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

__________________________________________

By Elizabeth Kuhn*

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

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

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

II. The APA and the Arbitrary and Capricious Standard

 

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

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

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

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

A. Meaning of Arbitrary and Capricious

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

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

B. Deference

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

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

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

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

III. Best Available Science Under the Endangered Species Act

A. History

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

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

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

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

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

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

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

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

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

D. Deference

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

IV. Ninth Circuit Deference on Matters of Science

A. A Substantive Mandate in 2005

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

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

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

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

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

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

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

B. Clarification of the Arbitrary and Capricious Standard in 2008

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

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

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

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

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

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

C. Current Cases

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

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

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

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

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

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

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

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

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

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

V. Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

[8] See cases cited supra note 2.

[9] 16 U.S.C. § 1536(a)(2) (2012).

[10] Id.

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

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

[13] See cases cited supra note 2.

[14] See cases cited supra note 2.

[15] 5 U.S.C. § 706 (2012).

[16] Id.

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

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

[19] See 5 U.S.C. §706(2)(A) (2012).

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

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

[22] Id. at 224.

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

[24] See Marsh, 490 U.S. at 377–78.

[25] Id.

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

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

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

[29] § 1(c), 80 Stat. at 926.

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

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

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

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

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

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

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

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

[38] See id.

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

[40] Id. at 1081.

[41] See id.

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

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

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

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

[46] Id.

[47] 16 U.S.C. § 1536(a)(2) (2012).

[48] Id.

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

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

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

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

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

[54] See id. at 1087.

[55] See id.

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

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

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

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

[60] Id.

[61] Id. at 1089.

[62] See id.

[63] Id. at 1091.

[64] Id. at 1092.

[65] Id.

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

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

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

[69] Id. at 998.

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

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

[72] Id. at 990.

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

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

[75] Id. at 992.

[76] Id. at 994–95.

[77] Id. at 995.

[78] Id. at 996.

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

[80] Id.

[81] Id.

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

[83] See Renshaw, supra note 12.

[84] See cases cited supra note 2.

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

[86] Id. at 490.

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

[88] Id.

[89] Id.

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

[91] Id. at 1035.

[92] Id.

[93] Id. at 1048.

[94] Id.

[95] Id.

[96] Id.

[97] Id.

[98] Id.

[99] Id. at 1049–50.

[100] Id. at 1049–51.

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

[102] Id. at 1235–36.

[103] Id.

[104] Id. at 1236.

[105] Id. at 1238–41.

[106] Id. at 1241–42.

[107] Id. at 1242.

[108] Id. at 1243.

[109] Id. at 1243–44.

[110] Id.

[111] Id.

[112] Id.

[113] Id. at 1244.

[114] Id.

[115] See cases cited supra note 50.

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

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

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

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

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

 

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

__________________________________________

By Hume Ross, Staff Member Georgetown Environmental Law Review

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

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

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

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

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

1. CERCLA LIABILITY GENERALLY

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

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

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

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

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

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

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

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

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

3. Bestfoods Narrowed the Operator Liability Standard

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

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

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

4. Recent Cases Exemplify this Narrower Standard

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[8] Id. at § 9604.

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

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

[11] 42 U.S.C.S. § 9607.

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

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

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

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

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

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

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

remediation expenses.”).

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

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

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

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

[21] Id. at 835.

[22] Id.

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

[24] 42 U.S.C.§ 9613(f).

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

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

[27] Id. at 843.

[28] Id. (emphasis added).

[29] Id. at 845.

[30] Id. at 846.

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

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

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

[34] Id. at n. 12.

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

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

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

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

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

[40] Id. at 523-24.

[41] Id. at 523.

[42] Id. at 498.

[43] Id. at 525.

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

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

[46] Id. at 1003.

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

[48] Id. at 1016-17.

[49] Id.

[50] Id. at 1022.

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

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

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

[53] Id. at 1370.

[54] Id. at 1373.

[55] Id. at 1374.

[56] Id.

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

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

[59] Id. at 1380.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a. The railbanking procedure

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

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

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

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

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

b. Reactivation

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

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

c. Abandonment of a common carrier rail line

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

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

d. Environmental liability from conversion to trail use

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

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

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

e. General liability for the trail manager during trail use

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

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

f. “Tucker takings” for ROWs under federal jurisdiction

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

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

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

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

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

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

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

Conclusion 

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

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

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

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

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

[5] Infra, notes 19 and 24.

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

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

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

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

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

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

[11] Supra, note 9.

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

[13] Infra, note 38.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[27] Supra, notes 20 and 25.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[51] Supra, Part II.a.

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

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

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

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

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

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

Introduction

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

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

I. The Convergence Hypothesis

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

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

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

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

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

II. The Endangered Species Act as Convergence

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

A. The Values of the Stakeholders

1. The Public 

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

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

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

2. Politicians

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

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

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

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

3. Conservationists

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

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

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

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

B. The Final Statute as Convergence

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

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

III. Divergence in the Implementation of the Endangered Species Act

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

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

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

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

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

IV. Conclusion

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

 

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

[2] Id.

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

[4] Id.

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

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

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

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

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

[10] Id.

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

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

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

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

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

[16] Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[32] Id. at 5-6.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[61] Id. at 15.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[78] Endangered Species Act § 11(g).

[79] Id. § 11(a)(1).

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

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

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

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

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

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

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

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

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

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

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

[91] Id. at XI, 105.

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

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

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

__________________________________________

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

INTRODUCTION

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

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

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

I. The Fight for Parity

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

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

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

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

II. Paris Agreement

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

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

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

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

ADAPTATION IN THE PARIS AGREEMENT

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

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

I. Global Goal and Challenge

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

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

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

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

II. International and National Cooperation

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

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

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

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

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

III. Adaptation Needs and Mitigation Co-benefits

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

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

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

IV. Governance

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

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

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

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

LOSS AND DAMAGE IN THE PARIS AGREEMENT

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

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

I. Distinct Article

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

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

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

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

II. Governance Mechanism

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

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

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

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

CONCLUSION

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

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

[2] Id.

[3] Id.

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

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

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

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

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

[9] Id. ¶ 92.

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

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

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

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

[14] Id. ¶ 2.

[15] Id. at 2.

[16] Id. at 6.

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

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

[19] Id.

[20] Id.

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

[22] Id.

[23] Id. at art. 7.2.

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

[25] Id.

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

[27] Id. at 7.8.

[28] Id. at art. 7.9.

[29] Id.

[30] Id. at art. 7.12.

[31] Id. at art. 7.11.

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

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

[34] Id. at 9.1.

[35] Id. at art. 7.4.

[36] Id.

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

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

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

[40] Id. at 8.

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

[42] Id.

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

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

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

[46] Id. ¶ 45.

[47] Id. ¶ 46.

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

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

[50] Mogelgaard, supra note 46.

[51] Id.

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

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

[54] Id. at art. 8.3.

[55] Id. at 8.4.

[56] Id. at art. 8.4.

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

[58] Id.

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

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

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

[62] Id.

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

[64] Id.

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

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

[67] Id.

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

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

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

 

Introduction

 

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

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

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

1. The Fight for Parity

 

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

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

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

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

1. Paris Agreement

 

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

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

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

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

Adaptation in the Paris Agreement

 

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

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

1. Global Goal & Challenge

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

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

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

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

1. International and National Cooperation

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

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

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

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

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

• Adaptation Needs and Mitigation Co-benefits

 

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

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

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

1. Governance

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

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

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

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

Loss and Damage in the Paris Agreement

 

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

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

1. Distinct Article

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

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

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

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

1. Governance Mechanism

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

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

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

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

Conclusion

 

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

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

[2] Id.

[3] Id.

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

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

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

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

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

[9] Id. ¶ 92.

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

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

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

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

[14] Id. ¶ 2.

[15] Id. at 2.

[16] Id. at 6.

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

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

[19] Id.

[20] Id.

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

[22] Id.

[23] Id. at art. 7.2.

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

[25] Id.

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

[27] Id. at 7.8.

[28] Id. at art. 7.9.

[29] Id.

[30] Id. at art. 7.12.

[31] Id. at art. 7.11.

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

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

[34] Id. at 9.1.

[35] Id. at art. 7.4.

[36] Id.

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

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

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

[40] Id. at 8.

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

[42] Id.

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

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

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

[46] Id. ¶ 45.

[47] Id. ¶ 46.

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

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

[50] Mogelgaard, supra note 46.

[51] Id.

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

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

[54] Id. at art. 8.3.

[55] Id. at 8.4.

[56] Id. at art. 8.4.

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

[58] Id.

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

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

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

[62] Id.

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

[64] Id.

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

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

[67] Id.

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

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.

__________________________________________

Olivier Jamin Online Journal Editor, Environmental Law, Lewis & Clark Law School

I. INTRODUCTION

The public trust doctrine (PTD) is a concept under which states have the duty to preserve certain natural and cultural resources for the benefit of the public.^[1] The PTD is a common law doctrine, and state courts around the country have spent the last three decades applying — and in some cases rejecting — it to a variety of natural resources.^[2] For example, the New Jersey Supreme Court applied the PTD to beaches and shores,^[3] the California Supreme Court applied it to navigable streams and their tributaries,^[4] and the U.S. Supreme Court has held that states own fish and game within their borders on behalf of their citizens,^[5] a position followed by many states.^[6] However, the most traditional application of the PTD has been to tidal and submerged lands.^[7] Oregon has been slow to develop its application of the PTD, as illustrates the lack of case law.^[8] Professor Blumm explains that although Oregon courts have repeatedly announced broad public rights in all waters of the state, the courts have not addressed the PTD since 1979.^[9] Last year however, the PTD was the topic of a circuit court opinion in Lane County that could mandate the Oregon Supreme Court to define precisely the extent of the doctrine in the state.^[10] The decision is highly controversial as it constitutes one of the most restrictive approach to the PTD, as to its scope and duties. The plaintiffs, Kelsey Juliana and Olivia Chernaik, represented by Our Children’s Trust, a non-profit organization advocating for greater reduction of CO2 emissions, appealed the decision last summer,^[11] gathering support from local law professors.^[12] Because the decision gave an erroneous overview of the PTD in Oregon, the court of appeals, and possibly the Supreme Court should seize on this opportunity to clarify the scope of the doctrine in the state.

