Category: Top Ten

VJEL Staff Editor: Taylor Tavormina

Faculty Member: John Echeverria

 

Looming United States Water Wars

 

States have long had disputes over the use of interstate waterbodies with neighboring states, but the number of these disputes is now at an all-time high and the number of these disputes may well increase in the future. Water covers over 70% of Earth’s surface, but only a tiny fraction of this water is accessible fresh water suitable for human use. Moreover, much of the United States population is concentrated in relatively arid parts of the country. In addition, the latest reports from the U.S. Climate Science Program predict lower precipitation in many parts of the country during certain periods of time. A predictable consequence of these trends is more legal conflict between States over shared water resources.

 

Background

 

Congress on rare occasion steps in to resolve water disputes between States through legislation. The most common method for resolving interstate water allocation disputes are interstate compacts or so-called equitable apportionment proceedings. If States can agree over allocation of water supplies between themselves, Congress can approve the agreements pursuant to the Compact Clause and make them binding on the States. When States fall into disagreements over how to read a compact, they can turn to the U.S. Supreme Court for help, which has original and exclusive jurisdiction over all lawsuits between different States. In the absence of a compact, States can file suit against neighboring States directly in the Supreme Court to obtain an equitable apportionment of interstate waters. Resolving interstate water disputes is very difficult and time-consuming. The Court routinely appoints Special Masters, who are often retired lawyers or law professors, to handle the cases on a day-to-day basis and make recommendations to the Court.

 

The following interstate water cases currently pending before the Supreme Court show the complexity and diverse character of these dispute.

 

Supreme Court Litigation

 

Mississippi v. Tennessee, Supreme Court Case No. 143

In 2014, the State of Mississippi sought permission from the Supreme Court to proceed with a case against the State of Tennessee arising from the City of Memphis’s alleged over-pumping of water the Sparta-Memphis aquifer that underlies the two states—as well as other states in the region. Mississippi contends the city’s intensive pumping has created a “cone of depression” in the aquifer causing water to flow from beneath Mississippi across the state line to Tennessee. The case is pathbreaking because it is the first interstate water case to focus on interstate allocation of groundwater. The case is also unusual because the States do not even agree on the nature of their dispute. Mississippi has not sought a traditional equitable apportionment because it claims absolute ownership of “its” groundwater and contends Tennessee has engaged in a “trespass” upon its rights. Tennessee, by contrast, defends by arguing that equitable apportionment doctrine should apply to interstate aquifers in the same way it applies to interstate surface waters. Tennessee suggests Mississippi’s case must be rejected because Mississippi has made no equitable apportionment claim. The Special Master, following years of fact finding and legal argument, is poised to issue a report in the near future, setting up the issues for presentation to the Supreme Court.

 

Texas v. New Mexico, No. 141.

In 1938, the States of Colorado, New Mexico, and Texas signed the Rio Grande Compact allocating this important river that not only supplies water to the region but also serves as the international boundary between the United States and Mexico. In 2014, Texas initiated a compact enforcement action in the Supreme Court alleging that New Mexico has allowed surface water diversions and pumping of hydrologically connected groundwater in certain locations along the river in violation of the Compact, reducing the volume of water reaching Texas. New Mexico countered by asserting that it has acted within its rights under the Compact. To make matters more complicated, the United States has intervened on the side of Texas and contends that New Mexico’s compact violations impair its ability to deliver water in accord with a treaty between the United States and Mexico. Following a 2018 decision affirming the right of the United States to intervene in the case, the Supreme Court sent the case back to the Special Master for fact finding which is currently ongoing.

 

Florida v. Georgia, No. 142.
For several decades the States of Florida and Georgia engaged in ultimately fruitless efforts to form a compact dividing up the flows of the Apalachicola-Chattahoochee-Flint River System, which flows from the northern tip of Georgia southward to Apalachicola Bay in Florida. In 2012, in the wake of this failure, the State of Florida initiated a case before the Supreme Court seeking an equitable apportionment of the river. The case was assigned to a Special Master who, after years of deliberation, concluded that Florida’s case should be dismissed. In 2018, in a 5-4 decision, the Supreme Court rejected the Special Master’s recommendation, ruling that he had applied too high a standard of review in determining whether Florida was entitled to relief. The Court remanded the case for further proceedings before a second Special Master, who issued a comprehensive report in December 2019, again recommending that Florida’s case be dismissed. The second Special Master concluded that Florida failed to prove that upstream diversions harm the oyster fishery in Apalachicola Bay and that granting a water allocation to Florida would not produce benefits in Florida that outweigh the economic costs in Georgia. The Special Master submitted the report to the Supreme Court, which is expected to schedule oral argument or otherwise take action in the near future.

 

Texas v. New Mexico, No. 1949
In 1949, Congress approved the Pecos River Compact between the States of New Mexico and Texas. Over the years the Pecos River Compact has given rise to several conflicts that have required Supreme Court attention; in particular, faced with intractable deadlock on the Pecos River Commission, the Supreme Court took the unusual step of appointing a permanent “River Master” to oversee implementation of the compact. The latest controversy arising from this compact involves an interesting but relatively narrow “accounting” question. In 2014-2015, after a tropical storm drenched the region, the State of Texas asked New Mexico to store excess flood waters in a reservoir in New Mexico on a temporary basis. While the water sat in the reservoir in New Mexico, its volume inevitably shrank as a result of evaporation. After the water was eventually released downstream, the question arose whether the water loss due to evaporation should be charged to New Mexico or Texas. The States attempted to resolve this accounting dispute between themselves, but that effort failed. They referred the issue to the Water Master, who ruled in favor of New Mexico. On October 5, 2020, the first day of the new term, the Supreme Court heard oral argument on Texas’s challenge to the River Masters’ conclusion. The Court is expected to issue its decision soon.

 

Problems

 

The current process in the United States for resolving interstate water disputes has some serious weaknesses. First, it has become increasingly difficult to establish new interstate water allocations. Members of Congress avoid enacting legislation to resolve interstate water conflicts because of their understandable reluctance to intrude in essentially regional conflicts. No States have successfully negotiated new compacts apportioning interstate waterways since 1978. In recent decades, States have not had any better luck with equitable apportionments, and it now seems unlikely the outcome in Florida v. Georgia will break this pattern. The Supreme Court has been more successful in resolving disputes over how to interpret interstate compacts. However, these proceedings are often time-consuming and expensive. It might be questioned whether some compact enforcement cases, such as the pending accounting dispute arising from the Pecos River Compact, are worthy of the time and attention of the Supreme Court. The Court has broad discretion over whether to agree to adjudicate interstate water cases within its original jurisdiction and the Court may well be reluctant to expand its water docket. Meanwhile, the Nation’s growing population and the increasing risk of serious drought due to climate change, raise the prospect that interstate water conflicts will become more frequent. It is debatable whether the current system for resolving interstate water conflicts is adequate to deal with the nation’s looming water wars.

