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.

__________________________________________

By Jennifer Golinsky, Staff Contributor

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

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

However, one area where the CPP does not resemble the ACA is how states that oppose the plan are managing their compliance efforts. Of the twenty-eight states that challenged the ACA in court,[9] twenty-two declined to establish a state-based marketplace.[10] Those states automatically defaulted to a “federally-facilitated” (i.e., entirely federally run) program[11] when the ACA marketplaces went into effect on January 1, 2014.[12] In contrast, of the twenty-seven states with CPP challenges pending before the D.C. Circuit,[13] a significant majority are actively developing compliance strategies.[14] A total of twenty of the twenty-seven states challenging the CPP have announced that they are drafting plans or requesting a two-year extension on the deadline to submit a plan,[15] though Kentucky has made it clear that its request for an extension “should not be implied as working toward a compliance plan.”[16] Though some states have made it abundantly clear that they will not develop a formal state compliance plan,[17] none of the states are remaining completely obstinate about the CPP. All of the states challenging the CPP are reportedly at least undertaking some CPP compliance activities, including stakeholder meetings and public listening sessions, if not “actively engag[ing] with the Plan.”[18]

So, what accounts for the different approach states are taking to CPP compliance, as compared with states’ reticence to comply with the ACA? States’ complaints about the CPP and the ACA are, after all, very similar. States recognize that the CPP will have a major economic impact[19] and argue that it infringes on their sovereignty;[20] they said the same things about the ACA.[21] Following are four possible explanations for states’ more proactive approach to CPP compliance:

The need for long-range planning in the utility power sector

Electric utilities must make long-range decisions—forecasting decades into the future—about infrastructure, availability of resources, siting of power plants, reliability and security of the electricity grid, rate structures, multi-year or multi-decade power purchase contracts, and so on.[22] Layered onto the years it takes to make and implement these decisions is the time required to comply with federal, state, and local regulations—which, of course, are regularly evolving. Final CPP state implementation plans are due to EPA by September 6, 2016, with the possibility of a two-year extension (which requires an initial submittal, also due on September 6, 2016, demonstrating a state’s progress toward developing a final plan).[23] EPA has stated that it will approve or disapprove of state plans within one year of their submittal.[24]

The CPP’s standards are set to go into effect in 2022,[25] so a state that misses the September 2016 deadline because it dragged its feet preparing an approvable state plan (if it decides to prepare a plan at all) may leave its utilities with only a few years to react to an approved plan before compliance is required. Given the amount of lead time utilities need before they can put many of their business decisions into action, and considering the utilities’ reluctance to be subject to a federal plan,[26] states that have already started their CPP planning give their utilities a head start towards achieving the regulatory certainty they need to engage in long-term planning. Additionally, though the states’ aforementioned commitments to draft their CPP plans predate the D.C. Circuit’s January 21, 2016 denial of the motion to stay the CPP during the court’s review,[27] the denial is all the more reason for states to continue to proactively work toward timely submittal of their plans.

Early attempts to comply with the CPP also make it more likely a state can benefit from the CPP’s optional Clean Energy Incentive Program (CEIP). The CEIP encourages states to invest in renewable energy and energy efficiency projects that deliver results during 2020 or 2021, rewarding them with emissions allowances or emissions rate credits that can be banked and used to maintain CPP compliance in the event a state has an unforeseen, emergency reliability issue.[28]

The need for regional planning and cooperation in the utility power sector

Power-plant operations are not all contained neatly within state borders: many plants distribute power across state lines, and electricity grids are similarly interconnected.[29] Naturally, such a system requires detailed coordination among states, as will adapting the system to comply with the CPP. States would rather make these important choices for themselves than allow the federal government to make some choices on their behalf, which is effectively what would happen if a state defaults to a federal CPP plan. Getting started early on their CPP planning has allowed a number of states to productively engage with their neighbors in an effort to lower the costs of compliance by setting up a regional emissions-trading program.[30] The CPP allows intrastate emissions trading and encourages interstate trading, but it is only permitted between states that have adopted the same emissions standards (i.e., mass-based states can only trade with mass-based states, and rate-based states can only trade with rate-based states).[31] States that delay in their CPP planning are missing out on the opportunity to weigh in on regional discussions about which type of emissions standards are best for that region.

The ACA also allows for regional marketplaces, but the states have yet to take advantage of that cost-cutting option.[32] Several states, however, are beginning to consider the regional-marketplace option in light of the sunset on federal funding to help states run their own state-based marketplaces.[33]

Submitting a state CPP plan involves greater opportunity for public participation

Though the public was able to comment on many ACA regulations, including the rules that govern whether a state marketplace is compliant with the law,[34] the Department of Health and Human Services did not seek public comment on a state’s “Exchange Blueprint” before the agency approved it.[35] That means a state’s choice of whether to pursue a state-based marketplace or default to a federally-facilitated marketplace had no impact how much the public could formally weigh in on HHS’s administrative decisions under the APA. The CPP, in contrast, gives the public more opportunities to be involved in the administrative review process when a state opts to submit its own implementation plan. First, the CPP requires a state to demonstrate that its plan was developed through robust public participation, including opportunity for public comment.[36] Second, EPA’s decision to disapprove of a state-submitted plan is subject to notice and comment before a federal plan would take effect.[37]

One of the grounds on which the suing states criticize the CPP is that it is an administrative overreach; that it is the kind of major economic and political decision entrusted to Congress, the body which is directly accountable to the will of the people.[38] Presumably then, these states would want the public to have as many opportunities as possible to involve itself in EPA’s CPP decisions, given that the notice-and-comment process also requires administrative agencies to be accountable to the will of the people (or to at least respond directly to their comments and explain why it did not take their suggestions). States can ensure that there are more opportunities for public comment if they submit their own CPP plans to EPA. And, of course, more solicitations of public comment by EPA means more opportunities for opponents to seek judicial review of the CPP.

Unlike with the ACA, states are experienced in dealing with the Clean Air Act

The Clean Air Act (CAA), the background legal authority for the CPP, is old hat. The CAA is stable, settled law—enacted in 1970, and without significant amendment since 1990.[39] States have years of experience developing their own implementation plans to comply with the CAA emissions standards for certain types of pollutants.[40] They have routinely opted to create State Implementation Plans to comply with the CAA’s National Ambient Air Quality Standards, which, like the CPP, employs a federal-state partnership to curtail air pollution.[41] Through this process, states and utilities have developed the “muscle memory” necessary for complying with EPA emissions rules.[42]

The ACA, in contrast, was brand new law when it was enacted in 2010. States may have been less inclined to invest their resources in developing insurance marketplaces to comply with a law many were skeptical would even be upheld.

Conclusion

Litigating the CPP will be “a marathon, not a sprint,”[43] and we are still in the nascent stages of that process. States may well end up changing their respective approaches in response to major developments in the litigation, especially if the Supreme Court responds favorably to their January 26, 2016 request for a stay of the CPP.[44] Other things equal, given that most states have already hit the ground running with a proactive approach to the CPP, such a change is not foreseeable—at least not until EPA starts issuing decisions on their individual CPP submissions several years from now.

Click here to see the original post and leave a comment.
_______________________________________

 

[1] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 38,830 (proposed June 18, 2014) (to be codified at 40 C.F.R. pt. 60), https://www.gpo.gov/fdsys/pkg/FR-2014-06-18/pdf/2014-13726.pdf. The final rule for the Clean Power Plan—a set of guidelines for states to follow in developing plans to reduce greenhouse gas emissions from existing power plants—was promulgated on October 23, 2015 (Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22842.pdf), along with a proposed federal plan and model trading rules (Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations, 80 Fed. Reg. 64,966 (proposed Oct. 23, 2015) (to be codified at 40 C.F.R. pts. 60, 62, and 78), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22848.pdf).

[2] See, e.g., Coral Davenport & Peter Baker, Taking Page From Health Care Act, Obama Climate Plan Relies on States, N.Y. Times (June 4, 2014), http://www.nytimes.com/2014/06/03/us/politics/obama-epa-rule-coal-carbon-pollution-power-plants.html; David J. Unger, EPA Carbon Limits: An ‘Obamacare’ for Climate Change, Christian Sci. Monitor (June 4, 2014), http://www.csmonitor.com/Environment/Energy-Voices/2014/0602/EPA-carbon-limits-an-Obamacare-for-climate-change-video; Michael Bastasch,‘Obamacare 2.0!’ Critics Slam EPA Climate Rule as Threat to Electrical Grid, Daily Caller (June 6, 2014, 1:37 PM), http://dailycaller.com/2014/06/06/obamacare-2-0-critics-slam-epa-climate-rule-as-threat-to-electrical-grid/.

[3] See Summary of the Affordable Care Act, Kaiser Fam. Found., http://files.kff.org/attachment/fact-sheet-summary-of-the-affordable-care-act (last modified Apr. 25, 2013), for a detailed summary of the Affordable Care Act, a comprehensive healthcare reform law enacted on March 23, 2010.

[4] Jason Mark, EPA’s New Regulations to Cut Carbon Emissions are Obamacare for the Air, Daily Beast (June 2, 2014, 5:45 AM), http://www.thedailybeast.com/articles/2014/06/02/epa-s-new-regulations-to-cut-carbon-emissions-are-obamacare-for-the-air.html.

[5] See U.S. Envtl. Prot. Agency, Overview of the Clean Power Plan (Aug. 6, 2015), http://www.epa.gov/sites/production/files/2015-08/documents/fs-cpp-overview.pdf; Ctrs. for Medicare & Medicaid Servs., State Exchange Implementation Questions and Answers (Nov. 29, 2011), https://www.cms.gov/CCIIO/Resources/Files/Downloads/exchange_q_and_a.pdf.

[6] See U.S. Envtl. Prot. Agency, Clean Power Plan Proposed Federal Plan 2 (Oct. 8, 2015), http://www.epa.gov/sites/production/files/2015-10/documents/fs-cpp-proposed-federal-plan.pdf; 2015 State Legislation on Health Exchanges/Marketplaces Structure, Nat’l Conf. of St. Legislatures,

http://www.ncsl.org/Portals/1/Documents/Health/Changes_in_Health_Exchange_Structure-2015-_Final2.pdf (last updated July 30, 2015); Ctr. for Consumer Info. & Ins. Oversight, Blueprint for Approval of Affordable State-based and State Partnership Insurance Exchanges – Frequently Asked Questions (Nov. 9, 2012), https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/hie-blueprint-states.html.

[7] See Clean Power Plan Proposed Federal Plan, supra note 6, at 2; Nat’l Conf. of St. Legislatures, supra note 6.

[8] West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Oct. 23, 2015) (pending challenge to the CPP); Florida v. U.S. Dep’t of Health and Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011) (district court opinion from ACA challenge filed Mar. 23, 2010); Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010) (district court opinion from ACA challenge filed Mar. 23, 2010).

[9] This includes (1) the twenty-six states which acted jointly in Nat’l Fed’n of Indep. Buss. V. Sebelius (NFIB), 132 S. Ct. 2566 (2012): Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin, and Wyoming; (2) Missouri, which filed its own suit that was later joined on appeal (Kinder v. Geithner, 695 F.3d 772 (8th Cir. 2012)) by twenty-one of the twenty-six states from NFIB; and (3) Virginia, which sued on its own in Cuccinelli, 728 F. Supp. 2d 768. For the sake of simplicity—and ease of comparison to the states involved in West Virginia v. EPA—this does not include the states which were not part of the three aforementioned ACA suits but challenged portions of the law in later suits.

[10] The twenty-two states were: Alabama, Alaska, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Missouri, Nebraska, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Virginia, Wisconsin, and Wyoming. See Health Insurance Exchanges or Marketplaces: State Profiles and Actions, Nat’l Conf. of St. Legislatures, http://www.ncsl.org/Portals/1/Documents/Health/Health_Insurance_Exchanges_State_Profiles.pdf (last modified Oct. 20, 2015).

[11] See State Health Insurance Marketplace Types, 2016, Kaiser Fam. Found., http://kff.org/health-reform/state-indicator/state-health-insurance-marketplace-types/#table (last visited Jan. 29, 2016).

