Author: vjel

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
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By Eric Anthony DeBellis, Senior Executive Editor for Ecology Law Quarterly. Berkeley Law School

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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^* Senior Executive Editor for Ecology Law Quarterly. Berkeley Law School, J.D. expected 2016.

[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, see Ctr. 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), http://environment.law.harvard.edu/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.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Luke Grunbaum, Editor-in Chief of UCLA Journal of Environmental Law and Policy

            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.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
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By Liz Rasheed, Submissions Editor for  NYU Environmental Law Journal

1. 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]

1. Combating Wildlife Trafficking through International Law: CITES

The primary international legal tool for combating poaching and trade in endangered wildlife is the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).[8] CITES imposes procedural requirements on the import and export of certain species to enhance both the traceability of legal trade and the enforceability of illegal trafficking. It functions by listing species of wild plants and animals considered threatened by international trade in one of three Appendices. Appendix I lists the most critically endangered animal and plant species; international trade in these species is prohibited except for very limited noncommercial purposes. To demonstrate that applicable conditions have been met (e.g. scientific purpose, legal obtainment, humane transport), both export and import permits are required. Appendix II lists species that are “not necessarily threatened with extinction” but “may become so unless trade in specimens is subject to strict regulation in order to avoid utilization incompatible with their survival.” International trade in these species is authorized through grants of export permits or re-export certificates by relevant domestic authorities, who are charged with ensuring that the trade is in compliance with CITES. Though CITES does not require import permits on these species, domestic laws, such as the Lacey Act in the United States, may.[9] If a country already regulates trade in a certain species but determines that it needs the cooperation of other countries to prevent significant or illegal exploitation of that species, it may request that the species be listed under Appendix III, which requires export permits to be presented any time the listed species is exported from the requesting State and a certificate of origin when the species is exported from any other member States. Export permits issued in accordance with CITES are only valid for a maximum of six months, and a separate permit is required for each consignment of specimens.[10]

The Conference of the Parties (CoP) meets every two to three years and is responsible for amending the Appendices. Amendments enter into force after 90 days for all parties who have not entered formal reservations.[11] Parties may take a reservation to any new Appendix I or II listing so long as that reservation is registered within 90 days,[12] and reservations to Appendix III listings may be taken at any time.[13]

• The Modern Poaching Problem
  1. The Current Crisis

On the ground, failures throughout the CITES system are reflected in the plummeting populations of multiple endangered animal species which the Convention specifically sought to protect. For example, in the mid-1970s, shortly after the signing of CITES, Tanzania’s Selous Game Reserve was home to over 100,000 elephants.[14] As of late 2013, only 13,000 could be found on the reserve.[15] It is estimated that at least 96 more African elephants are killed every day.[16] Illegal ivory trade increased by nearly 300 percent globally between 1998 and 2011;[17] raw data from ivory seizures in 2013 suggest that more ivory was seized that year than in any year since at least the late 1980s.[18]

Similarly, in 2014, the illegal rhino horn trade reached its highest levels since the early 1990s.[19] In South Africa, where over 80 percent of African rhinos reside, the incidence of rhino poaching increased by 7,000 percent between 2007 and 2013.[20] The western black rhinoceros was declared extinct only three years ago, and the northern white rhinoceros[21] has now reached its tipping point,[22] as has the Javan rhinoceros.[23] One subspecies, the Vietnamese Javan rhinoceros, was declared extinct in 2010 after the last remaining individual was found dead and missing its horn.[24]

While ivory is prized for its beauty and durability, rhinoceros horn is usually ground up and used in Chinese medicine.[25] Rhinoceros horn is primarily keratin, and none of its alleged healing properties has been validated by medical research. Unfortunately, scientific knowledge has failed to supplant the superstitions that drive international demand on the black market. The trade in elephant tusks and rhino horns, as well as countless other exotic animal products and derivatives, is larger now than ever before.

In fact, wildlife trafficking is reportedly the fourth largest black market in the world—behind trafficking in narcotics, arms, and humans.[26] Weak laws, corrupt officials, limited enforcement funding, and powerful incentives from criminal networks have contributed to a surge in poaching that the United Nations Environment Programme (UNEP) considers part of a larger “Environmental Crime Crisis.”[27] UNEP estimates that US $48-153 billion in resources are lost to illegal wildlife trafficking each year.[28]

1. A Timeline of Elephant and Rhino Poaching

When CITES entered into force, African elephants were left off of the Appendix I list. But by the late 1980s, the impacts of poaching and ivory trade had nearly destroyed their population, forcing the Parties to upgrade African elephants by instating an Appendix I listing and effectively banning commercial trade of elephant ivory.[29] Japan, however, sought to protect its domestic ivory-working market and reserved the right to import raw ivory from African CITES Parties.[30] This ivory could theoretically be legally sourced, since the wildlife management authorities of several southern African countries periodically culled their elephant population to reduce strain on park resources. But in practice, these countries were prohibited from selling any of the hundreds of tons of tusks that they had stockpiled from these culls, even if the proceeds were to be used for conservation.[31] Thus, in 1997, the CoP voted to allow for a “one-time” sale at auction to Japanese buyers of stockpiled ivory from three southern African countries which generally had well-protected elephant populations: Zimbabwe, Namibia, and Botswana.[32] The sale occurred in February 1999 and transferred a total of 49,574 kg of ivory at roughly $100 USD per kg.[33] Though this sale was expected to dampen global demand for ivory and reduce poaching and smuggling, it had the opposite effect. Even the Chinese government has stated that the surge in ivory smuggling in the early 2000s can be attributed to the 1997 Japanese purchase.^[34] Ironically, China soon leveraged this claim to argue that the incentive to smuggle ivory across the Sea of Japan could be removed if China were allowed to buy stockpiled ivory at auction as Japan did.

Though the temporary downgrade of the African elephant to Appendix II in order to facilitate the 1999 auction was not intended to be recurring, the CoP approved a second temporary removal of the ivory ban in 2007. This time, the CoP approved a one-off sale of 108 metric tons of ivory to be sold to China and Japan from South Africa, Zimbabwe, Namibia, and Botswana.[35] Though China and Japan did not even purchase their full allotted quota, they have been accused of colluding to keep ivory prices low by bidding on different types of ivory during the sale and then trading these between themselves at a higher profit margin than was afforded to the African source countries.[36] This Asian markup value is reflected and indeed exacerbated in the price differentials seen today.[37]

It seems universally accepted that China is the largest ivory market driving illegal trade, and most sources point to 2008 as the inflection point on the rising rate of market growth over time.[38] All evidence suggests that the creation of a legal ivory trade market in China has stimulated the growth of the illegal market, and there is a clear correlation between timing of these spikes in poaching and the international authorization of limited “legal” ivory sales.

