Category: Environmental Law Review Syndicate

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 Kyle Burns J.D. Candidate, 2017, University of Virginia School of Law

Introduction

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

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

I. Environmental Law in the United States

The United States Constitution is “pre-ecological.”[1] That is, it contains no reference, either explicit or implicit, to environmental concerns.[2] As a result, federal environmental law in the United States is entirely statutory. “[I]n response to rising public consciousness during the 1950s and 1960s of the perils of pollution and of the waste of natural resources,” a multitude of environmental laws arose during the 1970s that transformed the landscape for environmental law.[3] These statutes constituted a “quasi-constitutional reordering” of federal law.[4]

Four U.S. laws stand out as most prominent: the National Environmental Policy Act, Endangered Species Act, Clean Water Act, and Clean Air Act. The National Environmental Policy Act[5] (“NEPA”) has been referred to as “the Magna Carta of environmental protection.”[6] NEPA set the environmental policy of the federal government, regulating federal agencies.[7] Its requirements include an Environmental Impact Statement “for all proposals for legislation and other major federal actions which may significantly affect the quality of the human environment.”[8] The Endangered Species Act[9] (“ESA”) was heralded as “a rudimentary bill of rights for biodiversity.”[10] It “unsettled existing standards of conduct,” creating an absolute mandate that federal agencies not jeopardize the continued existence of endangered or threatened species or adversely modify their habitat.[11] The central purpose of the Act was to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”[12] As a result of its strong protections, the ESA “remains a strong tool for species preservation, and it has earned its eco-centric stripes.”[13] The Clean Water Act[14] (“CWA”) “succeeded a failed 1965 federal law and a common law regime that applied often vague and indeterminate nuisance concepts and maxims of equity jurisdiction.”[15] Congress passed the CWA with the purpose of “[protecting] and [restoring] the chemical, physical, and biological integrity of the Nation’s waters.”[16] Its main policy, to eliminate all discharges of pollution into the nation’s waters by 1985, was “perhaps the boldest undertaking … of any environmental law.”[17] It aspired to achieve fishable and swimmable waters everywhere by 1983.[18] The Clean Air Act[19] (“CAA”) differs slightly from the other statutes, focusing more on human health than on purely ecological interests.[20] The CAA is meant “to protect the nation’s air quality so as to promote the public health and welfare and the productive capacity of its population.”[21] The main feature of the statute, the National Ambient Air Quality Standards, is cost-blind, protecting air quality even in the face of great economic cost.[22] These four statutes form the bedrock of American environmental law, creating the foundation upon which the last four decades of environmental protection efforts in the United States have been built.

II. Environmental Rights Abroad

Looking outside the United States, one finds a diverse array of environmental law regimes around the world. Three nations in particular––South Africa, India, and Nigeria––stand out as worthwhile case studies. Each nation provides a different perspective on how environmental rights can be enshrined in different ways in constitutions, and the manners in which those guarantees are translated into rights––or, how the promise of environmental protection sometimes fails to translate into enforceable rights

A. South Africa

The Constitution of the Republic of South Africa contains an explicit environmental right in Section 24. Section 24 is in Chapter 2 of the Constitution, which contains its Bill of Rights. It reads:

Everyone has the right––

(a) To an environment that is not harmful to their health or well-being; and

(b) To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that––

(i) Prevent pollution and ecological degradation;

(ii) Promote conservation; and

(iii) Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.[23]

In concert with Section 7(2),[24] this provision creates an affirmative duty for the South African government to take action towards its fulfillment.[25] The exact content of that duty, though, is imprecise and requires a fair amount of judicial interpretation: “The evolution of constitutional environmental law heavily relies on the ability of, and opportunity for the courts to concretize the (often elusive) meaning of all rights that may have a bearing on the environment.”[26] Most often, the Constitutional Court––the highest court in South Africa––decides these questions.[27]

Stemming from Section 24 is the National Environmental Management Act (“NEMA”), South Africa’s primary environmental framework law.[28] The statute “provides generic provisions (including environmental management principles) regulating all environmental media and sectors and all public and private actions which may affect the environment.”[29] The definition of “environment” for the purposes of Section 24 is included in NEMA.[30] That definition “transcends mere ecological interests,” extending to “the socioeconomic and cultural dimensions of the inter-relationship between people and the natural environment.”[31] Despite the inclusion of statutes such as NEMA in the environmental law regime in South Africa, “[t]he entire South African environmental law and governance framework is premised on the [constitutional] environmental right.”[32] It is “the rationale behind, justification for, and foundation and impetus of environmental governance in South Africa.”[33]

A noteworthy feature of South African law is the standing requirement. The Constitution confers standing upon the following people:

(a) Anyone acting in their own interest;

(b) Anyone acting on behalf of another person who cannot act in their own name;

(c) Anyone acting as a member of, or in the interest of, a group or class of persons;

(d) Anyone acting in the public interest;

(e) And an association acting in the interest of its members.[34]

The most prominent aspect of this broad standing doctrine is the ability of any person to bring an action in the name of the public interest. The “almost non-exhaustive” provisions allows for class actions suits, actions on behalf of unidentifiable classes, and suits on behalf of groups of people, protecting and enforcing their environmental rights.[35] This means that “the environmental right is sufficiently comprehensive and all-encompassing to provide ‘everyone’ in South Africa with the possibility of seeking judicial recourse in the event that any of several potential aspects related to the right or guarantee derived therefrom is infringed.”[36] This remarkably broad standing requirement is perhaps even more important than the constitutional guarantee itself, giving essentially any person in the nation the ability to bring a suit in order to secure environmental protection pursuant to Section 24. It contrasts sharply with the restrictive standing requirements in the United States, discussed infra, in Part III.

B. India

India’s constitution and environmental rights jurisprudence presents a particularly interesting case. While the Constitution of India does explicitly reference the environment and environmental rights, it does so in a section of the constitution that is unenforceable. Article 48A, titled “Protection and improvement of environment and safeguarding of forests and wild life,” reads, “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”[37] Article 51A instructs, “It shall be the duty of every citizen of India … to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.”[38] While these seem like powerful and instructive provisions upon first reading them, the source of these rights constrains their application. Article 37 unambiguously makes these provisions unenforceable: “The provisions contained in [Part IV] shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”[39] Thus, the Indian Constitution’s explicit reference to the environment is rendered ineffective due to its non-justiciability.

This did not stop Indian courts from finding an enforceable right to a clean environment for Indian citizens. The Supreme Court of India, as well as some lower courts, has interpreted a constitutional right to a healthy environment from the constitutional right to life.[40] Article 21 of the Indian Constitution protects the right to life: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[41] The Court first implied that the right to a healthy environment was fundamental and cognizable under Article 21 in the Dehradun Quarrying Case of 1983,[42] when, in response to a claim that illegal limestone mining was damaging the ecosystems in the Dehradun region, the Court directed its clerk to treat the letter as a writ petition under Article 32––the provision that lays out remedies for violations of fundamental rights.[43] While the Court did not explicitly find that environmental protection is a fundamental right, “exercise of Article 32 jurisdiction presupposed the infringement of a fundamental right.”[44]

Following the Dehradun Quarrying Case, lower courts (specifically, the High Courts) reiterated this interpretation of Article 21. In T. Damodar Rao v. The Special Officer, Municipal Corporation of Hyderabad, one High Court held,

[I]t would be reasonable to hold that the enjoyment of life and its attainment and fulfilment [sic] guaranteed by Art. 21 of the Constitution embraces the protection and preservation of nature’s gifts without [which] life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Art. 21 of the Constitution. The slow poisoning [of] the polluted atmosphere caused by environmental pollution and spoilation [sic] should also be regarded as amounting to [a] violation of Art. 21 of the Constitution.[45]

The court also determined that the Supreme Court’s decision in the Dehradun Quarrying Case “can only be understood on the basis that the Supreme Court entertained those environmental complaints under Art. 32 of the Constitution as involving violation of Art. 21’s right to life.”[46] Several other High Courts came to the same conclusions about the meaning of the Supreme Court’s decision and the proper interpretation of Article 21.[47]

Finally, in Subhash Kuimar v. State of Uttar Pradesh, the Indian Supreme Court expressly determined that Article 21 includes a right to a clean environment: “any action that would cause environmental, ecological, air, water pollution, etc., should be regarded as amounting to a violation of Article 21.”[48] In so deciding, the Court reasoned that, “life in its proper dimension could not be enjoyed unless the ecological balance and the purity of air and water were preserved.”[49]

This extension of the fundamental rights doctrine makes sense in the context of the Indian Supreme Court’s jurisprudence. The Court had previously declared that the right to life “includes the right to live with human dignity and all that goes along with it.”[50] It also declared that fundamental rights “‘weave together a pattern of human rights guarantees’ that are not mutually exclusive and distinct.”[51] Despite the lack of an express, justiciable constitutional right to a clean environment, Indian citizens secured a powerful right to the environment through their Supreme Court and its decision to enforce the right to life and personal liberty in the context of environmental harms

C. Nigeria

Nigeria presents still a different case. The Nigerian Constitution, like the Indian Constitution, contains an explicit environmental reference in the section that lays out policy directives, rather than fundamental rights (or otherwise justiciable rights). Its Section 20 states, “The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria.”[52] This section is contained in the chapter entitled “Fundamental Objectives and Directive Principles of State Policy,” indicating its status as a policy position rather than a guarantee of environmental protection.[53] However, the inclusion of this policy directive carries an implication that “the State recognises the intimate linkages between the environment and human rights and that the failure of the State to protect the environment may interfere with individual human rights.”[54] In addition, the Supreme Court of Nigeria has declared that constitutional policy directives may be made justiciable through an act of the legislature.[55]

There have been efforts in Nigeria to find a right to a clean environment through the constitutional right to life and dignity and through international law, specifically the African Charter on Human and Peoples Rights.[56] A Federal High Court refused to find such a right in Okpala v. Shell Petroleum Development Company (SPDC).[57] The Court did not decide on the question of whether there is a right to a clean environment through the constitutional right to life and dignity, instead deciding that the Applicants could not sue on behalf of the community or in a representative capacity, restricting standing in fundamental rights cases to individuals bringing suits on their own behalf.[58] In addition, the Court also refused to find an enforceable right to a clean and healthy environment through the African Charter, holding that the rights guaranteed under the African Charter were not covered within the definition of fundamental rights under the scope of Section 46(1) of the 1999 Constitution, which gives citizens a right to sue for redress of a violation of fundamental rights.[59]

Nigeria is a case study in unrealized potential. Its Supreme Court has the opportunity to find an enforceable right to the environment for its people, either through its own constitution or through the African Charter. But, the Court has refused. Between an unwilling judiciary and a corrupt government that has paid little attention to the environmental catastrophes in the Niger Delta,[60] the Nigerian Constitution’s promise of environmental protection will go unfulfilled.

III. Translating Rights into Enforcement

The experiences of South Africa, India, and Nigeria demonstrate that the promise of environmental protection or environmental rights does not always translate into rights on the ground. What one finds instead is that the way in which environmental protection is secured in national laws (i.e. in a constitution or in statutes) is not the dispositive factor; both can provide effective and powerful means of securing environmental benefits. Instead, it is the availability and potency of enforcement that determines how effective an environmental protection regime will be. In the end, as often occurs, the power lies with the judiciary.