[12] On January 1, 2014, twenty-eight states were federally facilitated, fifteen states and the District of Columbia were state based (including Idaho’s state-based marketplace, which used the federal healthcare.gov site instead of a state website (this is called a “federally-supported state-based marketplace,” id.) and seven states ran their marketplaces in partnership with the federal government. See Nat’l Conf. of St. Legislatures, supra note 10. In 2016, twenty-seven states are federally facilitated, sixteen states and the District of Columbia are state based (including four which are federally-supported state-based marketplaces), and seven states operate marketplaces in partnership with the federal government. See Kaiser Fam. Found., supra note 11. Kentucky currently has a state-based marketplace, but its governor plans to dismantle it and transition to a federally-facilitated marketplace in 2017. See id. at n.3.

[13] The twenty-six states opposing the CPP in West Virginia v. EPA are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming. See Petition for Review, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.10.23_states_111d_petition_for_review.pdf. North Dakota filed its own suit. See Petition for Review, North Dakota v. EPA, No 15-1381 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.10.23_nd_petition_for_review.pdf.

[14] See Elizabeth Harball, Most States Suing EPA’s Climate Rule are also Mulling How to Comply, ClimateWire (Nov. 9, 2015), http://www.eenews.net/stories/1060027684.

[15] See E&E’s Power Plan Hub: Legal Challenges, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan#legal_challenge_status_chart (last visited January 29, 2016); Rod Kuckro, Ky. Governor to Seek Extension from EPA, EnergyWire (Jan. 25, 2016), http://www.eenews.net/energywire/stories/1060031079; Wyoming Regulators Seek $550K for Climate Change Planning, Associated Press (Jan. 18, 2016, 1:04 PM), http://www.thestate.com/news/business/national-business/article55267605.html; Missouri Comprehensive State Energy Plan, Mo. Dep’t of Econ. Dev., Div. of Energy 204 (October 2015), https://energy.mo.gov/energy/docs/MCSEP.pdf.

[16] Kuckro, supra note 15.

[17] For example, EPA was told that “New Jersey is not in any way, shape or form working with EPA on complying with the so-called Clean Power Plan.” David Giambusso, Responding to EPA Official, DEP Refuses to Comply with Power Plan, Politico New Jersey (Dec. 11, 2015, 5:50 PM), http://www.capitalnewyork.com/article/new-jersey/2015/12/8585455/responding-epa-official-dep-refuses-comply-power-plan.

[18] See Joint Reply in Support of Motions for Stay and for Expedited Consideration—Exhibit A, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.12.23_states_reply_in_support_of_motions_for_stay.pdf; Joel Kirkland, Obama’s A-Team Touts Clean Power Plan’s Enforceability, EnergyWire (Dec. 7, 2015), http://www.eenews.net/stories/1060029064. This is in addition to the states which are either defending the CPP in court or have not taken sides in the suit—each of these states is developing a plan, except for the states which are exempt from the CPP (Alaska and Hawaii because they are noncontiguous, Vermont and the District of Columbia because neither state has power plants that fall under the CPP framework). See E&E Publishing, supra note 15; Clean Power Plan – A Summary, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan/fact_sheets/rule (last visited January 29, 2016).

[19] See, e.g., State Petitioners’ Motion for Stay and for Expedited Consideration of Petition for Review, West Virginia v. EPA, No. 15-1363, at 19 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.10.23_states_motion_for_stay_expedited_consideration.pdf.

[20] See, e.g., Joint Reply in Support of Motions for Stay and for Expedited Consideration, West Virginia v. EPA, No. 15-1363, at 2 (D.C. Cir. filed Oct. 23, 2015), available at https://www.edf.org/sites/default/files/content/2015.12.23_states_reply_in_support_of_motions_for_stay.pdf.

[21] For examples of states commenting on the ACA’s economic impact, see Statement from Fla. Att’y Gen. Pam Bondi on the Supreme Court’s Decision in the Health Care Lawsuit (June 28, 2012), available at http://www.myfloridalegal.com/newsrel.nsf/newsreleases/76DE42E337565A5D85257A2B0065C6D2; Statement from S.C. Gov. Nikki Haley on Supreme Court’s Health Care Ruling (June 28, 2012), available at http://www.governor.sc.gov/News/June2012/Pages/default.aspx; and Statement from Tex. Gov. Rick Perry on Health Care Mandate Ruling (June 28, 2012), available at http://www.texasmonthly.com/politics/texas-reacts-to-the-health-care-mandate-ruling/. For an example of the states’ claim that the ACA infringes upon their sovereignty, see State Petitioners’ Petition for Writ of Certiorari, NFIB, 132 S. Ct. 2566 (No. 11-400), at 8, available at http://www.supremecourt.gov/docket/PDFs/11-400%20Cert%20Petition.pdf.

[22] See generally U.S. Envtl. Prot. Agency, Energy and Environment Guide to Action ch. 7.1, at 7-7 (2015 ed.), http://www3.epa.gov/statelocalclimate/documents/pdf/GTA_Chapter_7.1_508.pdf.

[23] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,860 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22842.pdf.

[24] Id.

[25] Id. at 64,664.

[26] See Gavin Bade, NARUC 2015: Utilities Push Regulators to Shift Focus to Clean Power Plan Compliance, UtilityDive (Nov. 10, 2015), http://www.utilitydive.com/news/naruc-2015-utilities-push-regulators-to-shift-focus-to-clean-power-plan-co/408939/.

[27] Order Denying the Motions for Stay, West Virginia v. EPA, No. 15-1363 (D.C. Cir. filed Oct. 23, 2015), available at https://web.law.columbia.edu/sites/default/files/microsites/climate-change/files/order_denying_stay.pdf.

[28] Federal Plan Requirements for Greenhouse Gas Emissions From Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules; Amendments to Framework Regulations, 80 Fed. Reg. 64,966, 64,982 (proposed Oct. 23, 2015) (to be codified at 40 C.F.R. pts. 60, 62, and 78), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22848.pdf).

[29] See U.S. Envtl. Prot. Agency, Components of the Clean Power Plan 3 (Aug. 13, 2015), http://www.epa.gov/sites/production/files/2015-08/documents/fs-cpp-state-goals.pdf.

[30] Emily Holden, Despite Political Rhetoric, 41 States Exploring Clean Power Plan Options, ClimateWire (May 18, 2015), http://www.eenews.net/stories/1060018680 (“Reports from grid organizations and think tanks routinely stress that regional collaboration limits costs. If one state has a tough goal and a neighboring state has an easier goal and the ability to build cheaper zero-carbon energy, both states can benefit . . . .”).

[31] See U.S. Envtl. Prot. Agency, supra note 5, at 7.

[32] Kaiser Fam. Found., supra note 3, at 4.

[33] Sarah Ferris, Exclusive: States Quietly Consider ObamaCare Exchange Mergers, The Hill (May 22, 2015, 6:00 AM), http://thehill.com/policy/healthcare/242885-exclusive-states-consider-obamacare-mergers.

[34] Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans; Exchange

Standards for Employers, 77 Fed. R. 18310, 18,312 (Mar. 27, 2012) (to be codified at 45 CFR Parts 155, 156, and 157), https://www.gpo.gov/fdsys/pkg/FR-2012-03-27/pdf/2012-6125.pdf.

[35] Id. at 18,316-17.

[36] Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662, 64,848 (Oct. 23, 2015) (to be codified at 40 C.F.R. pt. 60), https://www.gpo.gov/fdsys/pkg/FR-2015-10-23/pdf/2015-22842.pdf.

[37] U.S. Envtl. Prot. Agency, Legal Memorandum Accompanying Clean Power Plan for Certain Issues 21-22 (Nov. 2015); http://www.epa.gov/sites/production/files/2015-11/documents/cpp-legal-memo.pdf.

[38] State Petitioners’ Motion for Stay, supra note 19, at 6.

[39] See U.S. Envtl. Prot. Agency, Summary of the Clean Air Act, http://www.epa.gov/laws-regulations/summary-clean-air-act (last updated Nov. 17, 2015).

[40] Elana Schor, Casting EPA Rule as the Next Obamacare Could Prove a Tough Sell, E&E Daily (June 18, 2014), http://www.eenews.net/stories/1060001493.

[41] Bob Sussman, The Clean Power Plan: Will States Choose to Comply?, PlanetPolicy (Jan. 20, 2015, 2:46 PM), http://www.brookings.edu/blogs/planetpolicy/posts/2015/01/20-clean-power-plan-states-comply-sussman.

[42] Robert Walton, States Leaning Toward Mass-Based CPP Compliance, Regional Cooperation, UtilityDive (Oct. 21, 2015), http://www.utilitydive.com/news/states-leaning-toward-mass-based-cpp-compliance-regional-cooperation/407691/.

[43] Legal Challenges – Overview & Documents, E&E Publishing, http://www.eenews.net/interactive/clean_power_plan/fact_sheets/legal (last visited January 29, 2016).

[44] Lyle Denniston, States Move to Block “Clean Power Plan” (UPDATED), SCOTUSblog (Jan. 26, 2016, 9:28 PM), http://www.scotusblog.com/2016/01/states-move-to-block-clean-power-plan/.

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 Shea Diaz, Georgetown Environmental Law Review

 

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

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

Disentangling the causes of environmental injustice presents an empirical problem common in social science: it can be nearly impossible to isolate causal variables when it comes to human phenomena. Attempting to address this problem, researchers have developed innovative methodologies to test various theories of causation for environmental injustices. While it is clear that discriminatory siting plays a role, other causes may help explain both the behavior of firms and the disparate environmental harms experienced by low-income populations and minorities: Regulators may enforce environmental laws and regulations unequally, affected communities may lack political power, and market dynamics may drive both businesses and residents to low-cost real estate. It is important to understand the contribution of each of these to environmental injustice because they may call for different policy responses.

This paper surveys the evidence for each of these possible causes of environmental injustice. I conclude that, because empirical research shows that discriminatory siting, unequal regulatory enforcement, and unequal political power are the major culprits for environmental injustice, policymakers should work to level the playing field and allow for meaningful stakeholder participation in siting decisions and increase enforcement efforts in minority and impoverished communities.

A. Intentional Discrimination While Sitting

Among all the potential explanations for why impoverished people and people of color are more likely to experience environmental harms, the most alarming theory is that corporations actively target these communities because they lack the resources and political capital to resist the siting of environmental hazards in their communities. One piece of evidence frequently cited to support this theory is the “Cerrell Report,” a document produced by a consulting firm, Cerrell Associates, advising the California Waste Management Board on where to site trash incinerators.[12] The report states:

All socioeconomic groupings tend to resent the nearby siting of major facilities, but middle and upper socioeconomic strata possess better resources to effectuate their opposition. Middle and higher socioeconomic strata neighborhoods should not fall within the one-mile and five-mile radius of the proposed cite.[13]

The recommendation that logically follows this report is sinister: polluting firms should target the communities with the least amount of political and financial capital when making siting decisions.

Even though it was produced over thirty years ago, the Cerrell Report continues to be held up as an illustration of dastardly polluters committing environmental injustice.[14] The analysis in the report hinges on the fact that minority and impoverished communities lack the same political power as more affluent and white communities. Consequently, firms in these areas are less likely to be the subject of regulatory scrutiny.[15]

However, intentionally siting high polluting facilities in racial minority and impoverished communities is not the only factor contributing to environmental injustice.[16] As demonstrated in the following sections, facially neutral environmental enforcement principles, unequal enforcement of environmental regulations, and lack of political power each play a role in causing polluters and low-income minorities to end up in the same geographic locales.

B. Regulatory Principles May Unintentionally Contribute to Environmental Injustice

While regulatory agencies are frequently blamed for environmental injustice, some have suggested that environmental injustice is an unintended consequence of neutral risk-management strategies.[17] As the theory goes, policymakers seek to place noxious facilities in areas with low population density in order to manage the risk associated with these facilities.[18] While this “makes good sense as a means of minimizing public health risks,” this criterion increases the number of facilities in some rural areas highly correlated with poverty.[19] Thus, the policy may have the unintended consequence of targeting disadvantaged communities “to act as hosts to solid and hazardous waste landfills.”[20] Policymakers should closely examine the principles that guide regulatory siting decisions for their potential to subject vulnerable populations to a disproportionate amount of environmental harm.