 

Importance and Looking Forward

 

Water scarcity is an ever worsening problem and can lead to growing conflicts between States over their shared waters. This looming challenge highlights the importance of achieving national and international progress in controlling carbon emissions and capping the pace of climate change. Many communities in the United States already have made impressive progress in conserving water, and redoubled efforts to reduce water use can help avoid future interstate water conflicts. It is worthwhile to consider how to reform the process for resolving interstate water conflicts, including reducing the cost, time, and effort that are invested in these cases. Negotiation, mediation and arbitration are all techniques that can potentially expedite the resolution of these disputes. Enhanced data collection and stream flow modelling capabilities can reduce uncertainties and thereby enhance the prospects for informal resolution of interstate water conflicts.

 

VJEL Staff Editor: Madison Hertzog

Faculty Member: Jim Murphy

To Rebuild or Not to Rebuild? An Examination of NEPA and the Environmental Regulatory State

 

Where to begin? It is commonplace that a change of administration comes with alterations in law and policy. But when did a change in administration become synonymous with the systematic dismantling of the environmental regulatory state? To date, the Trump Administration has rolled back or reversed 104 major environmental policiesincluding those safeguarding clean water, air, and wildlife.

 

An apt example is the National Environmental Policy Act of 1970 (NEPA). NEPA was among the first of many laws intended to address a series of nationwide environmental crises a half-century ago where rivers were so polluted they were on fire; cities were choked with smog; and species like the bald eagle and gray wolf were at the brink of extinction.

 

NEPA expressly places environmental concerns at the forefront of federal decision-making. It requires that all federal agencies proposing a major agency action significantly impacting the quality of the human environment conduct a series of environmental assessments prior to acting. NEPA also established the Council for Environmental Quality (CEQ) within the Executive Office of the President to ensure that agencies comply with the terms of the Act and any proposed amendments to NEPA.

 

The text of NEPA itself is quite brief. As such, much of NEPA law and implementation derives from regulations promulgated in 1978 and supported by five decades of case law. Among other things, the 1978 regulations required extensive consideration of the direct, indirect, and cumulative impacts of agency actions and provided opportunities for robust public participation. Yet in July 2020, the CEQ finalized rules that upend the 1978 NEPA regulations to the praise of industry but over the objections of a vast majority of over 1.1 million public commenters.

 

Despite the Trump Administration’s claim that the final rule modernizes NEPA by increasing transparency, promoting early public involvement, and generally fast-tracking the review process, one doesn’t have to look too closely to realize this characterization misrepresents the new NEPA. Instead, the final rule is a nod to the oil and gas industry and its sympathizers who have long complained that NEPA review takes too long and imposes unnecessary restrictions upon projects. The primary effect of the new NEPA regulations is to transform NEPA from a look before you leap statute into a meaningless check-the-box exercise that fails to consider impacts and shortcuts public input.

 

Specifically, the final rule narrows the definition of “major federal agency action,” restricting the number of action that will even be subject to NEPA. It also seeks to substantially limit the universe of affects considered by agencies by removing references to “cumulative” and “indirect” effects well as segmentation of projects in order to avoid review. Additionally, the new rule vastly expands the ability of agencies to identify categories that do not need an environmental assessment. Furthermore, it places an artificial constraint on the time agencies may take to do reviews and limits the page length of such reviews without providing additional resources to meet these tight deadlines.

 

The practical effects of these new rules are that far fewer projects will undergo any form of NEPA review. Those projects that are subject to NEPA will undergo an artificially truncated process that makes public participation harder and fails to require the review of important environmental impacts like climate change.

 

The NEPA rule is just one example. There have also been multiple rollbacks crippling the Clean Water Act, Clean Air Act, Endangered Species Act, and many other bedrock environmental protections. Many of these regulatory rollbacks are in current litigation, and thus far, the challengers have won all but a handful of cases.

Given the massive extent of these rollbacks, reconstructing the regulatory state will be challenging for the Biden Administration. Take the NEPA example. The unfortunate reality is that the Biden CEQ cannot simply wave a wand and restore the 1978 rule. Instead, it must reinstate the 1978 NEPA through the formal rulemaking process, which takes time and resources. It is also possible that the Biden Department of Justice stops fighting court challenges to the rollbacks and either settles or withdraws these cases. However, that path may not avoid the need for rulemaking because the reviewing judge may order it anyway.

 

Another option is for the new Congress to use the Congressional Review Act (CRA) to pass legislation to overturn the CEQs amendments to NEPA. To be eligible for consideration, a rule must have been enacted within LX legislative days of a presidential election. Functionally, the CRA allows Congress to reconsider and, if necessary, overturn newly issued rules. Once a rule is overturned, the promulgating agency is prohibited from issuing any new rules that can be considered substantially similar. NEPA is one of many acts that would be eligible for reconsideration under the CRA. Use of the CRA would almost certainly depend on both the Biden Administration and a Democratic Congress. This will come with the political cost of convincing conservative Democrats to support the reversal—and there will likely be many tough asks of these lawmakers—as well as the risk of restricting the agency’s options for future rulemaking.

 

But a deeper question to consider is whether it is ideal to simply restore these regulations. For a variety of reasons, a return to the previous rules would be politically expedient and more protective than the rollbacks—but doing so may be a lost opportunity. However, many of the previous regulations were written decades ago and do not directly address currently pressing challenges, like climate change and environmental justice.

 

Although the Trump Administration is responsible for single handedly dismantling a large portion of the environmental regulatory state, it is possible this could provide a time for a proper reset. The laws and regulations attacked are old and while effective, may be imperfect tools for addressing twenty-first century challenges. A regulatory rebuild properly done could fix that.

VJEL Staff Editor: Brad Farrell

Faculty Member: Rachel Stevens

Unearthing Virtual Pipelines

 

The oil and gas pipeline network in the United States stretches nearly three million miles, with another 21,500 miles currently proposed or under construction. Since July 2020, however, frontline communities and environmental advocates successfully challenged the most significant of these proposed pipelines: Keystone XL, Dakota Access, and Atlantic Coast. The 2,600-mile Keystone XL pipeline hit a major roadblock when the Supreme Court upheld an orderissued by a Montana federal court to stay the pipeline. Simultaneously, Dominion Energy announced the cancellation of the Atlantic Coast pipeline project and the U.S. District Court for the District of Columbia ordered the Dakota Access pipeline to shut down pending further environmental review, handing down a victory to the Standing Rock Sioux Tribe and other groups opposing the pipeline. Meanwhile, the significant reduction in travel due to COVID-19 has sunk oil demand and prices and led to a glut of petroleum as oil and gas companies opt to keep their products moving rather than decrease production.