Interestingly, the occurrence of rhino poaching remained low for nearly two decades before the elephant ivory sale in 2008. But in the years since China’s CITES-authorized 2008 ivory purchase, the shockingly rapid uptick observed in rhino poaching mirrored a simultaneous surge in ivory poaching across Africa. While only 13 rhinos were killed in South Africa in the year 2007, 83 were poached in 2008, and 1,004 fell to poachers in 2013.[39]

The low levels of rhino poaching during the early 1990s may be partly attributable to the United States’ threat of bilateral Pelly Amendment sanctions against the four main consumers of rhinoceros horns at the time: Yemen, South Korea, Taiwan and China.[40] With the passage of time, however, the threat of sanctions began to lose its bite,[41] and China’s economic growth and accession to the WTO lessened the influence of the United States as a valuable trade partner. Thus, by 2007, the United States’ objections to the proposed downlisting failed to sway the CoP or keep illicit trade at bay.

1. What’s Changed?

Rather than isolated bushmen trying to make a living, the main culprits behind today’s poaching crisis are highly organized international crime networks. One reason why the criminal profile has shifted so drastically in recent decades is the rapid global advance in technology. Many parts of the savannah that were never reached by landline phone services are now accessible through cell phones. Internet connectivity additionally unlocks previously unfathomable possibilities for rapidly coordinating sales and shipments of poached ivory with wealthy buyers abroad, as well as marketing such goods for sale online. The civil unrest and political instability in much of Africa during this time also created new opportunities and demand for arms trafficking, and armed militant groups stand fully prepared to take down game animals should the opportunity for profit present itself. Specific drug routes have been identified as repeatedly-used routes for wildlife trafficking, and many militant groups and drug cartels are known to actively participate in or profit from poaching.[42]

1. Technical Aspects of Transport

Generally, rhinoceros horns are more frequently transported by air, while ivory is almost always sent by sea.[43] Being much smaller than elephant tusks, rhinoceros horns can be smuggled in individual suitcases on passenger planes, much like many drug-smuggling operations.[44] While the standard international protocol of checking baggage theoretically gives more room for detection and enforcement, aviation also opens up many more potential through-ports for sales unreachable by sea, e.g., Eastern Europe. The relatively low level of sophistication needed to smuggle contraband by plane to Europe also makes the rhino horn market more accessible to small-scale criminal networks. Ivory, being much larger, requires a higher level of sophistication, larger criminal syndicates, and many more players. Most ivory is sent overseas from Eastern Africa to Asia in large containerized shipments, often hidden amongst metric tons of other products.[45] The criminal syndicates orchestrating these operations either exploit existing security holes in shipping networks (the shipper having no mens rea for criminal liability) or utilize entirely corrupt shell corporations formed by one businessman with a stake in the profits.[46] This is an area in which corporate and tax laws need strengthening in order to be certain that such shell corporations are neither operating without registering or paying taxes, nor shielding the bad actors behind them from criminal liability.

1. Addressing the Crisis

How this crisis can be addressed through CITES will almost certainly be the main topic of discussion at the 17^th Conference of the Parties, to be held in South Africa in 2016. While some countries are taking action to publicly destroy their ivory stocks and sending a message that elephants are more valuable alive than partially decapitated, others seem to cling to former ideas of how to balance economic and conservation interests. South Africa has recently reaffirmed its intention to propose legalizing the rhino horn trade, which it hopes will free up its stockpile of confiscated rhino horn products, driving down the price and removing the incentive to poach.[47] Given the tremendous failure of attempts to protect elephant populations through legalized ivory trade, South Africa’s predictions seem dubious at best.

1. Addressing the Crisis Through Other Avenues of International Law: The Rise of International Involvement in Enforcing Prohibitions on Poaching

The good news is that the CITES Secretariat is not alone in this battle against illegal wildlife trafficking. TRAFFIC (Trade Records Analysis of Flora and Fauna in Commerce) is a partnership between World Wide Fund for Nature and International Fund for the Conservation of Nature, and is the leading source of information and decision-making assistance to CITES.[48] TRAFFIC manages the Elephant Trade Information System, which seeks “to track illegal trade in ivory and other elephant products,” on behalf of the CITES Parties, while CITES members themselves submit poaching reports to MIKE (Monitoring the Illegal Killing of Elephants).[49] In 2010, the World Customs Organization, the World Bank, the United Nations Office on Drugs and Crime, and INTERPOL joined with the CITES Secretariat to form the International Consortium on Combating Wildlife Crime (ICCWC) to bring support to national wildlife law enforcement agencies that are most pressed by threats of poaching and wildlife trafficking and challenged by a concurrent need for social welfare and development. In January 2014, the ICCWC helped train wildlife enforcement agents participating in Operation COBRA II—a one-month multinational wildlife law enforcement operation that resulted in over 400 arrests and more than 350 seizures.[50] The ICCWC has also led development of protocols for forensic genetic analysis of seized ivory to determine its source, helping to link purveyors of illegal goods to their supply chain and source.[51] Such analyses are important to the work of INTERPOL’s Environmental Security Subdirective, which makes itself available to CITES governments in crisis by deploying Incident Response Teams and Investigative Support Teams at the request of a member country.[52]

Perhaps the most interesting development in the realm of enforcement has been the UN Security Council’s adoption of Resolutions 2134 and 2136 in January 2014. Resolution 2136 renewed the arms embargo and related sanctions imposed on the Democratic Republic of the Congo until 1 February 2015, and authorized targeted sanctions against poachers and wildlife product traffickers.[53] Resolution 2134 authorized similar actions to be taken in the Central African Republic.[54] The imposition of these sanctions raises several questions for the immediate future of CITES: Should we expect wildlife trafficking to become more widely recognized by the Security Council as a major contributing factor to threatened peace and security in other areas of Africa or even Southeast Asia? How effective can these remedial actions be at curtailing wildlife crimes in the face of a “pervasive breakdown in law and order?”[55]