C. Unequal Enforcement

Regulators are also guilty, in at least some instances, of applying enforcement initiatives inequitably. Advocates for environmental justice often contend that low-income communities of color experience disproportionate environmental harm because of unequal enforcement of environmental protection laws and regulations in these communities.[21] Some believe that regulatory capture has resulted in lackluster detection and penalty.[22] For example, politicians in the southern United States have been accused of lax enforcement of environmental regulations in order to profit from outside industry relocating to their jurisdictions.[23]

Empirical evidence confirms that low-income areas are not subject to the same level of enforcement as more affluent areas. The role of race, independent of income, in influencing enforcement decisions is less clear. Moreover, the concentration of enforcement efforts in more affluent communities may ultimately be a function of political influence being disproportionately focused in these communities. Regardless, because governmental enforcement provides a powerful incentive for firms to abide by regulations,[24] it merits special attention as a solution to environmental injustice.

1. Unequal Detection Speed and Penalties for Noncompliance

Some researchers have found that regulators detect violations at a slower rate and impose lighter penalties on violators in vulnerable communities. Lavelle and Coyle found that the U.S. Environmental Protection Agency (EPA) discriminated against minority communities with respect to cleanup decisions and enforcement of existing environmental laws.[25] The study discovered that financial penalties were around five hundred percent higher for violations affecting predominately white neighborhoods as opposed to predominately minority neighborhoods.[26] They also found it took twenty percent longer for hazardous waste sites in minority communities to be listed on the federal priority system for cleanup.[27]

Other studies provide further support. Mennis similarly found that fewer administrative orders and lower monetary penalties were issued to facilities in high-percent minority areas compared to low-percent minority areas.[28] Hellend establish that penalties for environmental noncompliance vary based on the economic situation of the community surrounding the violator: when the community was deemed “affluent,” a violating plant was more likely to face a shutdown.[29]

The relative lack of environmental enforcement efforts in vulnerable communities likely incentivizes firms to site facilities and be more lax with compliance efforts in low-income communities and communities of color. If the penalties assessed for violating environmental regulations in low-income, minority communities are insubstantial and less than complying with existing laws, they will not deter future violations—they will simply be considered a cost of doing business.

2. Compliance Bias

Another way that unequal enforcement occurs is through systematic non-detection of violations. There is evidence that regulators miss violations altogether in these communities by wrongly believing firms are compliant with the law. This phenomenon is known as “compliance bias.”[30]

Empirical evidence shows that industrial facilities cited in low-income neighborhoods are less likely to be monitored and inspected than facilities in more affluence neighborhoods. Dion et al. found that the likelihood of inspection increases with the percentage of employment in the surrounding population, because plants in high employment areas are more “visible.”[31] If low employment is an indicator of poverty or lack of political power, then this study adds support to the EJM’s claim of unequal enforcement in marginalized communities.

When controlling for income, however, the research on compliance bias in racial minority communities is mixed. In 2009, Konisky found that disparities in detection exist for low-income and Hispanic communities, but not in predominantly black communities in particular.[32] Koninsky and Reenock’s 2013 study found that compliance bias is more likely in Hispanic, (but, not in African American, communities.[33]

Some research, however, does support the claim that the percentage of minority residents is a factor in violation detection. Scholz and Wang found inspections to be negatively associated with the percentage of black and Hispanic residents.[34] Konisky and Shario’s 2010 study provides modest evidence for race-based disparities in both inspections and punitive actions taken in response to noncompliant behavior.[35] If enforcement targeting decisions are influenced by a community’s income level, political power, or racial makeup, then facilities will be perversely incentivized to site facilities in the communities in which they can most effectively skirt regulations.

3. Implications of Unequal Enforcement

These findings show that there is significant support to EJM’s claim that enforcement is less vigilant in minority and low-income communities. They demonstrate a strong, negative relationship between socioeconomic status and expenditure of enforcement resources. More research is required to clarify the extent of the relationship between race and enforcement decisions. Future research should seek to test this phenomenon by evaluating agencies at different bureaucratic levels and their implementation of a variety of regulatory initiatives.

D. Low Political Power in Affected Communities

Political power unquestionably plays a role in a community’s ability to effectively oppose the siting of toxic facilities in their communities. As previously noted, the Cerrell Report advised firms that “middle and upper socioeconomic strata possess better resources to effectuate their opposition.”[36] Indeed, some researchers take it as a given that “which groups hold the political power” is a factor “inherent in land use decisions.”[37] If this is true, low political capital could explain both discriminator siting decisions and poor regulatory enforcement.

Research offers some insight into what characteristics make some communities more politically powerful than others. Unsurprisingly, median income is a measure of community influence.[38] Additionally, the percentage of residents who possess a high school diploma and the percentage of residents who are employed are both positively correlated with political power.[39] High voter turnout is also an indicator in some circumstances.[40] Less political power is needed for EJM activists in states that are already aligned with pro-environmental politics, because the political establishment is more familiar with environmental justice arguments and more willing to tackle problems when they arise.[41] These indicators of political power offer regulators a more nuanced way to test for community vulnerability than simply looking at income and minority status. Indeed, some research shows the compliance bias described above can be mitigated by increased political mobilization in affected communities.[42]

Siting facilities on the edges of multiple jurisdictions also creates an additional impediment for residents that oppose a facility. In these situations, multiple communities and local governments must come together to successfully oppose the plant. Gray and Shadbegian found that plants sited in one state but primarily polluting other states emit more pollution than plants that pollute communities in their home state. [43] By siting facilities in such a way as to harm only a minority of each affected jurisdiction, firms minimize the potential for any one community to gain political traction within their local system.

This research suggests that low political capital in affected communities creates an incentive for firms to continue the discriminatory siting practices exemplified by the Cerrell Report. Policy and advocacy efforts should focus on how to ensure that communities lacking political influence are not burdened with a disproportionate amount of society’s environmental pollution.

Conclusion

There is empirical evidence that environmental injustice is caused by many factors, including discriminatory siting, misguided regulatory policy, unequal regulation enforcement, and unequal political power. These factors do not function independently. Low-income and minority communities are often more likely to have less political power, and communities with less political power less likely to have their voices heard by regulators. However, research that establishes each factor’s role in creating incidents of environmental injustice lends credence and actionability to the environmental justice movement. With empirical proof of its causes, policymakers have multiple avenues through which they can combat environmental injustice.

Click here to see the original post and leave a comment.
_______________________________________

 

[1] Elizabeth Ward et al., Cancer Disparities by Race/Ethnicity and Socioeconomic Status, 54 CA: Cancer J. Clinicians 78, 78 (2004). (“For all cancer sites combined, residents of poorer counties (those with greater than or equal to 20% of the population below the poverty line) have 13% higher death rates from cancer in men and 3% higher rates in women compared with more affluent counties (less than 10% below the poverty line)… Even when census tract poverty rate is accounted for, however, African American, American Indian/Alaskan Native, and Asian/ Pacific Islander men and African American and American Indian/Alaskan Native women have lower five-year survival than non-Hispanic Whites.”).

[2] Lolita D. Gray & Glenn S. Johnson, A Study of Asthma as a Socio-Economic Health Disparity Among Minority Communities, 22 Race, Gender, & Class 337, 337 (2015).

[3] Diane K. McLaughlin & C. Shannon Stokes, Income Inequality and Mortality in US Counties: Does Minority Racial Concentration Matter?, 92 Am. J. Pub. Health 99, 99 (2002) (“Higher income inequality at the county level was significantly associated with higher total mortality. Higher minority racial concentration also was significantly related to higher mortality and interacted with income inequality.”).

[4] See, e.g., U.S. Dep’t of Health & Hum. Serv.: Ctr. for Disease Control & Prevention, CDC Health Disparities and Inequalities Report—United States, 2013, 62 Morbidity & Mortality Weekly Rep. 1, 1 (2013).

[5] Dorceta E. Taylor, Toxic Communities: Environmental Racism, Industrial Pollution, and Residential Mobility 1 (2014).

[6] David N. Pellow, Environmental Inequality Formation: Toward a Theory of Environmental Injustice, 43 Am. Behav. Sci. 581, 582 (2002).

[7] See, e.g., Conner Bailey et al., Environmental Justice and the Professional, in Environmental Justice: Issues, Policies, and Solutions 35 (Bunyan Bryant ed. 1995) (“There is no doubt that risks associated with environmental hazards disproportionately affect minority populations that are least able to defend themselves due to poverty and political powerlessness.”).

[8] John Eligon, A Question of Environmental Racism in Flint, N.Y. Times, Jan. 21, 2016, at A1 (available at http://www.nytimes.com/2016/01/22/us/a-question-of-environmental-racism-in-flint.html?_r=0).

[9] Antoaneta Roussi, It’s Not Just a Flint Problem: Other U.S. Cities are Suffering from Toxic Water, Salon, Jan. 25, 2016 (available at http://www.salon.com/2016/01/25/its_not_just_a_flint_problem_other_u_s_cities_are_suffering_from_toxic_water/).

[10] Robert D. Bullard, Confronting Environmental Racism 18 (1993).

[11] Gordon Walker, Beyond Distribution and Proximity, 41 Antipode 614, 616 (2009).

[12] Bullard, supra note 10, at 18.

[13] Cerrell Associates, Inc., Political Difficulties Facing Waste-to-Energy Conversion Plant Siting 43 (1984) (available at http://www.ejnet.org/ej/cerrell.pdf).

[14] An Environmental Justice Network presentation in Washington, D.C. on November 12, 2015 made much of this report.

[15] Contrast this idea with the characterization of the causes of environmental injustice as either racism or market dynamics. See Yushim Kim et al., Residential Choice Constraints and Environmental Justice, Soc. Sci. Q. 40, 41 (2013) (citing Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (1990)).

[16] Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. Land Use & Envtl. Law 1, 21 (1995).

[17] Bailey, supra note 7, at 37.

[18] Id.

[19] Id.

[20] Id.

[21] Bullard, supra note 10, at 17 (“Agencies at all levels of government, including the federal EPA, have done a poor job protecting people of color from the ravages of pollution and industrial encroachment.”).

[22] Beverly Wright, Environmental Equity Justice Centers: A Response to Inequity, in Environmental Justice: Issues, Policies, and Solutions 63 (Bullard 1995) (“[G]overnment agencies responsible for regulating industry are seen as inappropriately biased in favor or particular industry risk management policies or approaches.”).

[23] Robert D. Bullard & Glenn S. Johnson, Environmental Justice: Grassroots Activism and Its Impact on Public Policy Decision Making, 56 J. Soc. Issues 555, 565 (2000).

[24] Wayne B Gray & Ronald J. Shadbegian, ‘Optimal’ pollution abatement—whose benefits matter, and how much?, 47 J. Envtl. Econ. & Mgmt. 510, 514 (2004) (“[T]he main motivation for controlling pollution emissions in the US is government regulation of pollution, especially for the air and water pollutants…”).

[25] Marianne Lavelle & Marcia Coyle, Unequal Protection: the Racial Divide in Environmental Law, 21 Nat. L. J. supplement (1992).

[26] Id.

[27] Id.

[28] Jeremy L. Mennis, The Distribution and Enforcement of Air Polluting Facilities in New Jersey, 57 Prof. Geographer 411–22 (2005).

[29] Eric Hellend, The Enforcement of Pollution Control Laws: Inspections, Violations, and Self-Reporting, 80 Rev. Econ. & Stat. 141, 152 (1998).

[30] David M. Koninsky & Christopher Reenock, Compliance Bias and Environmental (In)Justice, 75 J. Pol. 506, 507 (2013).

[31] Catherine Dion et al., Monitoring of Pollution Regulation: Do Local Conditions Matter?, 13 J. Reg. Econ. 5, 15. (1998).