 

Confronting these legal battles and shifting economics, oil and gas companies are rapidly moving their products above ground, turning to trucks, trains, and tankers—known as “virtual pipelines“—to transport and store oil and gas on roads, rails, and waterways. Since the pandemic began, California residents witnessed dozens of oil tankers idling just offshore from the Port of Los Angeles being used for floating storage of 20 million barrels of oil. Gulf Coast residents confronted a flotilla of nearly 20 tankers, including very large crude carriers, floating offshore from Saudia Arabia waiting to unload in U.S. ports. Inquiries from oil and gas companies for available truck and train transport has also intensified since the pandemic.

 

Undoubtedly, environmentalists have had success making pipeline challenges the frontline in the fight against fossil fuels and climate change. But these legal victories are short lived if oil and gas companies revert to virtual pipelines which last made significant national headlines in 2014, before the Dakota Access pipeline was in service and before President Obama rejected the Keystone XL pipeline. The Association of American Railroads estimates that carloads of crude oil on U.S. railroads peaked in 2014 at 493,146, falling sharply the next few years as the Trump Administration fast tracked traditional pipelines.

 

This shift to virtual pipelines is moving forward without public scrutiny or environmental review, even though the associated safety and environmental risks may be more detrimental than traditional pipelines. Shipping crude oil and gas via virtual pipelines may have greater environmental costs than traditional pipelines because trains and trucks emit ground level air emissions, burn diesel fuel, and have a greater risk of spilling in populated areas. One study of crude-oil-by-rail transported out of North Dakota estimates that the “air pollution and greenhouse gas costs are nearly twice as large for rail as for pipelines.”

 

Virtual pipelines also present well documented safety risks. Truck brakes and exhaust systems can heat to upwards of 1,000 degrees Fahrenheit, temperatures that would easily ignite leaking natural gas in the event of a leak or a crash. A truck driver in New York fell asleep at the wheel and careened down an embankment, leaking natural gas.  In July of 2013, a major accident in Quebec killed 47 people. Another accident in Alabama started an inquiry into the lack of oversight on virtual shipping methods. This boom in train and truck oil transportation has directly correlated to increased spills. In 2013 alone, more gallons of oil spilled due to rail accidents than the previous total from 1975 to 2012.

 

These hazardous transportation methods are regulated by the Pipeline and Hazardous Materials Safety Administration (PHMSA) which issues special permits and writes specifications for these tank cars, as well as for all highway, railroad, and barge tanks carrying hazardous materials. Companies can receive special permits to transport compressed gas on the roadways by showing their canisters withstand front, rear, and side-impact as well as rollovers. This permitting process currently does not involve an environmental review under the National Environmental Policy Act (NEPA) that would otherwise require a “hard look” at the virtual pipeline’s environmental impacts. Gas transported in these PHMSA certified containers reaches more geographic areas than traditional pipelines could, expanding the demand and infrastructure related to natural gas without evaluating the environmental impact of the virtual pipeline.

 

The transportation of highly flammable substances by virtual pipeline may be entering a new boom now that the PHMSA promulgated a rule in August 2020 that allows railways to transport liquified natural gas—leading some to worry about “bomb trains” rolling through neighborhoods. Virtual pipelines may also prolong the life of oil and gas by expanding into to new regions like New England, where the terrain will not support traditional pipeline development.

 

Looking ahead, a move to virtual pipelines may accelerate under the new Biden Administration as oil and gas companies seek new forms of transportation that avoid environmental review. Although president-elect Biden will seek to expand the renewable energy market in all 50 states, he campaigned on a promise that he will not ban fracking. If the Biden Administration opposes traditional pipelines, like the Obama Administration, then oil and gas companies will simply pivot to road and rail distributions. To mitigate this shift to virtual pipelines, federal and state governments must incentivize renewable energy to levels that upset the status quo and reverse the Trump Administration’s environmental rollbacks. Otherwise, oil and gas companies will continue building fossil fuel infrastructure through virtual pipelines that avoid environmental review and present serious risks to public health, safety, and the environment. The pipeline wars have made significant strides in the battle against fossil fuels by blocking what will hopefully be obsolete energy infrastructure, but without federal leadership and policies that incentivize renewable energy the benefits of those fights are not fully realized.

 

VJEL Staff Editor: Bridget Scott-Shupe

Faculty Member: Ruthie Lazenby

Kenya’s Petrochemical Problem: Negotiating the U.S.-Kenya Free Trade Agreement

 

Kenya has fought against plastic pollution for years, but the world’s largest chemical and oil companies are trying to influence the United States’ trade negotiations with Kenya to reverse its environmental protection laws. Why? To profit from the production and distribution of plastics throughout Africa and to prop up the global sales of plastics by ensuring that the global waste trade continues to facilitate the mass transfer of plastic trash from the United States to Kenya.

 

The Global Waste Trade

 

Plastic waste pollution is a devastating result of the plastic waste trade. Wealthy countries ship their plastic waste to developing nations for recycling, but only about 9% of that plastic is ever recycled. Most of it is burned or tossed in a landfill, which in turn, pollutes the air, land, and sea. When plastic clogs rivers and sewers it can increase flooding as well as the transmission of vector-borne diseases. Just as landfills and incinerators are disproportionately sited in poor communities throughout the United States, the global waste trade oversees a transfer of waste from rich to poor nations. The free flow of waste, like the free flow of goods, sometimes comes into conflict with the nations’ interest in protecting their environment.

 

In recent years, Kenya has become a global leader in its response to plastic waste. In 2017, Kenya enacted a banon the “use, manufacture and importation of all plastic bags used for commercial and household packaging.” The language of Kenya’s plastic bag ban is clear: no one can use, manufacture, or import plastic bags. Bans like this have the potential to serve as barriers to the staggering 34.5 million tons of plastic waste the U.S. exports annually. America sends shipping containers of plastic scrap to countries including Kenya, leaving trash-pickers to sort out what is recyclable and what is not. The U.S. does not consistently sort its plastic waste, but rather, commingles it and ships it in bulk. In some cases, the waste is not only bulk-shipped, but also illegally mislabeled “virgin” plastic, the cleanest type of plastic waste, which passes through customs more easily because it is regulated differently than standard plastic scrap.

 

A New Bilateral Free Trade Agreement

 

A new bilateral Free Trade Agreement (FTA) with the United States has the potential to jeopardize the groundbreaking work of Kenyan environmentalists to protect Kenya from the harms of the plastic waste trade. Free Trade Agreements are intended to accomplish several goals, including: 1) eliminating tariffs on goods; 2) prohibiting monopolistic industry behavior; 3) establishing dispute resolution mechanisms between parties, and; 4) navigating any technical barriers to trade (TBTs). TBTs can include rules, procedures, standards, laws, and regulations that make trade more difficult. In this case, Kenya’s strict plastic waste laws are at risk as the petrochemical industry seeks to expand its reach in Kenya. The oil industry has set its sights on Kenya as the next big petrochemical hub of Africa. Because Kenya is geographically well-situated as a coastal country and is one of the largest economies in Africa, oil lobbyists see potential to easily import plastic and chemicals to Kenya and gain access to markets across Africa, at the same time.