Sometimes, the enforcement problem is inherent in constitutional provision itself. Rather than creating a justiciable right, the constitution instructs the legislature to take action, without prescribing a remedy in the event the legislature is inactive. The environmental provision in India’s constitution was of this type, serving as an explicitly unenforceable policy directive, leaving Indian citizens without a constitutional environmental right until the Indian judiciary found it elsewhere in the constitution. This is also the case in Nigeria, which remains without an enforceable environmental right. Even when a constitution instructs that a legislature “shall” take action––rather than using the more permissive “may”––in an attempt to impose a duty on the legislature to act, courts may still be unwilling or unable to force action upon the legislature.[61] In this way, statutes seem preferable to constitutions, as they do not suffer from the fault of unenforceability or non-justiciability.

This discussion brings the analysis back to environmental law in the United States, where enforcement is crucial and contested.[62] While environmental protection has never reached constitutional status, its presence at the statutory level is not inherently constraining on the force of the prospective right. For instance, NEPA’s language was powerful, broad, and sweeping. The Act’s first section recognized “the profound impact of man’s activity on the interrelations of all components of the natural environment,” declaring it the federal government’s policy “to use all practicable means and measures … in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”[63] NEPA made it the “continuing responsibility” of the federal government to direct its national policy in a way that made it possible for the nation to “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations,” “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences,” and “enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources,” among other objectives.[64] It reads like a constitutional promise of environmental rights (perhaps the source of its “Magna Carta of environmental protection” nickname).

However, the promise of NEPA still fell short, and it failed because the Supreme Court gutted the significance of this language. When NEPA came before the Court, it put an end to the prospect for substantive interpretation of NEPA’s requirements, characterizing NEPA as “essentially procedural.”[65] In addition, the Court stated that NEPA did not allow courts to substitute their judgment for an agency’s or to elevate environmental factors over any other appropriate factors, despite the strong and unambiguous language in the Act’s first section.[66] In Strycker’s Bay Neighborhood Council v. Karlen, for instance, the Court struck down the Second Circuit’s use of NEPA for “the substantive standards necessary to review the merits of agency decisions,” instead holding that NEPA was merely procedural, meant to “insure a fully informed and well-considered decision.”[67] As of 2015, in the seventeen cases that the Court has decided on the merits regarding NEPA, those bringing actions on behalf of environmental interests have never succeeded.[68] NEPA could have been read to guarantee positive rights, even a “proto-constitutional” right to environmental protection.[69] It did not matter that NEPA was a statute. What mattered was the Court’s treatment of its language and refusal to take the promises of its first section seriously.[70]

The citizen suit is an innovation of U.S. environmental law. Citizen suits allow ordinary citizens to sue either the government or private actors for violations of federal environmental laws, including ESA, CWA, and CAA.[71] It provided a mechanism for enforcement, even when the government failed to act.[72] Judges could grant plaintiffs in citizen suit actions injunctive relief and civil remedies against violators of environmental laws, providing not just a justiciable claim but a remedy for those claims as well.[73] Citizen plaintiffs may also recover attorney’s fees and litigation costs, removing common disincentives for would-be plaintiffs to take action.[74]

But, the Supreme Court restricted the availability of citizen suits by tightening the standing requirement. In Lujan v. Defenders of Wildlife, the court denied standing to a citizen suit plaintiff in an Endangered Species Act case.[75] The Court specified that a plaintiff must have an injury in fact (which is “actual or imminent, not conjectural or hypothetical”); there must be a causal connection between the alleged injury and the action complained of; and it must be likely (not merely speculative) that the injury is redressed by a favorable decision.[76] The plaintiff bears the burden of proving all three of these elements.[77] The Court rejected the plaintiffs’ claim for standing on the basis that it did not adequately allege an injury in fact.[78] The plaintiffs’ alleged injury was that the action in question would increase the rate of extinction of endangered and threatened species.[79] The Court held that this was not sufficient.[80] The plaintiffs were instead required to “submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents’ members would thereby be directly affected apart from their special interest in the subject.”[81] The plaintiffs also failed to demonstrate redressability, as they attacked the Government’s action broadly and generally, rather than challenging specific projects that would bring them harm.[82] In denying the Lujan plaintiffs standing, the Court “sent a message to environmentalists and other public interest advocates that it would be tougher in policing limits on judicial access than in the past.”[83] It restricted the availability of citizen suit enforcement, which was intended to give the public the power to enforce environmental statutes. This stands in stark contrast to South Africa, where standing is virtually limitless.[84]

While some advocate for an environmental amendment to the United States Constitution, arguing that “[p]rotection of the environment has now become an urgent responsibility to which our traditional legal system responds inadequately,”[85] it is unclear whether such an amendment would have a profound impact. The experiences both at home and abroad demonstrate that the power to determine the strength of environmental rights lies with the judiciary. If the U.S. experience to date is any indication, between gutting the substance of NEPA and restricting the availability of standing for citizen suit plaintiffs, even a strong environmental amendment would likely face intense scrutiny from courts, especially the Supreme Court, who may still find a way to truncate the guarantees of the amendment and the availability of enforcement for the rights therein.

Conclusion

When breaking down the environmental law regimes of nations from around the world, two things become undeniably clear: enforcement matters, and the power ultimately rests with the judiciary. Even though the U.S. Constitution lacks any environmental provision, the environmental protections guaranteed by four major federal environmental statutes (alongside the many others) reach constitutional levels. Those laws, as written and intended, provide broad, sweeping guarantees, establishing the new environmental policy of the nation and securing environmental quality for its people. It was not until the courts defanged those laws via standing requirements that they lost their original luster and possibility. Though it may seem that environmental rights are better protected when located in the nation’s constitution, the experiences of the United States, South Africa, India, and Nigeria readily demonstrate that this is not the case. Both constitutional and statutory rights can succeed and both can fail. Instead, the judiciary––often, the nation’s highest court––ultimately determines whether the guarantees of those laws and their impressive language translate into actionable rights. Often, the promise is left unfulfilled.

 

[1] Jonathan Z. Cannon, Environment in the Balance 29 (2015).

[2] Id.

[3] Richard J. Lazarus, The Greening of America and the Graying of United States Environmental Law: Reflections on Environmental Law’s First Three Decades in the United States, 20 Va. Envtl. L.J. 75, 76–77 (2001).

[4] Cannon, supra note 1, at 33.

[5] 42 U.S.C. § (2012).ion 2014ction span (rather than et seq) law studentse on Federal Sentencing, taken of 2017. client?§ 4321–70m (2012).

[6] Cannon, supra note 1, at 34.

[7] Id.

[8] Joseph C. Sweeney, Protection of the Environment in the United States, 1 Fordham Envtl. L. Rep. 1, 15 (1989) (internal quotation marks omitted).

[9] 16 U.S.C. § 1531–44 (2012 & Supp. 2014).75jan. Hillearra Clubtitlementrectionsthird-year law studentse on Federal Sentencing, taken of 2017. client?

[10] Cannon, supra note 1, at 35.

[11] Lazarus, supra note 3, at 79.

[12] J.B. Ruhl, Keeping the Endangered Species Act Relevant, 19 Duke Envtl. L. & Pol’y F. 275, 280 (2009).

[13] Cannon, supra note 1, at 35.

[14] 33 U.S.C. §§ 1251–388 (2012 & Supp. 2014).

[15] David Drelich, Restoring the Cornerstone of the Clean Water Act, 34 Colum. J. Envtl. L. 267, 269 (2009).

[16] Cannon, supra note 1, at 35 (internal quotation marks omitted).

[17] Id.

[18] Lazarus, supra note 3, at 78.

[19] 42 U.S.C. §§ 7401–7671q (2012 & Supp. 2014).

[20] Cannon, supra note 1, at 36.

[21] Id. (internal quotation marks omitted).

[22] Id.

[23] S. Afr. Const. ch. 2, § 24 (1996).

[24] Id. § 7(2) (“The state must respect, protect, promote and fulfill the rights in the Bill of Rights.”).

[25] Louis J. Kotzé & Anél du Plessis, Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in South Africa, 3 J. Ct. Innovation 157, 158 (2010).

[26] Id.

[27] Id. at 161.

[28] Id. at 164, n.24.

[29] Id.

[30] See id. at 166.

[31] Id.

[32] Id.

[33] Id.

[34] S. Afr. Const., ch. 2, § 28 (1996).

[35] Kotzé & Plessis, supra note 25, at 163–64.

[36] Id. at 168.

[37] India Const. pt. IV, art. 48A (1949).

[38] Id. pt. IVA, art. 51A(g).

[39] Id. pt. IV, art. 37.

[40] See Peggy Rodgers Kalas, Environmental Justice in India, 1 Asia-Pac. J. on Hum. Rts. & L. 97, 108 n.51 (2000).

[41] India Const, pt. III, art. 21.

[42] Rural Litigation and Entitlement, Dehradun v. State of Uttar Pradesh, AIR 1985 SC 652.

[43] See Kalas, supra note 40, at 109.

[44] Id.

[45] T. Damodhar Rao v. The Special Officer, Municipal Corporation of Hyderabad, AIR 1987 AP 171, 181.

[46] Id.

[47] See, e.g., L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj. 2; Madhavi v. Thilakan, 1988(2) Ker. L.T. 730; Kinkri Devi and Anr. v. State of Himachal Pradesh, AIR 1988 HP 4.

[48] Kalas, supra note 40, at 111 (citing Subhash Kuimar v. State of Uttar Pradesh, JT 1991 (1) SC 538).

[49] Id.

[50] Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746, 753.

[51] Kalas, supra note 40, at 109 n.54 (citing Maneka Gandhi v. Union of India, (1978) 2 SCR 621, 620–21).

[52] Constitution of Nigeria (1999), § 20.

[53] See id.

[54] Uchenna Jerome Orji, Right to a Clean Environment: Some Reflections, 42 Envtl. Pol’y & L. 285, 286 (2012).

[55] Id.

[56] Id. at 289.

[57] Id. at 288–89 (citing Okpala v. Shell Petroleum Development Company (SPDC), No. FHC/PHC/C5/518/2006 of 29 September, 2006).

[58] Id. at 289.

[59] Id. at 290.

[60] See generally Ibibia Lucky Worika, Deprivation, Despoilation and Destitution: Whither Environment and Human Rights in Nigeria’s Niger Delta?, 8 ILSA J. Int’l & Comp. L. 1 (2001).

[61] See A.E. Dick Howard, State Constitutions and the Environment, 58 Va. L. Rev. 193, 199 (1972).

[62] See, e.g., Drelich, supra note 15, at 268 (“Enforcement serves as the cornerstone of the Clean Water Act, but in recent years it has eroded. Two of the causes are obvious—eight years of an Administration notoriously hostile to environmentalism, and a pair of damaging Supreme Court cases.”).

[63] 42 U.S.C. § 4331(a) (2012).

[64] Id. § 4331(b).

[65] Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). See also Karin P. Sheldon, NEPA in the Supreme Court, 25 Land & Water L. Rev. 83, 84 (1990).

[66] Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). See also Sheldon, supra note 65, at 84.

[67] Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227 (1980).

[68] Cannon, supra note 1, at 34.

[69] Id.

[70] However, the Supreme Court has upheld strong readings of other environmental statutes. See TVA v. Hill, 437 U.S. 153 (1978) (holding that Congress’s intent in passing the Endangered Species Act was to halt and reverse the trend of species extinction, even in the face of great economic cost).

[71] Cannon, supra note 1, at 37.

[72] Id.

[73] Id.

[74] Id.

[75] Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

[76] Id. at 560–61 (internal citation marks omitted).

[77] Id. at 561.

[78] Id. at 563–64.

[79] Id. at 562.

[80] Id. at 563.

[81] Id. (internal quotation marks omitted).

[82] Id. at 568.

[83] Cannon, supra note 1, at 29–30.

[84] See supra Part II.A.

