Author: Nate Bishop

Constitutions & the Environment: Comparative Approaches to Environmental Protection and the Struggle to Translate Rights into Enforcement

 

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

This post is part of the Environmental Law Review Syndicate.

Introduction

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

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

I.  Environmental Law in the United States

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

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

II. Environmental Rights Abroad

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

A. South Africa

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

Everyone has the right––

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

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

(i) Prevent pollution and ecological degradation;

(ii) Promote conservation; and

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

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

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

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

(a) Anyone acting in their own interest;

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

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

(d) Anyone acting in the public interest;

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

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

B. India

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

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

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

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

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

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

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

C.  Nigeria

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

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

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

III. Translating Rights into Enforcement

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

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

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

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

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

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

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

Conclusion

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

* J.D. Candidate, 2017, University of Virginia School of Law. The author would like to thank Professor A.E. Dick Howard, whose seminar in comparative constitutional law inspired this piece.

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

[2] Id.

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

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

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

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

[7] Id.

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

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

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

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

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

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

[14] 33 U.S.C. §§ 1251388 (2012 & Supp. 2014).

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

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

[17] Id.

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

[19] 42 U.S.C. §§ 74017671q (2012 & Supp. 2014).

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

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

[22] Id.

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

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

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

[26] Id.

[27] Id. at 161.

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

[29] Id.

[30] See id. at 166.

[31] Id.

[32] Id.

[33] Id.

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

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

[36] Id. at 168.

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

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

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

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

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

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

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

[44] Id.

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

[46] Id.

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

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

[49] Id.

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

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

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

[53] See id.

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

[55] Id.

[56] Id. at 289.

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

[58] Id. at 289.

[59] Id. at 290.

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

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

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

[63] 42 U.S.C. § 4331(a) (2012).

[64] Id. § 4331(b).

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

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

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

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

[69] Id.

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

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

[72] Id.

[73] Id.

[74] Id.

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

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

[77] Id. at 561.

[78] Id. at 563–64.

[79] Id. at 562.

[80] Id. at 563.

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

[82] Id. at 568.

[83] Cannon, supra note 1, at 29–30.

[84] See supra Part II.A.

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

[ELRS] Pipelines, Protests and General Permits

By Samantha L. Varsalona, Staff Member, Georgetown Environmental Law Review

This post is part of the Environmental Law Review Syndicate

Abstract

The Dakota Access Pipeline (DAPL) has become a contentious topic in recent months. The controversy centers around Dakota Access, LLC[1], a subsidiary of Energy Transfer Crude Oil Company, LLC, and the Standing Rock Sioux Tribe of North and South Dakota[2] (the Tribe or Sioux), a federally-recognized Indian tribe. The Tribe’s reservation, Standing Rock Indian Reservation, is half a mile upstream from where DAPL’s crude oil pipeline would cross the Missouri River underneath Lake Oahe in North Dakota.[3] While much of the recent media attention surrounding Dakota Access and the Tribe has focused on the destruction of the Tribe’s ancestral burial grounds, the underlying issue can be traced back to the nationwide permits issued by the Army Corps of Engineers (the Corps) in 2012.[4] More specifically, this article will examine Nationwide Permit 12 (NWP 12), which was one of the fifty NWPs issued by the Corps in 2012[5] and is at the heart of the current legal battle between Dakota Access and the Tribe.

Introduction

The Tribe and environmentalists alike raised concerns about the potential health and environmental consequences of oil spills, being that the Missouri River “provides drinking water for millions of Americans and irrigation water for thousands of acres of farming and ranching lands.”[6] Besides the Tribes concern about the proximity of the pipeline to their reservation, they were also concerned about the pipeline disrupting sacred ancestral burial grounds and places of cultural significance to the Sioux people.[7] In particular, the Sioux have traditionally placed significance on the convergence of the Missouri and Cannonball Rivers because their ancestors gathered at that location to peacefully trade with other tribes.[8] Ironically, this is not the first time the Army Corps of Engineers (the Corps) or the federal government has taken the Tribe’s land in particular location without their consent. In 1958 the Corps dredged the sacred Cannonball river to construct the Oahe Dam, which created the man-made Lake Oahe that now covers the confluence of the two rivers and is the future site of DAPL.[9] The Oahe Dam not only destroyed a site of spiritual significance to the Sioux, but also flooded nearly fifty-six thousand acres of Standing Rock Reservation and over one hundred four thousand acres on the Cheyenne River Reservation.[10] Overall, the construction of the Oahe Dam destroyed more Indian land than any other public works project in America.[11] Nonetheless, the Tribe continues to use the banks of the Missouri River for “spiritual ceremonies, and the River, as well as Lake Oahe, plays an integral role in the life and recreation of those living on the reservation.”[12] With that poignant history in mind, it comes as no surprise that the Tribe would fight so vehemently against DAPL which would obviously affect both the Missouri River and Lake Oahe.

Fearing, once again, the possibility of sacred burial grounds being destroyed, the Tribe pursued legal action against the Army Corps of Engineers (Corps), the federal agency that approved DAPL’s permits, in hopes of being granted an injunction that would block DAPL’s construction of the pipeline.[13] The outcome of the suit, decided September 9th by the D.C. District Court, held that the Corps had sufficiently followed federal law in approving the pipeline.[14] Minutes after the court’s decision came down, the Department of Justice, the Department of the Army and the Department of the Interior issued a joint statement temporarily halting the work.[15]

The future of DAPL underneath Lake Oahe is still unclear and it will, more than likely, continue to be a political hot potato for months to come. In its simplest form, the conflict comes down to the permitting process and the Corp’s alleged failure to adequately consult the Tribe before issuing the permit.[16] The permit granted to DAPL is a type of general permit known as Nationwide Permit 12 (NWP 12) and has caused considerable controversy in the past several years.

Nationwide Permits

Although one might logically assume that a crude oil pipeline traversing thousands of miles across the United States would require an extensive federal appraisal and permitting process, that assumption would be incorrect. Domestic oil pipelines require no general approval from the federal government.[17] For example, DAPL needed almost no federal permitting of any kind because “99% of its route traversed private land.”[18] However, when construction activity occurs in waters of the United States, meaning in federally regulated waters such as Lake Oahe, the Corps needs to permit the activity under the Clean Water Act (CWA) or the Rivers and Harbors Act or sometimes both.[19]

Section 404(e) of the CWA has been the provision primarily used by the Corps to issue general permits.[20] Nationwide permits (NWP) are a type of general permit that are issued or reissued every five years by the Corps headquarters[21], whereas regional permits are issued by an individual Corps District for a specific geographical area.[22] NWPs authorize small-scale activities that are “similar in nature and result in no more than minimal individual and cumulative adverse environmental effects.”[23] Because NWPs pre-approve categories of activities upfront, there is considerably less federal involvement upon commencement of an individual project. Indeed, in most cases project proponents can commence their activities without ever notifying the Corps.[24] Some of the NWPs, including NWP 12, require the project proponent to submit a Pre-Construction Notification (PCN) to the relevant Corps District Engineer who then confirms whether or not the proposed activities qualify for NWP authorization.[25] If the District Engineer determines that the proposed activity qualifies, he/she then issues a verification letter to the project proponent. It is important to note that the District Engineer is merely verifying that the activity is one that was already pre-authorized by the Corps when they promulgated the NWP reissuance.[26]