 

This isn’t the first time a nation in the developing world has faced pushback to its efforts to reduce the use and impact of plastics. United States oil lobbyists, like the American Chemistry Council (ACC), fought against an international agreement under the Basel Convention to monitor and reduce plastic waste flowing into developing nations. Members of the ACC include oil giants like Shell, Exxon, and Chevron, who play a major role in the global production and distribution of plastics. In line with its domestic plastics regulations, Kenya is a party to the Basel Convention—the United States, however, was one of the few countries not to sign on.

 

The ACC is also largely behind the push for including plastic importation and distribution in the U.S.-Kenya FTA negotiations as well. In a public comment to the Office of the United States Trade Representative, the ACC argued that “Kenya could serve in the future as a hub for supplying U.S.-made chemicals and plastics to other markets in Africa through this trade agreement.” As the oil industry falters amidst growing public anxiety around climate change, the ACC is seeking favorable terms to facilitate its shift from oil production to making and profiting from plastics. The ACC argues that it wants to help Kenya reach its “social, economic, and environmental goals,” and that it has no intention of forcing Kenya to strike its domestic environmental protections. However, an FTA that forces Kenya to accept plastic waste imports would conflict with Kenya’s domestic law under its Environmental Management and Coordination Act (EMCA). It would also undermine Kenya’s obligations under the Basel Convention.

 

Potential Impacts of the Proposed FTA

 

The environmental impact of an FTA of this nature could be enormous. A version of the FTA with industry-supported provisions could pave the way for significant growth of production and distribution of plastics in Kenya in direct opposition of Kenya’s existing domestic environmental laws. Fears of Kenya becoming a “dumping ground for plastics” are supported by how other countries under similar conditions have fared. Additionally, this FTA could impact the distribution of plastics to other African nations if Kenya does indeed become a regional plastics hub.

 

To allow for the development of the proposed plastics hub in Kenya, the trade deal would need to prevent Kenya from creating or enforcing laws that limit plastic use or creation, and force Kenya to remain open to the plastics trade. These demands would undermine Kenya’s pioneering work to reduce plastic consumption and pollution over the last few decades. The ACC cannot reasonably claim that the proposed FTA would leave Kenya’s laws untouched while also pushing for increased plastic waste exports to Kenya. This FTA would be the first the U.S. has forged in sub-Saharan Africa and could become a model for future bilateral agreements  between the U.S. and other nations in the region.

 

How can a group of private companies like Shell, Exxon, and Mobile exert enough influence to force a sovereign nation to change its democratically enacted laws? The dispute settlement provisions in FTAs can pressure nations in several ways, including by imposing sanctions. The specific dispute settlement provisions in the U.S.-Kenya FTA are still being negotiated, however, common mechanisms in FTAs include resolution at the World Trade Organization when multilateral obligations are at play or, less frequently, through a U.S. FTA dispute settlement panel. Many disputes are also resolved through consultation and do not go to a formal panel. Additionally, an FTA with industry-favored provisions could leave Kenya vulnerable to an investor-state dispute settlement suit. In an investor-state dispute, a foreign business (the U.S. oil companies who own the petrochemical hub, for example) can sue the host country (Kenya) for discriminating against them or treating them unfairly. International courts such as the International Center for Settlement of Investment Disputes (ICSID) hear these cases in front of a panel of experts, professors, judges, and lawyers. Kenya’s chances of winning outright would likely be relatively low: of the six hundred some investor-state disputes ICSID has administered, defendant countries have only won outright in about one -third of the cases. When defendant countries lose, they can be forced to compensate the company for its expenses. In a similar case brought against Venezuela, the compensation for the foreign company came to $1.2 billion dollars plus interest—a devastating blow for a developing nation.

 

In the United States, a trade negotiation system called “Fast Track” also impacts FTAs by insulating them from democratic accountability. The Fast Track system allows the executive branch to identify countries to trade with, negotiate trade deals, draft agreements, and sign the deals, all without congressional input. Once the deal is struck, all Congress can do is vote “yes” or “no,” without the ability to debate or amend the deal. Additionally, while trade negotiations often involve public notice and comment, trade agreements are highly technical and complex and therefore, more accessible to corporate actors than to individual people.

 

Negotiations on the FTA between the United States and Kenya are ongoing, but because of the oil lobby’s influence, Kenya may stand to lose its footing in their war on plastics. The oil industry stands to gain by wedging open the African market and ensuring the continued free flow of plastic waste, as it pivots away from oil and towards plastic production. Negotiations between Kenya and the Trump administration were scheduled to conclude in early 2021 but it remains to be seen how the incoming administration will approach the FTA. If it continues the Kenya trade negotiations, the Biden administration could be more susceptible to public pressure from environmental and environmental justice groups regarding the plastics provisions. Regardless of the outcome of the US-Kenya FTA, it will be worth keeping an eye on the impact of the oil industry’s progressive shift from fossil fuels to plastic production in trade agreements and in the global trade in plastic waste.

 

VJEL Staff Editor: Rachael Bruketta
Faculty Member: Pat Parenteau

Climate Science and Energy Policy Heading in Opposite Directions

 

The latest research is clear: To avoid the worst climate impacts, global greenhouse gas (GHG) emissions must drop by half by 2030, then reach net-zero by 2050. In 2019, the United States’ energy-related carbon dioxide emissions totaled 5,131 million metric tons, and the petroleum sector made up 46% of total emissions. NASA warns this continued reliance on fossil fuels increases atmospheric carbon dioxide, leading to drought and reduced crop yields, deadly heat waves, catastrophic wildfires, more powerful hurricanes, and accelerating sea level rise and coastal flooding.

 

As the nation responsible for most of the GHGs in the atmosphere, and for contributing the highest emissions per capita every year, the U.S. has an obligation and an opportunity to lead the adoption of clean energy and other technologies the world needs.  Yet for over five decades, U.S. policy has promoted and subsidized fossil fuels that lead to half of the nation’s carbon emissions. Initially, tax subsidies to the fossil fuel industry were intended to offset costs for domestic consumers. But circumstances have changed: today, the U.S. is a net exporter sending oil to 190 countries and leads the world in crude oil consumption and production.

 

Nonetheless, the fossil fuel industry continues raking in annual subsidies estimated at $20 billion of taxpayer money, 80% of which goes to oil and natural gas companies. Eliminating subsidies would modestly impact domestic and global oil production, consumption, and prices. Yet the federal government recently increased subsidies for fossil fuel extraction on public lands and slashed funding for renewables and energy efficiency programs.

 

In 2018, the six super majors — BP, Shell, Chevron, Total, Eni, and Exxon — spent billions of their combined budgets on clean energy projects. These investments made up only 1% of the companies’ combined budgets, and a mere 5% of the subsidies the companies received from the government. Taxpayers’ dollars could be better spent. Meanwhile, we are speeding towards a climate cliff and we need to stop and turn around.