1. WTO: Doha and the Trade Facilitation Agreement

To strengthen global protections for endangered species like the African elephant, we will need to look beyond CITES to less conventional sources for addressing environmental concerns. One promising, but largely overlooked, source is the World Trade Organization and its enforcement capacity in implementing the new Trade Facilitation Agreement (TFA), introduced in the Doha Round and adopted last fall. Among the issues addressed in the TFA are: norms for the publication of laws, regulations and procedures; disciplines on fees and charges; pre-arrival processing of goods; uniformity in border procedures; simplified transit procedures; and provisions for customs cooperation and coordination.[56] Additionally, the preamble to the TFA specifically identifies itself as both “recognizing the particular needs of developing and especially least-developed country Members and desiring to enhance assistance and support for capacity building in this area,” and “recognizing the need for effective cooperation among Members on trade facilitation and customs compliance issues.”[57]

In addition to the goal of liberalizing trade in environmental goods and services, the Doha negotiations on trade and environment focused on the goals of building collaborative relationships between the WTO and multilateral environmental agreements to ensure consistency across their policies.[58] The TFA furthered these goals by requiring that WTO Members publish their importation, exportation, and transport procedures, as well as any fees and charges imposed in connection with these procedures. To better meet Doha’s goals, these documents reported in compliance with the TFA should be shared with the CITES Secretariat and jointly analyzed to help inform both Secretariats of countries and ports where underreporting may be an issue or where anomalies such as concurrent short dwell times and high shipping charges for cargo may suggest foul play.[59]

At bottom, fulfilling the TFA’s goals for increasing trade and addressing customs compliance issues will require far more effective border controls than are currently in place in major African port cities. Port cities should be the primary focus for these controls because current estimates predict that up to 90 percent of ivory seized in Africa is bound for East Asia,[60] and the majority of this Asian-bound ivory is trafficked by sea.[61] To improve efficiency, the process must be revised to increase speed while maintaining a standard minimum level of procedural quality.

1. Technology-Based Solutions for Customs Compliance and CITES Enforcement

One means of streamlining processes to enhance compliance and efficiency at borders is through technology-based solutions. Increasing availability of intelligence data on listed trafficking suspects, which can be stored and shared in a wireless “cloud,” can help ensure that customs agents are aware of their passing and inspect their shipping containers more thoroughly. Ideally, these inspections would include additional technology-based solutions such as radio-frequency identification (RFID) chip scanning and forensic DNA sampling of animal products to verify claims of legal acquisition. To demonstrate the utility of forensic testing for identifying mismatches in reporting and enforcement, DNA testing of ivory seized in Asia has frequently traced it back to Tanzania, and specifically to the Selous Game Reserve (where nearly 66 percent of the park’s population, or approximately 25,000 elephants, disappeared between 2009-2013).[62] Despite the sudden drop in Tanzania’s elephant population, only two large-scale seizures were made in the country between 2002-2011, according to data reported to the Elephant Trade Information System (a program under CITES) while 28.6 tons of ivory seized in Asia were forensically traced to Tanzania during the same timeframe.[63]

Advances in information-sharing and data-analysis technologies can help us to not only build a body of shared collaborative data between the WTO and environmental secretariats, but also to move beyond the misconception that patrolling park rangers are the first line of enforcement against poachers. While this may have been true when CITES was adopted, and poaching efforts were more fragmented and localized, it no longer applies. What was once a crime dominated by local hunters seeking bush meat and ivory to trade in an urban black-market has become the province of transnational organized criminal networks. The first line of defense now lies with those collecting and analyzing intelligence on wildlife trade syndicates and predicting their moves.

Though many perceive the threat of wildlife trafficking and endangered species extinctions as a concern subordinate to trafficking in arms or drugs or political violence, the criminal groups involved in all of these are highly interconnected and often the same. C4ADS (Center for Advanced Defense Studies) utilized the Palantir Gotham computing platform to analyze a multiplicity of data sets and elucidate networks of relatedness in illicit ivory trade. These analyses provide further evidence of the interconnectedness of criminal syndicates in wildlife trafficking, arms trafficking, and militant violence. For example, one of the top three largest ivory seizures ever recorded was traced to its sources through the connections of warlord General Laurent Nkunda (for whom the Congolese government issued an international arrest warrant for alleged war crimes and who is imprisoned in Rwanda for human rights violations) as well as those of infamous Zimbabwean arms trafficker John Bredenkamp.[64] Only ten major shipping companies, whose business information can be used to link them to their primary sources of financing, dominate the Indian Ocean shipping route utilized in the ivory trade.[65] By working backwards from this narrow starting point, it seems that further data analyses could potentially uncover a wealth of information on interconnected criminal activities and persons, in both wildlife trafficking and other illicit networks.

The type of analyses used to trace organized crime and trade networks through Africa could be extremely helpful in tracing such networks all the way into China, whose ivory market is considered the primary financial driver behind African poaching activities.[66] This conclusion is supported by the fact that a single seizure in Guangzhou in 2013 contained the tusks of nearly 1,000 elephants, and Chinese ivory traffickers have been arrested across nearly every African country with elephants.[67] Despite overwhelming evidence that Chinese trafficking syndicates are highly involved in wildlife crime, the only major Southeast-Asian wildlife trade syndicate that has been exposed to date was operating from Laos, where its kingpin remains untouchable despite the $1 million bounty the US has put on his arrest.[68]

Unfortunately, there is a dearth of agencies filling this role at present, perhaps because of the sheer amount of information in need of sorting. But to treat the wildlife trafficking crisis as a problem limited to the decades-old domestic enforcement measures encouraged by CITES text would be to turn a blind eye to the today’s reality. By allowing import and export data to be collected and handled by the WTO and shared with them, the UNEP and CITES Secretariats will not only gain a more uniform and precise source of information, but will also help developing countries to benefit more from Doha.

1. Conclusion

The crisis of illicit wildlife trade now extends beyond the confines of environmental law and policy; it pervades issues of national security, public welfare, and political and economic stability. CITES can no longer be regarded as a sufficient instrument of international law to effectively address this crisis. New levels of international cooperation, communication, and financial support must be dedicated to addressing illicit wildlife trade through additional avenues of international trade law (specifically the Protocol of Amendment to the Marrakesh Agreement inserting an Agreement on Trade Facilitation into Annex 1A) and international security (via the UN Security Council and INTERPOL).