II. SUMMARY OF THE DECISION

A. Background

The case dates back to 2011, when Plaintiffs (children and their families living in Oregon) filed an Amended Complaint for Declaratory Judgment and Equitable Relief against the State of Oregon and Governor Kitzhaber.^[13] Plaintiffs alleged their personal welfare and wellbeing were directly dependent upon the state’s natural resources, including water resources, submersible lands, coastal lands, forests, wildlife, and the atmosphere.^[14] According to the plaintiffs, these resources were being threatened by the state’s failure to regulate climate change and enforce adequate limitations on the levels of greenhouse gas emissions. They sought a declaration that “the atmosphere is a part of the public trust res and is therefore held in trust by the State for the benefit of the present and future citizens of Oregon.”^[15] Plaintiffs also sought an order to force the state to implement a plan to reduce greenhouse gas emissions.

In October 2011, Defendants filed a motion to dismiss for lack of subject matter jurisdiction. The Lane County circuit court granted the motion. Plaintiffs appealed in July 2012, and the Court of Appeals reversed and remanded the case in June 2014. The Court of Appeals held the Plaintiffs were

entitled to a judicial declaration of whether, as they allege, the atmosphere ‘is a trust resource’ that ‘the State of Oregon, as a trustee, has a fiduciary obligation to protect . . . from the impacts of climate change,’ and whether the other natural resources identified in plaintiffs’ complaint also ‘are trust resources’ that the state has a fiduciary obligation to protect.^[16]

On remand, the court’s opinion and order provided a thorough overview of the PTD in Oregon and explained that the doctrine “is a matter of state law, subject to the federal power to regulate navigation under the Commerce Clause and admiralty power.”^[17] The court’s opinion and order analyzed the scope of the PTD (i.e., the resources to which it applies), the state’s duties are under the PTD, and the applicable remedies where the state fails to carry out those duties.

B. The Scope of the Public Trust Doctrine

The parties and the court agreed that “submerged and submersible lands are encompassed by the public trust doctrine, according to case law.”^[18]

The court rejected Plaintiffs’ argument that “waters of the state” are encompassed by the public trust doctrine. According to the court, the public trust doctrine finds its source on the title transferred to the State of Oregon upon its admission to the Union, and the title transferred to the state was burdened with a public trust.^[19] The court argued that “unlike submerged and submersible lands, title to navigable waters themselves did not pass to the State.”^[20]

Similarly, the court rejected Plaintiffs’ argument that “beaches and shorelands” are encompassed by the PTD. The court relied on the absence of case law recognizing such a trust in Oregon, explaining that “Oregon’s public trust doctrine has not traditionally incorporated lands adjacent to but not underlying navigable waters.”^[21]

Plaintiffs’ argument that the PTD encompasses “fish and wildlife” was also rejected. The court acknowledged that the protection of such resource was under the state’s police power authority, but concluded that courts “have always treated the public trust doctrine as distinct from the State’s police power authority.”^[22] Accordingly, the PTD does not apply to “fish and wildlife.”^[23]

Finally, regarding the atmosphere, the court questioned whether the atmosphere is a “natural resource.”^[24] However, the court concluded that, even if the atmosphere were a natural resource, the PTD would not apply to it. Again, the court relied on the fact that “[u]nlike submerged and submersible lands . . . the State has not been granted title to the atmosphere” and that the atmosphere is not “exhaustible and irreplaceable” in nature.^[25] The court then addressed the state’s obligations and duties under the PTD.

C. The State’s Duties Under the Public Trust Doctrine

Although plaintiffs alleged in their complaint that the state has a fiduciary obligation to protect the atmosphere and other natural resources covered by the public trust from impairment, the court interpreted the state’s duties under the PTD more narrowly. The court held that the public trust doctrine merely prevents the state “from entirely alienating submerged and submersible lands under navigable waters.”^[26] To support this holding, the court relied on Morse v. Oregon Division of State Lands.^[27] There, the Supreme Court of Oregon held that the state has sovereignty over submerged and submersible lands and a right to use or dispose of any portion thereof, “when that can be done without substantial impairment of the interest of the public in such waters.”^[28] Although it is true that Oregon has not clearly recognized a fiduciary obligation to protect natural resources encompassed by the public trust, the court’s definition of the state’s duties seems narrower than the holding of Morse. Specifically, the court in Morse did recognize that “the severe restriction upon the power of the state as trustee to modify water resources is predicated not only upon the importance of the public use of such waters and lands, but upon the exhaustible and irreplaceable nature of the resources and its fundamental importance to our society and to our environment.”^[29] The language used in Morse seems to go further than a simple restriction on alienation.

D. The Remedy for a State’s Failure to Fulfill its Public Trust Duties

Regarding remedies, Plaintiffs asked the court to declare that Defendants have failed to protect the atmosphere from climate change, and to compel Defendants to address the impact of climate change by reducing GHG emissions in a specific amount over an established timeframe.^[30] The court concluded the remedies sought by Plaintiffs would have intruded on the separation of powers. The court explained: “whether the court thinks global warming is or is not a problem and whether the court believes the legislature’s GHG emission goals are too weak, too stringent, or are altogether unnecessary is beside the point. These determinations are not judicial functions. They are legislative functions.”^[31] The court concluded that providing relief beyond a declaratory judgment as to the scope of the public trust doctrine and the state’s duties under the doctrine would violate the separation of powers doctrine. According to the court, even if it were to declare that the PTD imposed new obligations on the state, the declaration itself would provide a sufficient remedy. That is, once the new duties were declared, the court would simply assume that the state would comply with the new law, without need for further remedies.^[32]

III. THE DECISION MISUNDERSTOOD THE PUBLIC TRUST DOCTRINE

The heart of the case was to decide whether the PTD applied to the atmosphere in Oregon and if so, what duties fell upon the state to protect it. Additionally, Plaintiffs asked the court to recognize water resources, navigable waters, submerged and submersible lands, islands, shore lands, coastal areas, wildlife and fish as trust resources. The court took a very narrow approach regarding the scope, the state’s duties, and the remedy under the PTD. The court provided very limited analysis to support some of its conclusions, and in many instances, relied only on the fact that no Oregon court had previously recognized a specific resource as being subject to the PTD. However, the absence of a previous Oregon case on point does not necessarily mean the PTD is as narrow as the court concluded. Particularly, the court’s conclusion that the waters of the state and beaches and shorelands are not subject to the PTD is questionable to say the least. The justification that the atmosphere is not a trust resource because it is not “exhaustible and irreplaceable” in nature is a point that will be addressed on appeal.^[33]

Most coastal states have held that the PTD applies to beaches, and the reasoning of the court, that “Oregon cases have not clearly recognized it,” is not a strong one. In New Jersey for example, courts have recognize that the PTD applies to beaches, and that the “public must be given both access to and use of privately-owned dry sand areas as reasonably necessary.”^[34] In California, courts have long recognized that the PTD “protects navigable waters from harm caused by diversion of nonnavigable tributaries,”^[35] and that it is an “affirmation of the duty of the state to protect the people’s common heritage” of these waters.^[36] The decision, however, does not mean that there is no public access to the Oregon coast, since the Oregon Supreme Court recognized such access, but based on the doctrine of custom.^[37]

Similarly, when analyzing the state’s duties under the public trust doctrine, the court might have taken an unnecessary narrow stance by limiting them to a “restraint from entirely alienating submerged and submersible lands under navigable waters.” The Court of Appeals of Oregon held that “that doctrine provides that submerged and submersible lands are preserved for public use in navigation, fishing and recreation. The state, as trustee for the people, bears the responsibility of preserving and protecting the right of the public to the use of the waters for those purposes.”^[38] It seems that although it is not clear what affirmative duties the Court of Appeals imposed on the state in that case, it goes further than a restraint for complete alienation.

Our Children’s Trust released a press article immediately after the decision, criticizing the judgment. Michael Blumm, professor of law at Lewis and Clark Law School, was quoted in the press release:

The decision handed down today is a crabbed interpretation of the state’s public trust doctrine. Judge Rasmussen’s opinion is founded on erroneous notions of the state’s fiduciary responsibilities for natural resources it clearly owns in a sovereign capacity, like water and fish and wildlife. Moreover, the opinion’s questioning of whether the atmosphere is a natural resource because the state doesn’t hold title to the air – allegedly due to the fact that the atmosphere is not a tradable commodity – ignores the fact that pollution rights in the atmosphere are indeed traded every day under several programs, including those regulating acid rain, nitrogen oxide, and interstate emissions. One hopes that the Court of Appeals will once again correct Judge Rasmussen’s errors.^[39]

Counsel for Plaintiffs already appealed the decision, and the case should be decided during the fall of 2016.^[40] The court’s decision to reach a very narrow interpretation of the scope and duties of the PTD makes the opinion vulnerable to another reversal (or partial reversal) by the Oregon Court of Appeals. The decision that “waters of the state” and “beaches and coastal lands” are not protected is particularly vulnerable, as well as the restrictive view of the state’s duties under the PTD. Given the fundamental role that the PTD plays in the protection of our natural resources, environmental groups in Oregon should pay special attention to what the court of appeals will say about this case. Beyond these environmental concerns, the Oregon courts should seize on the opportunity offered to them to finally clarify and delimitate the scope of the PTD and the state’s duties under the doctrine.

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[1] The late Joseph L. Sax, the most influential public trust doctrine scholar, is often celebrated for shedding light on the PTD. Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970).

[2] Richard M. Frank, The Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future, 45 U.C.D. L. Rev. 665, 671 (2012).

[3] Matthews v. Bay Head Improvement Ass’n, 471 A.2d 355 (N.J. 1984)

[4] Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709 (Cal. 1983) [hereinafter Mono Lake].

[5] Geer v. Connecticut, 161 U.S. 519, 529 (1896).

[6] Ex parte Maier, 37 P. 402, 404 (Cal. 1894); Owichek v. State Guide Licensing Bd., 763 P.2d 488, 495-496 (Alaska 1988); Wade v. Kraemer, 459 N.E.2d 1025, 1027-29 (Ill. App. Ct. 1984); Commonwealth v. Alger, 61 Mass. 53, 98 (1851).

[7] Frank, supra note 2.

[8] Michael C. Blumm & Erika Doot, Oregon’s Public trust Doctrine: Public Rights in Waters, Wildlife, and Beaches, 42 Envt’l L. 375, 378 (2012).

[9] Id. at 377, n. 7; Morse v. Or. Div. of State Lands, 590 P.2d 709, 713–14 (Or. 1979).

[10] Chernaik v. Brown, Case No. 16-11-09273 (Or. Lane County, May 11, 2015), available at https://ourchildrenstrust.org/sites/default/files/15.05.11.OregonCircuitCtOpinion.pdf.