[85] Lynton K. Caldwell, The Case for an Amendment to the Constitution of the United States for the Protection of the Environment, 1 Duke Envtl. L. & Pol’y F. 1, 1 (1991).

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 John Bullock, Harvard Law School

Introduction

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

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

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

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

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

1. FERC v. EPSA and Hughes v. Talen Energy Marketing

In Federal Energy Regulatory Commission v. Electric Power Supply Ass’n, the Supreme Court upheld FERC’s assertion of jurisdiction by allowing it to regulate practices that “directly affect” wholesale rates.[18] At issue in EPSA was whether FERC had authority to regulate demand response transactions (where a provider contracts with consumers to reduce energy consumption), or whether those transactions should be classified as “retail sales.”[19] The Federal Power Act grants FERC jurisdiction over practices affecting rates, and in EPSA, the Court adopted a D.C. Circuit test that cabined that authority to practices “directly affecting” rates.[20] After adopting the directly affecting test, the Court found that FERC had jurisdiction over demand response practices, that the rule did not impermissibly tread into authority reserved to the states, and that FERC did not act arbitrarily and capriciously in its decision to compensate electricity users at the same rates as electricity generators.

Whereas EPSA dealt primarily with the extent of FERC’s jurisdiction under the Federal Power Act, Hughes v. Talen Energy tackled the separate but related issue of whether a state program was preempted under the Federal Power Act.[21] The case was on review from the Fourth Circuit, where the appellate court found that a Maryland program was preempted both as a matter of field preemption (because FERC “occupies the field” of setting wholesale rates), and also as a matter of conflict preemption (because rates under Maryland’s program conflicted with FERC approved rates).[22] On review, the Supreme Court affirmed the lower court’s ruling, albeit on narrow grounds, finding that the Maryland program “impermissibly intrude[d] upon the wholesale electricity market, a domain Congress reserved to FERC alone.”[23]

One could argue that the Supreme Court narrowed the scope of the Fourth Circuit holding. For example, the Court distinguished between contracts-for-differences (which was the regulatory mechanism that Maryland deployed to encourage new natural gas plant development) and other more traditional long-term power purchase agreements.[24] However, in other ways, the Court’s opinion is actually more ambiguous—the Court does not clarify whether the correct analytical approach here should be conflict, field, or another form of preemption analysis,[25] and two Justices wrote concurring opinions to advocate for their distinct approaches.[26]

Because the opinion only addressed a narrow set of situations, the court did little if anything to address whether any other state regulatory mechanisms designed to encourage renewable deployment would be preempted under the Federal Power Act, and specifically limited their holding to Maryland’s program.[27] The decision provides no guidance on how to analyze these state law regulatory programs unless they contain contracts-for-differences that are pegged to a FERC-approved wholesale price, as Maryland’s program did. Therefore, the case is unlikely to act as a prophylactic to the litigation that is ongoing in the lower courts.[28] It makes one wonder why the Supreme Court took the case in the first place—there was no circuit split after the Fourth Circuit’s decision, and the Court failed to use the case as an opportunity to instruct the lower courts.

Putting Hughes and EPSA together: Examining Impacts on State Regulatory Authority

Combining the holding from EPSA with Hughes along with some of the more archaic language in previous energy preemption cases provide ample fuel for challenges to state renewable energy policies. Simply, if the Federal Power Act draws a jurisdictional “bright-line,”[29] or if “[i]t is common ground that if FERC has jurisdiction over a subject, then the States cannot have jurisdiction over the same subject,”[30] then any practice that “directly affects” wholesale rates should be exclusively within FERC’s jurisdiction. This could result in effectively shrinking state regulatory authority after EPSA and Hughes.

Still, the extent of practices that come within FERC’s “affecting” jurisdiction is unknown, and it may be that FERC must first exercise this jurisdiction over a particular practice before it has a preemptive effect. However, this doesn’t prevent litigants from making those arguments in the lower courts to invalidate clean energy programs, and Hughes may stand as a missed opportunity to clarify the scope of preemption under the Federal Power Act.

In fact, litigants are already citing Hughes and EPSA to challenge state clean energy programs. On October 2016, the Coalition for Competitive Energy filed a challenge to the New York Public Service Commission’s Clean Energy Standard in the Southern District of New York.[31] The Clean Energy Standard was issued in August,[32] and set a target for New York to obtain fifty percent of their electricity from renewable resources by 2030.[33] In addition to continuing New York’s renewable energy credit program,[34] the Clean Energy Standard included a requirement that load-serving entities purchase Zero-Energy Credits that correlate with electricity generated by nuclear facilities.[35] Coalition for Competitive Energy is challenging this specific program (the zero-emissions credits) in their complaint, alleging that it “operates within the area of FERC’s exclusive jurisdiction” and should therefore be preempted.[36] The petition cites EPSA to argue that “[s]tate actions that ‘directly affect the wholesale rate’” are invalid.[37]

Additionally, the Second Circuit recently granted Allco’s request for an injunction to prevent state officials from conducting a clean energy request for purchase (“RFP”) in Connecticut.[38] The decision did not enjoin state officials in Massachusetts and Rhode Island who are also participating in the RFP.[39] While the Second Circuit did not disclose their reasoning when it granted the injunction,[40] Allco’s petition for injunction pointed to Hughes when arguing that the program was preempted under the Federal Power Act.[41]

While it may seem that uncertainty in the preemption context is a net loss for individuals concerned about an accelerated transition to clean energy, climate advocates may also weaponize Hughes in other contexts to argue that other state polices that prop up coal and natural gas plants are preempted by the Federal Power Act. For example, the Ohio Public Utilities Commission recently attempted to use power-purchase agreements—which can sometimes be a tool to generate procure renewables[42]—to subsidize coal plants in the state.[43] The proposal was blocked by FERC before it could take effect,[44] but the program could have been challenged under Hughes if it remained in place.

Both examples citing to Hughes show challenges to state energy programs that operate outside of FERC-approved markets, unlike the Maryland program at issue in Hughes where the parties adjusted the FERC-approved rate.[45] Perhaps the biggest challenge going forward for clean energy advocates will be how to distinguish state programs that do not advance climate goals (like the Maryland program at issue in Hughes) from those that do (such as the program at issue in Allco), when both often use the exact same regulatory tools.

The Supreme Court may return to the question of the extent of federal and state authority under the Federal Power Act sometime within the next few years. It could reach one of several conclusions. It may reaffirm past language about the “bright-line” between federal and state regulatory authority—confirming that EPSA represented an expansion of FERC’s power and a simultaneous restriction on state authority. It may endorse some form of concurrent jurisdiction, as it did in the Natural Gas Act context in Oneok Inc. v. Learjet, Inc.,[46] and if it does, it may then decide how to restructure the preemption analysis under this concurrent jurisdictional model. It may establish some method of floor preemption,[47] or alternatively, it may leave the preemption decision up to the federal agency,[48] as it does in some other contexts.[49] Also, the Court may simply leave the resolution of these issues up to the lower federal courts.

Conclusion

Regardless of the approach the court takes, the fact that all of these questions remain open and unresolved currently creates considerable legal uncertainty for state regulators that are trying to update and craft effective clean energy laws. States are already testing the boundaries of their authority in many instances,[50] and many may continue to do so despite these new uncertainties. Further, it may be impossible to disaggregate the influence that legal uncertainty is having on state regulators from other influences such as political pressures. I would assume state legislators and regulators—some that are designing state laws to ensure their compliance with the Clean Power Plan—would likely prefer clarity on what regulatory mechanisms they are allowed to use without running afoul of the Supremacy Clause. Hughes thus represents a missed opportunity, and the recent power trio of Oneok, EPSA, and Hughes may shortly turn into a qu

[1] See, e.g., Christopher Bateman and James T.B. Tripp, Towards Greener FERC Regulation of the Power Industry, 38 Harv. Envtl. L. Rev. 275 (2014) (arguing that consideration of environmental consequences by FERC is permissible under the Federal Power Act); Joel B. Eisen, FERC’s Expansive Authority to Transform the Electricity Grid, 49 U.C. Davis L. Rev. 1783, 1788 (2016) (arguing that under recent case law, FERC may now include environmental considerations into wholesale rates so long as those considerations “directly affect” those rates); Steven Weissman & Romany Webb, Berkeley Center for Law, Energy & the Environment, Addressing Climate Change Without Legislation: Volume 2, How the Federal Energy Regulatory Commission Can Use Its Existing Legal Authority to Reduce Greenhouse Gas Emissions and Increase Clean Energy Use (2014), https://perma.cc/JH8H-FLYT (arguing that FERC can add the cost of carbon when setting the prices in the wholesale market).

[2] Order No. 1000, Transmission Planning and Cost Allocation by Transmission Owning and Operating Public Utilities, 136 FERC ¶ 61,051, 76 Fed. Reg. 49841 (Aug. 11, 2011) (codified at 18 C.F.R. § 35) (requiring regional transmission planning to consider state and local public policy requirements); Order No. 745, Demand Response Compensation in Organized Wholesale Energy Markets, 134 FERC ¶ 61,187, 76 Fed. Reg. 16657 (Mar. 24, 2011) (codified at 18 C.F.R.§ 35.28(g)(1)(v)) (allowing demand response providers to bid into the wholesale market).

[3] New York v. FERC, 535 U.S. 1, 6–7 (1996).

[4] 136 S. Ct. 760, 773 (2016).

[5] FERC defines demand response as “a reduction in the consumption of electric energy by customers from their expected consumption in response to an increase in the price of electric energy or to incentive payments designed to induce lower consumption of electric energy.” 18 C.F.R. § 35.28(b)(4) (2015).

[6] See Joel B. Eisen, FERC v. EPSA and the Path to a Cleaner Energy Sector: Introduction, 40 Harv. Envtl. L. Rev. Forum 1, 7–8 (2016) (“In the long run, this concise, broad jurisdictional standard gives FERC considerable flexibility to promote a cleaner, more efficient Smart Grid.”).

[7] See 16 U.S.C. § 824 (a)–(b) (2016); New York, 535 U.S. at 19–25 (“FERC has recognized that the states retain significant control over local matters . . . [including] generation and transmission siting . . . [and] authority over utility generation and resource portfolios”) (citing Order No. 888, Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities, 75 FERC ¶ 61,080, 61 Fed. Reg. 21540, 21,626 n.543, n.544 (May 10, 1996) (codified at 18 C.F.R. § 35 and § 385)).

[8] See generally Toby Couture and Karlynn Cory, National Renewable Energy Laboratory, State Clean Energy Policies Analysis (SCEPA) Project: An Analysis of Renewable Energy Feed-in Tariffs in the United States (2009), https://perma.cc/G2MZ-AY7F.

[9] See generally David Hurlbut, National Renewable Energy Laboratory, State Clean Energy Practices: Renewable Portfolio Standards (2008), https://perma.cc/JWE4-J9BB.

[10] See generally Eric Lantz and Elizabeth Doris, National Renewable Energy Laboratory, State Clean Energy Practices: State Renewable Rebates (2009), https://perma.cc/HWE7-EBZM.

[11] The State of Washington considered a carbon tax in a 2016 ballot initiative. See, Initiative Measure No. 732 (filed March 29, 2016) https://perma.cc/26ZL-Z9D8.

[12] Minn. Stat. § 216H.03, subd. 3(2) and (3) (2007) (“no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions; or (3) enter into a new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions.”)

[13] See generally Edison Electric Institute, Solar Energy and Net Metering (2016), https://perma.cc/Z3GU-5LKV.