Better enforcement and achievement of CITES’ goals can be achieved with: (1) international collaboration in strengthening border controls while still improving trade efficiency, (2) intelligence-gathering efforts to investigate criminal networks and identify key participants in the illicit wildlife trade through business connections as well as forensic DNA analysis of confiscated animal products, (3) increased numbers of wildlife product seizures and moreover, increased rates of arrest in relation to those seizures, (4) a unified effort by international judiciaries to prosecute more cases of wildlife trafficking and impose criminal sentences, (5) cooperation of CITES member governments to not knowingly harbor wildlife trafficking cartels within their borders and to protect their judges from violent public retribution for this enforcement, and (6) agreement of CITES member governments to not approve any further one-off sales of ivory or any new one-off sales of rhinoceros horn.

Collateral effects of the 2008 one-off sale of ivory to China are readily apparent in the subsequent surge of the Chinese ivory market from 2008–2014. Whether the correlation was causal or coincidental, this surge also corresponded with a surge of militant violence and political unrest throughout sub-Saharan Africa. Knowing that criminal networks are stationing syndicates across continents to move these shipments of ivory, it is unwise to launch headlong into an international effort to expedite customs procedures without creating an international plan for identifying and responding to criminal wildlife trafficking networks in international transit.

Most importantly, these international efforts must be spurred by a paradigm shift in how we conceptualize the issue of illicit wildlife trafficking. Gone are the days when CITES efficacy could be linked to a popular “Save the Whales” mentality. In order to properly combat the modern crisis of poaching and illicit wildlife trafficking, the issue must be addressed with the same level of gravity as the other organized crimes committed by the same international networks and syndicates.

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* Submissions Editor for the New York University Environmental Law Journal. Expected J.D. 2016.

[1] WWF & Dalberg, Fighting Illicit Wildlife Trafficking 9 (2014), http://www.dalberg.com/documents/WWF_Wildlife_Trafficking.pdf.

[2] International Fund for Animal Welfare, Wanted–Dead or Alive 54 (2014), http://www.ifaw.org/sites/default/files/IFAW-Wanted-Dead-or-Alive-Exposing-Online-Wildlife-Trade-2014.pdf.

[3] Id. at 49.

[4] Alexandra Andersson, China’s Appetite for Pangolin is Threatening the Creature’s Existence, Time (June 12, 2014), http://time.com/2846889/pangolins-china-cites-trafficking-endangered/; http://wwf.panda.org/?213352/Caviar-from-endangered-sturgeon-not-suitable-for-Christmas

[5] Michael Ray Harris, Home, Home On The Range, 13 ABA Endangered Species Committee Newsletter (Aug. 2012), http://www.americanbar.org/content/dam/aba/publications/nr_newsletters/es/201208_es.authcheckdam.pdf.

[6] International Fund for Animal Welfare at 32.

[7] Id. at 35.

[8] See Philippe Sands et al., Principles of International Environmental Law 472 (3d ed. 2012).

[9] See 18 U.S.C. § 42; 16 U.S.C. §§ 3371–3372.

[10] Convention on International Trade in Endangered Species of Wild Fauna and Flora art. 6, March 3^rd, 1973, 993 U.N.T.S. 243 [hereinafter CITES].

[11] CITES art. 15.

[12] See Sands et al. at 476.

[13] Id.

[14] K.O. Peppeh, Tanzania: Elephant Population in Africa’s Largest Game Reserve Under Threat, Zegabi: East Africa News (Jan. 27, 2014), http://www.zegabi.com/articles/7131.

[15] Id.

[16] WCS Supports “96 Elephants” Campaign, Wildlife Conservation Society (Sept. 26, 2013), http://www.wcs.org/press/press-releases/96-elephants.aspx.

[17] See Tom Milliken, USAID & TRAFFIC, Illegal Trade in Ivory and Rhino Horn14 (2014), http://www.traffic.org/storage/W-TRAPS-Elephant-Rhino-report.pdf.

[18] New Report Identifies Actions Needed to Curtail Illegal Ivory and Rhino Horn Trafficking, TRAFFIC (Sept. 22, 2014), http://www.traffic.org/home/2014/9/22/new-report-identifies-actions-needed-to-curtail-illegal-ivor.html.

[19] Id.

[20] Putting a Stop to Global Environmental Crime has Become an Imperative, 51 UN Chronicle (Sept. 2014), http://unchronicle.un.org/article/putting-stop-global-environmental-crime-has-become-imperative/

[21] Christine Dell’Amore, Extremely Rare White Rhino Dies in Kenya—His Kind Nearly Extinct, National Geographic (Oct. 21, 2014), http://news.nationalgeographic.com/news/2014/10/141020-rhinoceros-death-suni-kenya-science-world-endangered-animals/.

[22] Matthew Knight, Western Black Rhino Declared Extinct, CNN (Nov. 6, 2013), http://www.cnn.com/2011/11/10/world/africa/rhino-extinct-species-report/.

[23] Javan Rhinoceros, WWF Global, http://wwf.panda.org/what_we_do/endangered_species/rhinoceros/asian_rhinos/javan_rhinoceros/ (last visited May 1, 2015).

[24] Id.

[25] NATURE: Rhino Horn Use, PBS (Aug. 20, 2010), http://www.pbs.org/wnet/nature/rhinoceros-rhino-horn-use-fact-vs-fiction/1178/

[26] See Milliken at 1.

[27] See UN Chronicle.

[28] Achim Steiner, Scenario Note for the First Session of the United Nations Environment Assembly of the United Nations Environment Programme (June 23-27, 2013), U.N. Doc. UNEP/EA.1/INF/20/Rev.2 (June 23, 2013), http://www.unep.org/unea/docs/concept_note_wildlife.pdf.

[29] Varun Vira et al., C4ADS & Born Free USA, Out of Africa: Mapping the Global Trade in Illicit Elephant Ivory (2014) [hereinafter Out of Africa], http://www.wwf.se/source.php/1578610/out%20of%20africa.pdf. See also International Environmental Law and Policy 1081 (David Hunter et al. eds., 4^th ed. 2011).

[30] International Environmental Law and Policy at 1081.

[31] Id. at 1082.

[32] Id.

[33] Id.

[34] Adam Welz, Race to Save the Rhino, U. Minn. Inst. for the Env’t (Aug. 7, 2013), http://ensia.com/features/the-race-to-save-rhinos/

[35] David Daniels, Illegal Ivory Trade ‘Out of Control,’ Washington Times (Dec. 9, 2014), http://www.washingtontimes.com/news/2014/dec/9/illegal-ivory-trade-out-of-control/.