[11] Our Children’s Trust, Oregon Youth File Critical Appeal In Their Climate Change Lawsuit, July 7, 2015, available at http://ourchildrenstrust.org/sites/default/files/15.07.07OregonAppealPR.pdf.

[12] Michael C. Blumm, Mary C. Wood & Steven M. Thiel, The Oregon Public Trust Doctrine and Atmospheric Greenhouse Gas Pollution: A Law Professors’ Amicus Brief, Feb. 1, 2016, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2720012.

[13] Amended Complaint for Declaratory Judgment and Equitable Relief, Chernaik v. Kitzbhaber, Case No. 16-11-09273, May 19, 2011.

[14] Id. at 2.

[15] Id. at 15.

[16] Chernaik v. Kitzhaber, 263 Or App 463, 481 (2014).

[17] Chernaik v. Brown, at 8.

[18] Id. (citing Cook v. Dabney, 70 Or 529, 532 (1914)).

[19] Id. at 9.

[20] Id.

[21] Id. at 10.

[22] Id.

[23] Id.

[24] Id. at 10–11.

[25] Id. at 11–12.

[26] Id. at 13.

[27] 285 Or 197 (1979)

[28] Id. at 201–02.

[29] Morse v.Oregon Division of State Lands, 34 Or. App. 853, 859–60 (1978).

[30] Chernaik v. Brown, at 15.

[31] Id. at 17.

[32] Id. at 13, n. 10.

[33] See Blumm, Wood & Thiel, supra note 12.

[34] Matthews, 471 A.2d at 365.

[35] Mono Lake, 658 P.2d at 721.

[36] Id. at 724.

[37] State ex rel. Thornton v. Hay, 254 Or 584 (1969). Oregon statutes also recognize access to the beach.

[38] Oregon Shores Conservation Coalition v. Oregon Fish and Wildlife Com’n, 62 Or App 481, 493 (1983).

[39] Our Children’s Trust, Court Questions Whether Atmosphere is a “Natural Resource”, May 11, 2015, available at http://ourchildrenstrust.org/sites/default/files/2015.05.11OregonDecisionPR.pdf.

[40] Our Children’s Trust, Oregon Youth File Critical Appeal in Their Climate Change Lawsuit, July 7, 2015, available at http://ourchildrenstrust.org/sites/default/files/15.07.07OregonAppealPR.pdf.

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

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By Maryam Al-Dabbagh, Graduate Editor of the NYU Environmental Law Journal

Introduction

In the lead-up to the Paris talks, the issue of loss and damage (L&D) was portrayed to be one of the biggest hurdles in the quest for an agreement. L&D had already suffered multiple drawbacks in previous talks, such as the mass walkout by G-77 countries at COP19 in Warsaw in protest of the response by developed countries to their demands for L&D.[1] Surprisingly, no similar issues occurred in Paris; instead, the agreement articulated a middle path between the seemingly divergent aims of developing and developed countries. This paper will trace that path through an analysis of the L&D articles of the agreement, and set forth the headway as well as the challenges that should be expected in coming years.

Defining Loss & Damage

            The first triumph for developing countries on the L&D front in Paris was the fact that L&D was dedicated its own Article, Art. 8 of the Agreement, and was recognized as separate from adaptation. Developed countries had originally pushed for L&D to be slotted under the latter framework, which was where the Warsaw International Mechanism for Loss and Damage had been placed in 2013, to the consternation of developing countries.[2] This new placing demonstrates the fact that loss and damage is finally seen as on par with mitigation and adaptation, which have long been pillars of the climate regime under the UNFCCC, and is an important political statement on recognition of its acknowledged status on the world stage of climate negotiations.[3] This recognition is set out in Art. 8.1 of the agreement: “Parties recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage.”[4]

To understand exactly what is meant by the term, it is important to note that ‘loss’ and ‘damage’ should not be conflated with one another. ‘Loss’ refers to negative climate change-induced impacts that are beyond repair and cannot be restored, such as glacial melt leading to a loss of freshwater resources; ‘damage’ indicates repairable impacts that can be restored, such as building damage following a cyclone.[5] L&D also includes negative effects that can be reduced, but not entirely avoided, through adaptation.[6] Essentially, L&D is a ‘post-adaptation problem’, where mitigation and adaptation have not been adequate to avoid negative climate change impacts. The insistence of vulnerable countries on the inclusion of L&D on its own as a ‘red line’ throughout the Paris negotiations reflects realistic forecasts for what they will have to confront as part of an unpredictable future.[7] These concerns were acknowledged by cementing L&D in Art. 8. Another important issue for vulnerable countries was to reinforce and clarify the place of the Warsaw International Mechanism (WIM) within the agreement.

The Role of the Warsaw International Mechanism

In the Paris Agreement, Art. 8 and Art. 48 solidify the continuation of the WIM’s role following its review in 2016. This role was originally set out in its 2014 workplan, which emphasizes the importance of gathering information and developing expertise on issues relevant to L&D—particularly problems such as slow-onset events where not much experience has been developed, and where collaboration and communication among stakeholders will be especially key to developing innovative solutions in future.[8] Thus, the WIM’s role is somewhat limited, stopping short of offering any measures through which to provide concrete support, or any means through which its proposals can be implemented. Prior to the Paris negotiations, this led to calls by some countries to either reenergize the WIM’s mandate by expanding it through increasing support, and including alternative approaches and paradigms, or to replace it with a new mechanism.[9]

Neither of these approaches materialized. Instead, as is true for the way L&D was treated in the Paris agreement as a whole, a middle path emerged: a reiteration of the WIM’s initial goals as expressed in its original workplan, while also including elements of what developing countries had requested in their proposal prior to the agreement. Articles 8.3 and 8.5 restate the necessity of cooperation among parties to deal with the effects of L&D, whether among themselves or with other relevant organizations and bodies, whether under the Agreement or outside of it. Art. 8.4 specifies certain areas where coordination will be necessary under the WIM, such as emergency preparedness related to sudden weather disasters, slow onset events, risk management and insurance, and non-economic loss and community resilience.[10] Each of these areas poses challenges, and the WIM’s assistance will be invaluable to vulnerable countries in confronting them.

The WIM and Disaster Events

For sudden weather disasters, the agreement lists emergency preparedness and early warning systems as areas of cooperation for Parties. As the WIM’s workplan states, this involves a cooperative assessment of the capacity of risk management systems for emergency preparedness, reducing risks through anticipatory action, and increasing resilience following such disasters during the process of rebuilding and rehabilitation.[11] Countries worldwide have had a good deal of experience in dealing with such disasters, and there are best practices that can be duplicated and implemented where needed.

A greater challenge lies in dealing with largely unprecedented issues such as slow-onset events, which is why the WIM’s workplan focuses mainly on sharing knowledge and improving access to information.[12] Another major challenge in assessing the adverse impacts of slow-onset disasters such as extreme drought, sea level rise and glacial melt, or attempting to mitigate them by preparing beforehand, is that they often do not show highly visible impacts but rather produce large, indirect losses with impacts spread out over large areas.[13] Scholars have noted the need to combat slow onset events by convening multilateral funding agencies to develop different, new and innovative financial measures that can help countries deal with L&D.[14]

The WIM and Risk Management

Risk management and assessment plays an important role in L&D, as it does for many other environmental issues, and the workplan stresses the importance of enhancing and developing measures such as insurance, and encouraging institutions to incorporate them as part of development projects and investment criteria. Regional risk management platforms, such as the Caribbean Catastrophe Risk Insurance Facility,[15] have proven to be adept at dealing with L&D-related challenges, since members all regularly face the same form of disaster risk. These regional platforms might pave the way for an eventual ideal solution: an international climate risk insurance facility which would substantially diversify the risk of L&D from extreme weather events, lower the costs of managing risks, and guarantee the delivery of support in a timely and targeted manner once disaster does strike.[16]

However, there are multiple drawbacks to the usage of insurance that prevent it from being considered the optimal financial measure for risk management in addressing L&D. For one, as mentioned earlier, the high level of risk for issues such as sea level rise would translate into prohibitively costly premiums for countries that may not be able to afford it,[17] and a regional platform may not be able to avail all the costs. Additionally, insurance is not a solution that can be used for all forms of L&D; its usage is customarily restricted to short-term, high-impact, extreme weather disasters.[18] Slow-onset events, which develop over the long term, present risks that are open-ended and difficulty to quantify, which has not traditionally proven popular with insurers. The same drawbacks also apply to customary financial mechanisms such as catastrophe bonds.[19] As such, alternative financial mechanisms and tools should also be developed under the WIM.

In coming years, the role of the WIM will only grow more important, as the world begins to feel the effects of L&D more acutely. The question of whether the WIM itself is going to require further, more fundamental reformation will be up for review in 2016. If past experience indicates anything, it is that the voices of developing countries are being heard more and more, and thus it would not be surprising if their vision for a more involved, hands-on, action-oriented WIM comes to pass as part of the next agreement’s middle path. The history of the WIM is essentially one of initial foot-dragging on the part of developed countries, which eventually acquiesces to the stronger moral case made by vulnerable countries. This acquiescence was nowhere to be found on the subject of liability and compensation.

Liability and Compensation in the Agreement

Long one of the most controversial issues surrounding L&D, this issue was seemingly permanently settled by Art. 52 of the decision text, which reads: “Agrees that Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.” Developed countries had insisted on the explicit exclusion of linking loss and damage to liability and compensation, in return for anchoring L&D into the agreement.[20] The bespoke reluctance of developed countries to embrace L&D, based on their rejection of liability and compensation, was described as “creating a bogeyman that does not exist”,[21] given the fact that developing countries had removed any reference to those principles from their submitted text prior to the beginning of the Paris climate negotiations. Some took the inclusion of this clause as a failure for vulnerable countries, betraying their legal rights to compensation for the sake of a hollow compromise.[22]

The question yet to be resolved is whether or not any legal rights do in fact exist. The basis for any claims of L&D compensation would have been grounded in the principle that states should be held responsible for any violation of an international obligation.[23] Therefore, the first step is to determine whether or not cutting GHG emissions should be considered such an obligation on high-emitting states, the violation of which would function as a trigger for liability under standard principles of customary international law, or the text of any international treaties.[24]

Liability in Customary International Law

It has been well established by science that 63 percent of global GHG emissions from 1800 to 2005 have been contributed over the years by just seven of the top emitting countries: the US, China, Russia, Brazil, India, Germany and the United Kingdom, and 82 percent of GHG emissions are the responsibility of the top twenty emitters.[25] Claims of compensation for climate change damages would be based on acknowledging the historical responsibility of such states for significantly contributing to the causes of climate change. Specific principles of international law that have been cited to support these claims include the no-harm rule and the polluter-pays principle.

