I helped Joe prepare position papers, Congressional testimony, and the like in support of this effort. Joe’s effective and successful advocacy for the ESA and reasonable environmental regulation in the highly charged political environment of Washington, D.C. in 1995 vindicated the ideal that in our democracy there remains a role for serious, rigorous thought in the environmental policy-making process.

I went off to a judicial clerkship later in 1995, and Joe returned to Berkeley in 1996. I returned to the Bay Area in 1996 and started legal practice at a boutique natural resources firm in San Francisco. In subsequent years Joe was a regular lunch companion. We enjoyed sharing the problems and issues we were working on, as well as engaging in wide-ranging discussions about political economy. I would frequently ask myself: “What would Joe say about this?” Then I would have the privilege of soon finding out over lunch. I still find myself frequently asking what Joe would think, but, to my deep regret, I’m now left to conjure answers as part of an inner dialogue.

I am currently representing a citizen group pro bono in litigation against the National Park Service related to management of visitation to Muir Woods National Monument and its impact on the surrounding environment. I wish I could have the benefit of Joe’s insights and wisdom on this (and countless other challenges) by asking him, over lunch, “What do you think about this?” My question finds at least a partial answer in Joe’s teaching and writing. In his Foreword to the 1988 compendium Our Common Lands: Defending the National Parks, Joe wrote:

From the perspective of preserving biological and genetic integrity, by which contemporary environmental opinion measures success, the parks (for all their wonders) are seriously deficient. If our parklands are to provide, in any degree, what we are now asking of them, far-reaching changes will have to be made. A great deal of land, both public and private, the use of which affects the parks and their resources, is going to have to be managed more sensitively.

The matter I am handling involves issues of the carrying capacity of Muir Woods and parking for its visitors. Managing visitor numbers is important not only for ensuring an appropriate visitor experience, but also to minimize the impacts of visitors on the sensitive environment surrounding Muir Woods. Redwood Creek, home to one of the last native coho salmon runs in California, flows through the heart of Muir Woods before spilling into the Pacific Ocean. Signs in the Muir Woods parking lot direct “overflow” visitor vehicles to park on the shoulder of Muir Woods Road, perched above Redwood Creek. I have a pretty good idea what Joe would say about this.

I have practiced environmental and natural resources law for almost twenty years, and I am fortunate to serve as head of the Environment and Energy Practice Group at Morrison & Foerster. I am forever indebted to Joe for his essential role in sparking my deep and abiding interest in environmental law, as well as instilling in me the habits of mind necessary to be a successful practitioner in this area. Once again, I am sure I speak for innumerable practitioners whom Joe taught at the University of Colorado, the University of Michigan, and the University of California, Berkeley.

Joe’s seminal article on Takings and the Police Power was published by the Yale Law Journal fifty years ago this fall. So it is fitting for the State Bar to honor Joe with its inaugural Award for Lifetime Contribution to the Field of Environmental Law in this fiftieth anniversary year of his leadership in the field. The State Bar’s award recognizes that Joe has bequeathed to the public a rich and robust body of scholarship, law, and policy. We practitioners, most especially, hold that body of work as a public trust. This trust continues to help our increasingly complex and changing society make thoughtful decisions about the values we collectively pursue in using and protecting the environment and natural resources of which we are, necessarily, stewards for future generations.

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[1] Distinguished Professor of Law; Chicago-Kent College of Law.

[2] Law and the Environment (Malcolm F. Baldwin & James K. Page, Jr., eds., 1970).

[3] Edward Berlin et al., Law in Action: The Trust Doctrine, in Law and the Environment, supra note 2, at 166.

[4] Id.

[5] Malcom F. Baldwin, The Santa Barbara Oil Spill, in Law and the Environment, supra note 2 at 5.

[6] David Sive, Securing, Examining and Cross-Examining Expert Witnesses in Environmental Cases, in Law and the Environment, supra note 2 at 48, reprinted in 68 Michigan Law Review, 1175 (1970).

[7] Scenic Hudson Preservation Conference v. Fed. Power Comm’n, 354 F.2d 608 (2d Cir. 1965).

[8] Law and the Environment, supra note 2 at 67.

[9] Id. at 75-76.

[10] Id. at 95.

[11] Id.

Copyright Holly Doremus, Dan Tarlock, Joe DiMento, and Chris Carr 2014. 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.