[36] Out of Africa at 47; Brian Christy, Ivory Worship, National Geographic (Oct. 2012), http://ngm.nationalgeographic.com/2012/10/ivory/christy-text.

[37] See Jason Straziuso, “Ivory for Sale in Angola; Big Tuskers Die in Kenya,” Associated Press (June 19, 2014), http://bigstory.ap.org/article/ivory-sale-angola-big-tuskers-die-kenya.

[38] E.g., Ana Swanson, How China’s Ivory Addiction Explains the New World Economy, The Washington Post (Nov. 7, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/11/07/how-chinas-ivory-addiction-explains-the-new-world-economy/; Environmental Investigation Agency, Vanishing Point: Criminality, Corruption and the Devastation of Tanzania’s Elephants (Nov. 2014), http://eia-international.org/wp-content/uploads/EIA-Vanishing-Point-lo-res1.pdf.

[39] Id.

[40] Milliken at 14; see also 16 U.S.C. § 4242 (Certification under Pelly Amendment).

[41] For example, Iceland has now been certified three times under the Pelly Amendment but continues its whaling practices. GPO, Message to the Congress on Pelly Certification and Icelandic Whaling (Apr. 2014), http://www.gpo.gov/fdsys/pkg/DCPD-201400227/pdf/DCPD-201400227.pdf

[42] Donald R. Liddick, Crimes Against Nature 49 (2011); see Switching Channels, WWF/TRAFFIC Briefing Document 4 (Dec. 2012) http://www.wwf.org.uk/filelibrary/pdf/switchingchannels.pdf.

[43] Out of Africa at 12.

[44] Id.

[45] Id.

[46] Id. at 17.

[47] See South Africa Department of Environmental Affairs, The Viability of Legalising Trade in Rhino Horn in South Africa 103 (2014), https://www.environment.gov.za/sites/default/files/docs/rhinohorntrade_southafrica_legalisingreport.pdf.

[48] Our Work, TRAFFIC, http://www.traffic.org/cites/ (last visited May 1, 2015).

[49] CITES Resolution Conf. 10.10 (Rev. CoP16): Trade in Elephant Specimens, http://cites.org/sites/default/files/eng/res/10/E-Res-10-10R16.pdf.

[50] Press Release, Lusaka Agreement Task Force and CITES Management Authority of China, African, Asian and North American Law Enforcement Officers Team up to Apprehend Wildlife Criminals, Operation COBRA II Press Release (Feb. 10, 2014), http://cites.org/sites/default/files/eng/news/sundry/2014/operation_cobra_ii_pr.pdf

[51] See U.N. Office on Drugs and Crime, Guidelines on Methods and Procedures for Ivory Sampling and Laboratory Analysis, U.N. Doc. ST/NAR/50 (Nov. 2014).

[52] International Consortium on Combatting Wildlife Crime (ICCWC), Geneva, Switzerland, July 7–11 2014, Powerpoint Presentations from Side Events Held During SC65, SC65 Inf. 27, http://cites.org/sites/default/files/eng/com/sc/65/Inf/E-SC65-Inf-27.pdf

[53] S.C.Res. 2136, U.N. Doc. S/RES/2136 (Jan. 30, 2014), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2136(2014).

[54] S.C.Res. 2134, U.N. Doc. S/RES/2134 (Jan. 28, 2014), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2134(2014

[55] See U.N. Secretary General, Report of the Secretary General on the Central African Republic Submitted Pursuant to Paragraph 22 of Security Council Resolution 2121 (2013), U.N. Doc. S/2013/677 (Nov. 15, 2013), http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2013/677.

[56] World Trade Organization, Decision Adopted by the General Council on 1 August 2004, Annex D, WT/L/579 (2004), https://www.wto.org/english/tratop_e/dda_e/ddadraft_31jul04_e.pdf.

[57] WTO Ministerial Conference Ninth Session, Ministerial Decision of 7 December 2013, WT/MIN(13)/36, WT/L/911, WTO 13-6816 (Dec. 11, 2013) (Agreement on Trade Facilitation).

[58] World Trade Organization, Ministerial Declaration of 14 November 2001, ¶ 31, WT/MIN(01)/DEC/1, 41 I.L.M. 746 (2002), https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.pdf.

[59] Out of Africa at 22–23.

[60] Out of Africa at 7.

[61] Id. at 18.

[62] Id. at 8.

[63] Id. at 13.

[64] Palantir Technologies, Investigating the Illicit Ivory Trade with Palantir Gotham, Youtube, https://www.youtube.com/watch?v=yMv3TBxulu4#t=23 (last visited May 1, 2015).

[65] Out of Africa at 19.

[66] See Wittemyer et al., Illegal Killing for Ivory Drives Global Decline in African Elephants, 111 PNAS 13117–21 (2014).

[67] Out of Africa at 7.

[68] http://www.nytimes.com/2013/11/14/world/asia/us-to-offer-reward-in-wildlife-trafficking-fight.html?pagewanted=all; see also http://eia-international.org/vixay-keosavang-an-untouchable-kingpin-of-wildlife-crime

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Gillian Schroff

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.

II. Alternative Interpretations of the RPA Provision

Following the TVA decision in 1978, courts have generally understood the ESA to prohibit an interest-balancing approach to the protection of endangered species.[14] This interpretation of the ESA is supported by the text and context of the statute. Still, conflicts often arise when development projects are restricted by the ESA.[15] There are those who argue that all species are inherently valuable and ought to be protected, while others believe that changing conditions and social development are more important than preserving those species that cannot adapt.[16] The various groups involved in these conflicts struggle to compromise because of their diametrically opposed views as to the value of species.[17]

This difference in priorities extends to the circuit courts of appeals. For example, as described above, the Ninth Circuit determined in San Luis that RPAs need not address third party economic consequences.[18] In Dow Agroscience LLC v. National Marine National Marine Fisheries Service,[19] however, the Fourth Circuit held that it was necessary to consider economic consequences in adopting an RPA.[20]

The facts of Dow are analogous to those in San Luis. The Fourth Circuit addressed the question of whether an insecticide manufacturer could challenge a Biological Opinion (BiOp) provision that limited the registration of its products based on the agency’s failure to consider economic consequences.[21] One of the manufacturer’s claims was that an RPA suggesting “buffer zones” for pesticide use was unreasonable because the National Marine Fisheries Service failed to explicitly address the economic feasibility of the buffer system.[22] The National Marine Fisheries Service argued that it did not have “‘to explain why [it] chose one recommended and prudential alternative over another.’”[23] The Fourth Circuit rejected this argument, finding that the definition of RPA in C.F.R. § 402.02 indicated that “economic feasibility” was a requirement that the Service must show.[24] Because the National Marine Fisheries Service did not discuss economic feasibility at all, the court held that the RPA was insufficient, flatly rejecting the idea that “the economic feasibility requirement [is] simply a limitation that the reasonable and prudent alternative be economically possible.”[25]