[32] David M. Koninsky, Inequities in Enforcement? Environmental Justice and Government Performance, 28 J. Pol’y Anal. & Mgmt. 102-21. (2009)

[33] Koninsky & Reenock, supra note 29, at 507.

[34] John T. Scholz & Cheng-Lung Wang, Cooptation or Transformation? Local Policy Networks and Federal Regulatory Enforcement, 50 Am J. Pol. Sci. 81, 93 (2006).

[35] David M. Konisky & Tyler S. Schario, Examining Environmental Justice in Facility-Level Regulatory Enforcement, 91 Soc. Sci. Q. 835-55 (2010).

[36] Cerrell Associates, supra note 13.

[37] Patricia E. Salkin. Intersection between Environmenal Justica and Land Use Planning at 3. American Planning Association Planning & Environmental Law. May 2006 Volume 58 No. 5. First page is 3.

[38] H. Sigman, The pace of progress at Superfund sites: policy goals and interest group influence, J. Law Econ. 44 (2001) 315–344.

[39] Vicki Been & Francis Gupta, Coming to the Nuisance or Going to the Barrios? A Longitudinal Analysis of Environmental Justice Claims, 24 Ecology L. Q. 1, 23 (1997).

[40] W. Kip Viscusi & James T. Hamilton, Are Risk Regulators Rtional? Evidence from Hazardous Waste Cleanup Decisions, 89 Amer. Econ. Rev. 1010, 1010-1027 (1999); James T. Hamilton, Testing for Environmental Racism: Prejudice, Profits, and Political Power?, 14 J. Pol’y Anal. & Mgmt. 107, 107-132 (1995).

[41] Viscusi & Hamilton, supra note 41; Gray & Shadbegian, supra note 23, at 531-32.

[42] Koninsky & Reenock, supra note 29.

[43] Gray & Shadbegian, supra note 23, at 531-32.

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 David Williams, Editor at Virginia Environmental Law Journal

 

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

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

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

1. Origins of the Doctrine of Administrative Necessity

The three-step test as articulated by the EPA was only assembled coherently in the tailoring rule itself.[7] Administrative necessity applies when Congress gives an agency more non-discretionary duties than it can actually fulfill given constraints on budget, time, and manpower. The agency should thus be able to limit its regulatory reach in concert with its resource constraints.

The idea underlying administrative necessity was first posited in dicta in Alabama Power Co. v. Costel,[8] which came in the wake of the 1977 CAA Amendments. The EPA interpreted the “potential to emit”[9] provision of the CAA to exempt major emitting facilities from regulation if their actual emissions were below 50 tons per year (“tpy”), even though it would leave some facilities unregulated.[10] The EPA tried to justify this regulation in litigation through cost benefit analysis, arguing that the huge burden imposed by regulating the major emitters in question would yield minimal benefits.[11]

The Alabama Power Court decided the case on grounds that rendered the 50 tpy regulation moot, but still elected to address “the principles pertinent to an agency’s authority to adopt general exemptions to statutory requirements.”[12] The Court began the discussion by stating that even though there is an implicit ability to create exemptions not explicitly authorized by the statute inherent in the administrative process, cost benefit analysis is not an adequate foundation for those exemptions.[13] Rather, “the existence of an impossibility,” such as restraints caused by lack of resources or manpower, is required for an exemption.[14] To show that an impossibility exists, a court must look to the statute to see if the legislature has built in flexibility that the agency could use that does not run directly counter to the statute.[15]

1. Early Application of Pseudo Administrative Necessity

The doctrine continued to develop in Environmental Defense Fund v. EPA,[16] where the agency tried to justify its interpretation of the Toxic Substances Control Act (“TSCA”). The EPA included exemptions for products with low concentrations of polychlorinated biphenyls (“PCBs”).[17] The EPA tried to justify the exemptions by arguing that it did not have the capacity to enforce the statute completely.[18] The Court found that the agency’s interpretation was not justified by administrative necessity because it failed to rely on exemption authority provided elsewhere in the statute.[19] The agency should turn first to statutory exemptions before relying on self-created exemptions. Although the EPA’s assertion of administrative necessity was unsuccessful, the contours of the doctrine began to take shape.

In Sierra Club v. EPA,[20] the EPA was required to promulgate regulations dealing with the problem of stationary sources raising stack heights to circumvent ground-level pollutant thresholds. Rather than confront the underlying issue, the EPA’s final rule only regulated three specific techniques used to avoid these thresholds.[21] The Sierra Club Court held that the administrative necessity doctrine did not justify this regulation because the EPA had not carried the heavy burden of proving that full enforcement was impossible given its current resources.[22] It had “offered mere predictions, rather than conclusions drawn from good faith efforts at enforcement,”[23] and it had “caved in” without having “adequately explored . . . regulatory alternatives” like regulating plumes based on their engineering purposes.[24]

Center for Biological Diversity v. EPA[25] provides the most recent discussion of administrative necessity. For three years The EPA defered its decision whether to regulate sources of biogenic carbon dioxide the same way that they regulated other stationary sources.[26] The court held the agency’s action was arbitrary and capricious despite an administrative necessity claim.[27] The opinion emphasized that impossibility is the standard the agency must meet, not mere inconvenience, and added that agencies faced with impossibility must adopt the narrowest feasible exemption to the statutory mandate.[28] The exemption did not meet the impossibility standard because it did not satisfy the Sierra Club v. EPA requirement that all feasible alternatives to the exemption be explored.[29] The EPA had previously rejected without investigation a “middle-ground” approach where biogenic carbon dioxide sources could obtain permits but only if they fail to make “any effort to take into account net carbon cycle impacts.”[30] The agency should have responded to this regulatory alternative with adequate exploration in order to establish impossibility.

The concurring opinion in Center for Biological Diversity also rejected the administrative necessity doctrine, but for a different reason. That opinion argued that the EPA had no statutory basis for distinguishing between biogenic carbon dioxide and other sources of carbon dioxide.[31] The fact that the agency tried to distinguish between these sources concerned the concurring judge because it appeared that the decision to distinguish may have come from cost benefit analysis, which was impermissible under Alabama Power.[32]

Even outside the context of environmental law, the administrative necessity doctrine is rarely applied and never successful. Public Citizen v. Shalala[33] concerned a restaurant menu exemption from the nutrition and health labeling requirements of the Nutrition Labeling and Education Act (“NLEA”). The district court gave significant consideration to the FDA’s argument that administrative necessity justified the exception before ultimately deciding that the doctrine could not justify the exception.[34] After acknowledging that the doctrine could theoretically justify this type of exception, the court held that the “FDA has not borne its ‘especially heavy’ burden of establishing the administrative impossibility of applying the . . . provisions of the NLEA to restaurant menus.” [35] The agency had twice stated that a lack of resources prevented it from enforcing its regulations in restaurants, but those statements had been “proffered in support of the agency’s decision to hold restaurants to a lower standard for substantiating claims of nutrition content and health, not of its decision to exempt menus altogether.”[36] The proof that the FDA had given of its lack of resources pertained only to another context, so it had not met the heavy burden of proving impossibility.[37]

In Public Citizen v. FTC,[38] an FTC interpretation of the Smokeless Tobacco Act exempted utilitarian items from required health warnings on advertisements for smokeless tobacco. The court decided the case on the grounds that the statute was unambiguous, and therefore the regulatory departure failed under the first step of Chevron analysis.[39] But in dicta, the Court hinted that it might be possible to uphold similar exceptions under the administrative necessity doctrine.[40] The exemptions at issue, however, failed because they were based on cost-benefit analysis, which according to Alabama Power is not a permissible basis for exemptions.[41]

It is important to note that none of the cases upon which the EPA relied for its formulation of the administrative necessity doctrine actually allowed the exemptions in question to stand. The same holds true generally. I found no cases in which administrative necessity justified an exception contrary to statutory language. The case law is notably sparse, and when the language which the EPA’s Tailoring Rule relies on to establish the three-part test is cited, it is usually used to establish propositions other than administrative necessity.[42]

III. Defenses and Criticisms of Administrative Necessity

The main argument in support of the use of the administrative necessity doctrine is that it would help avoid the enormous costs that would come from directly applying the unambiguous language of certain statutes. Since “current administrative law doctrines do not adequately accommodate an agency’s inability to fully carry out an excess of delegated nondiscretionary power, and Congress has proven unwilling to adjust delegated authority in light of strained agency budgets,”[43] the agency should have some recourse. When agencies are asked to do more than they are capable of, costs accrue to the agency, the taxpayers, and those the statute was meant to protect. Deadlines get pushed back indefinitely, agency resources get stretched so thin that otherwise remediable violations get left unenforced, and other agency responsibilities fall by the wayside.

To illustrate this problem, consider the costs that would come from immediate full enforcement of the CAA without the Tailoring Rule:

Over six million sources would be newly classified as major stationary sources for PSD purposes. EPA estimates that over 80,000 sources would be required to apply for PSD permits each year for new construction and modifications. Each of the over six million newly major stationary sources would also be required to apply for a Title V permit. The estimated cost of the PSD and Title V permitting programs would increase from $74 million annually to $22.5 billion annually. The annual number of work hours needed to run the permitting programs would increase from close to 1.5 million hours to nearly 480 million hours, which would require an additional 200,000 employees to be hired, trained, and managed.[44]

This would mean huge administrative burdens and exorbitant costs, impeding the issuance of permits to the newly included sources and to the thousands of sources that Congress expected to be covered.

Another reason to favor the administrative necessity doctrine is that agencies have already been using undesirable non-transparent means to deal with this type of situation. Whether through under-enforcement or simple neglect, resource-strapped agencies have found ways to limit the non-discretionary power assigned to them. Application of the administrative necessity doctrine would bring those decisions out into the open, allowing agencies to publicize their inability to carry out their responsibilities and pressure Congress to address the issue. The public would receive valuable information on what statutes are going under-enforced and the risks associated with the regulatory limitations. Through notice-and-comment rulemaking or litigation, administrative necessity would bring transparency to the administrative state.

Although there are some potential benefits to use of the doctrine, the problems it creates are difficult to overcome. Primary among these is the fact that, by definition, exceptions justified by administrative necessity run counter to the statutory mandates given by Congress. Allowing agencies the discretion to deviate from the plain text of a statute creates concerns analogous to those motivating the non-delegation doctrine, which “prevents ‘agency lawmaking on the cheap’ by requiring the legislative power to be exercised through the Article I, Section 7 requirement of bicameralism and presentment.”[45] By allowing agencies to cure the implementation issues that aspirational statutes create, the administrative necessity rationale arguably allows Congress to “avoid making the hard choice of where to direct scarce administrative resources.” [46] Allowing an agency to substitute its own policy choices for Congress’s policy choices in this manner would undermine core separation of powers principles.[47]

A more pragmatic concern is that agencies may use the doctrine as a pretext to shirk their duties. This could be manifested in two ways. First, the “impossibility” standard announced in Alabama Power could feasibly be diluted over time to become “inconvenience,” allowing agencies to defy statutory responsibility whenever executing the statute would be costly or difficult. Second, agencies may claim they lack resources to enforce policies whenever they disagree with Congressional judgment. Agencies would then have a convenient end-run for any situation in which they would have legislated differently than Congress did.

One commentator downplays this concern by claiming that agencies who don’t want to enforce a statute use non-transparent means like under-enforcement anyway.[48] This does not mean, however, that a robust administrative necessity doctrine would not expand this kind of agency quasi-legislation. Bringing administrative necessity into mainstream administrative law would grant it an air of legitimacy, which may make agency end-runs around statutory mandates pervasive.

1. Whether Past Applications of Administrative Necessity Justify EPA’s GHG Tailoring Rule

The administrative necessity doctrine is not as well-defined as the EPA makes it appear. The novelty of the three-part test which the EPA presents is somewhat problematic, but every doctrine must have its genesis somewhere. The real issue is that no agency action has actually been upheld based on the administrative necessity doctrine. This means that there is no standard for what would actually have to be established to meet the requirements of the test.