[14] Jocelyn Durkay, “State Renewable Portfolio Standards and Goals,” National Conference of State Legislatures (July 27th, 2016) (reporting that “Twenty-nine states, Washington, D.C. and three territories have adopted an RPS, while eight [additional] states have set renewable energy goals”). https://perma.cc/DV9L-JRRL.

[15] See Public Service Commission of N.Y., Order Adopting a Clean Energy Standard (Aug. 1 2016). https://perma.cc/3GSF-Q36Z.

[16] See, e.g., North Dakota v. Heydinger, 825 F.3d 912 (8th Cir. 2016) (of three separate opinions, two held that Minnesota statute was preempted by the Federal Power Act); Rocky Mountain Farmers Union, et al., v. Richard W. Corey, 730 F.3d 1070 (9th Cir. 2013); Energy and Environmental Legal Institute v. Epel, 793 F.3d 1169 (10th Cir. 2015); Allco Finance Ltd. v. Klee, 805 F.3d 89, 95–96 (2d Cir. 2015) (rejecting plaintiff’s argument that solar contracts approved by the state regulator were preempted by the Public Utilities Regulatory Policies Act); see also Harvard Environmental Law and Policy Institute, State Power Project: Examining State Authority in Interstate Electricity Markets, https://statepowerproject.org (2016).

[17] Jim Rossi, The Brave New Path of Energy Federalism, 95 Tex. L. Rev. (forthcoming 2016).

[18] EPSA, 136 S.Ct. at 773.

[19] The D.C. Circuit found that FERC’s regulation of demand response transactions impermissibly intruded outside of FERC’s authorized jurisdiction under the Federal Power Act. EPSA v. FERC, 753 F.3d 216, 222 (D.C. Cir. 2014).

[20] EPSA, 136 S.Ct. at 774 (citing Calif. Independent System Operator v. FERC, 372 F.3d 395, 403 (D.C. Cir. 2004)).

[21] Hughes v. Talen Energy Marketing LLC, 136 S. Ct. 1288 (2016).

[22] PPL Energy Plus, LLC v. Nazarian, 753 F.3d 467 (4th Cir. 2014).

[23] Hughes, 136 S. Ct. at 1292.

[24] Id. at 1299 (“But the contract at issue here differs from traditional bilateral contracts in this significant respect: The contract for differences does not transfer ownership of capacity from one party to another outside the auction.”).

[25] Id. at 1297 (“A state law is preempted where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,” as well as “where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (citations omitted).

[26] Id. at 1300 (Sotomayor, J., concurring) (clarifying that the purpose of the Federal Power Act should serve as the “ultimate touchstone” for the preemption analysis and the Court should resist “talismanic” preemption vocabulary); id. at 1301 (Thomas, J., concurring) (stating that he would not rest his holding on principles of implied-preemption).

[27] Id. at 1299 (“Our holding is limited: We reject Maryland’s program only because it disregards an interstate wholesale rate required by FERC. We therefore need not and do not address the permissibility of various other measures States might employ to encourage development of new or clean generation, including tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector. Nothing in this opinion should be read to foreclose Maryland and other States from encouraging production of new or clean generation through measures untethered to a generator’s wholesale market participation.”).

[28] See supra note 16 and accompanying text.

[29] Federal Power Commission v. Southern Cal. Edison Co., 376 U.S. 205, 215–216 (1964) (“Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction. . .”). But see Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1601 (2015) (describing the clear division between federal and state authority in the Natural Gas Act context as a “Platonic ideal”); FERC v. EPSA, 136 S.Ct. 760, 780 (2016) (“The [Federal Power Act] makes federal and state authority complementary”); Hughes v. Talen Energy Marketing, LLC., 136 S.Ct. 1288 (2016) (Sotomayor, J., concurring) (“the Federal Power Act, like all collaborative federalism statutes, envisions a federal-state relationship marked by interdependence”).

[30] Mississippi Power & Light Co. v. Mississippi ex. rel. Moore, 487 U.S. 354, 377 (1984) (Scalia, J., concurring). The majority opinion also acknowledges “FERC has exclusive authority to determine the reasonableness of wholesale rates. . .” Id. at 355.

[31] Complaint, Coalition for Competitive Energy v. Zibelman (S.D.N.Y. filed Oct. 19, 2016) (No. 1:16-cv-08164), https://perma.cc/U9Z9-2UR6.

[32] Public Service Commission of New York, Order Adopting a Clean Energy Standard (Aug. 1 2016), https://perma.cc/J82W-XSZP.

[33] Id. at 6.

[34] Id. at 38.

[35] Id. at 45.

[36] Complaint at 5, Coalition for Competitive Energy v. Zibelman, (S.D.N.Y. filed Oct. 19, 2016) (No. 1:16-cv-8164), https://perma.cc/U9Z9-2UR6.

[37] Id. at 11.

[38] Order Granting Preliminary Injunction, Allco Finance Ltd. v. Klee (2d. Cir. 2016) (No. 16-2946).

[39] See id.

[40] See id.

[41] Petition for Injunction at 2, Allco Finance Ltd. v. Klee, No. 16-2946 (2d. Cir. 2016) (No. 16-2946).

[42] Cf. American Council on Renewable Energy, Renewable Energy in Massachusetts (2014), https://perma.cc/V6GF-GEF8 (“In February 2014, the state approved 12 long-term power purchase agreements with four Massachusetts utilities for 409 MW of wind projects in Maine and New Hampshire”).

[43]See In the Matter of the Application of Ohio Electric Company, Case No. 14-1297-EL-SSO (Pub. Util. Comm’n of Ohio 2016), https://perma.cc/T24L-6XCA.

[44] Gavin Bade, FERC Blocks Ohio Power Plant Subsidies for AEP and FirstEnergy, Utility Dive (Apr. 28, 2016), https://perma.cc/4ZCG-SPQT.

[45] Hughes v. Talen Energy Marketing LLC, 136 S. Ct. 1288, 1299 (2016).

[46] 135 S. Ct. 1591, 1599 (instructing that for preemption under the Natural Gas Act, the appropriate inquiry is to examine the target at which state law “aims”).

[47] Jim Rossi and Thomas G. Hutton, Federal Preemption and Clean Energy Floors, 91 N.C. L. Rev. 1283 (2013).

[48] See Rossi, supra note 17 at 65 (stating that whether state programs are preempted may be left to FERC, as opposed to a case-by-case determination by the judiciary).

[49] See generally Brian Galle & Mark Seidenfeld, Administrative Law’s Federalism: Preemption, Delegation and Agencies at the Edge of Federal Power, 57 Duke L. J. 1933 (2008).

[50] See supra note 16 and accompanying text.

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.

__________________________________________

By Samantha L. Varsalona, Georgetown University Law Center, Class of 2018 Staff Member, Georgetown Environmental Law Review

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.

__________________________________________

By Elizabeth Kuhn*

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

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

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

II. The APA and the Arbitrary and Capricious Standard

 

The APA provides the standard for judicial review of an agency decision. Specifically, section 10 addresses judicial review and provides:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.[15]

Section 10 further establishes the arbitrary and capricious standard by stating that the reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[16]

The APA’s arbitrary and capricious standard of review, however, is only applied when the governing legislation does not set forth its own standard of review.[17] There are several examples of legislation that utilize the APA as a default,[18] but key to this commentary is the fact that the ESA also relies on the APA as its default standard of review.

A. Meaning of Arbitrary and Capricious

Based on the text of the applicable legislation, it is easy to know when the arbitrary and capricious standard will be applied as the governing standard of review. However, in addition to understanding when the standard of review will be applied, it is helpful for both agencies and courts to have the same understanding of what is meant by “arbitrary and capricious.”

Congress did not define precisely what it meant by “arbitrary and capricious” within the text of the APA.[19] Instead, courts have looked to the terms’ ordinary meaning for a definition.[20] For example, Black’s Law defines arbitrary as a decision “founded on prejudice or preference rather than on reason or fact.”[21] Additionally, capricious is defined as “unpredictable or impulsive behavior” or “contrary to the evidence or established rules of law.”[22]

B. Deference

The arbitrary and capricious standard of review is a very narrow standard of review that requires the reviewing court to assume a deferential posture such that the court may not simply substitute its judgment for that of the agency.[23] Although the court’s deference must be at its highest when reviewing agency decisions relying on technical expertise, the reviewing court still has an affirmative obligation under the APA to ensure the agency exercised sound judgment and made a reasonable decision based on its available information.[24] Thus, in its review the court must walk a fine line between substituting its judgment for that of the agency and simply affirming agency decision making because it was the decision of the agency.

The U.S. Supreme Court has somewhat defined this line by stating that courts are only to determine if the agency considered the “relevant factors” and if the agency made a “clear error of judgment,” rendering its actions arbitrary and capricious.[25] Because terms such as “clear error of judgment” do not provide a clear standard, the Supreme Court articulated four specific scenarios for when agencies’ actions are considered arbitrary and capricious:

1. The agency “relied on factors which Congress has not intended it to consider.”
2. The agency “entirely failed to consider an important aspect of the problem.”
3. The agency “offered an explanation for its decision that runs counter to the evidence before the agency.”
4. The agency offered an explanation “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”[26]

These rules provide clarity to both courts and agencies because they set forth a specific standard for determining whether an agency has acted arbitrarily and capriciously.

III. Best Available Science Under the Endangered Species Act

A. History

The Endangered Species Preservation Act of 1966[27] (ESPA) was the first environmental statute to impose a requirement to utilize science in environmental decisions made by an administrative body.[28] The statute required the Secretary of the Interior to make determinations as to which species were at risk of extinction and directed the secretary to consult with relevant scientists in creating the list of endangered species.[29] The ESPA did not require the ultimate listing decisions to rest on the scientific information, but Congress intended the consultations to provide the foundation for the listings.[30]

The “best available science” requirement was later introduced in the Endangered Species Conservation Act of 1969[31] and remained largely unchanged in the current ESA.[32] However, Congress neither defined “best available science” nor provided instruction as to how to apply the requirement in either the 1969 Act or the current 1973 Act.[33] It has been suggested that the term “best available science” was not further defined in either the 1969 or 1973 statutes because Congress simply intended to continue the ESPA requirement to seek input from scientists prior to making listing decisions.[34]

B. What is Required Under the Best Available Science Mandate?

Without an explicit statutory definition or guidelines of how to apply the best available science mandate, we are forced to rely on judicial opinions interpreting the ESA to ascertain what is required by the mandate. Two distinct guidelines emerge from looking at these opinions: (1) an agency cannot ignore relevant available data and (2) an agency does not have an obligation to generate new data, even if only relatively weak data is available.[35]

The Ninth Circuit has repeatedly held that an agency “cannot ignore available biological information.”[36] Put more specifically, the agency “must not disregard available scientific evidence that is in some way better than the evidence it relies on.”[37] Furthermore, the court has held that an agency is not necessarily in noncompliance with the best available science mandate if it disagrees with or discredits the available scientific data.[38] For example, in Kern County Farm Bureau v. Allen[39] (Kern) the court rejected Kern’s argument that the United States Fish & Wildlife Service (FWS) violated the best available science mandate by misinterpreting three studies. In Kern, the fact that the FWS cited the studies and did not ignore them was enough to comply with the best available science mandate.[40] Therefore, a challenger must specifically point to relevant data that was omitted from consideration to sustain a claim that an agency failed to utilize the best available science.[41]

Although the Ninth Circuit has required an agency to utilize the best scientific data available, the court has also held that the mandate “does not… require an agency to conduct new tests or make decisions on data that does not yet exist.”[42] This holding is consistent with other circuits that have addressed this issue.[43] For example, the D.C. Circuit has held that an agency must utilize the best scientific data available, not the best scientific data possible.[44]

This approach has been met with criticism because agencies are allowed to rely on data that is weak or inconclusive when it is the only data available.[45] Because few data are available for many endangered species,[46] there exists the possibility that many decisions regarding endangered species will be made with little to no scientific data in support. If that were the case, the purpose of consulting scientific data prior to making a decision would be entirely undermined.