NWPs are designed to streamline the permitting process and are often considered to be more cost-efficient and cost-effective for both the Corps and the individual or business seeking the permit.[27] Although NWPs can have important benefits when used for their intended purpose, some of the NWPs, NWP 12 in particular, are often used by the oil and gas industries as a way to fast-track the permitting process by avoiding project-specific environmental review and by skirting around a more comprehensive public participation process.[28] The oil and gas industries circumvent stricter federal regulations by evading the National Environmental Policy Act’s (NEPA) “hard look” review which requires federal agencies to analyze the environmental consequences of all “major Federal actions significantly affecting the quality of the human environment.”[29] If the federal action is one that would significantly affect the environment, the level of federal involvement and regulation is substantially elevated.[30]Although NEPA review applies only to major federal actions and imposes obligations only on federal agencies, “it is well-settled that ‘federal involvement in a non-federal project may be sufficient to federalize the project for purposes of NEPA.’”[31] In other words, it is possible for the Corps to have “sufficient control and responsibility”[32] over a project to warrant them having authority to control portions of a project that would normally be out of their jurisdiction. The district engineer makes the determination as to whether the scope of the Corps involvement warrants them to federalize the entire project.[33] For example, if a pipeline spans 100 miles and 40 miles of the project fall within federal control, the district engineer can determine the scope of the project gives the Corps sufficient control to warrant federalizing all 100 miles of the project, even if the other 60 miles were done by private action.[34]

NWP 12

The Corps renewed fifty nationwide permits on February 21, 2012 and they will expire on March 19, 2017.[35] The Corps, however, has no intention of letting these NWPs expire and on June 1, 2016 they proposed to reissue the NWPs and published the proposed rules in the Federal Register to solicited public comments.[36] The renewal included NWP 12, which covers “construction, maintenance, repair and removal of utility lines . . . provided the activity does not result in the loss of greater than 1/2 acre of waters of the United States for each single and complete project.”[37] The Corps defined NWP 12 to include “pipeline[s] for the transportation of gaseous, liquid, liquescent, or slurry substance, and any cable, line, or wire. . . .”[38] Accordingly, the construction of a pipeline may qualify for NWP 12 as long as the construction is a single and complete project and does not result in a loss greater than 1/2 acre of jurisdictional waters. At this point NWP 12 seems innocuous enough, however the conflict arises over the Corps defining a single and complete project as,“[the] portion of the total linear project proposed or accomplished by one owner/developer . . . that includes all crossings of a single water of the United States (i.e., a single waterbody) at a specific location.[39]

The effect of this definition is that it allows each water crossing to be verified under NWP 12 separately, essentially creating many “single and complete projects” along one proposed route.[40] In other words, the Corps allows pipeline proponents to “stack” NWP 12 hundreds, if not, thousands of times along a single pipeline.[41] For instance, TransCanada’s Gulf Coast Pipeline, which is the bottom half of the Keystone XL Pipeline, is 485 miles long and crosses United States waters 2,227 times, meaning the it “crosse[d] . . . waters about once every 1150 feet.”[42] The Corps verified the Gulf Coast Pipeline under NWP 12, even though NWP 12 was used 2,227 times in the process.[43] Another example is the Corps’ verification of Enbridge’s Flanagan South Pipeline under NWP 12 despite the pipeline traversing 27 miles of federal land, and crossing waters of the United States 1,950 separate times.[44] The Corps is essentially allowing project proponents to piecemeal the pipeline into separate smaller projects, which is seemingly inconsistent with NEPA.[45] What is perhaps more extraordinary is the Corps defines a single and complete non-linear project as requiring the project to have independent utility[46], which is defined as the project having the ability to be “constructed absent other projects in the project area.”[47] Not only does the definition of single and complete non-linear project require independent utility, it also specifically states “[s]ingle and complete non-linear projects may not be “piecemealed . . . .”[48] It is bewildering why Corps distinguishes so drastically between linear and non-linear projects, especially when considering linear projects that cannot function independently are, by their very nature, neither “single” nor “complete.”

The Corps justifies the expansive nature of NWP 12 by requiring the project proponent to submit a PCN to the Corps District Engineer (DE).[49] The DE will then review the PCN and determine if the proposed action “will result in more than minimal individual or cumulative adverse environmental effects or may be contrary to the public interest.”[50] On its face, requiring the DE to perform an extra layer of review may alleviate concerns about the open-ended nature of NWP 12. However, the review is based solely on the discretion of the DE and whether he/she determines there will be cumulative effects.[51] The PCN verification of the Gulf Coast Pipeline is an example of the considerable amount of discretion granted to the Corps. The Gulf Coast Pipeline passes through three Corps’ districts; Galveston, Fort Worth, and Tulsa and even though all three districts issued verification letters, none of the letters “provide a reasoned basis for any cumulative impacts analysis.”[52] As District Judge Martinez’s dissent points out, the verification letters issued by the three districts attempted to circumvent the analysis by “simply stat[ing] the legal standard and then recit[ing] that it made a ‘determination’ that such criteria were satisfied.”[53] Even though the DE and the Corps provided no specific findings as to why authorizing the use of NWP 12 2,227 times wouldn’t have a cumulative effect, the Tenth Circuit Court of Appeals approved the Corps use of discretion in verifying NWP 12.[54]

As seen above, the Corps definition of “single and complete” essentially allows the project proponent to segment the pipeline into smaller projects, which, in turn, allows the Corps to treat the project as not significant enough to warrant them having “control and responsibility”[55] over the entire project.[56] The approval of the Gulf Coast Pipeline is an example of how easily NWP 12 can be manipulated. Judge Martinez’s dissent challenges the Corps conclusion that its’ involvement did not warrant them to have sufficient control and responsibility and he asserted that “[c]onsidering the number of permits [2,227] issued by the Corps . . . it is patently ludicrous for Appellees to characterize the Corps’ involvement in the subject project as minimal . . . .”[57]

NWP 12 and DAPL

The malleability of NWP 12 is seen, once again, in its application permitting the Dakota Access Pipeline.[58] DAPL is not similar to the Gulf Coast Pipeline and Flanagan South Pipeline in the sense that the Corps didn’t seemingly abuse its authority by granting the use of NWP 12 thousands of times, rather the application of NWP 12 in DAPL’s context is offensive in the sense that it approved the pipeline even though the Tribe alleged it was not adequately consulted[59] as required under Section 106 of the National Historic Preservations Act (NHPA).[60]

Section 106, also known as the “stop, look, and listen” provision[61] requires “[f]ederal agencies takes into account the effects of their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such undertakings.”[62] Meaning, the Corps are required to consider, prior to the reissuance of the NWPs, the effects of the permits on properties of cultural and historical significance.[63] This would have required the Corps to consult with the Tribe before they reissued the NWPs in 2012. Additionally, the consultation can’t just be a rubber stamping process, it “must recognize the government-to-government relationship between the Federal Government and Indian tribes.”[64]

The Corps claimed, and District Court Judge Boasberg agreed, that the Corps “made a reasonable effort to discharge its duties under NHPA prior to promulgating NWP 12” and that “the Corps’ effort to speak with those it thought be concerned was sufficient . . . .”[65] This “reasonable effort” to consult the Tribe included the Corps sending a notification letters containing information pertaining to its proposed NWPs, as well as the Corps holding listening sessions and workshops with tribes, and eventually the Corps sending letters to the Tribe inviting them to begin consultations.[66] The Advisory Council on Historic Preservation (ACHP), the federal agency that promulgates the regulations used to implement Section 106[67], wrote five letters[68] to the Corps questioning the adequacy of the tribal consultations. The EPA and Department of Interior also wrote letters to the Corps questioning their use of NWP 12 and the adequacy of tribal consultations.[69] The ACHP’s final letter states that it believes the “findings made by the Corps are premature, based on an incomplete identification effort, which was not sufficiently informed by the knowledge and perspective of consulting parties . . . .”[70] Despite all the objections from the Tribe and three other federal agencies, the Corps and Judge Boasberg emphasize that the Corps’ efforts were reasonable “given the nature of the permit.”[71] In other words, because NWP 12 is broad and over inclusive then apparently the Corps’ consultation requirements can be viewed in the same way.