 

Aligning Federal Policies and Climate Protection

 

The U.S. government can reduce climate damage by eliminating the $20 billion annual subsidies for fossil fuels. Instead, the government could invest in the nation’s vulnerable existing infrastructure systems and build new infrastructure for water storage, treatment, and purification, transportation, national security, and update the electric grid to integrate renewables.

 

In 2016, the American Society of Civil Engineers (ASCE) estimated a $1.4 trillion deficit to maintain, rebuild, and develop the nation’s transportation infrastructure from 2016 to 2025. The deficit will likely increase to $5 trillion by 2040. Infrastructure investments are expensive, but so is damage from climate change. For example, sea level rise and storm surge impacts roads, buildings, ports, and coastal military installations. Heavy downpours impact rail lines, airport runways, and public water systems. Since 1980, the U.S. has experienced 279 weather and climate disasters, each exceeding $1 billion in losses, and totaling over $1.8 trillion in losses. 16 of these events occurred within the first ten months of 2020. Without modifications to the nation’s infrastructure, such as coastal roads, bridges, pipelines, public water systems, and a modernized electric grid, climate change increasingly threatens public health, millions of jobs, and national security.

 

The technologies needed for modernization are available, cost-effective, and ready to scale up. For example, solar and wind are the cheapest, cleanest, and fastest growing sources of electricity. Instead of subsidizing dinosaur sources of energy, the government should subsidize batteries and other energy storage technologies and upgrade the national electricity grid to deliver clean power to every corner of the country.

 

Furthermore, while the electric vehicle market moves in the right direction, investments are needed to support a fully electrified transportation system. The list of opportunities to invest in upgraded infrastructure systems to achieve a net-zero carbon economy and a more robust financial economy goes on. Redirecting federal subsidies away from fossil fuels and toward renewables, public water systems, transportation, and national security is a good start.

 

The Quest for a Constitutional Right to a Livable Planet 

 

Climate justice and planetary habitability are complementary, and courts in other countries have rendered dramatic judgments in favor of environmental plaintiffs. For example, the Dutch Supreme Court in the Urgenda case ruled that the government violated the plaintiffs’ rights to life and family, guaranteed by the European Convention on Human Rights, by not reducing GHG emissions. In a landmark judgment, the Court ordered the government to reduce GHG emissions by 25% by 2020. In the Leghari case, the Lahore High Court of Pakistan recognized the right to life and human dignity protected by the Constitution of Pakistan and ordered the government to adopt a climate adaptation plan and appoint a team of minsters to implement it under supervision of the court. In a case brought by a group of 25 children, Colombia’s Supreme Court issued a landmark ruling calling on the Government to halt Amazon deforestation.

 

By contrast, U.S. courts have yet to find an implied right to a habitable planet in the U.S. Constitution. The U.S. Declaration of Independence secures unalienable rights of “life, liberty, and the pursuit of happiness.” However, none of these inalienable rights will mean much in a world of runaway climate change with disastrous floods, fires, storms, drought, heat waves, food shortages, and collapsing ecosystems becoming the new normal.

 

In Juliana v. United States, represented by Our Children’s Trust (OCT), youth plaintiffs alleged the federal government’s stubborn adherence to promoting fossil fuels, despite the clear and present danger of climate change, violates their fundamental rights under the Fifth and Fourteenth Amendments of the U.S. Constitution, and the Public Trust Doctrine. In 2016, Federal Judge Anne Aiken issued a blockbuster opinion concluding: “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” The case was supposed to go to trial in 2017, but the Department of Justice blocked the trial by convincing a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit to dismiss the case on the ground that the plaintiffs lacked standing. The court acknowledged the dire threat that climate poses, the failure of the federal government to address it, and the need for more urgent action, but in a split decision the panel ruled that the courts were powerless to award the sweeping relief the plaintiffs sought: “We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large…”

 

In a stirring dissent, Judge Staton observed: “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.” Judge Staton argued that the plaintiffs had made a colorable constitutional claim and presented sufficient evidence to warrant a trial, after which, the court could consider various remedies. Even if the remedies were not everything plaintiffs wanted, they are better than doing nothing as the nation faces grave danger exacerbated by dereliction from the other branches of government.

 

Although the lawyers representing OCT requested rehearing before the full Ninth Circuit, it seems unlikely the Court will grant it and reverse the panel. If the case made its way to the U.S. Supreme Court, given the 6-3 conservative majority, it may be unlikely to garner five votes in favor of recognizing a constitutional right to a “safe climate.”

 

Making Polluters Pay

 

A recent wave of litigation aims to hold major oil companies liable for climate change damage under state statutes and common law. These lawsuits do not seek emission controls but seek compensation for past, present, and future damages attributable to defendants’ deceitful marketing to promote their products. As of October 2020, there were 17 lawsuits filed by states, cities, and counties against the oil companies. Claims are based on state tort theories including nuisance, trespass, negligence, and failure to warn. More recently, cases were filed by Minnesota, Connecticut, and the District of Columbia, seeking to enforce consumer protection laws. The cases seek orders compelling companies like Exxon Mobil to correct false advertising, pay penalties, and disgorge corporate profits.

 

The cases were filed in state court. The oil companies immediately sought to remove the cases to federal court but have so far been unsuccessful. For example, in the City of Baltimore case, the Fourth Circuit ruled that there was no “federal officer” involved in the case and remanded the case to state court. However, on October 2, 2020, the U.S. Supreme Court granted BP’s petition for writ of certiorari to review the remand. The question presented is quite narrow: whether the Fourth Circuit erred by limiting its review to the federal officer question and not considering other grounds for removal.

 

If the U.S. Supreme Court rules in favor of the oil companies, the case will be remanded to the Fourth Circuit to consider other grounds for removal. If the Supreme Court upholds the circuit court decision, this case and similar cases will proceed in state court. The Supreme Court’s decision will not resolve the bigger question of whether there is a state law basis to hold the companies liable for climate damage. But the Supreme Court oral argument could provide insights on how the Justices view the question.

 

What to Expect in 2021

 

The future of climate action presents the U.S. with two options: lead climate mitigation and adaptation or squander the last best chance to avoid a bleak future. The world is watching.

 

 

VJEL Staff Editor: Ciara Hopkins

Faculty Member: Jennifer Rushlow

Wildfires, Soot Standards, and an EPA in Flux

This year, the western United States has seen some of the most devastating wildfires in recent history. From Colorado to California and north to Washington, by November 2, 2020, 8.6 million acres of land has burned in over 47,000 wildfires. This is approximately 2.2 million more acres burned than the last 10-year average. These wildfires often start when dry lightning strikes extremely dry ground that is easily ignited. The fires then flourish in the absence of rain and are spread by gusty winds and dry grass and brush. The wildfires have not only led to massive burning of National Forests and National Parks; they have also caused thousands of homes to be destroyed, thousands of people to evacuate, millions of dollars of property damage, increased air pollution and attendant widespread public health risks.