C. Application of the Best Available Science Mandate Under the Current Endangered Species Act

The best available science mandate is triggered any time an agency contemplates an action that might impact an endangered species. Section 7(a) of the ESA requires the agency to “insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in destruction or adverse modification of the habitat of such species.”[47] Section 7(a) further requires that in fulfilling the requirements under the section the agency “shall use the best available scientific and commercial data.”[48]

D. Deference

The deference afforded to agencies in review of science-based decisions raises doubt as to whether the best available science mandate actually operates as a substantial requirement to an agency proposing an action under section 7. The Ninth Circuit in particular has held that when the analysis of an agency decision requires a high level of technical expertise, the court “must defer to the informed discretion of the responsible federal agencies.”[49] In fact, it is common practice across the circuits to give an “extreme degree” of deference to decisions founded on the scientific or technical expertise of an agency.[50]

IV. Ninth Circuit Deference on Matters of Science

A. A Substantive Mandate in 2005

In 2005 the Ninth Circuit decided Pacific Coast Federation of Fishermen’s Ass’ns v. Bureau of Reclamation[51] (Pacific Coast) and breathed life into the best available science mandate. Prior to this decision, many courts had used deference to avoid upholding the substantive mandate requiring agencies to insure against jeopardy.[52] In Pacific Coast, the Ninth Circuit inserted itself into the Klamath Basin conflict.[53] The conflict stemmed from the National Marine Fisheries Service (NMFS) issuing a biological opinion (BiOp) requiring the Bureau of Reclamation (BOR) to limit diversion of water from the Klamath River for irrigation purposes because this diversion would jeopardize the continued existence of the endangered suckerfish and coho salmon.[54] This closure resulted in significant agricultural losses, as 2001 also saw record drought.[55]

After the drought of 2001, the Departments of the Interior and Commerce commissioned the National Research Council (NRC) to perform a “scientifically rigorous peer review” of whether the BiOp was consistent with available scientific information.[56] The conclusion of the NRC study questioned the validity of the 2001 BiOp.[57] The study found that “the 2001 BiOp’s drastic halting of water diversions was not scientifically supported,” but the study did not offer comment as to the minimum water levels necessary to maintain the endangered fish.[58]

In 2002, BOR prepared a long-range biological assessment and proposed a new flow regime that would vary the river flow by “water year type.”[59] The NMFS concluded that the BOR’s proposed actions would jeopardize the continued existence of coho salmon, and it issued a new BiOp that developed a reasonable and prudent alternative (RPA) to replace the BOR proposal.[60] That RPA was the subject of Pacific Coast.

The Northern District of California found that the short-term measures of the RPA were not arbitrary and capricious.[61] On appeal to the Ninth Circuit, the Court did not grant the customary heightened deference to the agency’s decision.[62] Rather, the Court engaged in a “careful and searching” review of the BiOp, stating that the agency “is obligated to articulate a rational connection between the facts found and the choices made.”[63] Specifically, the court found that

Although . . . the agency believed that the RPA would avoid jeopardy to the coho, this assertion alone is insufficient to sustain the BiOp and the RPA. The agency essentially asks that we take its word that the species will be protected if its plans were followed. If this were sufficient, the NMFS could simply assert that its decisions were protective and so withstand all scrutiny.[64]

Therefore, the Ninth Circuit found the authorized short-term measures of the Bi-Op to be arbitrary and capricious.[65]

This decision marked an important step in making the ESA’s best available science requirement a substantive mandate. Despite the deference due to the agency, the court looked substantively at the BiOp to find that it could not insure against jeopardy. This case sent a message that an agency could not rely on heightened deference to avoid judicial review of its actions.

B. Clarification of the Arbitrary and Capricious Standard in 2008

In 2008, the Ninth Circuit sought to “clarify some of [its] environmental jurisprudence” by hearing en banc Lands Council v. McNair (Lands Council III).[66] The court felt a need for uniformity because Ecology Center, Inc. v. Austin[67] “defied well-established law concerning the deference [the court] owe[s] to agencies and their methodological choices.”[68] Additionally, the court likely wanted to address the fact that “in recent years, [the Ninth Circuit’s] environmental jurisprudence has, at times, shifted away from the appropriate standard of review and could be read to suggest” that judges should sit on the bench and “act as a panel of scientists.”[69]

The en banc review resulted in a reversal of the preliminary injunction initially granted by the Ninth Circuit in The Lands Council v. McNair (Lands Council II)[70] and the overruling of Ecology Center.[71] Lands Council III overruled Ecology Center’s instruction that courts may suggest how an agency is required to validate its scientific methodology.[72] In Ecology Center, the court required the Forest Service to “demonstrate the reliability of its scientific methodology or the hypothesis underlying the Service’s methodology with on the ground analysis,”[73] but the court in Lands Council III concluded that the Forest Service may use a particular analysis “if it deems it appropriate or necessary, but it is not required to do so.”[74] In other words, as long as “there is a reasonable scientific basis to uphold the legitimacy of [the] modeling,” the courts are required to give deference to the agency and uphold its model.[75] Therefore, Lands Council III significantly reigned in the court’s ability to question how agencies justify scientific methodology.

In addition to precluding courts from prescribing the means by which an agency validates its scientific methodologies, Lands Council III also established that courts do not have the authority to choose which scientific studies support agency actions.[76] If the agency considered the scientific evidence available to it, courts must defer to the agency’s interpretations of that scientific evidence.[77]Therefore, because the Forest Service considered many different studies, the court in Lands Council III explicitly deferred to the agency’s interpretation of the scientific evidence.[78]

Finally, Lands Council III overruled Ecology Center’s requirement that an agency must present every scientific uncertainty in the evidence used to inform a decision.[79] Consequently, an agency no longer bears “the burden to anticipate questions that are not necessary to its analysis, or to respond to uncertainties that are not reasonably supported by any scientific authority.”[80] The Ninth Circuit only requires that an agency “acknowledge and respond to comments by outside parties that raise significant scientific uncertainties and reasonably support that such uncertainties exist.”[81]

Thus, the en banc court established three rules to guide Ninth Circuit jurisprudence when using the arbitrary and capricious standard of review for an agency’s use of science:

1. Courts may not prescribe the specific means by which an agency must validate methodologies.
2. Courts may no longer choose between which scientific studies support an agency’s action, so long as the agency provides an explanation for its conclusion.
3. An agency no longer needs to address every scientific uncertainty surrounding the science it uses to support its position. The agency only needs to “acknowledge” and “respond” to the claims by parties raising and supporting that “significant scientific uncertainties” exist.[82]

C. Current Cases

Pacific Coast marked what commentators believed was a change toward a more substantive science requirement.[83] However, a decade later it does not appear as though the Ninth Circuit has continued down the Pacific Coast path of reducing the deference it affords to agencies when reviewing compliance with the best available science mandate. Rather, the Ninth Circuit has stayed consistent with the “rules” issued by the Lands Council III en banc court. However, the three cases decided by the Ninth Circuit in 2015 reviewing the best available science requirement under the ESA[84] show that heightened agency deference is rendering the science mandate utterly meaningless.

In Alliance for the Wild Rockies v. Bradford,[85] the Ninth Circuit issued a memorandum opinion affirming that the United States Forest Service (USFS) did not violate the ESA by concluding that its Grizzly Project would not likely adversely affect the grizzly bear population.[86] The court noted that USFS met the requirements of the ESA by consulting the Wakkinen Study when making its determination.[87] The court also noted that its review of the scientific judgments and technical analyses made within an agency’s field of expertise should be at its most deferential.[88] Therefore, the court concluded that USFS had complied with the ESA’s best available science mandate.[89]

In Center for Biological Diversity v. United States Fish & Wildlife Service,[90] the Center for Biological Diversity (CBD) brought suit against the FWS challenging the FWS’s decision to sign a memorandum of agreement (MOA) for groundwater pumping based on conclusions reached in its biological opinion (BiOp).[91] CBD sued for declaratory and injunctive relief against the FWS alleging, among other things, that the BiOp failed to meet the best available science standard set forth by §7 of the ESA.[92]

Specifically, CBD argued that the foundation of the BiOp’s no jeopardy finding was based on expediency not on science.[93] CBD attempted to support its argument by pointing to the fact that the conservation measures’ flow reduction triggers were negotiated and not biologically based.[94] The Ninth Circuit noted that the ESA does not require FWS to design or plan its projects using the best science possible.[95] Rather, “once action is submitted for formal consultation, the consulting agency must use the best scientific and commercial evidence available in analyzing the potential effects of that action on endangered species in its biological opinion.”[96] Therefore, the court concluded that negotiated terms do not of themselves prove that the BiOp analysis failed to utilize the best available science.[97]

Additionally, CBD argued that the BiOp’s conclusions should not be given deference because the FWS failed to address concerns raised by its own scientists regarding the effectiveness of the MOA’s conservation measures.[98] The Ninth Circuit explained that CBD’s claim failed as there was no evidence supporting a conclusion that FWS scientists’ concerns were supported by better science than the science used in the BiOp, or that FWS disregarded better scientific information than the evidence FWS relied upon.[99] Thus, the Ninth Circuit concluded that CBD was unable to prove that the no jeopardy conclusion in the BiOp was arbitrary or capricious for failing to utilize the best available science.[100]

In Cascadia Wildlands v. Thrailkill,[101] Cascadia Wildlands (Cascadia) brought action seeking to enjoin the Douglas Fire Complex Recovery Project (Recovery Project), which authorized salvage logging of roughly 1,600 acres of fire-damaged forest.[102] In approving the Recovery Project, the Medford District of the Bureau of Land Management relied on a biological opinion issued by the FWS.[103] This biological opinion concluded that the Recovery Project was not likely to result in jeopardy to the Northern Spotted Owl species or in destruction or adverse modification of the critical habitat.[104] Cascadia claimed the FWS biological opinion failed to comply with requirements of the ESA because the FWS did not apply scientific data to the opinion.[105]

As to the no jeopardy conclusion, the court found that the record supported that the FWS relied on several surveys to reach its conclusion and gave the agency deference that the data it used was the best available scientific data.[106] With regard to the effects on the habitat, the court found that the FWS utilized several lengthy scientific reports regarding pre-fire and post-fire habitats to support the conclusion in its biological opinion.[107] Furthermore, the court noted that a reviewing court cannot substitute its judgment for that of the agency when the agency used adequate and reliable data.[108]

Cascadia also argued that the FWS’s 2011 Northern Spotted Owl Recovery Plan constituted the best available science and that the FWS was required to follow it.[109] The court rejected this argument. The court stated that recovery and jeopardy are two distinct concepts.[110] The court noted that a Recovery Project does not necessarily need to promote or bring about a long-term recovery of the species.[111] Rather, the biological opinion should and does focus on the Recovery Project’s ability to conserve the habitat so as not to have a detrimental effect on the species population.[112]

The court ultimately concluded that Cascadia failed to show that the FWS did not utilize the best available scientific information when issuing its biological opinion that the Recovery Project would not jeopardize the Northern Spotted Owl or its critical habitat.[113] Therefore, the Ninth Circuit affirmed the district court’s denial of the preliminary injunction to enjoin the Recovery Project.[114]

These three cases illustrate that the Ninth Circuit is still affording agencies heightened deference in scientific judgments and technical analyses. The court appears to look merely at whether the agency consulted scientific data prior to making decisions without reviewing the adequacy of the scientific data. Therefore, the ESA’s best available science mandate can be easily satisfied and will be subject to little scrutiny in the Ninth Circuit.