Under the no-harm rule, considered the main norm under customary international law that is applicable to climate change, each State is obligated to prevent, reduce and control the risk of environmental harm to other states.[26] In order to be held liable, two conditions must be met: that the offending state has inflicted a serious amount of harm on the injured state, and that the offending state has through its actions failed to adhere to a required standard of care through negligence.[27]

States may be held negligent for failing to act upon their knowledge of the harm caused by climate change, amid growing consensus in the scientific community surrounding its anthropogenic causes.[28] However, the no-harm rule also requires balancing the offending state’s technical and economic capabilities against the damage inflicted on the injured state.[29] Determining this appropriate balance is where subjectivity becomes involved, since it weighs the territorial sovereignty of one state against the territorial integrity of another, making application of the no-harm rule controversial.[30] It is therefore unlikely that the no-harm rule would lead to any conclusive findings of liability for which emitting states would be obliged to pay compensation.

The polluter-pays principle mandates that polluters should bear the costs of compensating for the damage they cause to the environment and/or to human health,[31] therefore obliging polluters to account for the externality of the pollution they cause.[32] This would provide a convenient basis for those seeking compensation for L&D damage from historical emitters of GHGs (“polluters”). However, the main problem with attempting to use this principle in the context of climate change is the simple fact that, in the normative context, “polluters are discrete entities, their legal negligence is well-documented, and losses and damages can be clearly attributed to wrongdoing.”[33] This is not the case for climate change; the complex interconnectedness between GHG emissions and industrialization in practically every sector and nation in the world renders a clear-cut accounting of responsibility practically impossible. In the global commons, no one ‘herdsman’ can be held completely responsible, and therein lies the tragedy.

In the end, although the aforementioned principles are based on established theories of customary international law, the fact that international interstate climate change litigation remains hitherto unexplored territory leaves the outcome of any violations of such principles ultimately uncertain, yet unlikely to result in liability.

Liability in International Treaties

When it comes to obligations established by international treaties and agreements, Principle 13 of the Rio Principles established during the first Earth Summit in 1992 reads that “states shall co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.”[34] However, no legal action has been based on this principle, whose explicit meaning does not seem to establish a distinct legal obligation. Attempts to establish liability based on UNFCCC Art. 4, which places climate change-related commitments on different countries, would also probably fail to provide a concrete basis for setting obligations that would bring about compensation claims. This is due to the vagueness of the requirements placed on countries to “mitigate climate change” under Art. 4(1). Although Art 4(2) is more precise, it applies only to Annex 1 countries, leaving out major emitters such as China and India.[35] This imbalance between the obligations placed on countries was a drawback of the Kyoto Protocol that minimized its effect, and would not constitute a viable basis for liability.[36]

Liability in the Real World

Beyond the legal difficulties, there are further drawbacks regarding the realistic outcomes of such attempts: the problem of disaster attribution, uncertainty regarding the appropriate form and procedure for issuing such compensation, and—most of all—the sheer political unfeasibility of such actions, due to the lack of an international sovereign.

First, developed countries rejecting liability often cite the fact that scientists cannot yet conclusively attribute certain events or L&D to climate change, given the high uncertainty associated with the contested accuracy of climate models and mechanisms currently used,[37] and the lack of good traceability measures.[38] Attributing specific weather events to climate change is already challenging, due to the disproportionate relationship between the intensity of hazards and impacts of disasters. Connecting the impact and damage that result from such events is exponentially more complicated, because of the complexity of the interactions involved.[39] Producing statistically significant trends is also practically impossible, given the scarcity of available data on historical weather-related disasters.[40]

Second, procedural and technical issues surrounding the likely form of climate change compensation also present a challenge to any injured countries. Reparations are typically made up of an apology, compensation and a guarantee of non-repetition.[41] Putting aside the fact that an apology would be politically unpalatable for the majority of high-emitting countries, questions remain regarding how the compensation should be calculated, and what form it would take. Additionally, which court would have the appropriate jurisdiction?[42]

For the foreseeable future, these vital questions will remain unanswered. Because even if, theoretically, countries could be found liable for their emissions of GHGs under international law, and the issues of attribution and calculating compensation could be solved, and an appropriate venue could be selected, and a judgment was finally issued, enforcement remains elusive. There is a distinct probability that after that entire process, any countries found liable could simply ignore any outcome. Countries would be highly wary of allowing the Pandora’s box of liability to be opened. From colonialism to slavery, considering historic responsibility for damages wrought throughout the centuries might bring about an untold number of claims, and an enormous amount of damages, that would never be politically acceptable or economically feasible to pay.

Therefore, due to the lack of an international sovereign to ensure enforcement of such a judgment, countries could never be held truly accountable. No matter the underlying principles involved, to claim otherwise simply ignores the realities of imbalanced political power. Powerful, industrialized developed countries that are historically responsible for the vast majority of emissions prove as much by their assertions that demands for compensation are of mere moral character, and have no place in the negotiations. They emphasize that L&D should focus on building capacity to deal with risk,[43] and otherwise addressing the negative effects of climate change in a non-adversarial way.[44]

Future Implications of Art. 52

Regarding the legal outcome of Art. 52 of the Paris Agreement’s decision text, it should be noted that Art. 52 does not provide a completely conclusive justification for banning all future liability/compensation attempts by vulnerable countries. The closest equivalent to this clause is its opposite, stating the lack of exclusion of their rights for holding states responsible for climate change, submitted by four small island states, Fiji, Kiribati, Nauru, and Tuvalu upon signing the UNFCCC: “Understanding that signature of the convention shall in no way constitute a renunciation of any rights under international law concerning state responsibility for the adverse effects of climate change and that no provisions in the convention can be interpreted as derogating from the principles of general international law.”[45] Since there have been no meaningful precedents of action taken under these clauses, their effectiveness remains questionable.

Also significant is Art. 52’s location in the decision text, a section of the Paris deal that is not legally binding.[46] This brings about considerable ambiguity in terms of whether the clause shields conceivably culpable states from the long-term effects of their actions. One somewhat convoluted argument is that by mentioning liability and compensation at all, high-emitting countries have implicitly accepted responsibility for taking action to avoid the most disastrous outcomes of climate change, opening the door for claims in the future. Should worst come to worst and the displacement of millions is in the balance, affected countries might “take it to an international forum, and the gloves come off”.[47] This outlook acknowledges the political reality that state-versus-state cases were never meant to come about in the short term. Any future litigation would likely only be the result of a last-ditch measure of desperation by countries facing imminent obliteration, such as islands disappearing beneath rising seas.

Overall, whether or not the Paris agreement truly excluded liability and compensation as a possible option for developing countries to pursue, it does not appear to be a feasible option in the foreseeable future to obtain the help they need. One of the most important factors to consider when discussing effective ways of addressing L&D is that much of what constitutes L&D simply cannot be addressed holistically by merely demanding money to throw at the problem, and so liability and compensation would not fully address the issue. A more acceptable and, arguably, more effective multilateral basis for concretely addressing L&D is through a framework of solidarity and collective responsibility.[48] Developed countries could provide support through both funding and non-monetary assistance with coping capacity, under the WIM’s mandate.[49] One such example might be providing long-term loans at low interest rates to developing countries to advance GHG-friendly development, as recently suggested by an Indian official.[50] Whether developed countries will actually follow through on their promises to provide such support remains to be seen.

Beyond State v. State Liability

Apart from the possibility of interstate legal action, pursuing L&D relief through liability is still a very real option. On a case-by-case basis, involving entities whose culpability is more readily established than the vast, radical uncertainty surrounding sovereign countries’ liability to one another, such pursuits have gained considerable momentum over the past several years. This applies both nationally, such as in cases of individual citizen suits against governments to bring about concrete action on climate change, and globally, such as pursuing corporate liability.

Examples of the first instance include the Urgenda case in the Netherlands. A citizen’s platform successfully brought a claim against the Dutch government for failing to discharge its duty of care to protect its people from the effects of climate change. The judge issued a ruling that mandated bringing emissions reductions of at least 25 percent below current rates.[51] Another example is the Leghari case, where a farmer brought a case against the government of Pakistan for failing to implement its climate change strategy, resulting in the court ordering the establishment of a new climate change commission. More citizen lawsuits have been filed in quick succession based on the success witnessed in these cases, including in Belgium, Australia, and the state of Washington in the US.[52]

Corporate Climate Liability

A number of cases are currently being litigated that question the liability of corporations, arguably inspired by the 1990s crackdown on tobacco companies for damages to public health and welfare. Greenpeace Southeast Asia is currently preparing a suit to be brought in front of the Philippine Commission for Human Rights, against a number of high-profile fossil fuel producing corporations that profit from climate change-inducing energy, such as Gazprom, Glencore Xstrata and Exxon Mobil.[53] Another case involves a Peruvian farmer suing German energy giant RWE, requesting it to pay 0.47 percent of the estimated project cost to protect a valley threatened by a melting glacier, based on proportional liability for RWE’s 0.47 percent share of world emissions between 1751-2010.[54]

Another option would be to follow the example provided by the International Oil Pollution Compensation Fund, founded under the 1969 International Convention on Civil Liability for Oil Pollution Damage. The Fund provides relief to parties who have suffered pollution damages from oil spills, and who then claim compensation.[55] These funds are financed through a fee levied on entities that purchase more than a certain amount of crude oil in a year. Thus, to obtain the funds needed to address L&D, a similar convention could be enacted to levy a fee on polluters that would be funneled into an L&D fund that would provide relief for countries or parties suffering from L&D.

This latter solution would circumvent some of the challenges involved in the calculation of an appropriate amount of L&D compensation in the case of corporate liability. Both cases mentioned do not provide concrete amounts of compensation; the RWE case asks for a largely symbolic amount based on proportional liability that would provide for only a fraction of a percentage of what is needed. Civil liability cases can provide for only a limited amount of funds, and it is clear that the need for funds that are required in order to effectively address L&D is only going to increase. Therefore, measures such as the IOPCF seem to provide a useful blueprint on holding corporations monetarily accountable for negative outcomes resulting from their core businesses.

Conclusion

This paper attempted to sketch a picture of the way that the recent Paris negotiations addressed the issue of L&D; its definition, the role of the WIM, liability and compensation, and alternative options, all through the lens of how a middle path between developed and developing countries emerged in search of common ground to facilitate the eventual agreement. Over the years, the failures that have manifested time and time again in climate negotiations have been chalked up to the seemingly impossible rift that has opened up between both blocs. From Kyoto to Copenhagen, this insurmountable hurdle could not be cleared, and it led to years of stagnation that only resulted in exacerbating the problem of climate change for everyone involved.

