Author: Terrence Neal

Broadening Common Heritage: Addressing Gaps in the Deep Sea Mining Regulatory Regime

By Julie Hunter, Pradeep Singh, & Julian Aguon*

With recent technological advances and growing demand for minerals used in consumer electronics, deep sea mining (“DSM”) appears poised to become the next frontier in resource extraction. Hailed as the new global gold rush,[1] DSM entails harvesting mineral deposits in the deep sea (approximately 400 to 6,000 meters below sea level)[2] for use in emerging and high technology, among other sectors.[3]

Although the proposition of DSM—and its legal and regulatory foundations—has been in the making since at least the late 1960s, it has only become economically viable within the past decade.[4] In anticipation of this hour, governments and companies have scrambled to obtain exploration licenses for vast tracts of both national and international seabed.[5] In 2011, the government of Papua New Guinea (“PNG”) granted the world’s first deep-sea mining lease within an Exclusive Economic Zone (“EEZ”)[6] to Canadian company Nautilus Minerals.[7] Between August and September 2017, Japan became the first country to successfully mine its seabed, tapping into a deposit of mineral resources 1,600 meters below the ocean’s surface off the coast of Okinawa.[8] As of this writing, the International Seabed Authority (“ISA”) has issued twenty-nine exploration contracts for “the Area”[9] that exists beyond the national jurisdiction of states.[10]

Despite arising in the last half century, the “new global gold rush” of DSM shares many features with past resource scrambles – including a general disregard for environmental and social impacts, and the marginalization of indigenous peoples and their rights. This can be attributed in part to DSM’s original 1960s “common heritage” framing, which focused primarily on mineral exploitation, and excluded consideration of other benefits, as well as externalities resulting from extraction.[11]

Based on a limited technical study of the seabed that existed at the time, Maltese statesman Arvid Pardo presented a fantastical portrayal of almost inexhaustible mineral resources to the First Committee of the United Nations (“UN”) General Assembly in 1967, deeming “1.5 trillion tons” of nodules a “conservative” calculation.[12] Pardo simultaneously argued for a regime to prevent individual state monopolies and to ensure the equitable distribution of the benefits arising from these resources as the common heritage of mankind.[13]

Although the concept of common heritage and the details of the subsequent regime to regulate the international seabed remain controversial today (and indeed, constitute a primary justification for the U.S. failure to ratify the UN Convention on the Law of the Sea[14]), the initial “exploitation” framing posited by Pardo and others has continued to dominate the deep-sea narrative.[15] This portrayal derived from a time period in which virtually nothing was known about the deep seabed beyond the fact that it contained mineral resources with economic potential. Hydrothermal vents themselves were not discovered until after Pardo’s speech, in the 1970s.[16]

Today, our knowledge of the deep seabed remains extremely limited. The surface of the moon, Mars, and even Venus have all been mapped and studied in much greater detail,[17] leading marine scientists to commonly remark that, with respect to the deep sea, “we don’t yet know what we need to know.”[18] Recent scientific research, however, has revealed that the deep seabed, and hydrothermal vents in particular, make potentially critical contributions to both biodiversity and global climate regulation.[19] With respect to biodiversity, hydrothermal vent organisms (i.e. crustaceans, giant tubeworms, clams, slugs, anemones, fish, and many other species yet to be documented) are unlike any other life on Earth, able to thrive in temperatures up to 113°C (the highest temperature recorded at which an organism can live) and relying on chemosynthesis to survive.[20] Researchers have discovered over 300 new animal species around vents,[21] over 80% of which are endemic, making each individual vent ecosystem unique.[22] Vent species are also evolutionarily distinct[23] and extremely rare.[24] Many scientists now hypothesize that life itself may have begun at hydrothermal vents, or a similar environment.[25]

In addition to their rich biodiversity, hydrothermal vents and seeps “constitute important . . . sinks,”[26] in which microorganisms specifically adapted to these environments consume and sequester carbon and methane,[27] a greenhouse gas (“GHG”) with roughly 25 to 50 times the potency of carbon dioxide.[28] A 2016 study released by 14 universities and oceanographic institutions found carbon sequestration by hydrothermal vents and seeps to be even more “extensive in space and time than previously thought.”[29] Indeed, one study author cautioned that the release of sequestered methane could be “a doomsday climatic event.”[30] Recent scientific breakthroughs have further revealed that most of the excess heat resulting from increased atmospheric GHG concentrations has been absorbed by the deep ocean, thereby significantly limiting climate change impacts on the ocean’s surface and on land.[31]

These discoveries suggest that the “common heritage” of the seabed extends beyond its mineral resources to include substantial contributions to biodiversity and climate regulation—contributions that may be less quantifiable in terms of projected revenue, but indispensable to human life.