V. Conclusion

When reviewing scientific decisions based on agency expertise, the standard practice across the circuits is to afford deference to the agency unless is it shown that the agency ignored relevant scientific data when making its decision.[115] Unfortunately, this practice leaves little recourse for petitioners seeking to hold an agency accountable for substantiating its decision. As it stands now, the best available science requirement is satisfied as long as the agency considers the available data.[116] The agency is free to disagree with the data, discredit the data, or rely on weak or inconclusive data if it is the only data available.[117] As long as the agency articulates the rationale between the data and the decision made, the court will uphold the agency action.[118] This means that as long as an agency communicates a justification for its decision, the justification itself will more than likely not be reviewed by the court.

In 2005, the Ninth Circuit substantively reviewed an agency decision and found the agency relied heavily on unstated assumptions rather than scientific evidence.[119] Had the court simply given deference to the agency’s conclusion because it articulated a justification for its decision, the court would have failed to notice that the agency was not actually basing that decision on science. Pacific Coast exemplifies the need for substantive review of agency decisions, even though the court does not like to assume the role of technical expert.[120]

Although the Ninth Circuit demonstrated in Pacific Coast that it was willing to substantively review agency decisions relating to science, the court has since shifted back to the more customary deferential approach. As the three 2015 cases show, the Ninth Circuit is reluctant to substitute its judgment for that of an agency with regard to science and as a result affords agencies great deference when reviewing decisions based on the agency’s scientific expertise.

It is unclear why the Ninth Circuit has shifted back to the deferential standard of review. Perhaps it is because Congress has remained silent on the science standard for over three decades, or perhaps the court is reluctant to proceed differently than the other circuits. Whatever the reason, it is clear that until courts engage in substantive review of agencies’ scientific decisions or Congress establishes an explicit standard of the type and quality of scientific data required, the best science available mandate will continue to operate as a fiction in the review of agency decisions.

* J.D. Candidate 2017, Lewis & Clark Law School. Please send correspondence to elizabethkuhn@lclark.edu.

[1] E.g., Cascadia Wildlands v. Thrailkill, 806 F.3d 1234 (9th Cir. 2015); Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031 (9th Cir. 2015); All. for the Wild Rockies v. Bradford, 601 Fed. App’x 488 (9th Cir. 2015) (mem.).

[2] Administrative Procedure Act, 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2012).

[3] 5 U.S.C. § 706(2)(A) (requiring a reviewing court to uphold agency action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”).

[4] Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989); San Luis & Delta-Mendota Water Auth. v. Jewell, 47 F.3d 581 (9th Cir. 2014).

[5] Jewell, 47 F.3d at 601. (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–16 (1971)).

[6] Marsh, 490 U.S. at 377.

[7] Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).

[8] See cases cited supra note 2.

[9] 16 U.S.C. § 1536(a)(2) (2012).

[10] Id.

[11] See Bldg. Indus. Ass’n of Superior Cal. v. Norton, 247 F.3d 1241, 1246 (D.C. Cir. 2001).

[12] Katherine Renshaw, Leaving the Fox to Guard the Henhouse: Bringing Accountability to Consultation Under the Endangered Species Act, 32 Colum. J. Envtl. L. 161, 187 (2007).

[13] See cases cited supra note 2.

[14] See cases cited supra note 2.

[15] 5 U.S.C. § 706 (2012).

[16] Id.

[17] E.g., Al-Fayed v. Cent. Intelligence Agency, 254 F.3d 300, 304 (D.C. Cir. 2001) (“The APA, however, ‘provides a default standard of judicial review . . . where a statute does not otherwise provide a standard.’”).

[18] The National Forest Management Act (NFMA), 16 U.S.C. §§1600–1687 (2012), and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321–4370h (2012), are other examples of legislation that rely on the APA as a default standard of review.

[19] See 5 U.S.C. §706(2)(A) (2012).

[20] See Fed. Commc’ns Comm’n v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009) (stating that the arbitrary and capricious standard is satisfied so long as the Commission’s action was not arbitrary or capricious in the ordinary sense); United States v. Locke, 471 U.S. 84, 95 (1985) (deference to the supremacy of the Legislature, as well as recognition that Congressmen typically vote on the language of a bill, generally requires us to assume that the legislative purpose is expressed by the ordinary meaning of the words used).

[21] Black’s Law Dictionary 112 (9th ed. 2009).

[22] Id. at 224.

[23] Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377–78 (1989); see U.S. Postal Service v. Gregory, 534 U.S. 1, 6–7 (2001).

[24] See Marsh, 490 U.S. at 377–78.

[25] Id.

[26] Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

[27] Pub. L. No. 89-669, 80 Stat. 926 (1966).

[28] Holly Doremus, Listing Decisions Under the Endangered Species Act, Why Better Science Isn’t Always Better Policy, 75 Wash. U.L.Q. 1029, 1042 (1997).

[29] § 1(c), 80 Stat. at 926.

[30] Doremus, supra note 15, at 1042.

[31] Pub. L. No. 91-135, 83 Stat. 275 (1969).

[32] See 16 U.S.C. § 1536(a)(2) (2012).

[33] See § 3(a), 83 Stat. at 275; 16 U.S.C. § 1532 (2012).

[34] Doremus, supra note 15, at 1043.

[35] Renshaw, supra note 12, at 167.

[36] Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988); see also San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 2014).

[37] San Luis & Delta-Mendota Water Auth., 776 F.3d at 995.

[38] See id.

[39] 450 F.3d 1072 (9th Cir. 2006).

[40] Id. at 1081.

[41] See id.

[42] San Luis & Delta-Mendota Water Auth., 776 F.3d at 995.

[43] E.g., Am. Wildlands v. Kempthorne, 530 F.3d 991, 998–99 (D.C. Cir. 2008).

[44] Bldg. Indus. Ass’n of Superior Cal. v. Norton, 247 F.3d 1241, 1246 (D.C. Cir. 2001).

[45] Renshaw, supra note 12, at 169.

[46] Id.

[47] 16 U.S.C. § 1536(a)(2) (2012).

[48] Id.

[49] Selkirk Conservation All. v. Fosgren, 336 F.3d 944, 954 (9th Cir. 2003).

[50] City of Waukesha v. U.S. Envtl. Prot. Agency, 320 F.3d 228, 247 (D.C. Cir. 2003); see also Maine v. Norton, 257 F. Supp. 2d at 389 (“The court must defer to the agency’s expertise, particularly with respect to decision-making which involves a high level of technical expertise.”); A.M.L. Int’l, Inc. v. Daley, 107 F. Supp. 2d 90, 102 (D. Mass. 2000) (“Indeed, a reviewing court must afford special deference to an agency’s scientific expertise.”).

[51] 426 F.3d 1082 (9th Cir. 2005).

[52] Renshaw, supra note 12, at 187.

[53] See Pacific Coast, 426 F.3d 1082.

[54] See id. at 1087.

[55] See id.

[56] J.B. Ruhl, The Battle Over Endangered Species Act Methodology, 34 Envtl. L. 555, 584–85 (2004).

[57] Pacific Coast, 426 F.3d at 1087.

[58] Renshaw, supra note 12, at 188.

[59] Pacific Coast, 426 F.3d at 1088.

[60] Id.

[61] Id. at 1089.

[62] See id.

[63] Id. at 1091.

[64] Id. at 1092.

[65] Id.

[66] 537 F.3d 981, 984 (9th Cir. 2008).

[67] 430 F.3d 1057 (9th Cir. 2005).

[68] Lands Council III, 537 F.3d at 991.

[69] Id. at 998.

[70] 494 F.3d 771 (9th Cir. 2007), rev’d en banc, 537 F.3d 981 (9th Cir. 2008).

[71] Lands Council III, 537 F.3d 990–94.

[72] Id. at 990.

[73] Ecology Center, 430 F.3d at 1064.

[74] Lands Council III, 537 F.3d 991–92.

[75] Id. at 992.

[76] Id. at 994–95.

[77] Id. at 995.

[78] Id. at 996.

[79] Lands Council III, 537 F.3d at 1001.

[80] Id.

[81] Id.

[82] Id. at 992–94, 1001 ; see also Ryan G. Welding & Michael E. Patterson, Maintaining the Ninth Circuit’s Clarified Arbitrary and Capricious Standard of Review for Agency Science After Lands Council v. McNair, 31 Pub. Land & Resources L. Rev. 55, 79–80 (2010).

[83] See Renshaw, supra note 12.

[84] See cases cited supra note 2.

[85] 601 Fed App’x 488 (9th Cir. 2015).

[86] Id. at 490.

[87] Id. (“The Forest Service relied on the Wakkinen Study, which is the best available science, and the Fish & Wildlife Service concurred in the Forest Service’s determination.”).

[88] Id.

[89] Id.

[90] 807 F.3d 1031 (9th Cir. 2015).

[91] Id. at 1035.

[92] Id.

[93] Id. at 1048.

[94] Id.

[95] Id.

[96] Id.

[97] Id.

[98] Id.

[99] Id. at 1049–50.

[100] Id. at 1049–51.

[101] 806 F.3d 1234 (9th Cir. 2015).

[102] Id. at 1235–36.

[103] Id.

[104] Id. at 1236.

[105] Id. at 1238–41.

[106] Id. at 1241–42.

[107] Id. at 1242.

[108] Id. at 1243.

[109] Id. at 1243–44.

[110] Id.

[111] Id.

[112] Id.

[113] Id. at 1244.

[114] Id.

[115] See cases cited supra note 50.

[116] See Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir.1988); see also San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 2014).

[117] See, e.g., San Luis & Delta-Mendota Water Auth., 776 F.3d at 995.

[118] Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1043 (9th Cir. 2015).

[119] See Pacific Coast, 426 F.3d 1082.

[120] See Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377 (1989.

 

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.

__________________________________________

By Hume Ross, Staff Member Georgetown Environmental Law Review

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

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

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

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

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

1. CERCLA LIABILITY GENERALLY

CERCLA liability will attach to any entity that owns or operates a contaminated facility, or owned or operated a facility where hazardous substances were disposed of in the past, as well as a few other categories related to transporting or arranging for the improper release of hazardous materials.[9] CERCLA liability is strict, joint, and several.[10] This means that often one party may be compelled to begin cleanup (or reimburse EPA for beginning cleanup) and then will have to seek contribution from other liable parties.[11] The liability was structured this way to ensure that there would always be a party available to pay for cleanup, and to disincentive companies from engaging in prohibited activities. Even if a corporation sells a polluted facility before the pollution is discovered, they will still be liable as a “past owner” or “operator.” Courts often note that CERCLA should be construed liberally in view of its remedial purpose to achieve its twin goals: “(1) enabling the EPA to respond efficiently and expeditiously to toxic spills, and (2) holding those parties responsible for the releases liable for the costs of the cleanup.”[12]

Under these standards, both defense contractors and the government (which specifically waived sovereign immunity related to CERCLA claims)[13] may be liable for some of the cleanup costs. But the extent of liability for each party is determined by comparing the role that each played in causing the pollution. The characterization of which entity was an “operator” is significant because of the way courts equitably apportion CERCLA contributions among the responsible parties. There is no fixed formula – instead, courts look at various sets of factors. One such set is the “Gore” factors, named after an unsuccessful but nonetheless influential attempt to pass an amendment to CERCLA in 1980 by then-Representative Al Gore.[14] Another similar set of factors are known as the Torres factors.[15] A common theme is that liability will be more heavily apportioned to a party with more “knowledge and/or acquiescence […] in the contaminating activities.”[16] The tests established for the “operator” label tend to track closely with this language, and therefore being designated as an “operator” often leads to a large share of liability.[17] The analysis of which entity was “operating” a facility, or portion thereof, has evolved over time as discussed in the next section.