While Paris was by no means an entirely balanced agreement, the method in which the issue of L&D was addressed provided a blueprint for how both blocs must push forward, in a spirit of collegial cooperation, not mutual sabotage. With untold numbers of lives hanging in the balance, they were able to put together an agreement that exemplified the necessary compromise. The middle path was simply the best option for both, which was why it materialized. Continuing on this middle path will be necessary in order to avoid a tragic outcome for the ultimate commons.

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* Graduate Editor of the NYU Environmental Law Journal. Expected L.L.M. in Environment & Energy Law, 2016.

[1] Vidal, J. (2013) ‘Poor countries walk out of UN climate talks as compensation row rumbles on’. The Guardian. http://www.theguardian.com/global-development/2013/nov/20/climate-talks-walk-out-compensation-un-warsaw

[2] Okereke, C., Baral, P., and Dagnet, Y. (2015) ‘Options for Adaptation and Loss & Damage in a 2015 Climate Agreement’. ACT 2015 Working Paper. http://act2015.org/ACT_2015_Options_for_Adaptation_and_Loss_&_Damage.pdf

[3] Carbon Brief (2015) ‘Analysis: The final Paris climate deal’. Carbon Brief. http://www.carbonbrief.org/analysis-the-final-paris-climate-deal

[4] Paris Agreement (2015) FCCC/CP/2015/L.9. http://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf

[5] Kakakhel, Kashmala (2012) ‘Loss and Damage – From Defining to Understanding to Action’. Climate & Knowledge Development Network.

[6] In Decision 2/CP.19 (2013), the Parties acknowledged that “loss and damage associated with the adverse effects of climate change includes, and in some cases involves more than, that which can be reduced by adaptation”.

[7] Pacia, S. (2015) ‘COP21: PH will not cross ‘red line’ on loss and damage’. Philippine Daily Inquirer. http://newsinfo.inquirer.net/746590/cop21-ph-delegation-loss-and-damage-red-line

[8] UNFCCC (2014) WIM two-year workplan-18 September 2014. [Online] http://unfccc.int/files/adaptation/cancun_adaptation_framework/loss_and_damage/application/pdf/workplan_18sept_11am.pdf

[9] Schäfer, L., & Kreft, S. (2014). Loss and Damage: Roadmap to Relevance for the Warsaw International Mechanism. Germanwatch (March 2014), at, 5.

[10] Paris Agreement (2015) FCCC/CP/2015/L.9. http://unfccc.int/resource/docs/2015/cop21/eng/l09.pdf

 

[11] UNFCCC (2014) _18sept_11am.pdf

[12] Id.

[13] World Bank (2006) ‘Overcoming drought : adaptation strategies for Andhra Pradesh, India.’ Directions In Development. Environment and Sustainable Development, World Bank.

[14] Stabinsky (2015)

[15] UNFCCC (2014)

[16] Munich Climate Insurance Initiative (2012) ‘Insurance solutions in the context of climate change-related loss and damage’. SBI Work Program on Loss and Damage.

[17] Democracy Now. ‘Loss & Damage: U.S. Stymies Push for Compensation for Climate Devastation at U.N. Climate Summit’. (2015) Democracy Now.

[18] Stabinsky, D. (2012) ‘Tackling the Limits to Adaptation: An International Framework to Address ‘Loss And Damage’ from Climate Change Impacts’. ActionAid Int’l, CARE Int’l and WWF Int’l.

[19]

[20] Sethi, N. (2015) ‘US pressure tactics work, clause excluding compensation option retained’. Business Standard. http://www.business-standard.com/article/current-affairs/us-pressure-tactics-work-clause-excluding-compensation-option-retained-115121200365_1.html

[21] Alegado, J. (2015) ‘Crunch time for ‘loss and damage’ in Paris climate talks’.Rappler. http://www.rappler.com/science-nature/environment/115480-cop21-crunch-time-loss-damage

[22] Sethi, N. (2015).

[23] Faure, M. G., & Nollkaemper, A. (2007). ‘International liability as an instrument to prevent and compensate for climate change.’ A Stan. Envtl. LJ, 26, 123.

[24] Shaw, M. N. (2003). International Law. Cambridge, UK; New York, Cambridge University Press.

[25] Matthews, H Damon, Tanya L Graham, Serge Keverian, Cassandra Lamontagne, Donny Seto and Trevor J Smith (2014) ‘National contributions to observed global warming’, Environmental Research Letters.

[26] Tol, R. S. J. and R. Verheyen (2004). “State Responsibility and Compensation for Climate Change Damages – A Legal and Economic Assessment.” Energy Policy 32(9): 1109-1130.

[27] Voigt, C. (2008). “State Responsibility for Climate Change Damages.” Nordic Journal of International Law 77: 1 – 22.

[28] Mayer, B. (2014). ‘State responsibility and climate change governance: A light through the storm.’ Chinese Journal of International Law 13: 1-40.

[29] Id.

[30] Voigt, C. (2008)

[31] Khan, M. R. (2015). Polluter-Pays-Principle: The Cardinal Instrument for Addressing Climate Change. Laws, 4(3), 638-653.

[32] Faure, Michael, and David Grimeaud. “Financial assurance issues of environmental liability.” In Deterrence, Insurability and Compensation in Environmental Liability. Edited by Michael Faure. London: Springer, 2003, pp. 194–206.

[33] Wrathall, D., Oliver-Smith, A., Sakdapolrak, P., Gencer, E., Fekete, A., & Reyes, M. L. (2013). ‘Conceptual and operational problems for loss and damage.’ Population Environmental Research.

[34] UN (1992): Rio Declaration on Environment and Development. Principle 13. http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm

[35] UNFCCC (1995) Framework Convention on Climate Change. http://unfccc.int/resource/docs/cop1/07a01.pdf .

[36] UNFCCC (2014) Kyoto Protocol. http://unfccc.int/kyoto_protocol/items/2830.php .

[37] Hulme M, O’Neill SJ, Dessai S (2011) Climate Change: Is Weather Event Attribution Necessary for Adaptation Funding? Science 334: 764-765.

[38] Mathew, L. M. and Akter, S. (2015) ‘Loss and damage associated with climate change impacts’, in: W.-Y. Chen, J. Seiner, T. Suzuki and M. Lackner (Eds.), Handbook of Climate Change Mitigation and Adaptation (1st edn.), Springer, New York.

[39] World Bank (2013). ‘Building Resilience: Integrating climate and disaster risk into development. Lessons from World Bank Group experience’. The World Bank, Washington DC. http://www.worldbank.org/content/dam/Worldbank/document/SDN/Full_Report_Building_Resilience_Integrating_Climate_Disaster_Risk_Development.pdf

[40] Huggel, C., et al. 2013. Nature Climate Change. Loss and Damage Attribution. Macmillan Publishers, Limited. doi:10.1038/ nclimate1961.

[41] Burkett, Maxine (2009) ‘Climate Reparations’, Melbourne Journal of International Law.

[42] The question of appropriate jurisdiction is too exhaustive to be dealt with adequately in this paper, but it does present a very real issue.

[43] Hoffmaister JP, Talakai M, Damptey P, Barbosa AS. (2014) ‘Warsaw International Mechanism for loss and damage: Moving from polarizing discussions towards addressing the emerging challenges faced by developing countries.’ http://www.lossanddamage.net/4950.

[44] Taraska, Gwynne (2015) ‘The Meaning of Loss and Damage in the International Climate Negotiations’, Center for American Progress.

[45] Declarations of Kiribati, Fiji, Nauru and Tuvalu upon signature of the UNFCCC, 1771 UNTS 317-318.

[46] Pashley, A. (2015) ‘Did the Paris deal rule out climate compensation?’ Climate Home. http://www.climatechangenews.com/2015/12/18/did-the-paris-deal-rule-out-climate-compensation/

[47] Id

[48] Rajamani, L. (2015) ‘Addressing Loss and Damage from Climate Change Impacts’. Economic & Political Weekly, Vol. l No. 30 http://www.cprindia.org/sites/default/files/articles/Addressing_Loss_and_Damage_from_Climate_Change_Impacts.pdf

[49] Adler, B. (2015) ‘Here’s why the words “loss and damage” are causing such a fuss at the Paris climate talks.’ http://grist.org/climate-energy/heres-why-the-words-loss-and-damage-are-causing-such-a-fuss-at-the-paris-climate-talks/

[50] Press Trust of India (2015). ‘Carbon Emission: Principle of Polluter Pays Must be Respected, Says Piyush Goyal’ NDTV. http://www.ndtv.com/india-news/carbon-emission-principle-of-polluter-pays-must-be-respected-says-piyush-goyal-1224856

[51] Crosland, Tim (2015) ‘Vulnerable countries warned: Protect your legal rights in a Paris accord’. Climate Home. http://www.climatechangenews.com/2015/10/23/vulnerable-countries-warned-protect-your-legal-rights-in-a-paris-accord/

[52] Id.

[53] Darby, M. (2015) ‘Around the world in 5 climate change lawsuits.’ http://www.climatechangenews.com/2015/07/08/around-the-world-in-5-climate-change-lawsuits/

[54] French, K. (2015) ‘A Peruvian farmer is suing an energy giant over climate change’. http://www.theverge.com/2015/12/2/9821758/climate-change-lawsuit-un-rwe-energy-vs-peru-farmer

[55] International Oil Pollution Compensation Fund (2015) ‘About Us’. http://www.iopcfunds.org/about-us/

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

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By Will Grossenbacher, Former Editor-in-Chief of the Virginia Environmental Law Journal.

 

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

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

I. THE IMPACT OF SEA LEVEL RISE

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

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

II. ADAPTING TO THE THREAT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[10] See id.

[11] Id. at 26.

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

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

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

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

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

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

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

[19] Id. at 29.

[20] Id. at 30.

[21] Id.

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

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

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

[25] Id.

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

[27] Weston, supra note 8, at 49.