Conclusion

This article has attempted to highlight a fundamental problem with how the United States permits domestic oil pipelines. The controversy surrounding the Dakota Access Pipeline has the potential to have both negative and positive implications. The most obvious potentially negative consequence is that the Sioux Tribe may, once again, lose sites of cultural significance at the hands of the U.S. government. However, a positive outcome that has emerged from this whole fiasco is that it has created a national dialog regarding not only nationwide permits and pipelines, but more importantly, how we, as citizens, view and understand the rights of Native Americans.

[1]           Energy Transfer, Overview, http://www.daplpipelinefacts.com/about/overview.html (last visited Oct. 10, 2016).

[2]           Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 80 Fed. Reg. 1942-02, 1946 (Jan. 14, 2015).

[3]           Standing Rock Sioux Tribe v. Army Corps of Engineers, No. 16-1534, 2016 WL 4734356, at *6 (D.D.C. Sept. 9, 2016).

[4]           Reissuance of Nationwide Permits, 77 Fed. Reg. 10,184 (Feb. 21 2012).

[5]           Id.

[6]           David Archambault II, Taking a Stand at Standing Rock, N.Y. Times (Aug. 24, 2016),

http://www.nytimes.com/2016/08/25/opinion/taking-a-stand-at-standing-rock.html?_r=0.

[7]           Standing Rock Sioux Tribe, 2016 WL 4734356, at * 6.

[8]           Id.

[9]           Id.

[10]         Michael L. Lawson, Dammed Indians: The Pick-Sloan Place and the Missouri River Sioux, 1944-1980, 50-52 (1994).

[11]         Id. at 50.

[12]         Standing Rock Sioux Tribe, 2016 WL 4734356, at * 6.

[13]         Complaint for Declaratory and Injunctive Relief at 1, Standing Rock Sioux Tribe, 2016 WL 4734356 (Jul. 27, 2016) (No. 1:16-cv-01534), 2016 WL 4033936.

[14]         Standing Rock Sioux Tribe, 2016 WL 4734356, at *26.

[15]         Dep’t of Justice, Joint Statement from the Department of Justice, the Department of the Army and the Department of the Interior Regarding Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers (2016). https://www.justice.gov/opa/pr/joint-statement-department-justice-department-army-and-department-interior-regarding-standing.

[16]         Standing Rock Sioux Tribe, 2016 WL 4734356, at *1.

[17]         Id.

[18]         Id. at *7.

[19]         Id. at *1.

[20]         33 U.S.C. § 1344(e)(1) (2012).

[21]         Id.

[22]         U.S. Army Corps of Eng’rs, About national and regional permits, http://www.nwp.usace.army.mil/Missions/Regulatory/Nationwide.aspx (last visited Oct. 22, 2016).

[23]         Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,186.

[24]         33 C.F.R. § 330.1(e)(1) (2013).

[25]         Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,184.

[26]         Id. at 10,185.

[27]         See generally Eric Biber, The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State, 64 Duke L.J. 133 (2014).

[28]         Industry attorneys and environmental consulting firms have highlighted the strategic benefits of utilizing NWP 12 as a way to construct pipelines with minimal federal regulatory interference. See, Robert E. Holden, E&P Wetlands Compliance Strategy: Nationwide Permits, Law360 (Oct. 9, 2014) http://www.law360.com/articles/585584/e-p-wetlands-compliance-strategy-nationwide-permits; John Kusnier, What Pipeline Companies Should Consider When Planning Projects, North American Oil & Gas Pipelines, (July 19, 2013) http://napipelines.com/pipeline-companies-planning-projects/; Lowell M. Rothschild, The Importance Of Keystone To NWP 12, Law360 (Aug. 29, 2012) http://www.law360.com/articles/371356/the-importance-of-keystone-to-nwp-12.

[29]         Citizens Alert Regarding the Env’t v. EPA, 259 F.Supp.2d 9, 15 (D.D.C. 2003).

[30]         For a more detailed discussion of NEPA and its statutory goals, see Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989).

[31]         Citizens Alert Regarding the Envt, 259 F.Supp.2d at 15 (quoting Macht v. Skinner, 916 F.2d 13, 18 (D.C. Cir. 1990)).

[32]         33 C.F.R. Part 325, app. B (7)(b)(2) (2013).

[33]         Id.

[34]         Id. § 7(b)(3).

[35]         Reissuance of Nationwide Permits, 77 Fed. Reg. at 10,184.

[36]         Dep’t of Defense, Proposal To Reissue and Modify Nationwide Permits (2016)

http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2017/nwp2017_proposed_fedreg_01june2016.PDF?ver=2016-06-02-113806-960.

[37]         U.S. Army Corps of Eng’rs, Decision Document: Nationwide Permit 12 (2012), http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/NWP_12_2012.pdf [hereinafter Nationwide Permit 12].

[38]         Id. at 1.

[39]         U.S. Army Corps of Eng’rs, 2012 Nationwide Permits, Conditions, and Definitions, with corrections (2012), http://www.usace.army.mil/Portals/2/docs/civilworks/nwp/2012/NWP2012_corrections_21-sep-2012.pdf (emphasis added) [hereinafter 2012 Nationwide Permits, Conditions, and Definitions].

[40]         Sierra Club, Comments on the U.S. Army Corps of Engineers’ Proposal to Reissue and Modify Nationwide Permit 12, (2016), https://www.nwf.org/~/media/PDFs/Global-Warming/Tar-Sands/NWP-12-Comments_FINAL_080116.ashx.

[41]         Id.

[42]         Sierra Club v. Bostick, 539 Fed. Appx. 887, 898 (10th Cir. 2013) [hereinafter Gulf Coast Pipeline].

[43]         Id.

[44]         Sierra Club v. Army Corps of Eng’rs, 803 F.3d 31, 39 (D.C. Cir. 2015).

[45]         See 40 CFR § 1508.25(a) (2010) (requiring connected and cumulative actions to be analyzed together unless they would have independent utility).

[46]         2012 Nationwide Permits, Conditions, and Definitions, at 45.

[47]         Id. at 43.

[48]         Id. at 45.

[49]         Nationwide Permit 12, at 2.

[50]         Reissuance of Nationwide Permits, 77 Fed. Reg. at 10260.

[51]         33 C.F.R. § 330.1(d).

[52]         Gulf Coast Pipeline, at 900.

[53]         Id.

[54]         Id. at 896.

[55]         See 33 C.F.R. pt. 325, app. B (7)(b).

[56]         See generally, Lindsay M. Nelson, The Gulf Coast Pipeline: A Stealthy Step Toward the Completion of the Keystone XL Pipeline Project, 44 Cap. U. L. Rev. 429 (2016).

[57]         Gulf Coast Pipeline, at 899 (emphasis added).

[58]         Standing Rock Sioux Tribe, 2016 WL 4734356, at *1.