Alternatively, in San Luis, the Ninth Circuit dismissed the idea that downstream economic effects ought to be considered in the RPA analysis.[26] Initially, the district court considered the downstream effects of the RPA on water for human consumption and agricultural use. However, the Ninth Circuit concluded that FWS is simply not required to address anything other than jeopardy in its RPA analysis because, while other factors are mentioned in the regulations, they are not explicitly included in the ESA.[27] Moreover, the Ninth Circuit criticized the district court’s application of “economic feasibility” language,[28] instead holding that the feasibility requirement in the regulations applied only to the actual implementation of the RPA, not to affects on third parties.[29] Based on that interpretation, the Ninth Circuit held that FWS’s RPA was feasible because FWS’s recommendations had in fact been implemented based on an interim order and were therefore economically possible to implement.[30]

Not surprisingly, given the importance of water in drought-stricken California, this decision was met with criticism. Following the Ninth Circuit decision, the media characterized the conflict, somewhat unjustly,[31] as a “humans vs. fish battle,” in which the Ninth Circuit had chosen “environmentalists over growers.”[32] In 2014, the California State Water Project met only five percent of users’ requests for water as a result of the drought and decreased water diversions.[33] As a result of the intense public scrutiny over the decreased diversions from the delta, it is unsurprising that a private party and a water authority both petitioned for review of the Ninth Circuit’s decision in the Supreme Court. The petitioners noted the extreme economic effects of the San Luis decision and the Ninth Circuit’s failure to weigh those economic consequences.[34] They also argued that the Ninth Circuit’s failure to consider the economic consequences was in conflict with the Fourth Circuit’s holding in Dow.[35] Ultimately, the Supreme Court denied the petitions for certiorari.[36]

III. RPA Provision in Context

The ESA was designed to prevent the extinction of wildlife and plant-life,[37] but it allows some flexibility by permitting FWS to propose RPAs by which the agency can continue to pursue its action without jeopardizing endangered species. [38] In this way, RPAs balance the ESA’s goal of preserving endangered species with an agency’s goals of continuing development and implementing its action. [39] Fundamentally, an RPA “must be a measure that ‘can be taken by the Federal agency or applicant in implementing the agency’s action.’”[40]

The Ninth Circuit’s decision in San Luis reflects the appropriate standard for RPAs based on the text and context of the RPA provision. The RPA language in the ESA does not include any reference to economic considerations. The provision states: “If jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [the no-jeopardy/no adverse modification provisions] of this section and can be taken by the Federal agency or applicant in implementing the agency action.”[41] While other provisions of the ESA explicitly include economic considerations, there is no mention of economic considerations in the RPA provision.[42] Thus, the only explicit requirement for a RPA is that it must eliminate the risk of jeopardy to the endangered species.[43]

Moreover, the purpose of the ESA suggests that economic considerations are not relevant to the RPA analysis. The ESA was created because endangered species were being undervalued by society.[44] The Act allowed the government to speak for endangered species and communicate their competing demands for water allocations and other resources.[45] In fact, when the ESA was initially created, economic considerations were intentionally excluded from the Act because the focus of the legislation was on preservation, regardless of the cost involved.[46] Through subsequent amendments, Congress has continued to state that economics are not to play a role in the listing process.[47]

Accordingly, courts have consistently held that, under the ESA, the Secretary is “not even required to pick the best alternative or the one that would most effectively protect the [endangered species] from jeopardy,” as long as the alternative prevents jeopardy and it is possible for the agency to implement the alternative.[48] The Service thus has a large degree of discretion in creating RPAs, as long as jeopardy is avoided. [49] In practice, the Service’s decisions can be, and often are, influenced by politics or economics or any variety of social factors,[50] but an RPA need not explicitly include consideration of downstream economic consequences on parties who are not directly involved in the agency action.[51] Thus, an alternative may be “reasonable,” “prudent,” and “economically and technologically feasible,” even if it will have significant negative economic effects.

Significantly, the exemption process for jeopardy findings under § 1536 does provide for economic considerations through a cost–benefit analysis and a weighing of the overall effects on the public interest.[52] In fact, in the House Report for the Endangered Species Act Amendments of 1982, Congress explicitly indicated that any “balancing between science and economics should occur subsequent to listing through the exemption process.”[53] Congress explicitly stated that the exemption process include a broad range of economic criteria.[54] Moreover, Congress indicated that this exemption analysis was broader than the initial consultation process and should include a “significantly larger” search for alternatives than was required for consultation.[55]

A. The Flexible Nature of RPAs

The flexible quality of RPAs also reveals that the RPA analysis should not be read to include economic considerations. The RPA provision was adopted in response to the TVA decision as a way to add some flexibility to the ESA.[56] The RPA directive in the ESA simply states that“[i]f jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate [the no-jeopardy provision] of this section and can be taken by the Federal agency or applicant in implementing the agency action.”[57] RPAs were thus designed to provide agencies with an option to avoid the “no jeopardy” prohibition on agency action, making them permissible, rather than mandatory, alternatives.

A jeopardy determination can stop any federal action, and the adoption of an RPA is only one way by which agencies can then proceed with the action, despite the jeopardy determination.[58] In practice, FWS almost always proposes RPAs.[59] One scholar noted that a theme was that the Service consistently made an effort to find an alternative that would be feasible for the agency, both in terms of economics and general practicality.[60] This option minimizes the negatives impacts of the ESA on agencies by balancing agency interests against the Act’s preservation purpose.[61] Congress intended that the consultation process surrounding a jeopardy finding would often result in a mutually beneficial resolution,[62] and the Service’s effort to find practical alternatives illustrates that it uses RPAs to help agencies continue their actions.[63] The ESA only prohibits action that jeopardizes the continued existence of endangered species,[64] so an agency is free, upon a jeopardy finding, to independently design and implement any action that avoids such jeopardy.[65] Thus, an agency can determine whether or not to consider the economic effects of the alternative action or whether or not to implement FWS’s recommendation at all.[66] Although it has been argued that FWS’s recommended RPAs have “a powerful coercive effect on the action agency,”[67] the agency remains free, under the law, to develop its own solution. [68]

Overall, RPAs are only one of many tools available to agencies when they are facing a jeopardy determination. The flexible and permissive nature of RPAs, and the fact that they are not mandatory, demonstrate that there is no need to consider downstream economic effects within the RPA analysis. In addition, as explained above, the exemption provision in § 7 already considers downstream economic effects in those exceptional cases in which such an analysis is necessary. [69]

B. Consequences of a Broader Standard

Because the RPA option was created as a way to allow agency actions to proceed despite a jeopardy finding, foreclosing the ability to find RPAs in some circumstances would decrease the likelihood that agencies could proceed with actions after a jeopardy finding. In fact, the agency could even be forced to forgo its action if the Service determines that there are no RPAs.[70] At that point, an agency’s only option would be the exemption process, which is already available in the rare circumstances when it is necessary to weigh additional factors that are not included in the consultation process.