 

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

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By Eric Anthony DeBellis, Senior Executive Editor of the Ecology Law Quarterly

INTRODUCTION

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

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

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

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

I. RESTORATIVE JUSTICE AS AN ALTERNATIVE TO THE PUNISHMENT PARADIGM

Punishment lies at the heart of traditional American legal philosophy, situating the State as the law’s underwriter and enforcer. The punishment paradigm focuses on the injurer as an adversary to the State. This ideology has evolved; the most notorious contemporary iterations are “Tough on Crime” rhetoric and mass incarceration policies.[5] Critics of the approach have denounced retributivism as sadistic in theory,[6] racist in application,[7] excessively costly,[8] and creating more harm than it prevents.[9]

Restorative justice offers an alternative model,[10] treating punishment not as an end but a means to achieving positive, constructive change for both offenders and victims.[11] Restorative justice focuses on the relationship between the injurer and the injured and re-positions the State as a mediator.[12] The State’s role in restorative justice is not to impose a resolution but to support the parties in reconciliation and mutual rehabilitation.[13]

As a values proposition, restorative justice seeks to move past the conventional punishment paradigm to improve outcomes for both parties.[14] The Centre for Justice and Reconciliation defines restorative justice as “a theory of justice that emphasizes repairing the harm caused by [unlawful] behavior . . . best accomplished through cooperative processes that allow all willing stakeholders to meet.”[15] Two factors make a dispute resolution method consistent with restorative justice: correction and participation.

A model is corrective if it eliminates wrongful gains and counteracts harm.[16] Fines can eliminate wrongful gains, and investing all or part of a fine in ameliorating victims’ injuries can lessen harms, satisfying the corrective element. However, restorative justice demands more than correction. It also calls for stakeholder participation.[17]

The restorative justice model does not treat parties to a dispute as adversaries.[18] Instead, it promotes reconciliation.[19] The offender confronts her actions’ consequences, potentially reducing repeat offenses.[20] Victims voluntarily involved in the dispute resolution process tend to express more satisfaction with the outcome.[21] Further, the traditional enforcement regime’s shortcomings make the need for an alternative approach evident.

II. THE FAILURE OF THE SPEEDING TICKET SETTLEMENT MODEL

The Speeding Ticket model’s efficacy relies on assumptions that do not hold true in the context of environmental enforcement. First, the model assumes that environmental law noncompliance injures the “public interest” generally and uniformly, but most environmental harms are localized. For example, even the generally diffuse impacts of climate change affect certain vulnerable places—like coastal regions that flood first as oceans rise—more than others.[22] Similar adverse impacts tend to concentrate on particularly vulnerable groups, including people of color, lower income, and greater linguistic isolation.[23] Yet the Speeding Ticket model does not target reinvestment of penalty funds in the communities that bear the brunt of environmental harm. Instead, settlement funds enter the state or federal general budget, not earmarked for any particular use.[24]

A recent tragedy in rural Texas illustrates this paradox. In 2013, a fertilizer plant in West, Texas, exploded, killing fifteen people.[25] The chemical inventory the company had filed with the West Volunteer Fire Department neglected to mention thousands of tons of highly combustible ammonium nitrate located onsite.[26] When a fire broke out at the plant, first responders were not prepared for the blast.[27] This omission violated federal law, but the United States was not the real victim. By writing a check to the U.S. Treasury, West Fertilizer did nothing to heal or rebuild the community in the wake of tragedy.

The Speeding Ticket approach improperly implies that depositing monetary penalties into a State’s general fund will compensate injured communities. A recent controversial settlement between the New Jersey Department of Environmental Protection (NJDEP) and Exxon illustrates how this approach cuts out the most important stakeholders.

In 2004, NJDEP brought an enforcement action against Exxon claiming injury for over a century of unlawful natural resources destruction arising out of two oil refineries.[28] Exxon conceded liability for the cost of restoring these natural resources, and a state judge found Exxon strictly liable for these costs in summary judgment,[29] leaving only the questions of the penalty amount. NJDEP sought $8.9 billion for the cleanup: $2.5 billion for primary restoration of the properties and $6.4 billion to restore wetlands and forestlands the facilities’ pollution damaged.[30] After a decade of failed negotiations, the State settled for $225 million—less than three cents on the dollar.[31] Worse still, the Christie Administration had passed a temporary budget provision the previous year authorizing diversion of $175 million from the settlement to reduce the state’s budget deficit.[32] The loophole was set to expire at the end of the fiscal year, making prompt settlement necessary to ensure the state could redirect funds to boost its budget figures.[33] The Governor’s office ensured most of the largest environmental enforcement settlement in New Jersey’s history went from restoring overburdened communities to supplementing the administration’s ledger.[34]

The Speeding Ticket settlement model fails to ensure justice because it frames the settlement process as a battle between government bureaucrats and corporate defense lawyers. The model takes for granted the penalty should be in the form of a fine paid to the government. Moreover, the model provides injured parties no means of redress and fails to facilitate communication between stakeholders. Recognizing the Speeding Ticket model’s inadequacy, state and federal agencies have utilized SEPs to improve settlement outcomes.

III. UNPACKING THE FEDERAL AND CALIFORNIA SEP POLICIES

Several agencies have developed unique SEP policies.[35] Here, I examine the EPA and Cal EPA policies, both newly updated in 2015. This Part highlights several similarities and difference between the policies. I proceed to deconstruct the two approaches and identify potential opportunities for improvement in Part IV.

A. EPA’s New SEP Policy

In early 2015, EPA updated its SEP policy for the first time since 1998, incorporating several wholly new aspects.[36] The policy defines a SEP as “an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action.”[37] The policy requires an analysis of each individual element to define the universe of eligible projects.

First, an eligible SEP must be “environmentally beneficial,” in that it must “improve, protect or reduce risks to public health or the environment.”[38] Second, the defendant must undertake the project, “in settlement of an enforcement action.”[39] In other words, the SEP must arise out of the settlement negotiation process, with opportunity for EPA to comment before the agency approves the settlement.[40] Third, EPA prevents double-counting by excluding project a defendant must perform anyway.[41]

Additionally, the project must have a sufficient nexus to the violation[42] by reducing the likelihood of similar future violations or harms (subject-matter nexus).[43] Projects also should benefit the geographic area where the violation occurred (geographic nexus).[44] As Part IV illustrates, choice of nexus requirement significantly affects how directly corrective a SEP policy is. Stricter nexus requirements better comport with restorative justice by ensuring SEPs more directly address the violation and victims themselves.

The policy promotes environmental and restorative justice goals by emphasizing and seeking community input in settlement agreements, striving to incorporate involvement of populations historically left unheard through the settlement process. The policy states that the agency “should encourage input on project proposals from the local community that may have been adversely impacted by the violations,” and to solicit that input “as early in the SEP development process as possible.”[45] Further, EPA personnel assigned to the case who happen to be “aware of community interest in particular SEPs . . . should feel free to share that information with the defendant.”[46] However, the policy offers no means for EPA personnel or defendants to become aware of such information. Confidentiality concerns constrain the agency from reaching out to community stakeholders.[47]

EPA also must comply with a statute that treats adjusting settlements after issuing a consent decree like stealing from the U.S. Treasury.[48] The Miscellaneous Receipts Act (MRA) requires that “an official or agency of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction.”[49] For generations, whether an agency could credit a SEP’s value against the penalty amount in a settlement remained unclear.[50]

The Comptroller General issued a declaration in 1993 clarifying that MRA allowed enforcement agencies to “adjust penalties to reflect . . . concessions exacted from the violator.”[51] In other words, agencies could credit defendants for community projects included in settlement agreements. The catch was timing.[52] The rule allows EPA to approve a SEP before negotiating a lower settlement amount to offset the costs of the SEP.[53] This workaround functions because the agency never “received” the money spent on the SEP, so the Treasury had no claim to it.[54] Once the agency and defendant finalize the settlement and enter into a consent decree, the full penalty amount must go to the Treasury.[55] Confidentiality concerns limit the agency’s ability to communicate about settlement negotiations so once negotiations produce a final agreement, the MRA bars EPA from changing the SEP to reflect community feedback.

B. Cal EPA’s SEP Policy: AB 1070

In late 2015, the California Legislature passed AB 1071, requiring Cal EPA to issue a new SEP policy.[56] The statute declares, “environmental justice communities,” which “are located in areas disproportionately impacted from multiple sources of pollution,” need additional resources devoted to supporting “community-led solutions” to their environmental health woes.[57] SEPs serve to provide “direct environmental and public health benefits” in these communities.[58] AB 1071 directs Cal EPA to “focus on . . . engaging community-based organizations through an accessible and open public process.”[59]

To achieve these objectives, Cal EPA must establish a SEP policy that includes four key provisions.[60] First, the policy must create a public process to solicit potential SEPs from “disadvantaged communities.”[61] Cal EPA may assign “disadvantaged community” status based on socioeconomic factors, but the underlying statute does not mention indicators like race, ethnicity, or national origin.[62] Second, AB 1071 replaced Cal EPA’s 25 percent maximum recommended portion of the total settlement amount the agency may dedicate to a SEP[63] with a 50 percent hard cap.[64] Third, Cal EPA must publish an annual list of potential SEP options online.[65] Fourth, Cal EPA must consider the relationship between the violation’s location and the proposed SEP.[66]

IV. RECOMMENDATIONS

A. General Restorative Justice Priorities

Restorative justice principles provide three general prescriptions for SEPs. First, a SEP should correspond to the type of harm the violation caused (subject-matter nexus). Second, a SEP policy should target SEP benefits on the community the violation harmed or threatened (geographic nexus). Third, a SEP policy should enable members of the affected community to directly participate in the SEP.

Restorative justice requires subject-matter nexus. The more closely the SEP’s benefits track the associated violation’s harm, the more directly the SEP corrects for the violation. Agencies should premise SEP-eligibility on direct responsiveness to the harm. Stringent subject-matter nexus requirements hold a defendant to the corrective aspect of restorative justice.

Geographic nexus similarly furthers restorative justice’s corrective ends. In the fertilizer factory case, a SEP proposing to improve air quality in Houston would do nothing for West. Enforcing a strict geographic nexus better achieves the corrective result upon which restorative justice is premised.

Restorative justice’s participation element dictates a SEP policy should provide affected communities with a forum to represent their interests. The Speeding Ticket model’s fails, in part, because it falsely supposes the government adequately represents victims’ interests. By contrast, restorative justice maintains a harmful act is wrongful not because it violates the law, but because it hurts victims.[67] A SEP policy cannot force the State to better represent the interests of its environmental justice communities, but it can give affected communities a forum to assert their needs and invite offenders to collaborate in the healing process. Restorative justice prescribes an agency must embrace affected communities’ participation and incorporate offenders into efforts to correct harms.