Furthermore, the case law is so thin that it is not clear what any given element really means. The element of impossibility is a good example of this. The text of the tailoring rule makes the costs of directly applying the CAA sound so prohibitive that it is functionally impossible. But there is good reason to think that the impossibility is partially of the agency’s own making:

The need for PSD and Title V permits for greenhouse gas emissions is a result of prior regulatory choices made by EPA, described in Part I, each of which is under legal challenge . . . .Furthermore, EPA could have revised the language in its current regulations to avoid triggering a requirement to regulate greenhouse gases.[49]

If the impossibility really is created by the agency’s own regulatory choices, perhaps a presumption that the statute is not actually impossible to administer should be established. But issues like these have not been addressed in the courts, so it really is not clear how to apply any given element of the doctrine.

Another reason why the administrative necessity doctrine cannot uphold the tailoring rule comes from the EPA’s other proffered defense of the rule: absurd results. Assuming that the absurd results doctrine actually applies to the tailoring rule, an issue I do not address here, the interplay between the two doctrines renders them incompatible. In their true form, they assume different things about congressional intent. The absurd results canon assumes that since the outcome of literal enforcement of the statutory text is so ridiculous, there is no way that Congress could have actually intended that outcome. So in this case, Congress could not actually have intended for the EPA to regulate greenhouse gasses like air pollutants. Administrative necessity, however, assumes that Congress did actually want the agency to enforce the statute in that way, but the agency does not have sufficient resources to do it. Thus, the EPA is simultaneously asserting two irreconcilable stances regarding Congressional intent. If the absurd results doctrine does apply here, then administrative necessity cannot apply as well.

In sum, administrative necessity is a patchwork doctrine that has never been applied by the courts to uphold agency decisions to limit enforcement. Its origins and existence are somewhat dubious, and its wisdom is questionable. The unstable foundation upon which the administrative necessity doctrine rests makes it seem unlikely to be a valid justification for the EPA’s Tailoring Rule.

Click here to see the original post and leave a comment.
_______________________________________

 

[1] 549 U.S. 497 (2007) (holding that the EPA has authority to regulate greenhouse gasses under the Clean Air Act).

[2] Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 Fed. Reg. 55,292 (Oct. 27, 2009) (to be codified at 40 C.F.R. Parts 51, 52, 70, 71).

[3] Rather than regulate at the 100/250 tpy threshold required by the Clean Air Act, the EPA decided to regulate at thresholds of 75,000/100,000 tpy. Id. at 55,292.

[4] Id. at 55,295 (“The judicial doctrine of “absurd results” authorizes departure from a literal application of statutory provisions if it would produce a result that is inconsistent with other statutory provisions or congressional intent, and particularly one that would undermine congressional purposes.”).

[5] Id. at 55,313 (citing Alabama Power Co. v. Costel, 636 F.2d 323, 400 (D.C. Cir. 1979)) (“EPA does have discretion, in administering the statute’s ‘modification’ provision, to exempt from PSD review some emission increases on grounds of de minimis or administrative necessity.”).

[6] 74 Fed. Reg. 55,315 (Oct 27, 2009).

[7] For a more in-depth discussion of the D.C. Circuit precedent leading to the use of the administrative necessity doctrine in the tailoring rule than I have space for here, see Kirti Datla, Note, The Tailoring Rule: Mending the Conflict Between Plain Text and Agency Resource Constraints, 86 N.Y.U. L. Rev. 1989 (2011); Travis Garrison, Comment, The EPA’s Greenhouse Gas Regulation Tailoring Rule: Administrative Necessity Avoiding or Pursuing Absurd Results? 56 Loy. L. Rev. 685 (2010).

[8] 636 F.2d 323 (D.C. Cir. 1979).

[9] 42 U.S.C. 7479(1) (2012).

[10] Alabama Power Co. v. Costel, 636 F.2d 323, 355–56 (D.C. Cir. 1979).

[11] Id. at 356–57.

[12] Id. at 357.

[13] Id. at 357–58.

[14] Id. at 359.

[15] Id. at 359–60.

[16] 636 F.2d 1267 (D.C. Cir. 1980).

[17] Id. at 1272–73.

[18] Id. at 1283–84.

[19] Id.

[20] 719 F.2d 436 (D.C. Cir. 1983).

[21] Id. at 442–43.

[22] Id. at 462–63.

[23] Id. at 463.

[24] Id. at 464.

[25] 722 F.3d 401 (D.C. Cir. 2013).

[26] Id. at 404.

[27] Id.

[28] Id. at 410–11.

[29] Id. at 411.

[30] Id. at 411.

[31] Id. at 412 (Kavanaugh, J., concurring).

[32] Id. at 414 (Kavanaugh, J., concurring).

[33] 932 F. Supp. 13 (D.D.C. 1996).

[34] Id. at 17.

[35] Id. (citing Environmental Defense Fund v. EPA, 636 F.2d 1267, 1283 (D.C. Cir. 1980)).

[36] Id. at 17 (emphasis in original).

[37] Id.

[38] 869 F.2d 1541 (D.C. Cir. 1989).

[39] Public Citizen v. FTC, 869 F.2d at 1555–56.

[40] Id.

[41] Id. at 1557.

[42] See New York v. EPA, 443 F.3d 880, 888 (D.C. Cir. 2006) (citing Alabama Power in support of the general proposition that agencies can create exceptions to statutory language only under rare circumstances); United States v. Am. Elec. Power Serv. Corp., 218 F. Supp. 2d 931, 945 (S.D. Ohio 2002) (same); see also Potomac Elec. Power Co. v. EPA, 650 F.2d 509, 516–18 (4th Cir. 1981) (citing Alabama Power in support of its substantive finding about “common sense industrial groupings” under the Clean Air Act); Texas v. EPA, 726 F.3d 180, 191 (D.C. Cir. 2013) (same); Kentucky Waterways Alliance v. Johnson, 540 F.3d 466, 483 (Sixth Cir. 2008) (same); United States v. Ohio Edison Power Co., 276 F. Supp. 2d 829, 888 (S.D. Ohio 2003) (same); see also Public Citizen v. Mineta, 427 F. Supp. 2d 7, 12–13 (D.D.C. 2006) (citing administrative necessity to support the proposition that the agency has discretion to choose between categorical rulemaking and case by case adjudication); Pharm Research & Mfrs. of Am. v. FTC, 44 F. Supp. 3d 95 (D.D.C. 2014) (same).

[43] Datla, supra note 7, at 2023.

[44] Id. at 2001 (internal citations omitted).

[45] Id. at 2026 (internal citations omitted).

[46] Id.

[47] Note that this concern may be more theoretical than practical since non-delegation has been rarely enforced since Mistretta v. United States, 488 U.S. 361 (1989).

[48] Datla, supra note 7, at 2024–25 .

[49] Id. at n. 88.

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 Daniel Carpenter-Gold, Managing Editor, Harvard Environmental Law Review

 

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

What did we promise?

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

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

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

Do we really have to?

This is the meat of the Paris question: will President Obama’s signature on the Paris Agreement change anything back home?

As anyone who takes the law seriously knows (and as I just looked up), international agreements make take one of three forms: treaties, requiring “the advice and consent” of two-thirds of the Senate; “congressional-executive agreements,” in which Congress uses its legislative powers to enact (typically, to pre-approve) whatever arrangement the President comes to with other countries; and what are called “executive agreements,” which are agreed to by the President, but neither ratified by the Senate nor enacted into law by Congress. Needless to say, the chances of getting Congress to agree on anything climate-related are slim—so we are for the foreseeable future left with executive agreements.

The thing about executive agreements is that their impact on domestic law (as opposed to international law) is limited by the Constitution. The federal government must act pursuant to a grant of power, after all, and while the President is blessed with certain authorities (including the right to appoint U.S. diplomats and to “receive Ambassadors and other public Ministers”), the executive’s powers do not include the authority to make laws.

One preexisting source of authority for implementing the Paris Agreement is the UNFCCC itself, which was ratified by the Senate in 1992. However, the Bush (Sr.) Administration very specifically intended that any protocol to the UNFCCC “containing targets and timetables” for greenhouse gas emission reductions would require its own ratification process, and the report of the Senate Committee on Foreign Relations made this understanding explicit in reporting the treaty. Because the Senate’s initial ratification of the UNFCCC was based on this promise, any future binding emissions limits will likely have to go through the process again, even if they are technically made pursuant to the UNFCCC.

But presidential authority also encompasses powers that Congress has already delegated to the executive branch, including the authority to implement the Clean Air Act. And under Massachusetts v. EPA, the CAA authorizes regulation of greenhouse gases, meaning that the President has authority to fulfill the terms of any climate agreement that remains within the bounds of the CAA’s grant of authority. (An interesting alternative argument is that EPA also has authority to impose limit greenhouse gas emissions through CAA § 115 on “International Air Pollution”—David Wirth breaks this down in his recent Harvard Environmental Law Review article “The International and Domestic Law of Climate Change: A Binding International Agreement Without the Senate or Congress?”)

So the executive branch can implement the INDC on its own—in fact, the U.S. INDC appears to rest entirely on authority already in place—but neither domestic nor international law requires it to do so. And this means that there will be essentially no legal avenue for holding future administrations accountable to the promises made now.

What if we don’t?

The Paris Agreement, on its own terms, does not require specific actions on the NDCs, or impose any sanction on countries that do not meet them. Art. 4.2 provides that “Parties shall pursue domestic mitigation measures with the aim of achieving the objectives” in their NDCs (my italics). There are a handful of mechanisms for checking up on countries’ progress—most importantly, a “global stocktake” in 2023 and every five years afterward (Art. 14), and an “enhanced transparency framework” for the NDCs and financial commitments (Art. 13)—but there are no actual punishments for failing to follow-up on the NDCs. In fact, the only provision to “promote compliance” with the Paris Agreement is specifically required to be “non-punitive.”

Furthermore, the U.S.’s NDC, which (unlike, say, the EU’s) does not purport to be a binding commitment and commits to almost no mitigation work beyond the Clean Power Plan. So the Paris Agreement essentially amounts to promising to continue doing what we’ve already started—which, given the scope of the Clean Power Plan and the resistance to it, may be all we’re capable of anyway.

Will we anyway?

As all climate reporting must, this piece ends with more questions than it started. What will the 2020 NDCs look like? Will China’s cap-and-trade program work? Will the Clean Power Plan survive litigation, or the change in administration? Will private industry come through with a silver-bullet plan? Will the revolution come? It’s been said before, but the Paris Agreement can only be a platform, supporting and magnifying domestic actions.

Click here to see the original post and leave a comment.
_______________________________________

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 Malia McPherson, J.D. Candidate, Stanford Law School, Expected 2016 

Introduction

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

1. THE RISKS POSED BY FRACKING

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

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

Separate from the concerns of storage and disposal of contaminated fracking fluids, there are risks with “propping” substances.[7] The oil and gas industries use silica gels to “prop” open wells before water injection. [8] If these gels are improperly handled, they can become airborne, enter a person’s lungs, and cause incurable lung diseases.[9] Further indirect effects can come transporting oil and gas away from the fracking site, which can be a way for accidents and spills to occur.[10] Finally, in California there are also concerns about fracking’s significant water use during drought conditions, and about the disposal of wastewater, which has been linked to small-scale earthquakes.[11] Cyclic steam injections used in unconventional oil and gas recovery also carry similar risks – millions of gallons of water are required for steam heating, leading to problems of aquifer depletion and contaminated wastewater.[12]

1. LEGAL CONTEXT: THE REGULATORY GAP IN CALIFORNIA
2. The Federal and State Regulatory ‘Patchwork’

The risks posed by fracking are worrisome in part because there is no national regulatory framework governing it, only a “patchwork” of inconsistent regulations that leave open the potential for spills, contamination and other ill effects throughout the country.[13] Although there are numerous other federal environmental regulations that explicitly preempt state law to ensure national uniformity,[14] prior to the passage of Measure J in 2014, the federal government had taken little action to regulate fracking.[15] Despite extensive federal environmental legislative activity from 1969 through the 1980s, fracking operations and “its roughly thirty affiliated and component processes” fell through the cracks.[16] This trend continued in 2005 when Congress explicitly exempted most types of fracking from the federal Safe Water Drinking Act.[17] Despite that statute’s goal of protecting public and municipal water supplies, the impacts of “underground injection and disposal of hazardous substances” on water quality were ignored.[18]

More recently, the federal government started taking small steps toward regulating fracking. These included announcing a long-term research plan to explore the impacts of fracking,[19] finalizing new Clean Air Act rules to limit emissions of some air pollutants,[20] and adopting regulations that create basic fracking standards for drilling on public lands.[21] These drilling standards, however, do not apply to private or state-owned land.