Changing the RPA analysis to include downstream economic effects would also upset the existing balance in § 7. RPAs allow agencies to proceed under § 7 despite a jeopardy determination, and making this allowance more demanding would increase the power of the jeopardy finding, making § 7 stricter overall. This change would similarly increase the strength of the exemption provision as agencies come to rely on it more as the only option for avoiding the jeopardy determination.

Perhaps most importantly, adding this additional requirement may not have any effect on the Service’s behavior. FWS likely already considers these economic factors implicitly.[71] As Congress has recognized “there is some degree of flexibility in Section 7,” and FWS has significant discretion in determining when and how to enforce its provisions.[72] Thus, because making the analysis of economic effects explicit only complicates procedures under the statute and impairs the functioning of the RPA process, while potentially expanding the exemption process, the RPA analysis should not include a consideration of downstream economic consequences.

IV. Conclusion

The Ninth Circuit correctly determined in San Luis that the RPA analysis need not include a consideration of downstream economic consequences. The ESA’s preservation intent indicates that economics are largely irrelevant under the Act. In addition, the purpose of RPAs and the exemption provisions of § 7 demonstrate that economic considerations are not necessary in the RPA process because agencies can pursue these considerations in other ways. Finally, considering economics in § 7 would fundamentally alter the functioning of the ESA, without necessarily providing any benefit to the private parties. Thus, requiring consideration of downstream economics in RPAs is simply not the answer to California’s water problem. The delta smelt is an indicator species, reflecting the health of the Delta ecosystem, and its endangered status demonstrates that the water system is deteriorating. [73] Rather than blaming the threatened delta smelt and the ESA for California’s water problems, the parties must begin to craft a solution in light of drought that will maintain the water system for use by endangered species and humans. [74]

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[1] 16 U.S.C. § 1536.

[2] Kate Galbraith, Threatened Smelt Touches Off Battles in California’s Endless Water Wars, N.Y. Times, Feb. 2015, available at http://www.nytimes.com/2015/02/15/us/threatened-smelt-touches-off-battles-in-californias-endless-water-wars.html.

[3] Kyle Roberson, One Fish, Two Fish, More Fish, No Water: Granting an Exemption Under the Endangered Species Act Due to Economic Woes in the Central Valley of California, 19 San Joaquin Agric. L. Rev. 169, 172–73 (2010) (internal quotation marks omitted).

[4] Id. at 173–74.

[5]Id. at 193.

[6] Roberson, supra note 3, at 173–74; Natural Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322, 322–387 (E.D. Cal. 2007).

[7] Id. at 598–99.

[8] Id. at 600–01.

[9] 747 F.3d 581 (9th Cir. 2014).

[10] 437 U.S. 153 (1978).

[11] Id. at 184.

[12] See Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., 707 F.3d 462 (4th Cir. 2013).

[13] San Luis, 747 F.3d at 636–37.

[14] Fedrico Cheever, Butterflies, Cave Spiders, Milk-Vetch, Bunchgrass, Sedges, Lilies, Checker-Mallows and Why the Prohibition Against Judicial Balancing of Harm Under the Endangered Species Act Is A Good Idea, 22 Wm. & Mary Envtl. L. & Pol’y Rev. 313, 313 (1998).

[15] Jon A. Souder, Chasing Armadillos Down Yellow Lines: Economics in the Endangered Species Act, 33 Nat. Resources J. 1095, 1110 (1993).

[16] Id. at 1096.

[17] Id. at 1110.

[18] See San Luis and Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 636–37 (9th Cir. 2014).

[19] 707 F.3d 462 (4th Cir. 2013).

[20] Id. at 474–75.

[21] Id. at 464.

[22] Id. at 473–74.

[23] Id. at 474 (quoting Southwest Center for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 523 (9th Cir. 1998)).

[24] Id.

[25]Id. at 474–75.

[26] See San Luis and Delta-Mendota Water Authority v. Jewell, 747 F.3d 581, 636–37 (9th Cir. 2014).

[27] Id. at 635–36.

[28] Id. at 636.

[29] Id.

[30] Id. at 637.

[31] While the San Luis decision may have further decreased the water available to farmers, California’s drought is the primary reason that farmers are suffering. Endangered species are sometimes compared to the “canary in the coal mine,” indicating that agency policy is posing “imminent harms to public welfare.” Zygmunt Plater, Classic Lessons from A Little Fish in A Pork Barrel-Featuring the Notorious Story of the Endangered Snail Darter and the TVA’s Last Dam, 32 Utah Envtl. L. Rev. 211, 239 (2012). In this case, perhaps the delta smelt is best viewed as the “canary in the coal mine” indicating that California is suffering from extreme water shortages that cannot be resolved by water diversions.

[32] Dan Levine, In Drought-Stricken California, Court Rules Smelt Fish Get Water, Reuters, Mar. 2014, available at http://www.reuters.com/article/2014/03/13/us-usa-california-water-idUSBREA2C1MB20140313.

[33] Galbraith, supra note 2.

[34] Petition for Writ of Certiorari at *4–*5, State Water Contractors v. Jewell, No. 14-402, 2015 WL 132973 (U.S. Jan. 12, 2015), 2014 WL 5017959; Petition for Writ of Certiorari at *2, Stewart & Jasper Orchards v. Jewell, No. 14-377, 2015 WL 132972 (U.S. Jan. 12, 2015), 2014 WL 4948941.