[59]         Complaint for Declaratory and Injunctive Relief at 36-8, Standing Rock Sioux Tribe, 2016 WL 4734356 (Jul. 27, 2016) (No. 1:16-cv-01534), 2016 WL 4033936.

[60]         See generally, 36 C.F.R. § 800.2 (2016).

[61]         Standing Rock Sioux Tribe, 2016 WL 4734356, at *2.

[62]         36 C.F.R. § 800.1(a) (2016).

[63]         Standing Rock Sioux Tribe, WL 4734356, at *2.

[64]         Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Dep’t of the Interior, 755 F. Supp. 2d 1104, 1108-9 (S.D. Cal. 2010).

[65]         Standing Rock Sioux Tribe, 2016 WL 4734356, at *19 (emphasis added).

[66]         Id. at *18-9.

[67]         Standing Rock Sioux Tribe, 2016 WL 4734356, at *1.

[68]         The Advisory Council on Historic Preservation, Dakota Access Pipeline Project 1 (May 19, 2016).

[69]         Environmental Protection Agency, Additional Comments on Dakota Access Pipeline Draft Environmental Assessment (March 11, 2016); Department of the Interior, Letter to the Corps (March 29, 2016).

[70]         The Advisory Council on Historic Preservation, Dakota Access Pipeline Project at 1.

[71]         Standing Rock Sioux Tribe, 2016 WL 4734356, at *19.

[ELRS] Science And Deference: The “Best Available Science” Mandate is A Fiction in the Ninth Circuit

By Elizabeth Kuhn, Associate Editor, Lewis & Clark, Environmental Law*

This post is part of the Environmental Law Review Syndicate

Introduction

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.

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.

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]

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.

Best Available Science Under the Endangered Species Act

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]

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.

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]

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]

Ninth Circuit Deference on Matters of Science

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.

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]

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.

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.

[ELRS] An Ecology of Liberation: The Shifting Landscape of Environmental Law in an Era of Changing Environmental Values

By Michael Zielinski, Staff Member, William & Mary Environmental Law & Policy Review 

This post is part of the Environmental Law Review Syndicate

Introduction

In 1971, the Peruvian theologian and Dominican priest Gustavo Gutiérrez published his seminal work, A Theology of Liberation, in which he advocated an activist approach to Christianity based on the belief that it is only through living in solidarity with exploited and impoverished populations that all people can ultimately become free from all forms of injustice, oppression, and suffering.[1] Recognizing that “the signs of the times,” demanded a theology that synthesized spiritual contemplation and direct action,[2] Gutiérrez identified Christ’s description of the Last Judgment as the foundation of this call to solidarity with the poor[3]:

“I was hungry and you gave me food. I was thirsty and you gave me drink. I was a stranger and you took me in. I was naked and you clothed me. I was sick and you visited me. I was in prison and you came unto me…insofar as you did this to one of the least of my brethren, you did it to me.”[4]

More than three decades later, Pope Francis used similar language of liberation when he declared climate change to be the imperative moral issue of our time, asserting “the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor.”[5] Moreover, both Gutiérrez and Pope Francis identified rampant consumerism and a self-centered notion of economic progress as the greatest contributors to deplorable conditions in the developing world. Just as Gutiérrez descried social and economic poverty as “the fruit of injustice and coercion” sown by wealthy nations and force-fed to poorer ones,[6] so too Pope Francis lamented that human beings frequently seem “to see no other meaning in their natural environment than what serves for immediate use and consumption.”[7]

Liberation theology, although most strongly associated with the Catholic Church in Latin America,[8] is not uniquely Catholic, or even uniquely Christian. Rather, the concept of liberation is a facet of all religions that challenge the injustice and poverty that are the byproducts of neoliberal economics.[9] Moreover, though the term “liberation” often carries a religious connotation,[10] liberationist principles can exist even within secular ethical theories, notably environmental justice,[11] that do not expressly use the term “liberation.” Similar to how liberation extends beyond the bounds of religion, steadily growing concerns over climate change and other environmental problems are also not confined to religion,[12] let alone any particular religion.[13] The twenty-first century is witnessing the emergence of a new ecological conscience, and as the world’s largest economic power, the United States has the opportunity to place itself in the vanguard of a global environmental movement toward greener and more sustainable practices.[14]

Rising sea levels, unpredictable weather, and dwindling natural resources make it increasingly difficult to maintain the notion that nature is beyond our ability to hurt and its bounty beyond our ability to deplete.[15] Americans’ changing attitudes and behaviors regarding sustainability in this Anthropocene era[16] indicate a sobering realization that unchecked greenhouse gas emissions have created a tragedy of the atmospheric commons.[17] Increasing awareness of the magnitude of climate change and other pressing environmental concerns has begun shifting our collective environmental values toward an ethical posture that acknowledges the continuity and interdependence of all life,[18] thus laying bare the logical conclusion that our mistreatment of the natural world translates into mistreatment of the poor, who are especially vulnerable to environmental harms.[19] The mutability of environmental ethics, however, strains against the intractability of environmental law, whose overreliance on economic principles and stilted doctrine has locked it into a narrow and anthropocentric outlook that perceives environmentally responsible practices solely as instrumental, rather than intrinsic, goods.[20]

Changes in climate, both literal and metaphorical, have created a world where environmental rights and human rights are no longer distinct concepts.[21] Yet current environmental law fails to adequately serve the public good because an outdated approach to valuing the environment and situating humans in relation to it prevents the law from evolving to conform to contemporary values.[22] Though remedying this problem is a gargantuan task with no simple solution,[23] this paper argues that the market-based principles and inflexible legal doctrines that have historically governed environmental law should yield to a liberationist ideal already taking root in environmental ethics, an ideal that recognizes “[t]here is no separating human beings from ecological nature,”[24] and therefore seeks to protect human interests by protecting the interests of the natural world.

Part II of this paper provides an overview of several strands of environmental ethics that rose to prominence over the last forty years, most notably value theory, which strongly influenced the policies underlying many of the major pieces of environmental legislation passed in the late 1960s and early 1970s. That section also explores the concepts of ecojustice and environmental justice, two approaches to humanity’s ethical duties toward the environment rooted in social justice. It further argues that environmental ethics has taken a backseat to utilitarian, economics-centered policies because of its perennial struggle to find purchase in the realm of environmental law. Part III argues that although lawmakers on the federal and state levels are finally formulating legislative and regulatory plans to address major environmental problems like climate change, efforts to put these plans into action are hindered by two systemic shortcomings of current environmental law: cost-benefit analysis and standing doctrine. Part IV returns to the concept of liberation, first analyzing how it overcomes or avoids many of the problems other theories of environmental ethics have faced. Next, it explains that emergent twenty-first century environmental values indicate a movement toward a liberationist approach to environmental ethics, and concludes by exploring how the truest expressions of this movement—the notions of uncanniness and planetarian identity—can correct the shortcomings of existing environmental law.