Recent California state legislation on fracking applies to operations throughout the state, but takes somewhat of a ‘light touch’ approach to regulating drilling operations. Senate Bill 4 (SB 4), passed in 2013,[22] is basically a type of permitting and disclosure scheme in which fracking operations can continue so long as operators meet basic requirements.[23] These requirements include groundwater and air quality monitoring, public disclosure of all chemicals used, and neighbor notification before well stimulation takes place.[24] At the time of its passage, critics were upset that SB 4 did not go much further than public disclosure and neighborhood notification of dangerous drilling operations; many environmental groups had sought a full ban or more strict regulation.[25]

Most importantly, SB 4 does not expressly preempt local law; instead, it contains provisions that “explicitly preserve local authority.”^[26] A more robust state law may have stopped local initiatives from taking root[27] – two separate district courts have found that state law preempts the ability of local or county governments to ban fracking. A Colorado district court held that a voter-approved fracking ban in Longmont was preempted by the Colorado Oil and Gas Conservation Act, and a New Mexico district court found a Mora County Ban preempted by state law.[28]

1. Options for Local Governments – Room for Community-Based Lawyering

Local and county governments can step into the regulatory vacuum left by an incomplete patchwork of state and federal regulations. As authorized in the state of California, cities and counties in particular have great power to control the extent of oil and gas development within their jurisdiction.[29] First, the state Constitution broadly provides that local governments “may make and enforce all ordinances and regulations in respect to municipal affairs…. City charters … with respect to municipal affairs shall supersede all law inconsistent therewith.”^[30] Second, the California Public Resources Code confirms that local authorities retain the power to “enact and enforce laws and regulations regulating the conduct and location of oil production activities, including … zoning,… public safety, nuisance … [and] noise …”[31] California cities by extension have the inherent authority to ban oil and gas development through their zoning powers.[32]

In addition to the ability of local governments in California to pass legislation aimed at fracking concerns, California local governments have a unique voter initiative process. From its long history with voter initiatives, California is considered “the leader in direct democracy.”[33] In California, the initiative is not a right granted by the Constitution, but rather a “power reserved” by the people.[34] This process is certainly not without limits; voter initiatives are subject to numerous limitations and requirements, including constitutional and conflict of laws rules,[35] filing and notice requirements,[36] signature thresholds,[37]^,[38] and other ballot access regulations.[39] But if the initiative appears on the ballot and receives the approval of a majority of voters, it becomes law after ten days,[40] after which it cannot be repealed or amended except by another voter initiative.[41] Because of the procedural requirements and political mobilization necessary to mount an initiative campaign, issues settled by a successful initiative are particularly difficult to overturn later. This is especially the case for local level initiatives focused on community concerns such as land use, governance, and safety, which tend to garner more voter turnout than state-level propositions.[42]

Practically, and as seen in San Benito County, the voter initiative process can also offer new channels for community-based organizations to ensure not just direct, but also equitable democracy. Through inclusive ballot initiative campaigns, community-based organizations can seek (1) more community input into the formulation of public policy and (2) community participation throughout the decision-making process. In doing so, organizations can enlist wide swaths of the voting public in participatory coalitions, propagate messages through social networks, aggregate the interests of many community members, and both create and employ social capital.[43] San Benito Rising, the organization who led the Measure J campaign, used many of these broad techniques for community-based organizing to step into the regulatory gap through the initiative process.

III. MEASURE J IN SAN BENITO COUNTY

1. Context and Motivations

The San Benito fracking ban was motivated by natural gas deposits found relatively recently within the Monterey Shale, a 1,750-mile shale gas formation running down the center of California[44] whose extraction was seen by some to be a potentially “enormous bonanza.”[45] San Benito was considered a “frontline county” before Measure J passed because drillers had already started extracting oil and gas from the region[46] and more exploration was underway in 2013.[47] Without federal or state regulatory protection before the passage of Measure J, San Benito County may have been a place where environmental harms could have gone unchecked. With a small total population, a significant portion of whom are migrant farm workers, and vast acres of undeveloped agricultural lands, San Benito County is “out of sight and out of mind” for many state politicians.[48]

            Skeptical that state regulations and regulators would adequately protect their interests, a small group of about twenty members of the San Benito County community banded together to form San Benito Rising. Early founders of San Benito Rising raised concerns that “[r]egulations are just a way of giving the industry a road map to frack. States like Pennsylvania and Texas have regulations, but that hasn’t stopped the [environmental impacts of the] process. It’s only made a mess. We realized we needed to ban the process entirely” to protect economically vital local groundwater resources.[49] Representatives of the group claimed they were not looking to role models of “environmental activism” within California for guidance, but rather to the many localities in New York that hired lawyers to draft local legislation.[50] With small amounts taken from their retirement funds, the early founders of San Benito Rising hired Shute, Mihaly & Weinberger LLP (SMW), a San Francisco law firm noted for its expertise in land use and community environmental issues, to help draft the legislation.[51]

1. The Mechanics of Measure J

Lawyers from SMW carefully drafted Measure J’s text to prohibit “the use of any land within the County’s unincorporated area for “High-Intensity Petroleum Operations.”^[52] The initiative defined such operations to include “well stimulation treatments (such as hydraulic fracturing, also known as fracking, and acid well stimulation treatments) and enhanced recovery wells (such as cyclic steam injection).”^[53] Measure J’s general purpose was to “protect San Benito County’s water quality and supplies, agricultural lands, environmental quality, rural character, scenic vistas, and quality of life.”^[54] This fell directly under the recognized local powers of zoning and public safety regulation. Rather than banning “all oil and gas extraction,” it banned all extraction activities in residential areas and stimulation treatments, except for vested interests.^[55] The initiative allowed parties with vested rights to such operations to seek approval from the planning commission for up to three years.^[56] It also allowed the San Benito County Board of Supervisors to grant exceptions to the initiative, if not doing so would constitute an unconstitutional taking.^[57] Finally, for protection, it allowed severability if any portion was deemed invalid.^[58] Unlike many voter initiatives in California, and perhaps as a result of its careful drafting, Measure J was fortunate to avoid any pre-election litigation challenge.[59] Though they had invested their own personal funds in the effort from the beginning, the leaders of San Benito Rising knew that their movement was not about themselves and would only succeed if it could engage and involve the larger countywide community.[60]

1. The Measure J Campaign

San Benito Rising departed from several common approaches for California ballot initiatives: by using volunteers instead of paid signature gatherers, by focusing on voter education, and by having candid, largely unscripted discussions about the complexities surrounding fracking.[61] San Benito Rising did not formally associate with any political parties or hire campaign consultants.[62]

During the signature collection stage, several messages about the initiative helped expand their base of support beyond environmental protection to include those concerned about: (1) the future of the county and how fracking would affect agricultural interests, (2) the business community’s interests in avoiding extractive mining impacts, and (3) the general importance of water to sustain local life and families.[63] Because of this, San Benito Rising was able to attract prominent farmers, ranchers, and even Chamber of Commerce members to support a “green” initiative.[64] Perhaps most impressively, the environmental group was able to get support from the plumbers union and the state employees association.[65] Key support also came from the Latino community; Luis Valdez, regarded as the “father of the Chicano theater in the United States,” vocally and prominently supported the movement.[66] He helped organize events such as the “Latinos United Against Fracking Conference” in San Benito.[67] Additionally, prominent teachers with connections to former students and school districts became very involved.[68] Younger high school students also became allies and took to social media: “Hay Bailers Against Fracking” (a title invoking the local high school mascot) became the Facebook platform to unite the community.[69]^,[70] San Benito Rising fundamentally tried to be “as broad as possible.”[71] By the time their initiative was turned into the county elections office for certification on April 22, 2014, San Benito Rising had collected over 4,000 signatures. The signatures were collected in merely fourteen days, which may have set a state record.^[72]

Lastly, the oil and gas industry marketing efforts deployed to oppose Measure J may actually have worked in favor of the initiative. As soon as “outside money” started flowing into community advertising – bringing repetitive television commercials, radio coverage, and mailings to San Benito County – the community became skeptical of its message.[73] Many of the groups had opaque “insider sounding names” such as “San Benito United for Energy,” which also frustrated community members.[74] Oil companies, including Chevron, Inc. and Occidental Petroleum, spent at least $6.7 million in the election cycle to oppose fracking bans.[75] In contrast, San Benito Rising raised and spent only $120,000.[76]

San Benito Rising’s inclusive and informative process succeeded in building consensus and generating interest through Election Day. The leader of Measure J’s opposition even called the movement a “great grassroots campaign,”[77] which succeeded in bringing out an extremely high voter turnout for an the off-year election (58.9%). The initiative found support from voters of all economic backgrounds, and enjoyed its strongest support from Latinos (with over 73% of Latino voters supporting the measure).[78] After the results were tallied, San Benito Rising was proud and optimistic for the future: “I think it means that people actually have more power than the biggest corporations that when you get a community involved in something ­– that has tremendous force. I think that the millions of dollars spent by the industry was really a sign of their fear more than anything else.”[79]

1. CONCLUSION

Because of the strength of its initiative process, California is a unique state that enables environmental interests to prevail at the local level. While it may often seem that one small county alone is powerless to control its destiny, inclusive voter initiatives can help tip the scale back in favor of community-based decision-making. San Benito County became the first county to ban fracking in California, and presents at least anecdotal guidance for communities who desire a fracking-free future. While the economic interests of a particular region may provide the best guide to ultimate success,[80] because of Measure J, the oil and gas industry no doubt will approach the voter initiative process with greater caution in the future. San Benito County’s Measure J experience should make communities hopeful but realistic about the possibility of using direct democracy and grassroots organizing in what may otherwise be a David and Goliath struggle to safeguard community environmental interests.

Click here to see the original post and leave a comment.
_______________________________________

 

[1] Elizabeth Ridlington & John Rumpler, Fracking by the Numbers 8 (Envir. Am., Oct. 2013), http://www.environmentamerica.org/sites/environment/files/reports/EA_FrackingNumbers_scrn.pdf.

[2] Michael Murza & Richard M. Frank, Senate Bill 4: A Past and Future Look at Regulating Hydraulic Fracturing in California, 4 (U.C. Davis, June 2014),

https://law.ucdavis.edu/centers/environmental/files/CELPC-SB4-report.pdf.

[3] Emily C. Powers, Fracking and Federalism: Support for An Adaptive Approach that Avoids the Tragedy of the Regulatory Commons, 19 J.L. & Pol’y 913, 919 (2010-2011).

[4] Murza & Frank, supra note 2, at 9 (stating that the amount used is estimated between 2 to 5 million gallons of water per well stimulation);

[5] Id. at 8.

[6] Powers, supra note 3.

[7] Murza & Frank, supra note 2, at 9.

[8] Id.

[9] Id.

[10] Id. at 10.

[11] Id. at 4.

[12] Protect San Benito, http://www.protectsanbenito.org/uploads/2/5/9/2/25924404/cyclic_steam_fact_sheet_.pdf (last visited June 27, 2015).

[13] Mfon Etukeren, Hydrofracking and Environmental Justice: A Proposal to Lower the Threshold for Evidence of Discriminatory Impact in Title VI Complaints, 4 Seattle J. Envtl. L. 51, 53 (2014).

[14] See Philip Weinberg & Kevin Reilly, Understanding Environmental Law, section 1.04 (Lexis Nexis, 2007) (noting that the Clean Air Act explicitly preempts state law with regards to emission control system for new cars and for the labeling of pesticides).