 

Since the beginning of the 2020 wildfires, millions of people have been under “Spare the Air” alerts, meaning that breathing outdoor air is a health hazard and they should stay inside as much as possible to limit exposure. Wildfires emit various pollutants, but the biggest health risk is fine particulate matter (PM2.5), also known as soot. About 90% of particle mass emitted from wildfires is PM2.5. PM2.5 is made of microscopic particles that penetrate deep in the lungs and can be very dangerous to health. Once PM2.5 is inhaled into the lungs, the body releases the same immune cells it would deploy to attack a virus. However, particulate matter cannot be broken down by that immune response and therefore results in inflammation. The body will naturally try to push the particles out by coughing, but that can cause more inflammation. According to the Center for Disease Control (CDC), particulate pollution can affect anyone’s health, but is worse for people who have preexisting health conditions, like heart or lung disease. A person who experiences short-term (hours, days) or long-term (months, years) exposure to PM2.5 as a result of breathing smoky air may experience immediate health impacts including irritation of airways, coughing and difficulty breathing, aggravated asthma, and premature death in people with pre-existing heart or lung disease.

 

People in the western United States were previously exposed to extreme wildfire-related air pollution no more than a few times in their lives. Now, people are being exposed to pollution from wildfires every year, and for longer stretches of time. It is especially important to discuss the health impacts resulting from increased air pollution this year because of the global pandemic, COVID-19. We know that COVID-19 is a respiratory illness that attacks the lungs, just as particulate matter pollution does, and some studies have linked polluted areas to more severe COVID-19 cases. The combination of the wildfires and the pandemic endanger public health and safety and come at a particularly troubling time as the Environmental Protection Agency (EPA) under the Trump Administration has rejected adopting stricter air quality standards despite the fact that studies have shown stricter standards would save lives.

 

The EPA oversees regulation of pollutants like particulate matter through the National Ambient Air Quality Standards (NAAQS). The NAAQS, governed by the Clean Air Act, are based solely on public health and welfare protection. Each NAAQS must be reviewed by the EPA every five years to ensure adequate stringency. The review process requires an in-depth review of current science and expert input. During the review process, the EPA relies on its staff, the Administrator, and the Clean Air Scientific Advisory Committee’s (CASAC’s) advice. The CASAC is supposed to be a panel of experts that act as an independent advisor to the EPA Administrator. They research air quality, sources of pollution, and strategies to maintain air quality standards and then advise the Administrator on whether to revise the existing standards or create new standards to protect public health. After reviewing the CASAC’s advice, the EPA Administrator publishes a proposed rulemaking, takes public comments and holds public hearings, and then a final rule is issued. Historically, this program has been successful in protecting public health, as it has reduced total emissions of the six criteria pollutants by 71% in the last 40 years. However, to keep the program successful, the process must be followed.

 

The EPA concluded the last 5-year review of the PM2.5 NAAQS standards in 2013 and determined the existing standards for PM2.5 were inadequate to protect public health. At that time, EPA tightened the standard from the 2006 rule (15 micrograms per cubic meter a year of PM2.5) to the lower standard of 12 micrograms per cubic meter a year. In 2014, the 5-year review process started again and was to be completed in fall 2020. However, when Trump took office in 2017, EPA began making significant changes to the review process before ultimately deciding to retain the PM NAAQS, against scientists’ recommendations. Some of Trump’s notable changes to the NAAQS review process are: (1) the membership requirements for the CASAC, which is supposed to be an independent expert committee; (2) accelerating the review process, decreasing the rigor of the review; (3) tasking the CASAC with review of ozone and PM NAAQS, eliminating the independent review panel historically convened to assist the CASAC; and (4) eliminating the Risk/Exposure Assessment phase of review, thus reducing scientific review and eliminating a chance for public comment. The CASAC was supposed to be a committee of independent scientific experts, but Trump’s EPA administration disbanded the panel of scientists that had been appointed by Obama and instead appointed a group of former government officials and industry consultants. As a result of the new CASAC being largely unqualified to evaluate the threats of particulate matter pollution to public health, CASAC asked the EPA to either reinstate the CASAC group appointed under the Obama Administration, or hire private consultants. The Trump Administration opted to hire more industry consultants, further reducing transparency of the process. CASAC ultimately ignored scientists’ recommendations that particulate matter NAAQS needed to be tightened to meet the Clean Air Act’s standard of protecting public health.

 

The EPA announced its proposed rule retaining the PM2.5 standard on April 14, 2020. In his announcement, EPA Administrator Andrew Wheeler stated that the decision was “based on review of scientific literature and recommendation from our independent science advisors. . .” However, EPA staff scientists cited several studies in a January 2020 policy assessment that showed stronger standards would improve public health to a statistically significant degree. The epidemiological studies referenced in the assessment showed a greater understanding of how even limited exposure to PM2.5 could have long-term health effects and exacerbate underlying conditions. Some of the studies reported that PM2.5 health effects correlate with mortality rates in multiple U.S. cities. Several studies also concluded that declines in ambient PM2.5 concentrations over time are associated with decreases in mortality rate, increases in life expectancy, and improvements in respiratory health. But, perhaps the most compelling evidence in the assessment was a study that showed that retaining the current PM2.5 standards would allow for 16,000-17,000 PM2.5 related deaths from ischemic heart disease in only one year. With six weeks remaining before President Elect Biden’s inauguration, the EPA finalized its decision to retain the PM standard on December 7, 2020.

 

Based on epidemiological studies available, the current allowable levels of particulate matter are too high. As we have seen, there is a broad range of scientific data showing that PM pollution endangers public health. This is especially true for environmental justice communities. Due to racial inequalities in housing and wealth, PM2.5 disproportionately affects Black and Latino communities as they are more likely to be exposed to higher concentrations of pollution. In addition, a Harvard study has linked particulate matter pollution and COVID-19, finding that COVID-19 patients who live in polluted areas were more likely to die from the disease than those living in less polluted areas. This study, which is now peer reviewed, concluded that there is an 11% increased risk of death from COVID-19 for every 1 microgram per cubic meter increase in PM2.5 exposure.

 

Additionally, as climate change continues to exacerbate factors like temperature, drought, and wind, which creates the perfect conditions for wildfires; we are likely to see increased deforestation leading to wildlife displacement ultimately resulting in an increase in zoonotic diseases. Connecting the dots between pollution caused by wildfires and zoonotic diseases, like COVID-19, demonstrates how important it is that we address PM2.5 in a meaningful way. The pandemic coupled with the raging wildfires in the western United States has brought attention to how we regulate air pollution and shows that the EPA’s decision to retain the current PM2.5 standard disregards the agency’s duty to carry out the primary purpose of the Clean Air Act—to protect public health.