[Note: This piece has been modified from its original content for the ELRS submission. A subsequent publication will include this article in its entirety. For those who would like to read further, please see the citation in the following footnote.[25]

Environmental Ethics and Their Divorce from Environmental Law

Given the vast history of environmental ethics, even just in the United States,[26] this paper will limit its focus to several major developments in environmental ethics from the latter-half of the twentieth century and their interaction with environmental law. Of particular interest is the influence of value theory—“what matters and why”—on environmental ethics and law.[27] Value theory was at the forefront of environmental ethics from the late 1960s through the 1970s, the “golden age of environmental law” that saw Congress enact the most significant of the country’s environmental legislation,[28] including the National Environmental Policy Act (NEPA),[29] Clean Air Act,[30] Clean Water Act,[31] and Endangered Species Act (ESA).[32]

This section is divided into three parts. The first offers a quick overview of value theory as applied to environmental ethics, focusing on the distinction between nature as an intrinsic good and an instrumental good. The second part considers the concepts of “ecojustice,” a Christian strategy of environmental ethics that views nature as an intrinsic good, and “environmental justice,” a (mostly) secular approach to environmental ethics that regards nature as more of an instrumental good. The third part explains the limits of value theory, and why these limits ostensibly make it unworkable from the perspective of environmental law.

Value Theory and the Strategy of Nature’s Standing

Willis Jenkins, a professor of environmental theology and ethics at the University of Virginia, has noted that, compared to other fields of “practical ethics,” environmental ethics struggles to reach a consensus on what it is actually trying to achieve and how it should go about achieving it.[33] This is because environmental ethics has trouble agreeing on why people should find that nature has value, and thus regard environmental issues as morally important.[34] Several different strategies have arisen that attempt to answer this question, and arguably the best known of these is something Jenkins identifies as “the strategy of nature’s standing,” a name that carries obvious legal overtones.[35] This strategy attempts to situate moral value within nature itself, but when it emerged during the golden age of environmental law, ethicists quickly realized “that the inherited vocabularies of ethics could not capture the value of nature, focused as they were on human interests (consequentialism) and rights (in deontological and contract theories).”[36] Accordingly, a new theory of nature’s value was needed, and the question became whether nature held “intrinsic value” for humanity in addition to mere “instrumental value.”[37] In other words, is the natural world just “a means to some other end” (instrumental value), or is it “an end in itself” (intrinsic value)?[38]

 

Advocates for nature’s intrinsic value asserted that traditional “anthropocentric” conceptions of the natural world should be replaced with a “biocentric” approach “locating value in life itself (and other aspects of self-organizing nature such as species, ecosystems, and even the planet),” or with an even stronger “ecocentric” or “deep ecology”[39] approach “presenting human interests and rights as just one example of the ethical weight of all self-organizing nature.”[40] On the other side of the argument, advocates for an instrumental conception of nature’s value held to an anthropocentric view that “the concept of value makes no sense independent of human beings for whom the value matters.”[41] The debate between intrinsic and instrumental was not (nor does it continue to be) black and white. Some environmental ethicists occupied a middle ground, acknowledging that although nature has intrinsic value, “such value does not . . . entail any obligation on the part of human beings,” because that intrinsic value by itself does not necessarily “contribute[] to the well-being of human agents.”[42]

Ecojustice and Environmental Justice

Just as he identifies three major strategies for making environmental problems intelligible to a secular moral experience, Jenkins also identifies three major strategies for explaining the importance of the environment from a Christian moral perspective.[43] Of greatest interest to this paper is ecojustice, which mirrors the value theory-focused approach of the strategy of nature’s standing[44] and generally reflects the environmental values of Roman Catholicism,[45] the soil from which liberation theology grew. According to Jenkins, ecojustice holds that nature has intrinsic moral value for Christians by virtue of being part of God’s creation: “The strategy of ecojustice makes respect for creation a mode of response to God. Right relations with God require right relations with God’s creation, which by virtue of its own relationship with God, calls for moral response.”[46]

As the name implies, ecojustice takes the concept of justice “as its overarching moral category,”[47] meaning it shares more than just a similar developmental timeline with liberation theology.[48] Like liberation theology, ecojustice is pastoral, which means it operates largely at the interstitial places between base Christian communities and the Church, bringing the two together to foster a more productive dialogue.[49] Moreover, by implicating environmental concerns in questions of economic and social justice, ecojustice expressly links harm to the environment with harm to the poor. For example, in 1989 a Presbyterian committee declared that “nature has become co-victim with the poor, that the vulnerable earth and the vulnerable people are oppressed together.”[50]

Ecojustice’s arguably secular counterpart “for bringing environmental issues within the purview of justice,” is called (unsurprisingly) environmental justice,[51] and is generally defined as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.”[52] Though often regarded as an offshoot of the civil rights movement,[53] environmental justice did not truly begin developing in earnest until roughly a decade after the emergence of ecojustice in the early 1970s.[54] In a little over ten years, the movement gained enough momentum that the U.S. Environmental Protection Agency (EPA) created its own Office of Environmental Justice in 1992.[55] Two years later, President Clinton issued Executive Order 12,898, instructing every federal agency to “make achieving environmental justice part of its mission by identifying and addressing . . . disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”[56]

Possibly due to their intertwining histories, the line separating ecojustice from environmental justice is not clear. Some environmental ethicists appear to regard environmental justice merely as a constitutive part of ecojustice, noting that several principles of environmental justice are basically restatements of ecojustice’s “integrative view” that strives for a “synthesis of justice and ecology, a single mission of religious reform responding to both environmental degradation and human oppression.”[57] Others, such as Jenkins, note that although ecojustice and environmental justice both concern themselves with the link between environmental degradations and human dignity, they differ in where they situate the locus of that dignity: “Ecojustice focuses on creation’s integrity; environmental justice on humanity’s ecological integrity.”[58]

Viewed from this perspective, ecojustice appears to intrinsically value nature because it “evaluate[s] right relations directly in reference to creation’s own dignity,”[59] whereas environmental justice seems to instrumentally value nature because it “critique[s] environmental degradations with respect to human dignity.”[60] Richard Bohannon and Kevin O’Brien seem to support this proposition,[61] but also go a step further, arguing that although environmental justice may have religious elements or be religiously motivated, its ties to religion, unlike ecojustice’s, have “not been prominent or explicit.”[62] More specifically, they note that the national survey of every registered toxic waste facility in the U.S. that the United Church of Christ produced in the wake of the Warren County protest included “no discussion of [religious] values, no mention of God or faith, and no emphasis on connecting the fight against injustice to the ministry of the church. This is a practical and political document, seeking to support community organizing and change public policy for the sake of social justice.”[63]

Ultimately, Bohannon and O’Brien conclude, the differences between ecojustice and environmental justice trace back to “the social location of [their] advocates. While environmental justice is a movement that emerged in inner cities and poor rural areas, eco-justice was developed by scholars, ministers, and academic theologians on university campuses.”[64] In other words, ecojustice comes from a place of social and economic privilege that environmental justice does not, and therefore ecojustice, despite all its good intentions, lacks self-awareness when it attempts to synthesize human and nonhuman interests under a single holistic vision.[65] This limitation on ecojustice’s ability to fully connect with those suffering the worst instances of injustice thus seems to eliminate it from the running as truly practical Christian environmental ethic.

Similarly, the strategy of nature’s standing, which also seems unable to generate a fully inclusive theory of the natural world’s value, appears to be unworkable as a secular environmental ethic. Indeed, some commentators suggest that environmental justice holds an advantage over the strategy of nature’s standing because whereas that value theory-laden approach struggles to find agreement on the criteria that give nature its moral worth (and therefore struggles to identify social practices adequate to protect that worth), environmental justice’s “ecological anthropology” lends itself to economic approaches that better jibe with the strictures of environmental law.[66] As we will see in Part III, however, even though environmental justice should in theory be able to curtail the consequentialist excesses of economic theories of environmental value, in practice cost-benefit principles frequently arrive at notions of “public good” that actually do more harm than good.