B. Recommendations For EPA

i. Corrective Elements

The EPA SEP policy’s strict nexus requirement sets it apart from AB 1071 as a corrective model. EPA requires that an eligible project have a “sufficient nexus” to the violation itself.[68] However, the agency’s environmental justice criterion for evaluating proposed SEPs leaves out crucial factors in identifying harm. For example, social identity factors are absent from the policy. The agency need only consider whether a community “may have been disproportionately exposed to pollution or is at environmental risk.”[69]

The first step in correcting a harm is identifying it. Thus, the policy’s goal to remediate harm in historically overburdened communities comports with restorative justice, but its silence on social identity factors understates these communities’ vulnerabilities. Environmental justice communities not only suffer greater pollution.[70] They also suffer other risks due to generations of environmental racism and classism, which track factors like race and poverty.[71] The agency cannot adequately evaluate a project’s corrective potential without considering the community’s historical pollution burden when it evaluates environmental and public health vulnerability.[72] To remedy this, I suggest EPA expressly incorporate social identity factors associated with increased environmental health risk into its environmental justice criterion for evaluating SEP proposals.

ii. Participation Elements

EPA’s SEP policy largely fails to foster participation by providing a strictly one-way line of communication. The defendant may reach out to community members for information during settlement negotiations, but the public has no forum to provide this information until after the settlement’s terms are set. EPA’s policy calls for “meaningful involvement,”[73] but the policy lacks a mechanism to bring about such involvement. Moreover, the policy provides no system to seek SEP ideas from the public. The agency solicits public comments on already-negotiated settlement agreements,[74] but the agency stops considering changes before the public comment period begins.[75] As a result, EPA’s SEP policy provides only the appearance of public participation. Accordingly, I recommend that EPA develop a process for local advocates to make their communities’ needs known before an enforcement action arises.

The current system provides no means to connect defendants with firms who would perform SEPs. Without a forum for soliciting and maintaining SEP proposals from the public, the burden of developing SEP ideas falls squarely on the defendant and the EPA attorney. Both parties want to settle the matter expediently and are not necessarily inclined incentivized to invest the effort necessary to devise a well-designed SEP during negotiation. Rather than rely on the settling parties to assemble a SEP proposal, EPA should maintain an up-to-date online repository of potential partner organizations and SEP proposals.[76]

In fact, EPA considered exactly such a database—regional SEP “banks” or “libraries”—in a 2000 interim guidance document.[77] EPA dropped this effort, finding it redundant with another database called Enforcement and Compliance History Online (ECHO).[78] ECHO provides the agency and public with information on past settlements.[79] ECHO’s breadth is impressive, but it lacks depth and provides only generic descriptions of past approved SEPs.[80] This information can aid those seeking general information, but every enforcement action presents unique considerations. Rough overviews of past settlements offer little to inspire ideas tailored to a particular community’s needs. ECHO looks backward. I suggest the agency develop a forward-looking database.

To develop such a database, EPA can draw on several existing examples. EPA Region 1 maintains a SEP library[81] in “black box” form; the webpage provides contact information and instructions for submitting proposals.[82] However, it offers no way for the public to view other proposals for guidance. A submitter cannot see her own submission to ensure its availability without contacting the agency. This interface holds the program back.

Instead, I recommend an online format modeled after the Illinois EPA’s (IEPA) “Idea Bank.”[83] Via an online tool, environmental services providers can submit SEP proposals, including the project descriptions, expected environmental benefits, estimated cost, regional availability, and contact information.[84] IEPA posts all valid submissions on the webpage. It also keeps the database current by deleting old submissions. The only drawback is the Ideas Bank does not have a space for community advocates to propose projects.

Each EPA enforcement region should adopt a publicly available SEP library modeled after IEPA’s Ideas Bank, though I suggest a few modifications. First, the agency should add community organizations’ SEP ideas alongside those of environmental services contractors. Second, EPA should delete outdated posts as IEPA does but should notify submitters annually and request updates to outdated submissions.

C. California

AB 1071 holds Cal EPA to a higher standard in facilitating community participation but undermines corrective justice by allowing the agency to stretch the connection between the SEP and the violation. Cal EPA has yet to issue regulations implementing AB 1071. Though this Part criticizes some specific policy choices the legislature made in drafting AB 1071, these recommendations address issues left open for Cal EPA to resolve in implementation.

i. Participation Elements

AB 1071’s public participation mandates are a potential strength, requiring Cal EPA to create a public process for engaging community organizations,[85] solicit SEP proposals from disadvantaged communities,[86] and compile candidate projects into an annual list on its website.[87] This list speaks to the same themes discussed in the federal EPA analysis, so similar recommendations are appropriate. However, the AB 1071 framework raises a participation concern. AB 1071 only requires Cal EPA to facilitate participation from designated disadvantaged communities. This is antithetical to a restorative justice framework, which asks for equal application anywhere a violation harms a community. Accordingly, I recommend Cal EPA not overlook communities it would not designate as disadvantaged.

ii. Corrective Elements

AB 1071 raises two causes for concern. First, AB 1071 requires caps credit for SEPs at half the penalty amount,[88] meaning that at least half would go to the California Treasury, a discretionary fund. I disapprove of the legislature’s seemingly arbitrary limit.

Second, AB 1071 lacks a firm nexus standard.[89] Cal EPA’s nexus requirement is looser than EPA’s. It recommends that projects should have an “adequate nexus” to the violation, whereas the federal EPA’s policy requires that projects must have such a nexus.[90] The act emphasizes SEPs’ value to disadvantaged communities, but it does not limit SEPs to those communities. It gives Cal EPA a choice: consider geographic nexus as a factor or as a requirement.

Cal EPA’s first option is to go no further than to treat geographic nexus as a factor. This approach maximizes Cal EPA’s discretion. A defendant aware of a SEP opportunity in Watts could contribute for credit against her penalty for a violation in Richmond. This approach would encourage community organizers to compete, devising more compelling SEP ideas that might stand out on projects lists. Troublingly, it would allow the defendant to allocate benefits to a community that, though classified as disadvantaged, experienced no direct impact from the underlying violation. A competitive SEP market may create perverse incentives by advantaging communities with representatives better positioned to appeal to defendants.

Cal EPA could impose a nexus requirement only for violations in disadvantaged communities as a middle road approach. A nexus requirement serves both a disadvantaged community and the community where the violation occurred. A defendant still could perform a SEP in a disadvantaged community. Under no circumstances could Cal EPA credit a defendant for performing a project in a community not designated as disadvantaged.

This approach appeals to some because it allocates environmental benefits to communities that suffer the greatest environmental harms. Proponents would argue regardless of where a violation occurred, disadvantaged communities need SEPs more than non-disadvantaged communities do.

The restorative justice model prescribes otherwise. Restorative justice emphasizes the rehabilitative value of a defendant cooperating within the actually harmed community. Restorative justice principals require a SEP have a strong nexus. Accordingly, I advise Cal EPA to impose a strict nexus requirement similar to the federal EPA’s standard.

CONCLUSION

A corrective and inclusive SEP policy offers true reparation. Though the foregoing analysis has focused on two SEP policies’ imperfections, these agencies do not have to provide for SEPs. The Speeding Ticket Model asks less of them. SEPs are major undertakings and require significant efforts from the agency. The very existence of these SEP policies marks substantial progress in incorporating restorative justice into environmental enforcement efforts. These SEP policies reflect important and admirable efforts.

These two agencies have refined their SEP policies as tools to achieve justice, but the mission continues. After generations of neglect, healing the relationship between government, polluters, and communities living with the toxic legacy of environmental injustice will take time and effort. I hope these recommendations will contribute to the ongoing conversation shaping enforcement agencies’ role in achieving environmental justice, an objective that is as noble as it is elusive.

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[1] Supplemental Environmental Projects (SEPs), EPA, http://www2.epa.gov/enforcement/supplemental-environmental-projects-seps (last updated February 9, 2016).

[2] Id.

[3] Id.

[4] See generally Ctr. for Justice & Reconciliation, Prison Fellowship Intl., What Is Restorative Justice? (2005), http://www.d.umn.edu/~jmaahs/Correctional%20Assessment/rj%20brief.pdf (explaining restorative justice).

[5] For a brief history of the “Tough on Crime” movement in American politics, see V.F. Nourse, Rethinking Crime Legislation: History and Harshness, 39 Tulsa L. Rev. 925, 928–37 (2004).

[6] E.g., Whitley R.P. Kaufman, Honor and Revenge: A Theory of Punishment (2012).

[7] E.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012); Race, Crime, & Punishment: Breaking the Connection in America (Keith O. Lawrence ed., 2011), http://www.aspeninstitute.org/sites/default/files/content/docs/pubs/Race-Crime-Punishment.pdf; Walker Newell, The Legacy of Nixon, Reagan, and Horton: How the Tough on Crime Movement Enabled a New Regime of Race-Influenced Employment Discrimination, 15 Berkeley J. Afr.-Am. L. & Pol’y 3 (2013); Jonathan D. Glater, Race Gap: Crime vs. Punishment, N.Y. Times (Oct. 7, 2007), http://www.nytimes.com/2007/10/07/weekinreview/07glater.html.

[8] E.g., Zvi D. Gabbay, Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative Justice Practices, 2 J. Dispute Resolution 349, 353, 364 (2005).

[9] E.g., Deirdre Golash, The Case Against Punishment: Retribution, Crime Prevention, and the Law (2005); James P. Lynch & William J. Sabol, Urban Inst., Did Getting Tough on Crime Pay? (1997), http://www.urban.org/research/publication/did-getting-tough-crime-pay/view/full_report; James Gilligan, Punishment Fails. Rehabilitation Works., N.Y. Times (Dec. 19, 2012, 11:43 AM), http://www.nytimes.com/roomfordebate/2012/12/18/prison-could-be-productive/punishment-fails-rehabilitation-works.

[10] Jacqueline J. Larsen, Aus. Inst. Criminology, Restorative Justice in the Australian Criminal Justice System 1–2 (2014), http://www.aic.gov.au/media_library/publications/rpp/rpp127.pdf.

[11] Restorative Justice Principles and Values, Correctional Serv. Can., http://www.csc-scc.gc.ca/restorative-justice/003005-0006-eng.shtml (last updated Aug. 7, 2012).

[12] See id.

[13] Id.

[14] Id.

[15] Restorative Justice, Ctr. for Justice & Reconciliation, http://restorativejustice.org/restorative-justice/ (last visited Oct. 21, 2015).

[16] Ernest J. Weinrib, The Gains and Losses of Corrective Justice, 44 Duke L.J. 277, 277 (1994).

[17] Restorative Justice Principles and Values, supra note 11.

[18] Id.

[19] Larsen, supra note 10, at 23–28.