[35] Petition for Writ of Certiorari at *21–*26, State Water Contractors, 2015 WL 132973 (U.S. Jan. 12, 2015), 2014 WL 5017959; Petition for Writ of Certiorari at *19–*21, Stewart & Jasper Orchards, No. 14-377, 2015 WL 132972 (U.S. Jan. 12, 2015), 2014 WL 4948941.

[36] State Water Contractors v. Jewell, No. 14-402, 2015 WL 132973 at *1 (U.S. Jan. 12, 2015);

Stewart & Jasper Orchards v. Jewell, No. 14-377, 2015 WL 132972 at *1 (U.S. Jan. 12, 2015).

[37] Jacquelyn V. Raley, Narrow Mouth Toad v. Too Narrow Road: Maryland’s First Attempt at Balancing the Protection of Endangered Species with the Protection of Public Safety, 5 U. Balt. J. Envtl. L. 193, 193 (1995).

[38] 16 U.S.C.A. § 1536(b)(3)(A) (2012).

[39] Hannah Gosnell, Section 7 of the Endangered Species Act and the Art of Compromise: The Evolution of A Reasonable and Prudent Alternative for the Animas-La Plata Project, 41 Nat. Resources J. 561, 568 (2001).

[40] Dow AgroSciences LLC v. Nat’l Marine Fisheries Serv., 707 F.3d 462, 474 (4th Cir. 2013).

[41] 16 U.S.C. § 1536(b)(3)(A) (2012).

[42] See, e.g., Id. § 1533(b)(2) (designation of critical habitat).

[43] See Robert S. Nix, Bennett v. Spear: Justice Scalia Oversees the Latest “Battle” in the “War” Between Property Rights and Environmentalism, 70 Temp. L. Rev. 745, 774 (1997) (“[There is no textual support in section seven, or the rest of the ESA, for the proposition that the economic interests of the plaintiff-private landowners fall under the zone of interests protected by section 1536.”).

[44] Jason F. Shogren & Patricia H. Hayward, Biological Effectiveness and Economic Impacts of the Endangered Species Act, 32 Land & Water L. Rev. 531, 532 (1997).

[45] Roberson, supra note 3, at 169–70.

[46] Shogren & Hayward, supra note 54, at 537.

[47] See, e.g., H.R. Conf. Rep. No. 97-835, at 19 (1982), reprinted in 1982 U.S.C.C.A.N. 2860, 2860. (“The principal purpose of these amendments is to ensure that decisions in every phase of the process pertaining to the listing or delisting of species are based solely upon biological criteria and to prevent non-biological considerations from affecting such decisions.”)

[48] See, e.g., Sw. Ctr. for Biological Diversity v. U.S. Bureau of Reclamation, 143 F.3d 515, 523 (9th Cir. 1998).

[49] Gosnell, supra note 15, at 576–77.

[50] Id.

[51] See, e.g., Brief for the Federal Defendants in Opposition at *15–*18, Stewart & Jasper Orchards v. Jewell, No. 14-377, 2015 WL 132972 (U.S. Jan. 12, 2015) and State Water Contractos v. Jewell, No. 14-402, 2015 WL 132973 (U.S. Jan. 12, 2015), 2014 WL 7169717.

[52] 16 U.S.C. § 1536(h) (2012)

[53] H.R. Rep. No. 97-567, at 11 (1982), reprinted in 1982, 1982 U.S.C.C.A.N. 2807, 2811.

[54] H.R. REP. No. 95-1625, at 22 (1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9472 (explaining that the exemption process should include considerations of “(1) the cost impact on consumers, business markets, federal, state, and local governments; (2) the effect on productivity of wage earners, businesses and government; (3) the effect on competition; (4) the effect on supplies of important materials, products, and services; (5) the effect on employment; and (6) the effect on energy supply and demand”).

[55] Id. (“During the consultation process, the Secretary and the federal agency are required to evaluate a narrower range of possible alternatives to the proposed action.”).

[56] Gosnell, supra note 15, at 569.

[57] 16 U.S.C. § 1536(b)(3)(A) (2012).

[58] Reed D. Benson, So Much Conflict, Yet So Much in Common: Considering the Similarities Between Western Water Law and the Endangered Species Act, 44 Nat. Res. J. 29, 48–49 (2004).

[59] Gosnell, supra note15, at 562–63.

[60] Id. at 575 (citing See Oliver A. Houck, The Endangered Species Act and Its Implementation by the U.S. Departments of Interior and Commerce, 64 U. Colo. L. Rev. 278, 319–20 (1993)).

[61] Gosnell, supra note 15, at 576 (“[T]he FWS has relied on identifying reasonable and prudent alternatives to questionable projects subject to Section 7 consultation as a way of minimizing the impact of the law and appeasing developers.”); Robin Kundis Craig, Does the Endangered Species Act Preempt State Water Law?, 62 U. Kan. L. Rev. 851, 877 (2014) (“[T]he Section 7 consultation process can often mitigate conflicts that exist between the exercise of the federal agency’s water rights and species protections, either through reasonable and prudent alternatives or Incidental Take Statements or both.”).

[62] H.R. Rep. No. 95-1625, at 12 (1978, reprinted in 1978 U.S.C.C.A.N. 9453, 9462 (“The evidence presented to the committee suggests that in many instances good faith consultation between the acting agency and the fish and wildlife service can resolve many endangered species conflicts.”).

[63] Id. (citing See Houck, supra note 64, at 319–20).

[64] 16 U.S.C. § 1536(a)(2) (2012).

[65] See, e.g., Gosnell, supra note 15, at 590.

[66] Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410, 1418 (9th Cir. 1990) (An “agency is given discretion to decide whether to implement conservation recommendations put forth by the FWS.”); Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1014 (9th Cir. 2012), as amended (Sept. 17, 2012).

[67] Bennett v. Spear, 520 U.S. 154, 169 (1997)

[68] H.R. Rep. No. 95-1625, at 12 (1978), reprinted in, U.S.C.C.A.N. 9453, 9462 (“Any determination by the fish and wildlife service that the activity may jeopardize the continued existence of listed species does not necessarily mandate any particular action by the acting agency.”).

[69] Id. at 183.

[70] Gosnell, supra note 15, at 568.

[71] Gosnell, supra note 15, at 576–77.

[72] H.R. Rep. No. 95-1625, at 11 (1978), reprinted in 1978 U.S.C.C.A.N. 9453, 9461.

[73] Roberson, supra note 3, at 195; Craig, supra note 61, at 890.

[74] See Roberson, supra note 3, at 197.