2. FMC Corp. Suggested Broad Government Liability Even for Regulatory Oversight

In 1994, the Third Circuit decided FMC Corp. v. United States.[18] The case established a framework by which the US government could be held liable as an “operator” for acts it took in a regulatory capacity. Commentators at the time were concerned that, because the government is the ultimate “deep pocket,” this could lead to a massive amount of CERCLA liability looping back onto the government.[19] While not explicitly overruled, FMC Corp. has been limited by subsequent cases. But the decision is still relevant as its fact pattern, while rare, is not unique in the WWII-era contracting context.

FMC Corp. concerned a facility located in Front Royal, VA (then owned by corporate predecessor American Viscose) that produced high tenacity rayon (“HTR”) for plane and vehicle tires. Ordinarily the tires would have used rubber, but 90% of the United States’ rubber supply came from the Pacific, which was cut off after Pearl Harbor.[20] The facility was in fact converted from producing textile rayon to HTR largely at the behest of the government.[21] In 1982, inspections revealed elevated levels of carbon disulfide in the ground water around the plant.[22] Carbon disulfide is a volatile organic compound capable of causing neurological damage with chronic exposure.[23]

After the EPA notified FMC of its potential liability under CERLA, FMC filed suit seeking monetary contribution from the government under section 113(f) of CERCLA.[24] FMC argued that the government was “so pervasively” involved in directing the activities at the facility that it should pay some, if not all, of the cleanup costs.[25] The government admitted that it effectively controlled many aspects of the operation at the American Viscose plant, but argued that it did so only in a regulatory capacity, and that it could not be held to be an “operator” for purposes of CERCLA when it was acting only as a regulator.[26]

The FMC Corp. court looked to cases in the parent-subsidiary liability context, and chose to apply the same “substantial control” and “active involvement” test to governmental actions for purposes of CERCLA liability.[27] The court found it important that, even if the government was primarily “regulating,” it:

“determined what product the facility would manufacture, controlled the supply and price of the facility’s raw materials, in part by building or causing plants to be built near the facility for their production, supplied equipment for use in the manufacturing process, acted to ensure that the facility retained an adequate labor force, participated in the management and supervision of the labor force, had the authority to remove workers who were incompetent or guilty of misconduct, controlled the price of the facility’s product, and controlled who could purchase the product.”[28]

The court ultimately found that the government was an “operator” of the plant.[29] To the extent that this result was not what Congress may have intended when it adopted CERCLA, the court noted that amending the statute was within the power of Congress, not the Courts.[30]

3. Bestfoods Narrowed the Operator Liability Standard

Four years later, the Supreme Court decided United States vs. Bestfoods.[31] Bestfoods dealt with the question of under what circumstances a corporate parent could be held liable as an operator under CERCLA for the actions of a subsidiary corporation. Because FMC Corp. and other earlier defense contract related decisions had examined governmental vicarious liability under CERCLA as being the same as the inquiry for a “non-governmental entity”,[32] Bestfoods would have a direct impact on government CERCLA liability.

Bestfoods found that a subsidiary “so pervasively controlled” by a parent such that it would warrant veil piercing in the corporate law context could be held derivatively liable for the acts of the subsidiary.[33] This is a high standard – even a parent and a subsidiary that share officers and directors will not necessarily meet it.[34] But even if the conduct of a parent would not warrant veil piercing, the court found that “CERCLA prevents individuals from hiding behind the corporate shield when, as ‘operators,’ they themselves actually participate in the wrongful conduct”.[35] Thus, “[u]nder CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a facility… specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.”[36] This standard has been interpreted to require involvement in environmental decisions on a frequent, often “day-to-day” basis.[37]

It is unclear how FMC Corp. would have been decided under this standard. While it appears that the government did exercise some day-to-day control, it is not clear that this control had the required nexus to the actual pollution. What is clear is that this standard is intensely factual in nature. For all the record developed in FMC Corp., more might have been needed to determine if the government’s day-to-day input over personnel and other issues had the required nexus to the pollution.

4. Recent Cases Exemplify this Narrower Standard

Two recent cases demonstrate how much more difficult it is to assign “operator” liability to the government after Bestfoods. Exxon Mobil Corp. v. United States involved two sites in Louisiana where the production of avgas[38] for the war effort led to contamination of the Mississippi River.[39] Exxon argued that many activities at the site were performed out of fear that the refineries would be seized by the WPB if production quotas were not met.[40] The court rejected this argument, finding that the government acted more like a “very interested consumer,” and did not direct day-to-day activities.[41] The court also found persuasive that fact that some of Exxon’s contracts contained clauses stating that certain specifications and quantities would be “determined by negotiation,” as opposed to simply dictated by the government.[42]

Exxon further argued that government personnel were at the site every day, performing inspections. The court cited in response other post-Bestfoods cases where daily inspections related to contract compliance and worker safety were insufficient.[43] Ultimately, the government was not determined to be an “operator” of the avgas refineries under CERCLA.[44]

A second case, TDY Holdings, reached a similar result.[45] TDY was the corporate successor of several corporations which had operated a facility near San Diego international airport that performed aeronautical fabrication and testing as a contractor to the government between 1939 and 1999.[46] Even though it was undisputed that the government “owned some of the equipment related to the contamination, and observed and knew of TDY’s production processes and maintenance practices that released contaminates into the environment” the government was found to be merely a “past owner” and not an “operator.”[47] TDY argued that adherence to military specifications (mil specs) led inevitably to pollution, but the court found that the mil specs did not dictate how by-product chemicals should be managed, contained, or disposed of.[48] The court also explicitly distinguished FMC Corp. on the grounds that TDY actively sought out defense work, and was never “ordered, coerced, or forced” to operate as a defense plant.[49] TDY was assigned 100% of the cleanup costs as the “operator,” even though the government had been found to be a “past owner” of some facilities.[50]

5. Shell and I. DuPont establish the framework for litigation over indemnification clauses

With the window to assign the government “operator” liability in all but extreme cases closed, litigants have explored other ways to shift cleanup costs to the government. One method that has succeeded has been to rely on special indemnification clauses that were included in some WWII-era contracts. Unlike the in-depth factual analysis required to establish “operator” liability, this analysis involves primarily questions of law. Specifically, application of these clauses depends on whether or not the clauses extend to CERCLA liability (which was unforeseen at the time of their execution). If the clauses do cover CERCLA liability, it then must be examined whether or not the Anti-Deficiency Act prohibits payment of indemnification under the clauses and, if so, whether the ADA was effectively waived by the Contract Settlement Act of 1944.[51]

In 1940, the government contracted with E.I. du Pont to build a plant in Morgantown, WV to produce munitions-related chemicals. E.I. du Pont was to construct and operate the plant, but the facilities would be owned by the government. E.I. du Pont was to be paid a fixed fee for the operation of the plant, but the government affectively owned all of the output – there were no products “sold” to the government.[52] The contract contained an indemnification clause that read:

“the Government shall hold [E.I. du Pont] harmless against any loss, expense (including expense of litigation), or damage (including damage to third persons because of death, bodily injury or property injury or destruction or otherwise) of any kind whatsoever arising out of or in connection with the performance of the work”[53]

The court had no difficulty determining that this clause extended to CERCLA liability based on its broad, non-limited language.[54] The court then turned to the question of whether the Anti-Deficiency Act (ADA) barred payment under the indemnification clause. The trial court had determined that the ADA, which bars payments in excess of the amounts appropriated by Congress for a particular contract,[55] did bar payment of CERCLA indemnification. The Federal Circuit did not question this general conclusion, but instead focused on whether payment was otherwise “authorized by law” as an exception to the ADA.[56]

Specifically, the Federal Circuit considered whether the Contract Settlement Act of 1944 (CSA), designed to ensure rapid settlement of war related claims, could overcome the general prohibition of the ADA. The CSA provided that certain agencies;

“shall have authority, notwithstanding any provisions of law other than contained in this chapter, (1) to make any contract necessary and appropriate to carry out the provisions of this chapter; (2) to amend by agreement any existing contract, either before or after notice of its termination, on such terms and to such extent as it deems necessary and appropriate to carry out the provisions of this chapter; and (3) in settling any termination claim, to agree to assume, or indemnify the war contractor against, any claims by any person in connection with such termination claims or settlement.[57]

The Federal Circuit agreed with E.I. du Pont that this language “grant[ed] the President the authority to delegate to departments and agencies contracting power virtually unfettered by contract law, including the ADA”.[58] The case was remanded for entry of judgment in E.I. du Pont’s favor – the government would be liable for any CERCLA costs that might be imposed on E.I. du Pont.[59]

Subsequent cases have confirmed that if the CSA is applicable to the contract at issue, then the ADA restriction is not effective.[60] The only issue that remains is whether the particular indemnification clause is “(1) specific enough to include CERCLA liability or (2) general enough to include any and all environmental liability which would, naturally, include subsequent CERCLA claims.”[61] Shell Oil Co. v. United States concerned a contract where the relevant agency had agreed to pay “”any now existing taxes, fees, or charges . . . imposed upon [the Oil Companies] by reason of the production, manufacture, storage, sale or delivery of [avgas].”[62] The Federal Circuit held that future CERCLA liability was a “charge” within the meaning of the contract, and the government was therefore liable to reimburse Shell for it.[63]

The courts’ findings that certain WWII-era contractor indemnification clauses cover CERCLA liability makes this an attractive litigation tactic now that that it is more difficult to assign the government “operator” liability. Of course, not all contracts contained a version of either of the provisions discussed above. Those that did are more likely to be contracts of the type at issue in E.I. du Pont and FMC Corp., where the government and the contractor were undertaking a mode of operation that would not normally be undertaken outside of wartime. These extraordinary contracts are more likely to involve fact scenarios on which the government might also still be determined to be an “operator,” even under the narrow Bestfoods test. But even where the government might be deemed an “operator,” the indemnification clause strategy has the advantage of providing a complete bar to contractor liability as opposed to requiring apportionment, and also does not require intense factual investigation.

[1] Correlli Barnett, The Lords of War: Supreme Leadership from Lincoln to Churchill 163 (2012).

[2] FMC Corp. v. United States Dep’t of Commerce, 786 F. Supp. 471, 474 (E.D. Pa. 1992).

[3] E.I. du Pont de Nemours & Co. v. United States, 365 F.3d 1367, 1369-70 (Fed. Cir. 2004).

[4] Sixth Supplemental National Defense Appropriation Act, 1942, Pub. L. No. 77-528, ch. 247, § 403, 56 Stat. 226, 245 (1942).

[5] See, e.g., Shell Oil Co. v. United States, 751 F.3d 1282, 1287 (Fed. Cir. 2014).

[6] E.I. du Pont de Nemours, 365 F.3d at 1357 (Fed. Cir. 2004).

[7] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended at 42 U.S.C. §§ 9601-9675 (1988)).

[8] Id. at § 9604.

[9] See 42 U.S.C.S. § 9607 (listing the categories of “covered persons”).

[10] Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988); O’Neil v. Picillo, 883 F.2d 176, 178-79 (1st Cir. 1989).

[11] 42 U.S.C.S. § 9607.

[12] B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992).