The Limits of Value Theory

Jedidiah Purdy identifies two limits on value theory’s practical application that, despite the theory’s prominence in both secular and religious environmental ethics in the 1970s, undermined its ability to have a lasting effect on environmental law. The first limit boils down to the fact that because “value” is an ineluctably human construction, any claims about the value of nature necessarily rely on considerations that only humans can regard as values.[67] This is most true of anthropocentric conceptions of value, where “[a]ny claim about the value of nature must call on considerations that humans can regard as values, that is, which they can imagine themselves pursuing and respecting.”[68] But this limit also applies to biocentric and ecocentric theories that value nature intrinsically, because even if we do not confer value on nature, we still respond to value, and such response is contingent on our ability to recognize something as being “of value” in the first place.[69]

This limitation on value theory gives rise to the second: an inability to promote action. In other words, regardless of whether we adopt an intrinsic or instrumental approach to valuing nature, neither one tells us anything about how to protect that value.[70] Purdy uses the Endangered Species Act to illustrate this point, explaining that neither interpreting the Act from an intrinsic perspective (e.g., spotted owls have intrinsic value because the Act prioritizes their survival over nearly any competing human interest), nor from an anthropocentric perspective (e.g., the Act expresses a human preference for species’ survival) does anything to inform the Act’s operation.[71]

Purdy also notes a second pair of ethical theories, individualism and holism, which initially appear to be more promising than intrinsic and instrumental valuations of nature, yet also become unworkable as practical environmental ethics.[72] Individualism, in an environmental context, essentially operates as a narrower version of the biocentric and ecocentric strands of intrinsic value theory,[73] locating value in individual organisms’ “interests, points of view, or, perhaps, the very existence of individual animals and plants,”[74] but drawing the line at attributing moral standing to “holistic entities like species or ecosystems.”[75] This approach is attractive because valuing individuals creates an obligation to prevent, or at least not deliberately cause, the suffering of any living thing.[76] Followed to its logical end, however, this obligation becomes problematic for two reasons. First, because it attributes value to individuals and not larger natural systems, individualism appears to preclude valuing one species more than any other, even if one species is endangered and the other is invasive.[77] Second, this approach’s imperative to value the lives of all individual organisms ostensibly produces an absurd result in which environmental ethics stands in opposition to all natural systems: “consistent commitment to avoiding the suffering of sentient beings would seem to imply exterminating predators, even genetically engineering wild species so that the survival of some no longer requires the suffering of others—creating, that is, a world either without foxes and grizzlies, or with herbivorous versions of them.”[78]

On the other side of the spectrum is holism, which takes a “big picture” view on the environment, and “locates value in self-organizing systems such as ecosystems, species, or ‘nature’ itself.” [79] This means holism runs into the same wall as ecojustice: it fails to account for the values of and differences among individuals.[80] Just as ecojustice risks erroneously assuming that everybody, regardless of their personal experiences within their communities, will be fine so long as they share its vision of an integrated and harmonious environmental ethic,[81] so too does a holistic approach lead environmentalists to the unpleasant conclusion that the suffering of individual members of a species is morally acceptable so long as a the species as a whole survives.[82] Holism also hits a second snag in that it “dissolves the distinction between human and nonhuman,”[83] resulting in a perverse syllogism that declares any human activity, no matter how destructive, to be “natural”: “If we are part of nature, then everything we do is part of nature, and is natural in that primary sense.[84]

As with intrinsic and instrumental valuations of nature, individualism’s and holism’s uncompromising stances undermine their usefulness as practical environmental ethics. Each of these competing theories stubbornly refuses to acquiesce to any kind of moral pluralism in the belief that “seiz[ing] on one aspect of environmental value and exclud[ing] competing considerations [is] in the service of theoretical consistency.”[85] The irony, however, is that environmental law turned away from value theory precisely because its competing variants could not generate a consistent answer to the question of how we should value nature.[86]

Mechanisms Responsible for the Gulf Between Environmental Ethics and Law

[Omitted]

Toward A Liberationist Approach in Environmental Ethics

[Omitted]

Conclusion

The persistence of disputes over how we should morally value the environment and the natural world demonstrates the difficulty of crafting practical yet ethical solutions to vast and abstract problems. But in the classic tradition of making lemonade out of lemons, a burgeoning unity of will among Americans to take action against today’s “crucibles of ethical development”[87] can hopefully galvanize ethical development, which in turn can both inform and be made “more palatable” by law.[88] A liberationist approach to environmental law, with its integrative view of social and environmental justice, as well as a vision of collaborative engagement among community members on the local, regional, national, and global levels, could smooth the process of adapting our outdated environmental laws to our evolving environmental values. Even liberation theology has its limits on its practical application, however. Gustavo Gutiérrez admitted that he could not do more than “sketch these considerations [i.e., the Church’s role in process of liberation], or more precisely, outline new questions—without claiming to give conclusive answers.”[89]

Accordingly, liberation theology, as any other religious tradition with an activist social agenda, struggles to have a lasting impact on law and public policy because it must render unto Caesar what is Caesar’s.[90] Liberation theology resides simultaneously in separate realms. On one side is the realm of the spirit, where liberation theology dwells in eternity, infinity, and possibility. On the other side is the material world, where temporality, finitude, and necessity hold sway. Fortunately for environmental law, it only has to worry about the here and now. Unfortunately, we live in a time where the nation’s environmental values are swiftly changing in the face of anthropogenic environmental problems of global significance, thereby demanding significant overhaul of environmental law in order for it to adequately safeguard these values.

[1] Gustavo Gutiérrez, A Theology of Liberation: History, Politics and Salvation 196-203 (Sister Caridad Inda & John Eagleson, eds. and trans., 1973) [hereinafter A Theology of Liberation] (originally published in Spanish as Teología de la liberación, Perspectivas 1971).

[2] Id. at 8.

[3] Id. at 117 (“[P]overty expresses solidarity with the oppressed and a protest against oppression.”).

[4] Matthew 25:31-45.

[5] Pope Francis I, Laudato Si’ ¶ 2 (2015); see also Cristina Maza, One Year Later, How a Pope’s Message on Climate Change Has Resonated, Christian Science Monitor (June 24, 2016), http://www.csmonitor.com/Environment/2016/0624/One-year-later-how-a-Pope-s-message-on-climate-has-resonated (“In the year since Pope Francis released his encyclical, Laudato Si’, imploring his followers and fellow believers to care for the earth and its creatures, observers say more and more Roman Catholics are beginning to view climate change as a moral issue in which caring for the earth and caring for the poor intersect.”).

[6] A Theology of Liberation, supra note 1, at 22.

[7] Pope Francis I, supra note 5, at § 15 ((quoting Pope John Paul II, Redemptor Hominis ¶ 15 (1979)); see also Pope Francis I, Care for Creation, Thepopevideo.org (Feb. 5, 2016), http://thepopevideo.org/en/video/ care-creation.html (“The relationship between poverty and the fragility of the planet requires another way of managing the economy and measuring progress.”).

[8] See Leonardo Boff & Clodovis Boff, Introducing Liberation Theology 9 n.1 (Paul Burns trans., 24th prtg. 2011) (identifying the second Latin American bishops’ conference held at Medellín, Columbia in 1968, which met to discuss strategies for implementing the pronouncements of the Second Vatican Council, as the “official launching” of the theme of liberation in Latin America).