[15] Coral Davenport, New Federal Rules Set for Fracking, N.Y. Times (March 20, 2015), http://www.nytimes.com/2015/03/21/us/politics/obama-administration-unveils-federal-fracking-regulations.html?_r=0.

[16] Powers, supra note 3, at 913-14.

[17] Id. at 939.

[18] Id.

[19] Dr. Saby Ghoshray, Charting the Future Trajectory for Fracking Regulation: From Environmental Democracy to Cooperative Federalism, 38 T. Marshall L.Rev. 199, 204 (2013).

[20] Lawrence G. Cetrulo, Toxic Torts Litigation Guide, § 44:10 (West 2014) (noting that the rules don’t cover oil wells or set limits on methane release).

[21] Davenport, supra note 15.

[22] Murza & Frank, supra note 2.

[23] Michael N. Mills & Shannon L. Morrissey, California’s Efforts to Regulate Hydraulic Fracking Stimulates Litigation Flurry, ABA: Energy & Nat. Res. Comm., 9 (March 2015), http://www.americanbar.org/content/dam/aba/publications/nr_newsletters/enrl/201503_enrl.authcheckdam.pdf.

[24] Id.

[25] The Times Editorial Board, A Fracking Bill Gone Bad, L.A. Times (Sept. 12, 2013), http://www.latimes.com/opinion/editorials/la-ed-fracking-california-sb4-20130912-story.html#ixzz2ncadpe8H.

[26] Hollin Kretzmann & Kassie Siegel, Local Governments and the Power to Ban Fracking and Other Forms of Unconventional Oil and Gas Activity in California, Ctr. Bio. Diversity (Jan. 31, 2014), http://www.cafrackfacts.org/wp-content/uploads/2013/11/Local-Governments-and-the-Power-to-Ban-Fracking-January-201412.pdf. See also Cal. Pub. Res. Code § 3690 (an existing law predating SB 4 that explicitly states that state-wide oil and gas regulations “shall not be deemed a preemption by the state of any existing right of cities and counties to enact and enforce laws and regulations regulating the conduct and location of oil production activities…”); Murza & Frank, supra note 2, at 35 (stating that “. . . author Senator Pavley and the legislation’s supporters have made clear that SB 4 should not be considered the definitive and final statement governing fracking in California. To the contrary, SB 4 permits a continuing role for California local governments that wish to enact more stringent fracking regulations or bans than the statewide provisions mandated by SB 4”).

[27] David R. Baker, To Fight Fracking Bans, Oil Firms Heavily Outspend Environmentalists, S.F. Gate (Nov. 2, 2014, 7:03 AM) (discussing that Santa Cruz County in 2013 and the Los Angeles City Council in 2014 both adopted a moratorium on fracking in response to statewide inaction), http://www.sfgate.com/politics/article/To-fight-fracking-bans-oil-firms-heavily-5864369.php#photo-7082245.

[28] See e.g., Colo. Oil and Gas Ass’n v. Longmont, 20th Jud. Dist., 2013-cv-63, order 7/24/14 (the decision is being appealed and an appellate ruling is expected later this year; SWEPI, LP v. Mora County et al., Case No. 1:14-cv-00035-JB-SCY, filed Jan. 19, 2015.

[29] Kretzmann & Siegel, supra note 27.

[30] Id. (quoting Cal. Const. art. XI, sec. 5).

[31] Cal. Pub. Res. Code § 3690 (West 2015).

[32] See Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach, 103 Cal. Rptr. 2d 447, 462 (Cal. App. Ct. 2001) (stating that the enactment of a city ordinance prohibiting exploration for and production of oil, unless arbitrary, is a valid exercise of the municipal police power).

[33] Tracy M. Gordon, The Local Initiative in California, Pub. Pol’y Inst. Cal 4, 8 (2004), http://www.ppic.org/content/pubs/report/R_904TGR.pdf (observing in Note 3 that the exercise of initiative power might have been illegal under the city charters because the state didn’t authorize explicitly permit charters to adopt the initiative and referendum until 1902).

[34] Cal. Const. art. 4, § 1 (“[t]he legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.”).

[35] Gordon, supra note 34, at 14.

[36] Id. at 9-11.

[37] Id.

[38] Cal. Elec. Code §§ 9100-9126; 9200-9226 (2015).

[39] Gordon, supra note 34, at 11.

[40] Id. at 12.

[41] Using Municipal Zoning to Limit or Ban Fracking in California Communities, Earthjustice: Teleconference, http://earthjustice.org/features/using-municipal-zoning-to-limit-or-ban-fracking-in-california-communities (last visited June 27, 2015).

[42] Gordon, supra note 34, at iii.

[43] Nancy C. Carre, Environmental Justice and Hydraulic Fracturing: The Ascendancy of Grassroots Populism in Policy Determination, 4 J. Soc. Change 1, 6 (2012).

[44] Louis Sahagun, U.S. officials cut estimate of recoverable Monterey Shale oil by 96%, L.A. Times (May 20, 2014 9:00 PM), http://www.latimes.com/business/la-fi-oil-20140521-story.html.

[45] Id.

[46] Kate Woods,“Protect Our Water” Initiative Qualifies for November Ballot, Benito Link, (May 1, 2014, 2:13 PM), http://benitolink.com/%E2%80%9Cprotect-our-water%E2%80%9D-initiative-qualifies-november-ballot.

[47] Julie Morris, Oil Exploration to Proceed in South County, San Benito Link (June 5, 2013, 10:32 AM), http://benitolink.com/oil-exploration-proceed-south-county.

[48] Telephone Interview with Andrew Hsia-Coron, San Benito Rising (May 4, 2015).

[49] Deborah Luhrman, San Benito Rising Files Anti-Fracking Initiative, Edible Monterey Bay (May 17, 2014), http://ediblemontereybay.com/blog/san-benito-rising-files-anti-fracking-initiative.

[50] Jason Hoppin, Fracking Stirs Debate in San Benito County, Santa Cruz Sentinel News (April 30, 2014, 12:01 AM), http://www.santacruzsentinel.com/general-news/20140430/fracking-stirs-debate-in-san-benito-county.

[51] Hsia-Coron, supra note 49.

[52] San Benito County Code § 25.29.161.

[53] San Benito County, Proposed Measure J (2014), http://www.foodandwaterwatch.org/sites/default/files/frack_actions_sanbenitocountyca.pdf.

[54] Id.

[55] Id.

[56] Id. at Policy 41.

[57] Id. at Section 5.

[58] Id. at Section 8.

[59] Citadel Drops Measure J Lawsuit Against County, San Benito Link (April 6, 2015, 8:21 PM) (describing post-passage litigation effort), http://benitolink.com/citadel-drops-measure-j-lawsuit-against-county.

[60] Hsia-Coron, supra note 49.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[66] Kate Woods, Luiz Valdez Speaks on the Issue of Fracking, San Benito Link (Oct. 2014), http://benitolink.com/multimedia/luis-valdez-speaks-issue-fracking.

[67] Id.

[68] Hsia-Coron, supra note 49.

[69] Id.

[70] Hsia-Coron, supra note 49, to see full list of endorsements, visit http://www.protectsanbenito.org/endorsements.html.

[71] Hsia-Coron, supra note 49.

[72] Lauren Sommer, Anti-Fracking Activists in California Take Fight to County Ballots, KQED: Science (October 10, 2014), http://ww2.kqed.org/science/2014/10/10/anti-fracking-activists-in-california-take-fight-to-county-ballots.

[73] Hsia-Coron, supra note 49.

[74] Id.

[75] Baker, supra note 28.

[76] Id.

[77] Kollin Kosmicki, Measure J Backers Reflect on Historic Victory, Hopes for “Movement,” San Bentito County Today (Nov. 5, 2014, 12:22 AM), http://www.sanbenitocountytoday.com/news/local_politics/measure-j-backers-reflect-on-historic-victory-hopes-for-movement/article_51cc6342-64c4-11e4-aa39-001a4bcf6878.html.

[78] Hsia-Coron, supra note 49.

[79] Id.

[80] At the same 2014 election, Santa Barbara County also voted on an anti-fracking measure (Measure P), also drafted by lawyers from SMW, and put forward by the Santa Barbara County Water Guardians. Despite the close similarities between the measures, its liberal voting history, and the fact that it was the site of an infamous 1969 oil spill in the Pacific Ocean, Measure P failed in Santa Barbara. Though the politics surrounding Measure P were complex, a few explanations can be found: 1) Santa Barbara is a larger county by population and has a larger oil industry footprint than San Benito, meaning that the general feelings towards the oil and gas industry were not as consistently negative; 2) Misconceptions about the mechanics of Measure P fed confusion about its applicability and effects, eroding support; and 3) The coalition formed in Santa Barbara was less successful at finding allies in other sectors of the economy and at convincing working class voters that their economic interests were served by Measure P. See generally, Darcel Elliot, The Healthy Air and Water Initiative to Ban Fracking, Acidizing and Steam Injection will be “Measure P,” Santa Barbara Indep. (Jun. 26, 2014), http://www.independent.com/releases/2014/jun/26/healthy-air-and-water-initiative-ban-fracking-acid; Mike Mills, Two County Fracking Prohibitions Succeed While One Fails: What the Voting Results in Santa Barbara, San Benito, and Mendocino Counties Mean for the Oil & Gas Industry in California, Stoel Rives, LLP: Envir. L. Blog (Nov. 6, 2014), http://www.californiaenvironmentallawblog.com/oil-and-gas/two-county-fracking-prohibitions-succeed-while-one-fails-what-the-voting-results-in-santa-barbara-san-benito-and-mendocino-counties-mean-for-the-oil-gas-industry-in-california/; Keith Carls, Measure P Oil Ban Soundly Defeated (Nov. 5, 2014, 10:35 AM), http://www.keyt.com/news/measure-p-going-down-to-defeat/29548048. See also Sommer, supra note 73.

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 Eric Anthony DeBellis, Senior Executive Editor for Ecology Law Quarterly. Berkeley Law School

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

Background

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

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

Supporters: A Unique Challenge Calls for a Unique Solution

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Click here to see the original post and leave a comment.
_______________________________________

 

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

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

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

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

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

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

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

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

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

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

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

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

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

[13] Id. at 66,514.

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

[15] Id.

[16] Id. at 66,514–15.

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

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

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

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

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

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

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

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

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

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

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

[28] Id. at 64,673.

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

[30] Id.

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

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

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

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

[35] Tribe, supra note 31.

[36] Id.

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

[38] Farber, supra note 31.

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

[40] Id.

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

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

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

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

[45] Id.

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

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

__________________________________________

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

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

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

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

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

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

INDCs: A Bottom-Up Approach Under the UNFCCC

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

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

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

Strengths and Weaknesses of INDC Approach

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

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

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

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

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

Conclusion

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

Click here to see the original post and leave a comment.
_______________________________________

 

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

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

[3] UNFCCC, supra note 1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[18] INDC Synthesis Report, supra note 13.

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

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

[21] INDC Synthesis Report, supra note 13.

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

 

By Liz Rasheed, Submissions Editor for  NYU Environmental Law Journal

1. Introduction: What is Illicit Wildlife Trafficking?

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

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

1. Combating Wildlife Trafficking through International Law: CITES

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

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

• The Modern Poaching Problem
  1. The Current Crisis

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

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

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

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

1. A Timeline of Elephant and Rhino Poaching

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

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

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

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

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

1. What’s Changed?

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

1. Technical Aspects of Transport

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

1. Addressing the Crisis

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

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

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

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

1. WTO: Doha and the Trade Facilitation Agreement

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

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

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

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

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

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

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

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

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

1. Conclusion

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

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

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

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

Click here to see the original post and leave a comment.
_______________________________________

 

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

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

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

[3] Id. at 49.

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

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

[6] International Fund for Animal Welfare at 32.

[7] Id. at 35.

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

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

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

[11] CITES art. 15.

[12] See Sands et al. at 476.

[13] Id.

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

[15] Id.

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

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

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

[19] Id.

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

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

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

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

[24] Id.

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

[26] See Milliken at 1.

[27] See UN Chronicle.

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

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

[30] International Environmental Law and Policy at 1081.

[31] Id. at 1082.