 

Moving forward, we can only speculate how the Biden Administration will handle the environmental rollbacks made by Trump. Under the Congressional Review Act, Congress may be able to repeal some of Trump’s deregulatory actions. However, now that the final rule is published in the Federal Register, it cannot be modified without going through the rulemaking process again. It also cannot be revoked by Executive Order. This points to the possibility that Biden may not be able to undo the PM rule. The next best thing would be to dismiss the CASAC appointed by Trump and reappoint CASAC members appointed by Obama before the next scientific review process begins. Additionally, a court challenge should not be ruled out considering Trump’s CASAC blatantly ignored scientific experts’ advice that tightening PM standards would save lives. While we can’t be certain about how the Biden Administration will address the new PM rule, we should remain resolute in our ability to influence the new administration and advocate for clean air for all.

VJEL Staff Editor: Emma Fisk

Faculty Member: Kevin Jones

 

Making America Green Again: Rejoining the Paris Agreement on Day One of the Biden-Harris Administration is a Welcome First Step

 

Trump’s rollback of environmental policies coupled with his Administration’s flippant attitude towards the climate crisis means that the United States is no longer on track to meet the climate goals of the Paris Climate Agreement. This agreement, signed by President Barack Obama in 2015 and now ratified by 189 countries, aims to keep global temperatures below levels that would be considered “catastrophic.” Participating countries commit to limit their respective greenhouse gas emissions to achieve this goal. Early on, President Trump declared his intent to remove the United States from the Paris Climate Agreement. While this declaration did not take effect until November 4, 2020, the administration’s dismissal of climate concerns means that new efforts to meet the goals of the Paris Climate Agreement will need to be more stringent to make up for lost time and reassure the world that the United States is a key player in the fight against global climate change.

The Obama Administration planned to meet its climate obligations under the Paris Climate Agreement through the Clean Power Plan, increased fuel economy standards, methane recapture, and other policies. The Biden-Harris Administration will need to go even further due to four years of backtracking on climate action. A 2019 report by the United Nations Environment Programme revealed that global emissions have increased on average by 1.5% per year for the last decade and will need to fall by at least 2.7% per year for the next decade in order to meet the more lenient standard set by the Paris Climate Agreement. Reestablishing a realistic climate action plan that ensures that the U.S. will meet its previous commitments under the Paris Agreement must be an early priority for the new administration.

As a candidate, President-elect Joe Biden promised to rejoin the Paris Climate Agreement on the first day of his presidency.  The process for formally rejoining is relatively simple. Reentry becomes effective just thirty days after notifying the United Nations. Reestablishing the United States as a world leader in the effort to reverse the climate crisis will be much more complex.

The reversal of United States climate policy has lessened the pressure on other world leaders.  As the world’s top emitter, China’s goal is to achieve carbon neutrality before 2060. Despite this lofty aspiration, China’s coal use and permitting actually increased in the last several years. In the coming years, it will become increasingly apparent whether or not countries party to the Paris Climate Agreement are on track to meet their goals. The United States must rise to reclaim its title as a climate leader by setting new more stringent goals and actually implementing policies to meet them.

President-elect Biden’s climate plans were ambitious; he proposed an “economy-wide” effort that would result in a power sector free of carbon pollution by 2035 and “net-zero” emissions for the country by 2050. This plan includes dedicating $2 Trillion over four years to fight climate change in tandem with economic recovery. In the wake of the economic crisis spurred by COVID-19, Biden’s plan relies on rebuilding the economy in a way that reduces carbon pollution while providing millions of jobs that reform the country’s energy, transportation, and infrastructure. Promoting wind and solar energy and rebuilding infrastructure as energy-efficient would result in new jobs for scientists, construction workers, and engineers while bringing the country closer to necessary climate benchmarks.

Biden’s plans also extend beyond the borders of the United States by using a trade agenda to encourage emissions reductions abroad. This agenda calls for tariffs on imports of carbon-intensive goods, trade agreements that mandate commitments to reduce carbon emissions, and a global ban on fossil fuel subsidies. The plan has the support of Democratic leaders in Congress who recognize that emissions reductions must occur globally and that the United States has the economic power to influence such reductions.

When President Trump announced his plan to withdraw the United States from the Paris Climate Agreement, there was concern that this move would dissuade other countries from meaningful participation under the Agreement. As the United States is responsible for around a quarter of global greenhouse gas emissions, maintaining participation is crucial for the Paris Climate Agreement to have its necessary effect. However, momentum has continued as other countries signed onto the Paris Climate Agreement even after President Trump’s decision to withdraw the United States. When the Paris Climate Agreement was first signed in 2015, it accounted for 55% of global greenhouse gas emissions. Today, it contains signatures from countries that comprise 85% of such emissions. The implications of the United States’ absence from the Paris Climate Agreement bolstered involvement from other governments who were properly concerned with the threat of climate change.

State and local governments have made strides in realizing the goals of the Paris Climate Agreement on their own. These efforts have mitigated some of the damage done by inaction at the federal level. Governors of 25 states have committed to reducing greenhouse gas emissions in accordance with the United States’ original commitment; a reduction of 26%-28% below 2005 levels by 2025. The coalitions formed in response to the announcement to withdraw the United States from the Paris Climate Agreement represent 68% of the nation’s economy. States such as Hawaii, California, Massachusetts, and New York have imposed new legislation on climate pledges and 23 states have mandated reductions in greenhouse gas emissions.

Many governments around the world and smaller-scale actors in the United States are already committed to addressing the issue of global climate change. The implications of failing to do so are grave. With a Biden Adminstration that understands the risks posed by climate change on life and economy, rapid progress towards the goals of the Paris Climate Agreement can be accelerated rather than stymied. When the United States rejoins with renewed urgency spurred by unconscionable delay, the world can move forward with meaningful action to address our collective crisis.  The 2020 presidential election results alone will not guarantee that we meet this challenge, but they have certainly improved our outlook for global success.

 

 

VJEL Staff Editor: Michelle Amidzich

Faculty Member: Siu Tip Lam

An Era of Pandemics: How China and the U.S. Must Take the Lead in Wildlife and Human Health Protection

 

Introduction

 

Within the past 40 years, zoonotic diseases, caused by germs that spread from animals to people, such as SARS, Ebola, and H1N1, triggered worldwide pandemics. COVID-19 is the most recent zoonotic pandemic that killed over 1 million people globally in seven months, but COVID-19 is not the last zoonotic pandemic the world will see. Epidemiologist David Morens at the National Institute of Allergy and Infectious Diseases (NIAID) and NIAID Director, Dr. Anthony Fauci, released a study that warned the world will see pandemic acceleration due to human deforestation, urban crowding, and wet markets for wild game. As top global consumers of wildlife and wildlife products, both China and the United States have an important role in leading the effort to protect wildlife and curb the causes that lead to this acceleration. Their failures to address animal wildlife conservation can lead the world toward massive environmental degradation and continued pandemics. If China and the United States take dramatic steps towards wildlife production and zoonotic disease protection, their leadership paves the way for other countries to follow. That is why these countries are the focus of this article.