[9] See generally The Hope of Liberation in World Religions (Miguel A. De La Torre ed., 2008) (providing an analysis of the liberationist elements within a number of religious traditions).

[10] This is not always true, however. For example, consider the women’s liberation and animal liberation movements.

[11] See Part II.B., infra.

[12] See, e.g., Sarah Krakoff, Planetarian Identity Formation and the Relocalization of Environmental Law, 64 Fla. L. Rev. 87, 92-93 (2012) (identifying the rapid growth of localism—“placing value on working and buying locally”—as a response to growing awareness about the dangers of climate change).

[13] See, e.g., Malavika Vyawahare, Faith Leaders Call for Climate Change Action, ClimateWire, Nov. 12, 2015, http://www.eenews.net/climatewire/stories/1060027860/search?keyword=pope+ francis (reporting on a symposium where more than fifty delegates representing a range of faiths expressed their hopes that members of all religions would rally around fighting both climate change and poverty).

[14] See Press Release, White House, U.S. Leadership and the Historic Paris Agreement to Combat Climate Change (Dec. 12, 2015), https://www.whitehouse.gov/the-press-office/2015/12/12/us-leadership-and-historic-paris-agreement-combat-climate-change (announcing the U.S.’s commitment to achieving the goals for combating climate change set forth in the Paris Agreement reached at the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change).

[15] See Richard Herrmann, Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea Change 5, http://www.pewoceans.org/oceans/ press_release.asp. (2003) (“We have reached a crossroads where the cumulative effect of what we take from, and put into, the ocean substantially reduces the ability of marine ecosystems to produce the economic and ecological goods and services that we desire and need. What we once considered inexhaustible and resilient is, in fact, finite and fragile.”).

[16] See Jedidiah Purdy, After Nature: A Politics for the Anthropocene 1-2 (2015) [hereinafter After Nature] (acknowledging the general consensus in the scientific community that for some time the earth been in a new geological epoch, one in which “humans are a force, maybe the force, shaping the planet.”).

[17] Krakoff, supra note 12, at 98 (“The global atmosphere is a common-pool resource, and since industrialization, agents have acted in their rational self-interest by emitting greenhouse gases in order to benefit from inexpensive energy. Even now that we know about the market’s failure to internalize the cost of greenhouse gas emissions, rational actors will still opt for cheap energy over reductions in greenhouse gas emissions because of the possibility that a defector could undermine the regime of curbing emissions.”).

[18] See After Nature, supra note 16, at 2 (“The Anthropocene finds its most radical expression in our acknowledgment that the familiar divide between people and the natural world is no longer useful or accurate.”).

[19] See id. at 46 (arguing that “natural catastrophe amplifies existing inequality” because the wealthy are better able to absorb and acclimate to the harmful consequences of man-made ecological damage).

[20] See Jedidiah Purdy, Our Place in the World: A New Relationship for Environmental Ethics and Law, 62 Duke L.J. 857, 871-77 (2013) [hereinafter Our Place in the World] (explaining how philosophical accounts of environmental ethics in the 1970’s struggled to produce an agreed-upon basis for valuing nature that could be translated into law, thereby leading policymakers to turn to the economic theories that have defined environmental law for last four decades).

[21] See Linda Malone, Exercising Environmental Human Rights and Remedies in the United Nations System, 27 Wm.& Mary Envtl. L. & Pol’y Rev. 365, 365 (2002) (“Whenever environmental degradation results in a human harm that violates accepted human rights norms, an international, regional or domestic human rights committee, commission, and/or court may provide a remedy that can contribute effectively to rectifying the underlying environmental degradation as well as the human rights violation.”).

[22] See Our Place in the World, supra note 20, at 883 (arguing that the divide that has grown between environmental ethics and environmental law over the last forty years demands that the law reshape itself to reflect our creative ethical capacity).

[23] See After Nature, supra note 16, at 262 (“[E]verything is connected to everything else, often in subtle and hidden ways, and any attempt to master the whole from a single standpoint is hubris and likely to turn out badly.”).

[24] Id. at 42.

[25] http://www.wmelpr.org/wp-content/uploads/2016/10/An-Ecology-of-Liberation-ELRS-submission.pdf.

[26] For an insightful and detailed analysis of the evolution of American views on the value of the environment over the country’s history, see generally Jedidiah Purdy, American Natures: The Shape of Conflict in Environmental Law, 36 Harv. Envtl. L. Rev. 169 (2012).

[27] Our Place in the World, supra note 20, at 871.

[28] Daniel A. Farber, The Story of Boomer: Pollution and the Common Law, 32 Ecology L.Q. 113, 132 (2005).

[29] National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970)

(codified as amended at 42 U.S.C. §§ 4321–4347).

[30] Clean Air Act, Pub. L. No. 91-604, 84 Stat. 1676 (1970) (codified as amended at 42

U.S.C. §§ 7401–7671).

[31] Clean Water Act, Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified as amended at 33

U.S.C. §§ 1251–1387).

[32] Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 844 (1973) (codified as amended at 16 U.S.C. §§ 1531-1534).

[33] See Willis Jenkins, Ecologies of Grace: Environmental Ethics and Christian Theology 31-32 (2008) (arguing that unlike biomedical ethics or business ethics, environmental ethics it has no “discernible social practices” upon which to base its inquiries).

[34] See id. at 41.

[35] Id. at 42. Jenkins identifies two other secular strategies besides nature’s standing: the strategy of moral agency, id. at 46-51, and the strategy of ecological subjectivity, id. at 51-57. I have chosen to concentrate on the strategy of nature’s standing because its efforts to correlate “normative obligations with the moral status of the nonhuman world” typically set it in direct opposition to the “blinkered economic rationalism of many public policy justifications.” Id. at 42.

[36] Our Place in the World, supra note 20, at 871.

[37] Id. at 872.

[38] John O’Neill, The Varieties of Intrinsic Virtue, 73 Monist 119, 119 (1992); see also Gary Varner, Biocentric Individualism, in Environmental Ethics 90, 92 (David Schmidtz & Elizabeth Willot eds., 2d ed. 2012) (“Intrinsic value is the value something has independently of its relationships to other things. If a thing has intrinsic value, then its existence (flourishing, etc.) makes the world a better place, independently of its value to anything else or any other entity’s awareness of it.”).

[39] Arne Naess, The Shallow and the Deep, Long-Range Ecology Movements, 16 Inquiry 95 (1973), reprinted in Environmental Ethics, supra note 37, at 129, 129 (contrasting “the Shallow Ecology movement,” which Naess describes as the “[f]ight against pollution and resource depletion” and having as its central objective “the health and affluence of people in the developed countries,” with “the Deep Ecology movement,” which he describes as “rejection of the man-in-environment image in favor of the relational, total-field image.”).

[40] Our Place in the World, supra note 20, at 871; see also Jenkins, supra note 33, at 42-43 (comparing J. Baird Callicott’s view of nature’s intrinsic value, which could generally be described as “biocentric,” with that of Holmes Rolston, which could generally be described as “ecocentric.”).

[41] Our Place in the World, supra note 20, at 872; see also, Jenkins, supra note 33, at 43 (identifying Eric Katz, Tom Regan, and Peter Singer as environmental ethicists who advocate for nature’s moral standing while rejecting intrinsic value theories).

[42] O’Neill, supra note 37, at 119.

[43] See Jenkins, supra note 33, at 19 (identifying these three theological strategies as “ecojustice,” “stewardship,” and “spiritual ecologies”).