[13] See FMC Corp. v. U.S. Dep’t of Commerce, 29 F.3d 833, 842 (3^rd Cir. 1994).

[14] The “Gore” factors include: “(i) the ability of the parties to demonstrate that their contribution to a discharge release or disposal of a hazardous waste can be distinguished; (ii) the amount of the hazardous waste involved;

(iii) the degree of toxicity of the hazardous waste involved; (iv) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste; (v) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and(vi) the degree of cooperation by the parties with Federal, State, or local officials to prevent any harm to the public health or the environment.” United States v. A & F Materials Co., 578 F. Supp. 1249, 1256 (S.D. Ill. 1984).

[15] See Exxon Mobil Corp. v. United States, 108 F. Supp. 3d 486, 534 (S.D. Tex. 2015).

[16] Weyerhaeuser Co. v. Koppers Co., 771 F.Supp. 1420,1426 (D. Md. 1991).

[17] See TDY Holdings, LLC v. United States, 122 F. Supp. 3d 998, 1015 (S.D. Cal. 2015) (“In circumstances where the Government was found to be such an “operator” due to its control or management, in whole or in part, of the disposal practices at a site, courts have found it equitable to burden the Government with a substantial portion of the

remediation expenses.”).

[18] FMC Corp., 29 F.3d at 833.

[19] See Van S. Katzman, The Waste of War: Government CERCLA Liability at World War II Facilities, 79

Va. L. Rev. 1191, 1193, 1232 (1993).

[20] FMC Corp., 29 F.3d at 836.

[21] Id. at 835.

[22] Id.

[23] U.S. Department of Health and Human Services, Agency for Toxic Substances and Disease Registry, Toxicological Profile for Carbon Disulfide (Update) (1996).

[24] 42 U.S.C.§ 9613(f).

[25] FMC Corp., 29 F.3d at 835.

[26] The government also argued that it had not waived sovereign immunity for purposes of CERCLA liability for purely regulatory actions, but the court disagreed with this contention. Id at 836.

[27] Id. at 843.

[28] Id. (emphasis added).

[29] Id. at 845.

[30] Id. at 846.

[31] United States v. Bestfoods, 524 U.S. 51 (1998).

[32] FMC Corp., 29 F.3d at 840.

[33] Bestfoods, 542 U.S. at 64 n. 10.

[34] Id. at n. 12.

[35] Bestfoods, 542 U.S. at 65 (quoting Riverside Market Dev. Corp. v. International Bldg. Prods., Inc., 931 F.2d 327, 330 (5th Cir. 1991)).

[36] Bestfoods, 524 U.S. at 65-66.

[37] Exxon Mobil Corp., 108 F. Supp. 3d at 529-30 (quoting City of Wichita, Kansas v. Trs. Of APCO Oil Corp. Liquidating Trust, 306 F. Supp. 2d 1040, 1055 (D. Kan. 2003)).

[38] Avgas was a revolutionary 100-octane fuel that, when used to replace the 87-octane fuels previously used in combat aircraft, increased their speed without requiring significant modifications to the engine. See Sustainable Technology Forum, Chemists explore WWII ‘miracle’ aviation fuel, available at http://sustainabletechnologyforum.com/chemists-explore-wwii-miracle-aviation-fuel_9396.html (last visited June 26^th 2016).

[39] Exxon, 108 F. Supp. 3d at 491.

[40] Id. at 523-24.

[41] Id. at 523.

[42] Id. at 498.

[43] Id. at 525.

[44] The government was determined to be an operator of several discrete facilities related to the litigation, including an ordinance shop. This finding was based on correspondence showing that the government “made specific decisions about waste disposal and environmental compliance,” was aware of the pollution, and decided to continue polluting. The ordinance works was described as “resembl[ing] a United States Army base more than a chemical plant” in terms of who actively managed it and its operational procedures. Id at 530-32.

[45] TDY Holdings, 122 F. Supp. 3d at 1003.

[46] Id. at 1003.

[47] Id. at 1004, 1021-22.

[48] Id. at 1016-17.

[49] Id.

[50] Id. at 1022.

[51] See generally Andrew P. Lawson, Casenote: The End of a War Does not End its Adversarial

Reach: The Federal Government’s Indemnification of World War II Contractors for Toxic Waste Cleanup Resulting from Wartime Manufacturing Efforts in Shell Oil Co. et al. v. United States, 26 Vill. Envtl. L.J. 363 (2015).

[52] E.I. du Pont de Nemours, 365 F.3d at 1369-70.

[53] Id. at 1370.

[54] Id. at 1373.

[55] Id. at 1374.

[56] Id.

[57] Id. at 1375 (emphasis as added in decision).

[58] Id. at 1376 (quoting Johns-Manville Corp. v. United States, 12 Cl. Ct. 1, 33-34 (1987)).

[59] Id. at 1380.

[60] See, e.g., Shell Oil Co., 751 F.3d at 1301.

[61] E.I. du Pont de Nemours, 365 F.3d at 1373 (quoting Elf Atochem N. Am. v. United States, 866 F. Supp. 68, 870 (E.D. Pa. 1994)).

[62] Shell Oil Co., 751 F.3d at 1287.

[63] Id. at 1284. Reyna, J. dissented, primarily on the ground that the provision in question was located in a section of the contract related to taxes and, interpreted in that context, CERCLA liability was not a “charge.” Id at 1303-05.

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.

__________________________________________

By Garrett M. Gee, Staff Member, William & Mary Environmental Law and Policy Review

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

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

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

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

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

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

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

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

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

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

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

a. The railbanking procedure

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

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

1. The trail manager requests a railbanking order from the STB within 45 days of an abandonment filing, or within 10 days of a 49 CFR pt. 1152.50 Notice of Exemption. Late filed requests may be considered by the STB if the railroad has not consummated abandonment.
2. The trail manager simultaneously serves the railroad with a copy of that railbanking request.
3. If the railroad agrees to negotiate a railbanking agreement, that railroad must respond within 60 days of its application for abandonment authority. The STB then issues a Notice or Certificate of Interim Trail Use (“NITU or CITU”) in lieu of abandonment authorization or notice. The trail manager and railroad have 180 days to negotiate an agreement for transfer of the ROW.[29]
4. The railbanking agreement memorializes the legal from of conveyance. Prudent trail managers should stipulate a contractual compensation rights within this document in case the rail line is reactivated, in order to protect investments in the trail.[30]
5. Once the parties notify STB that they have reached an agreement, the ROW is added to the national railbank. That corridor is preserved for trail use until that rail line reactivated or the trail manager fails to meet its obligations under 16 USC § 1247(d).

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

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

b. Reactivation

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

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

c. Abandonment of a common carrier rail line

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

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

d. Environmental liability from conversion to trail use

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

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

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

e. General liability for the trail manager during trail use

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

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

f. “Tucker takings” for ROWs under federal jurisdiction

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

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

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

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

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

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

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

Conclusion 

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

_______________________________________

 

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

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

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

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

[5] Infra, notes 19 and 24.

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

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

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

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

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

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

[11] Supra, note 9.

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

[13] Infra, note 38.

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

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

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

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

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

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

[19] See infra, Parts II.a. and c.

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

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

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

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

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

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

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

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

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

[27] Supra, notes 20 and 25.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[49] Preseault, 494 U.S. 11-12.

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

[51] Supra, Part II.a.

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

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

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

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

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.

__________________________________________

By Caitlin Troyer Busch, Stanford Law School, J.D. Candidate 2017

Introduction

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

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

I. The Convergence Hypothesis

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

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

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

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

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

II. The Endangered Species Act as Convergence

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

A. The Values of the Stakeholders

1. The Public 

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

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

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

2. Politicians

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

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

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

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

3. Conservationists

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

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

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

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

B. The Final Statute as Convergence

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

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

III. Divergence in the Implementation of the Endangered Species Act

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

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

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

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

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

IV. Conclusion

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

 

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

[2] Id.

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

[4] Id.

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

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

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

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

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

[10] Id.

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

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

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

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

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

[16] Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[32] Id. at 5-6.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[61] Id. at 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[78] Endangered Species Act § 11(g).

[79] Id. § 11(a)(1).

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

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

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

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

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

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

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

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

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

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

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

[91] Id. at XI, 105.

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

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

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 Bonnie Smith, Staff Editor, Vermont Journal of Environmental Law

INTRODUCTION

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

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

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

I. The Fight for Parity

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

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

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

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

II. Paris Agreement

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

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

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

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

ADAPTATION IN THE PARIS AGREEMENT

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

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

I. Global Goal and Challenge

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

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

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

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

II. International and National Cooperation

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

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

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

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

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

III. Adaptation Needs and Mitigation Co-benefits

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

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

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

IV. Governance

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

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

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

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

LOSS AND DAMAGE IN THE PARIS AGREEMENT

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

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

I. Distinct Article

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

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

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

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

II. Governance Mechanism

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

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

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

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

CONCLUSION

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

_______________________________________

 

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

[2] Id.

[3] Id.

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

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

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

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

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

[9] Id. ¶ 92.

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

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

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

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

[14] Id. ¶ 2.

[15] Id. at 2.

[16] Id. at 6.

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

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

[19] Id.

[20] Id.

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

[22] Id.

[23] Id. at art. 7.2.

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

[25] Id.

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

[27] Id. at 7.8.

[28] Id. at art. 7.9.

[29] Id.

[30] Id. at art. 7.12.

[31] Id. at art. 7.11.

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

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

[34] Id. at 9.1.

[35] Id. at art. 7.4.

[36] Id.

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

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

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

[40] Id. at 8.

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

[42] Id.

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

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

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

[46] Id. ¶ 45.

[47] Id. ¶ 46.

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

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

[50] Mogelgaard, supra note 46.

[51] Id.

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

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

[54] Id. at art. 8.3.

[55] Id. at 8.4.

[56] Id. at art. 8.4.

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

[58] Id.

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

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

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

[62] Id.

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

[64] Id.

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

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

[67] Id.

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

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.

______________________________________________________________________________

By: Bonnie Smith, Staff Editor, Vermont Journal of Environmental Law

 

Introduction

 

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

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

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

1. The Fight for Parity

 

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

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

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

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

1. Paris Agreement

 

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

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

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

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

Adaptation in the Paris Agreement

 

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

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

1. Global Goal & Challenge

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

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

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

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

1. International and National Cooperation

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

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

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

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

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

• Adaptation Needs and Mitigation Co-benefits

 

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

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

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

1. Governance

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

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

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

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

Loss and Damage in the Paris Agreement

 

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

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

1. Distinct Article

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

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

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

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

1. Governance Mechanism

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

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

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

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

Conclusion

 

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

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

[2] Id.

[3] Id.

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

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

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

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

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

[9] Id. ¶ 92.

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

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

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

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

[14] Id. ¶ 2.

[15] Id. at 2.

[16] Id. at 6.

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

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

[19] Id.

[20] Id.

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

[22] Id.

[23] Id. at art. 7.2.

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

[25] Id.

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

[27] Id. at 7.8.

[28] Id. at art. 7.9.

[29] Id.

[30] Id. at art. 7.12.

[31] Id. at art. 7.11.

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

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

[34] Id. at 9.1.

[35] Id. at art. 7.4.

[36] Id.

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

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

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

[40] Id. at 8.

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

[42] Id.

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

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

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

[46] Id. ¶ 45.

[47] Id. ¶ 46.

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

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

[50] Mogelgaard, supra note 46.

[51] Id.

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

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

[54] Id. at art. 8.3.

[55] Id. at 8.4.

[56] Id. at art. 8.4.

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

[58] Id.

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

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

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

[62] Id.

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

[64] Id.

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

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

[67] Id.

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