 

This article analyzes whether recent laws proposed by China and the United States go far enough to protect wildlife. This article first explores the Wild Animal Conservation Law of the People’s Republic of China, offers a brief history, explores loopholes, and proposes solutions. Next, the focus shifts to the United States, which looks at the country’s demand for wildlife imports and animal protection laws. Then, it considers whether the Preventing Future Pandemics Act of 2020, introduced in the Senate by Cory Booker and John Cornyn on September 29, 2020, aids in minimizing the zoonotic pandemic risk in the United States and across the globe. Finally, the article provides a conclusion.

 

The Wild Animal Conservation Law of the People’s Republic of China

 

The People’s Republic of China passed the Wild Animal Conservation Law on November 8, 1988. The law attempted to facially protect the country’s wildlife through management and protection. However, the law encouraged wildlife domestication and breeding for human consumption and use. Its subsequent amendments in 2004 and 2009 continued to encourage wildlife domestication and breeding. In 2016, the government amended the law to remove the domestication and breeding of wildlife, and again amended it with minor changes in 2018 to allow captive breeding for commercial purposes and scientific research. The law allows the sale, purchase, and use of wild animals for “scientific research, artificial breeding” or other special circumstances, even if the animal is designated for the highest level of protection, so long as it is approved by the government. This loophole and the government’s history of encouraging domestication and wildlife breeding for consumption and use, including traditional Chinese medicine, led to the growth of wildlife breeding operations industry.

 

Fast-forward to today, and China attempted to strengthen its wildlife protection law because of COVID-19. In February, China announced, “a complete ban on illegal wildlife trade and the elimination of the unhealthy habit of indiscriminate wild animal meat consumption.” In late October 2020, the National People’s Congress of China put out the revision for public comment. While there are some positives in the revised draft like improvements to enforcement mechanisms and increased penalties, the revision does not go far enough. It does not address wildlife trade for non-food purposes, such as traditional medicine or decorative items. Some international conservation groups argue that banning wild animal medicinal use is more pressing than meat consumption because China’s demand for wildlife parts for traditional medicine creates public health risks due to the harvesting, collection, storage, processing, and consumption which festers disease.

 

China’s proposed ban also fails to address wild animal farming. This industry provides 14 million jobs in China, which reduces poverty and stimulates rural economies. However, the industry cultivates disease, and the government has yet to figure out how to address both reducing disease while supporting jobs. Many advocates press the government to take a “whitelist” approach, which would heavily regulate captive-bred animals and create a list of animals that farmers can breed for specific purposes. This approach’s goal reduces the size of the industry step-by-step, while the country simultaneously considers alternatives for the people who rely on the jobs of the booming wildlife farming industry.

 

Finally, many conservation organizations advocate for a “public participation” principle, so that the public and organizations can hold illegal behavior and administrative failures accountable. The principle allows for consultation on construction projects or other developments that may harm habitats. Advocates argue the participation principle creates a chain reaction in China and abroad to create more vigorous enforcement to close markets for wild animal products. The government could tackle these concerns when it plans to revise the law to address environmental and public health issues, which has support from advocates who are proposing the language for this revision.

 

U.S. Piecemeal Approach to Wildlife Protection and the Preventing Future Pandemics Act of 2020

 

Wildlife conservation to promote habitat protection and prevent zoonotic diseases is not just China’s problem. The United States also fails to robustly protect wildlife. The United States is one of the biggest global importers of wildlife for purposes such as its massive exotic pet industry, trophy hunting prizes, and medicinal products. A comprehensive study published in the U.S. National Library of Medicine National Institutes of Health analyzed data from the U.S. Fish and Wildlife Service (USFWS) from 2000-2013. The study shows that one-third of United States imports were live animals. Seventy-seven percent of the live animals were wild-caught, whereas captive-reared animals made up only 17.7%. The study cites regulatory oversight concerns that allow pathogen exchange from “animal domestication for companionship and food production, anthropocentric alteration of the environment and the global movement of animals and goods.” The study estimated that out of one-quarter of human deaths by infectious diseases, nearly 60% of those are zoonotic. Pathogen transmission spreads from contact due to poor transit conditions, lack of health screening at United States imports, and confiscation warehouses that practically look like live animal markets.

 

Three major United States laws aim to address the sale, transport, conditions, trafficking, and protections for wild animals. The Lacey Act targets illegal trafficking of fish, wildlife, and plants through the U.S. Department of Agriculture (USDA) and USFWS. The Animal Welfare Act (AWA) addresses the transportation, sale, and handling of certain animals. The AWA’s primary focus is on dealers and laboratory animals. Finally, the Endangered Species Act (ESA) prohibits the “taking of, sale, transportation, ownership, and harm of any listed species.” Each piece of legislation governs various aspects of certain animal’s lives, so it depends on the type of animal and the animal’s transportation method and uses to understand which regulations apply.

 

The United States’ piecemeal approach fails to adequately protect animal conditions, which factors into public health concerns. On September 29, 2020, Senators Cory Booker and John Cornyn introduced the Preventing Future Pandemics Act—a bipartisan bill “that would prohibit the import and export of live wildlife for human consumption or medicine,” according to the Center for Biological Diversity’s press release. The 23-page legislation establishes that it would be the foreign policy of the United States “to work with international partners to shut down commercial wildlife markets and stop the associated wildlife trade, end the import, export and sale of live wildlife for human consumption in the United States, and phase out demand for wildlife as a food source.”

 

The legislation focuses on wet markets (markets where fish, poultry and other animals are alive then slaughtered and butchered right on the premises) because of their strong nexus to the emergence of zoonotic diseases as a start to combating the problem. Senator Booker recognizes that if the world “spent just 2% of the total cost inflicted by COVID-19 on the global economy—approximately $22-$31 billion—to curb habitat loss, deforestation and wildlife trade, it would dramatically reduce the risk of future pandemics.” While Senator Booker is on the right path in that United States must confront and combat issues like exotic pet ownership, the legislation fails to address key problem areas in the United States, like wildlife pet ownership and clean and safe conditions for imported animals, which are also breeding grounds for zoonotic diseases.

 

Conclusion

As the world continues to grapple with and understand COVID-19, one thing that is for sure is that the United States and China must be leaders in comprehensive wildlife reform and public health protection. Patchwork protections to each new wildlife issue or pandemic fail to protect the world’s wildlife and human population. COVID-19 cost the global economy about $5 trillion in lost gross domestic product (GDP). Future zoonotic pandemics could continue to cost the world more in lost GDP, wildlife, and human lives. Scientists warned the world about COVID-19, and other zoonotic diseases will continue to happen if we do not listen to their science.