[20] See Mark S. Umbreit et al., Ctr. for Restorative Justice & Peacemaking, The Impact of Restorative Justice Conferencing: A Review of 63 Empirical Studies in 5 Countries 10 (2002), http://www.cehd.umn.edu/ssw/RJP/Projects/Victim-Offender-Dialogue/Restorative_Group_Conferencing/Impact_RJC_Review_63_Studies.pdf (finding the results of several victim-offender mediation studies demonstrated reduced recidivism in participating offenders).

[21] See id. at 2–3 (inferring from meta-analysis of restorative justice mediation studies that increased victim participation accounted for at least some of victims’ higher satisfaction rates with the outcomes of certain mediation models).

[22] E.g., The Consequences of Climate Change, NASA, http://climate.nasa.gov/effects/ (last updated Dec. 17, 2015); Abby Phillip, Which U.S. Cities are the Most Vulnerable to the Impact of Climate Change?, Wash. Post (May 6, 2014), https://www.washingtonpost.com/news/post-nation/wp/2014/05/06/which-u-s-cities-are-the-most-vulnerable-to-the-impact-of-climate-change/; Planning for Changing Sea Levels, U.S. Army Corp Eng’rs, http://www.corpsclimate.us/Sandy/ (last visited Dec. 15, 2015).

[23] See, e.g., Envtl. Justice & Health Alliance for Chem. Policy Reform, Who’s in Danger?: Race, Poverty, and Chemical Disasters (2014), http://www.comingcleaninc.org/assets/media/images/Reports/Who’s%20in%20Danger%20Report%20and%20Table%20FINAL.pdf; Rachel Massey, Environmental Justice: Income, Race, and Health (2004), http://www.ase.tufts.edu/gdae/education_materials/modules/Environmental_Justice.pdf; Bob Bolin et al., The Geography of Despair: Environmental Racism and the Making of South Phoenix, Arizona, USA, 12 Human Ecology Rev. 156 (2005); Steve Wing et al., Environmental Injustice in North Carolina’s Hog Industry, 108 Envtl. Health Perspectives 225 (2000); Cheryl Katz & Envtl. Health News, People in Poor Neighborhoods Breathe More Hazardous Particles, Sci. Am. (Nov. 1, 2012), http://www.scientificamerican.com/article/people-poor-neighborhoods-breate-more-hazardous-particles/; see also Overview of Demographic Indicators in EJSCREEN, EPA, http://www2.epa.gov/ejscreen/overview-demographic-indicators-ejscreen (last updated June 9, 2015).

[24] Robert Esworthy, Cong. Research Serv., RL34384, Federal Pollution Control Laws: How Are They Enforced? 27 (2014).

[25] Bill Chappell, Death Toll in West, Texas, Fertilizer Explosion Rise to 15, Nat’l Pub. Radio (Apr. 23, 2013), http://www.npr.org/sections/thetwo-way/2013/04/23/178678505/death-toll-in-west-texas-fertilizer-explosion-rises-to-15.

[26] M.B. Pell et al., Special Report: Poor Planning Left Texas Firefighters Unprepared (May 22, 2013, 9:41 PM), http://www.reuters.com/article/2013/05/23/us-chemical-emergency-specialreport-idUSBRE94L19020130523.

[27] Id.

[28] Benjamin Weiser, Exxon Settles $9 Billion Pollution Case in New Jersey for Far Less, N.Y. Times (Feb. 27, 2015), http://www.nytimes.com/2015/02/28/nyregion/exxon-mobil-settles-with-new-jersey-over-environmental-damage.html.

[29] N.J. Dep’t of Envtl. Prot. v. Exxon Mobil Corp., 923 A.2d 345, 351 (N.J. Super. Ct. App. Div. 2007).

[30] S.P. Sullivan, State Announces Settlement in Controversial Exxon Mobil Pollution Case, NJ.com (Mar. 5, 2015, 3:16 PM), http://www.nj.com/news/index.ssf/2015/03/state_announces_settlement_in_controversial_exxon.html.

[31] S.P. Sullivan, N.J. Senate Condemns Christie’s Exxon Settlement, NJ.com (Mar. 16, 2015, 4:29 PM), http://www.nj.com/politics/index.ssf/2015/03/state_senate_condemns_christies_exxon_settlement.html.

[32] David Sirota, Chris Christie Backed Law that Lets Him Divert ExxonMobil Settlement from Environmental Cleanup, Intl. Bus. Times (Feb. 27, 2015, 10:27 PM), http://www.ibtimes.com/chris-christie-backed-law-lets-him-divert-exxonmobil-settlement-environmental-cleanup-1831558.

[33] Id.

[34] Id.; State of New Jersey, The Governor’s FY 2015 Budget, at D-126 (2014), http://www.state.nj.us/treasury/omb/publications/15budget/pdf/FY15BudgetBook.pdf.

[35] E.g., Supplemental Environmental Projects, Va. Code Ann. § 10.1-1186.2 (2015); Colo. Dep’t of Pub. Health & Env’t, Final Agency-Wide Supplemental Environmental Projects Policy (2008), https://www.colorado.gov/pacific/sites/default/files/DEHS_SEP_DeptPolicy.pdf; Conn. Dep’t of Envtl. Prot., Policy on Supplemental Environmental Projects (1996), http://www.ct.gov/deep/lib/deep/enforcement/policies/seppolicy.pdf; Ind. Dep’t of Envtl. Mgmt., Fact Sheet: Supplemental Environmental Projects (SEPs) (2011), http://www.in.gov/idem/files/factsheet_sep.pdf; Mass. Dep’t of Envtl. Prot., Policy on Supplemental Environmental Projects (2009), http://www.mass.gov/eea/docs/dep/service/seppol07.pdf; Ohio EPA, Supplemental Environmental Protection Guidance (2006), http://www.epa.ohio.gov/portals/35/swerp/sep_guidance_dec06.pdf; Supplemental Environmental Projects, Ill. EPA, http://www.epa.illinois.gov/topics/compliance-enforcement/sep/index (last visited Nov. 9, 2015).

[36] EPA, U.S. Environmental Protection Agency Supplement Environmental Projects Policy 2015 Update 1 (2015), http://www2.epa.gov/sites/production/files/2015-04/documents/sepupdatedpolicy15.pdf.

[37] Id.

[38] Id. at 6.

[39] Id.

[40] Id.

[41] Id. at 6–7; see id. at 1.

[42] Id. at 7–8.

[43] Id.

[44] Id.

[45] Id. at 18.

[46] Id.

[47] Id. at 19–20; see 40 C.F.R. §§ 2.201–2.311.

[48] See Act of March 3, 1849, 31 U.S.C. § 3302(b) (2012); see also Andy Spalding, The Much Misunderstood Miscellaneous Receipts Act (Part 1), FCPA Blog (Sept. 30, 2014, 1:28 AM), http://www.fcpablog.com/blog/2014/9/29/the-much-misunderstood-miscellaneous-receipts-act-part-1.html (introducing the complications this statutory language imposes on agencies looking to incorporate SEPs into settlement agreements).

[49] Act of March 3, 1849, 31 U.S.C. § 3302(b).

[50] Andy Spalding, The Much Misunderstood Miscellaneous Receipts Act (Part 2), FCPA Blog (Sept. 30, 2014, 1:28 AM), http://www.fcpablog.com/blog/2014/9/30/the-much-misunderstood-miscellaneous-receipts-act-part-2.html.

[51] Memorandum from James F. Hinchman, Comptroller Gen. of the U.S., to John D. Dingell, Chairman, Subcomm. on Oversight & Investigations, House Comm. on Energy & Commerce 1 (Mar. 1, 1993), http://www.gao.gov/assets/200/195921.pdf.

[52] See Spalding, supra note 52.

[53] See id.

[54] See id.

[55] See id.

[56] A.B. 1071, 2015–16 Leg., Reg. Sess. (Cal. 2015).

[57] §§ 1(a)(1)–(2).

[58] § 1(a)(3).

[59] § 1(b).

[60] See § 2(b).

[61] §§ 2(a)(2), (b)(1); see Cal. Health & Safety Code § 39711 (West 2015).

[62] Health & Safety § 39711.

[63] Cal. EPA, Cal/EPA Recommended Guidance on Supplemental Environmental Projects 7 (2003), http://www.calepa.ca.gov/Enforcement/Policy/SEPGuide.pdf.

[64] A.B. 1071 § 2(b)(2).

[65] §§ 2(b)(3), (c).

[66] § 2(b)(4).

[67] Ctr. for Justice & Reconciliation, supra note 4, at 1.

[68] EPA, supra note 37, at 7.

[69] Id. at 20.

[70] Jason Corburn, Environmental Justice, Local Knowledge, and Risk: The Discourse of a Community-Based Cumulative Exposure Assessment, 29 Envtl. Mgmt. 451, 456 (2002).

[71] See id.

[72] See id.

[73] EPA, supra note 37, at 3.

[74] Id. at 4.

[75] Interim Guidance for Community Involvement in Supplemental Environmental Projects, 68 Fed. Reg. 35,884, 35,885 (June 17, 2003).

[76] Further, the EPA’s website is overdue for an overhaul in general.

[77] Draft EPA Guidance for Community Involvement in Supplemental Environmental Projects, 65 Fed. Reg. 40,639, 40,641 (June 30, 2000).

[78] E-mail correspondence with Beth Cavalier, Analyst, EPA Office of Civil Enforcement, Special Litigation & Projects Div. (Nov. 13, 2015) (on file with author).

[79] Id.

[80] E-mail correspondence with Assoc. Reg’l Counsel, EPA Office of Reg’l Counsel, Region 5 (Nov. 16, 2015) (on file with author).

[81] Supplemental Environmental Projects (SEPs) Library, EPA, http://pubweb.epa.gov/region1/enforcement/sep/index.html (last updated May 9, 2014).

[82] See id.

[83] See Supplemental Environmental Projects, Ill. EPA, http://www.epa.illinois.gov/topics/compliance-enforcement/sep/index (last visited Nov. 9, 2015); see also SEP Idea Bank Instructions, Ill. EPA, http://www.epa.illinois.gov/topics/compliance-enforcement/sep/instructions/index (last visited Nov. 9, 2015).

[84] See Project Deposit Form, Ill. EPA, http://www.epa.state.il.us/cgi-bin/en/sep/sep.pl (last visited Nov. 9, 2015) (SEP proposal submission form).

[85] A.B. 1071 § 1(b).

[86] § 2(b)(1).

[87] §§ 2(b)(3), (c).

[88] § 2(b)(2).

[89] EPA, supra note 37, at 7 n.8.

[90] See Cal. EPA, supra note 65, at 3.