[44] Id. at 61.

[45] See id. at 19-20 (explaining that the correspondence of Roman Catholicism, Protestantism, and Eastern Orthodoxy with ecojustice, stewardship, and ecological spirituality, respectively, are only tendencies and not hard rules).

[46] Id. at 64.

[47] Id. at 62.

[48] See Michael Moody, Caring for Creation: Environmental Advocacy by Mainline Protestant Organizations, in The Quiet Hand of God 237, 239 (Robert Wuthnow & John Evans eds., 2002) (reporting that the term “ecojustice” was either coined or “made its public debut” in a 1972 strategic planning group of the American Baptist Churches).

[49] Compare Boff & Boff, supra note 8, at 14-15 (describing “pastoral theology” as a “middle level” of liberation theology that works as a “progressively integrating factor among pastors, theologians, and lay persons, all linked together around the same axis: their liberative mission.”), with Jenkins, supra note 33, at 62 (“In order to make environmental issues part of its churches’ enduring pastoral concerns, [ecojustice] redeployed Christian notions of justice to make appropriate response to nature fit with the rationale for existing humanitarian mission commitments.”).

[50] Moody, supra note 47, at 240.

[51] Jenkins, supra note 33, at 63.

[52] Learn About Environmental Justice, U.S. Environmental Protection Agency, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Mar. 29, 2016). Alternatively, Julia B. Latham Worsham characterizes environmental justice as founded upon “the concept that minorities bear a disproportionate percentage of environmental burdens.” Julia B. Latham Worsham, Disparate Impact Lawsuits under Title VI, Section 602: Can a Legal Tool Build Environmental Justice?, 27 B.C. Envtl. Aff. L. Rev. 631, 633.

[53] See Worsham, supra note 51, at 633-34 (crediting either a 1979 Texas environmental rights suit or a 1982 citizens’ protest “modeled after the civil rights protests of the 1960s” in Warren County, North Carolina against a polychlorinated biphenyl landfill as the root of the modern environmental justice movement). Worsham, though writing from a legal perspective, appears vulnerable to a criticism Jenkins levels against “[s]ociological observers of [environmental justice],” namely that they “tend to skip [environmental justice’s] associations with religion.” Willis Jenkins, The Future of Ethics: Sustainability, Social Justice, and Religious Creativity 206 (2013). Case in point, Jenkins notes that when the North Carolina citizens began their protest, “they marched out from a church,” see id., a fact Worsham omits.

[54] See Moody, supra note 47, at 239 (“[Ecojustice] predates—by more than a decade—the widespread recognition within the secular environmental movement of the importance of highlighting justice connections.”).

[55] See Videotape: What is “Environmental Justice”?, And Justice For All: Current Developments in Environmental Justice (Wm. & Mary Envtl. L. & Pol’y Rev. 2016), http://scholarship.law.wm.edu/elprsymposium/2016/ environmentaljustice/2/.

[56] Exec. Order No. 12,898, 3 C.F.R. 859 (1995), reprinted in 42 U.S.C. § 4321 (1994).

[57] Richard Bohannon & Kevin O’Brien, Saving the World (and the People in It, Too): Religion in Eco-Justice and Environmental Justice, in Inherited Land: The Changing Grounds of Religion and Ecology (2011) (ebook), http://web.a.ebscohost.com/ehost/detail?sid=fdb6238f-f577-44f4-b171-b78afeec536e@sessionmgr4003&vid=1#AN=914925&db=nlebk [http://search.ebscohost.com/login.aspx?direct=true&db=nlebk&AN=914925&site=ehost-live].

[58] Jenkins, supra note 33, at 64.

[59] Id. at 63.

[60] Id.

[61] See Bohannon & O’Brien, supra note 56 (relying on the “Principles of Environmental Justice” developed by the First National People of Color Environmental Leadership Summit in 1991, “which have been used ever since to summarize the moral impulse behind the movement,” to argue that environmental justice does not “explicitly advocate on behalf of the nonhuman world for its own sake—the ‘health’ of the nonhuman world is implicitly for the benefit of ‘present and future generations’ of humans”).

[62] See id.

[63] Id.

[64] Id.

[65] See id. (“Those of us . . . who do not come from oppressed communities must be cautious about claiming that we can fully understand or summarize the interests and ideas of environmental justice activists, and we must allow these activists to speak for themselves.”)

[66] Jenkins, supra note 33, at 55 (“By insisting on fair distribution of environmental risks and benefits, environmental justice directs attention to inescapable ecological components of a decent human life.”).

[67] See Our Place in the World, supra note 20, at 873 (“Conceptually, the issue of intrinsic versus [instrumental] value rapidly produces a dilemma, an irresolvable standoff between anthropocentric and biocentric perspectives.”).

[68] Id.

[69] See id. (“The mind is the theater, so to speak, in which we experience value; but that does not make the mind value’s source, any more than it creates the other people with whom we have relationships.”). Purdy identifies a potential resolution to this problem in the concept of uncanniness, which will be explored in Part IV.

[70] Id. at 874.

[71] Id.

[72] See id. at 875 (“Here the choice between the alternatives does have relevance to action, but each option is deeply unsatisfactory.”).

[73] See supra page 8.

[74] Our Place in the World, supra note 20, at 876.

[75] Varner, supra note 37, at 91.

[76] Our Place in the World, supra note 20, at 876.

[77] See Elliott Sober, Philosophical Problems for Environmentalism, in Environmental Ethics, supra note 37, at 133 (making this same point using different species of whales as an example).

[78] Our Place in the World, supra note 20 at 876.

[79] Id. at 875.

[80] Id.

[81] See Bohannon & O’Brien, supra note 56.

[82] See Sober, supra note 76, at 133 (explaining the dilemma of a holistic environmental ethic).

[83] Our Place in the World, supra note 20, at 875.

[84] Sober, supra note 76, at 137; see also After Nature, supra note 16, at 240 (making a similar point by asserting that human exploitation of domesticated animals should be no more “immune to ethical scrutiny” because humans “co-evolved” with those species than “slavery and gender segregation should be immune because they are widespread in human history.”).

[85] See Our Place in the World, supra note 20, at 877.

[86] See Jenkins, supra note 33, at 49 (quoting Bronislaw Szerszynski, Wallace Heim & Claire Waterton, Nature Performed: Environment, Culture and Performance 1 (2003)) (“[P]ractical rationality . . . . ‘is being driven not just by intellectual curiosity but also by an increasing sense that existing ways of thinking about nature are inadequate to practical needs,’ that in order to describe the dynamic relations among environment and society, one is ‘not well served by the noun-dominated languages used for describing both.’”).

[87] Our Place in the World, supra note 20, at 863 (identifying the crucibles as “agricultural and food systems, the ethical status of animals, and climate change”).

[88] After Nature, supra note 16, at 241.

[89] Gustavo Gutiérrez, Toward A New Method: Theology and Liberation, in Gustavo Gutiérrez: Essential Writings 23, 30 (James B. Nickoloff ed., 1996).

[90] Matthew 22:21.

[ELRS] WWII-Era Government Contractor Indemnification Clauses Come to the Fore in CERCLA Litigation as Other Grounds to Shift Costs to the Government Narrow

By Hume Ross, Executive Editor, Georgetown Environmental Law Review

 

This post is part of the Environmental Law Review Syndicate

 

Introduction

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.

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.

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]

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.

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]

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 (3rd 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 26th 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.