[32] Id.

[33] Id.

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

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

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

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

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

[39] Id.

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

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

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

[43] Out of Africa at 12.

[44] Id.

[45] Id.

[46] Id. at 17.

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

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

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

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

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

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

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

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

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

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

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

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

[59] Out of Africa at 22–23.

[60] Out of Africa at 7.

[61] Id. at 18.

[62] Id. at 8.

[63] Id. at 13.

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

[65] Out of Africa at 19.

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

[67] Out of Africa at 7.

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

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

__________________________________________

By Gillian Schroff

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

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

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

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

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

II. Alternative Interpretations of the RPA Provision

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

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

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

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

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

III. RPA Provision in Context

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

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

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

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

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

A. The Flexible Nature of RPAs

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

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

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

B. Consequences of a Broader Standard

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

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

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

IV. Conclusion

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

Click here to see the original post and leave a comment.
_______________________________________

[1] 16 U.S.C. § 1536.

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

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

[4] Id. at 173–74.

[5]Id. at 193.

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

[7] Id. at 598–99.

[8] Id. at 600–01.

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

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

[11] Id. at 184.

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

[13] San Luis, 747 F.3d at 636–37.

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

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

[16] Id. at 1096.

[17] Id. at 1110.

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

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

[20] Id. at 474–75.

[21] Id. at 464.

[22] Id. at 473–74.

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

[24] Id.

[25]Id. at 474–75.

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

[27] Id. at 635–36.

[28] Id. at 636.

[29] Id.

[30] Id. at 637.

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

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

[33] Galbraith, supra note 2.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[50] Id.

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

[52] 16 U.S.C. § 1536(h) (2012)

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

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

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

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

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

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

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

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

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

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

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

[64] 16 U.S.C. § 1536(a)(2) (2012).

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

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

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

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

[69] Id. at 183.

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

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

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

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

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

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 Christopher Hyner, Managing Editor—Georgetown Environmental Law Review

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

First, the interconnectedness of animal agriculture and the environment.

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

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

Second, the policies . . . or lack thereof.

Animal agriculture is a significant contributor, arguably the most significant, to a variety of pressing environmental issues. Despite the magnitude of the problem, relatively few global and national policies addressing the environmental effects of animal agriculture exist, and those that do exist are grossly inadequate. Federal agencies, specifically, have neglected their statutory authority to reduce greenhouse gas emissions from the animal agriculture industry.

The agency primarily responsible for regulating animal agriculture, the United States Department of Agriculture, fails to adequately address animal agriculture in its climate plan.
On April 23rd, 2015, Tom Vilsack, Secretary of the U.S. Department of Agriculture, unveiled the Agency’s “Building Blocks for Climate Smart Agriculture & Forestry” plan. The plan is primarily designed to “help farmers, ranchers, and forest land owners respond to climate change.[13] The USDA draws its authority to address climate change from the recent enactment of the Agricultural Act of 2014, or the “Farm Bill.”[14] Interestingly, the only reference to climate change in any provision of the most recent Farm Bill is in its reauthorization of the Office of International Forestry under Section 2405(d) of the Global Climate Change Prevention Act of 1990.[15]

USDA’s strategic climate plan, which grants that “[t]he dominant drivers of land use emissions of carbon are the conversion of forest and grassland to cropland and pasture” for animal agriculture, fails to establish concrete measures to reduce greenhouse gas emissions from animal agriculture.[16] The climate plan instead relies on voluntary conservation programs that provide technical assistance for resource management to encourage the animal agriculture industry to reduce greenhouse gas emissions.[17] One building block of the plan recommends the deployment of anaerobic digesters, lagoon covers, composting, and solids separators to reduce emissions from livestock—the equivalent of telling the industry to voluntarily change their light bulbs and to recycle more.[18] Another building block encourages rotational grazing management of livestock even though it has been shown that grazing makes less sense than Concentrated Animal Feeding Operations (CAFOs) in terms of accounting for emissions and overall sustainability.[19] These voluntary measures inadequately address animal agriculture’s contribution to climate change.

The two primary remedial measures the USDA identifies to curtail greenhouse gas emissions—improved agricultural management practices and nitrous oxide (N2O) and methane (CH4) sequestration—do not go far enough. Although USDA notes that improved agricultural management practices can have a potentially significant role in addressing the atmospheric build-up of greenhouse gas emissions, it admits that these benefits will be realized over the next century.[20] This is an essential step, but additional measures must be taken that will reduce greenhouse gas emissions in the short term to avoid the catastrophic effects of climate change.

Of particular concern is animal production’s contribution to N2O (nitrous oxide) and CH4 (methane) emissions. With both eyes on the economic wellbeing of the animal agriculture industry and ensuring that current levels of production are maintained, USDA looks to “technological advancement” as the pathway for reducing NO2 and CH4 emissions.[21] The USDA identifies sequestration capabilities as the key to reducing NO2 and CH4 emissions. The Agency, however, alleges that it does not know enough to specify any concrete practices to mitigate climate change, focusing on unknown economic consequences sequestration methods may have on the producer.[22] The USDA emphasizes that GHG mitigation is one of a number of conservation issues facing land management.[23] “Soil and water quality, wildlife resilience and sustainability, air quality,” among others are noted, and tradeoffs must be identified and evaluated in order to design effective programs that address climate change.[24] In other words, USDA evades imposing concrete measures to curtail N2O and CH4 emissions until it has a better understanding of whether such mitigation will have a negative impact on the industry’s economic viability as well as on attempts to address other conservation issues.

Likewise, the Obama Administration fails to adequately address animal agriculture in the Climate Action Plan.
The Obama Administration’s Climate Action Plan narrowly focuses on energy production with no mention of animal agriculture except as it may relate to “agricultural activities” in the release of nitrous oxide.[25] What the Climate Action Plan fails to tell us is that livestock is responsible for 65% of all human-related emissions of N20, which has 296 times the global warming potential of carbon dioxide.[26] Moreover, though carbon dioxide comprises a large percentage of greenhouse gas emissions, the Plan fails to explain that a substantial portion of those emissions are directly tied to the production life cycle of meat and dairy products.[27] These climate plans are simply lacking in generating sound policies that include strategies to reduce animal agriculture’s contribution to climate change.

Efforts to reduce carbon emissions from fossil fuels are certainly vital to addressing climate change. The administration’s policy picture, however, fails to address one of the leading causes of human-related greenhouse gas emissions by not directly curtailing emissions from animal agriculture. Animal agriculture is hardly mentioned by the agencies charged with developing policies and regulations to mitigate the negative impacts of not only climate change, but also other environmental and public health issues.

Concrete policies addressing animal agriculture’s environmental effects need to be created and implemented. The administration has several tools at its disposal to address this issue. First, the Obama Administration can pressure the USDA to redraft and implement a more sophisticated plan to cut greenhouse gas emissions from livestock production, much in the way the Environmental Protection Agency was charged in generating the Clean Power Plan in targeting fossil fuel emissions from power plants.

Second, eliminate all subsidies to animal agriculture and impose a meat tax. In his book, Meatonomics, David Simon spells out how eliminating subsidies and reforming taxes can force us to pay the true cost of meat and dairy products as well as put more money back into the taxpayers’ pockets.[28] In the United States, taxpayers support upwards of $38.4 billion a year in subsidies to animal food production and assume over $400 billion of externalized costs associated with animal food production including subsidies, healthcare costs, environmental costs, animal cruelty, and fish production.[29] Eliminating subsidies would rid our food system of market distortions and allow the market principles of free trade—the principles that govern our economy—to readjust our consumption patterns towards healthier and environmentally aligned products.[30]

All in all, if we want to make serious gains in minimizing harms to the environment and public health, we need concrete policies that take a serious stance on minimizing animal agriculture.

Click here to see the original post and leave a comment.
_______________________________________

[1] USDA, USDA Climate Change Science Plan 4 (2010), available at http://www.usda.gov/oce/climate_change/science_plan2010/USDA_CCSPlan_120810.pdf. These figures include contributions from land use change and deforestation for the purpose of agriculture—primarily to make land available for grazing.

[2] Henning Steinfeld et al., FAO, Livestock’s Long Shadow: Environmental Issues and Options (2006), available at http://www.fao.org/docrep/010/a0701e/a0701e00.htm. A more recent and comprehensive study published by Worldwatch Institute, however, finds that livestock and their byproducts actually account for 51% of worldwide human-related greenhouse gas emissions annually. Robert Goodland & Jeff Anhang, Livestock and Climate Change, World Watch Magazine, November/December 2009, at 11.

[3] David Tilman & Michael Clark, Global Diets Link Environmental Sustainability and Human Health, 515 Nature 518, 520 (2014).

[4] Id.

[5] FAO, General Situation of World Fish Stocks, http://www.fao.org/newsroom/common/ecg/1000505/en/stocks.pdf.

[6] Boris Worm et al., Impacts of Biodiversity Loss on Ocean Ecosystem Services, 314 Science 787, 790 (2006).

[7] USDA, Animal and Plant Health Inspection Service, https://www.aphis.usda.gov/wps/portal/aphis/ourfocus/wildlifedamage (last visited Oct. 15, 2015).

[8] Ralph Maughan, Wedge Wolf Pack Will be Killed because of its Increasing Beef Consumption, The Wildlife News (Sept. 28, 2012), http://www.thewildlifenews.com/2012/09/22/wedge-wolf-pack-will-be-killed-because-of-increasing-beef-consumption/.

[9] Ross W. Gorte et al., Cong. Research Serv., R40237, Federal Lands Managed by the Bureau of Land Management (BLM) and the Forest Service (FS): Issues in the 111th Congress 11 (2010); see also 157 Cong. Rec. H420 (daily ed. Jan. 24, 2011) (statement of Rep. Burton); 180 More Wild Horses Found Dead in Nevada, N.Y. Times, Oct. 12, 1988, at A15.

[10] Sergio Margulis, Causes of Deforestation of the Brazilian Amazon, The World Bank (2004), http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/2004/02/02/000090341_20040202130625/Rendered/PDF/277150PAPER0wbwp0no1022.pdf.

[11] EPA, Draft Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources 14 (Feb. 2011), available at http://www2.epa.gov/sites/production/files/documents/HFStudyPlanDraft_SAB_020711.pdf.

[12] David Pimentel et al., Water Resources: Agricultural and Environmental Issues, 54 BioScience 909, 911 (2004).

[13] USDA, Building Blocks for Climate Smart Agriculture and Forestry, http://www.usda.gov/wps/portal/usda/usdahome?contentidonly=true&contentid=climate-smart.html (last visited Oct. 15, 2015).

[14] Id.; see also Katie Hoover, Cong. Research Serv., R43431, Forestry Provisions in the 2014 Farm Bill (Pl. 113-79) (2014).

[15] 7 U.S.C. § 6704(d) (2012).

[16] USDA, supra note 1, at 3-4.

[17] USDA, USDA’s Building Blocks for Climate Smart Agriculture & Forestry—Fact Sheet (Apr. 23, 2015), available at http://www.usda.gov/documents/climate-smart-fact-sheet.pdf.

[18] Id.

[19] Id.; see also Cowspiracy (A.U.M. Films 2014).

[20] USDA, supra note 18, at 4.

[21] USDA, supra note 1, at 15-17.

[22] Id.

[23] Id.

[24] Id.

[25] Climate Change and President Obama’s Action Plan, The White House, https://www.whitehouse.gov/climate-change#section-carbon-pollution (last visited Oct. 15, 2015).

[26] Supra, note 2, at xxi.

[27] Supra, note 3.

[28] David R. Simon, Meatonomics, 166 (2013); see also Marya Torrez, Accounting for Taste: Trade Law Implications of Taxing Meat to Fight Climate Change, 27 Geo. Int’l Envtl. L. Rev. 61 (2014).

[29] Id. at Appendix B.

[30] Emiko Terazono, OECD Warns Farm Subsidies Still Too High, Financial Times (Sept. 4, 2014), http://www.ft.com/cms/s/0/a42540e4-3384-11e4-85f1-00144feabdc0.html#axzz3okCLb03e.