It is becomingly increasingly clear that DSM poses a grave threat to these vital seabed functions. Extraction methods would involve the operation of large, remote vehicles on the seafloor to chemically leach or physically cut crust from substrate and/or use highly pressurized water to strip the crust.[32] All of these methods would produce large sediment plumes and involve the discharge of waste and tailings back into the ocean, significantly disturbing seafloor environments.[33] Several studies[34] have assessed short- and long-term environmental impacts of small-scale experimental DSM,[35] uniformly finding immediate adverse impacts on ecosystem health, species abundance, and biodiversity.[36] Most studies found little to no recovery of mined locations, even years after the experimental operations concluded.[37] Industrial-scale operations are both more intense—operating continuously for significant periods[38]—and more extensive, “devastat[ing] much larger areas of seafloor,” on the order of 10,000 to 100,000 square kilometers.[39] They are anticipated to have far greater environmental impacts, including seabed ecosystem destruction and species extinction;[40] disturbance of large marine animals;[41] contamination of fish and other larger pelagic animals from heavy metals and other toxic substances;[42] potential oil spills and other surface accidents;[43] and increased acidification and destruction of coral reefs.[44] Recent research suggests that environmental damage caused by DSM activities would be largely irreversible.[45]

Another critical lacuna is the environmental impact arising from the onshore processing of harvested minerals, which would likely occur in less developed countries.[46] Although the extent of resultant environmental harm has yet to be quantified, a race to the bottom by developing states to attract onshore processing opportunities is foreseeable. While this may generate small short-term revenues for developing countries, it will impose far greater environmental burdens, even as rich and industrialized nations reap the benefits of harvested deep seabed minerals.[47]

Given these likely environmental effects, DSM implicates other, newer areas of international law, including a corpus of environmental law establishing the climate change and biodiversity regimes (subjected to the emerging notion of “common concern of humankind”), as well as the emergence of relevant norms such as the precautionary approach,[48] the obligation to conduct environmental impact assessments (“EIAs”) and environmental monitoring (“EM”),[49] and the principle of transboundary harm.[50] These laws and norms[51] are now triggered by the latest knowledge of hydrothermal vents and the deep seabed.[52] Consequently, they must be incorporated into the international seabed regime, as well as the national legislation of states intending to enable DSM within their jurisdiction.[53] These laws may also mandate adoption of circumspective measures such as prohibiting DSM in areas where ecosystems are already vulnerable due to the effects of climate change.[54]

DSM’s wide-ranging environmental impacts are also likely to disproportionately impact indigenous peoples[55]—particularly in the Pacific Islands, where much DSM is slated to take place (both in the Area’s Clarion-Clipperton Fracture Zone,[56] as well as the seabed within national jurisdiction of Pacific Island nations).[57] With the support of the European Union (“EU”) and other powerful government actors, multinational mining companies have been actively prospecting in the EEZs of Pacific Island countries, enlisting the aid of the Secretariat of the Pacific Community (“SPC”) to draft legislative frameworks establishing DSM regulatory regimes.[58] The world’s first commercial deep sea mine, Solwara 1, operated by Nautilus Minerals in a joint partnership with the government of PNG, is scheduled to begin production in PNG’s territorial waters in 2019.[59]

The exploratory phase of DSM has already adversely impacted indigenous peoples in the Pacific. In Tonga, large DSM prospecting vessels have overrun prime fishing waters, disturbing fish populations and curtailing traditional fishing routes.[60] In PNG, villagers have reported high incidence of dead fish washing up on shore – including strange deep-sea specimens hot to the touch[61] – as well as a sharp decline in water quality, with traditional fishing waters grown excessively dusty and murky.[62] Moreover, since DSM began, sharks have been absent from their traditional habitat, preventing indigenous communities along PNG’s New Ireland coast from engaging in the customary practice of shark calling.[63]

Although governments and operators have tried to argue that seabed resources are entirely the provenance of the state, a recent body of international indigenous rights law posits a need for obtaining the free, prior, and informed consent (“FPIC”) of indigenous peoples over development activities which could adversely impact their lands, territories, and resources, or their rights over the same.[64] Given the documented impacts on numerous indigenous communities, indigenous concerns and rights must also be incorporated into any regime positing control over seabed resources.[65]

Emerging as it did during a recently post-colonial era in which the voices of developing countries were just beginning to be heard – and those of indigenous and Pacific Islander peoples had largely yet to be – it is no surprise that the seabed regime as originally envisioned excluded the peoples who DSM now threatens to impact the most, as well as consideration of yet unforeseen environmental impacts.

In 2018, however, both the deep sea and the legal landscape look vastly different. The invaluable biodiversity and climate functions provided by hydrothermal vents and the deep seabed are beginning to be understood, with more revelatory discoveries sure to come. Multilateral negotiations to create an internationally binding instrument for the protection of biodiversity and marine genetic resources beyond national jurisdiction will take place between 2018 and 2020, undoubtedly bearing on future DSM activities.[66] Similarly, the emergence of regimes to protect and conserve the environment, as well as the development of bodies of indigenous and human rights law, have drastically altered the assumptions upon which DSM was first premised. Given these exigencies, governments should reform the international seabed regime and design their own national legislation to reflect the newest developments in law and science. In doing so, they should recognize the risks of operating in an unknown environment, fully embrace the precautionary approach, and protect and conserve the ocean for the benefit of current and future generations.

* Julie Hunter (YLS ’13) is a human rights lawyer for Blue Ocean Law, and Clinic Fellow at Allard Law School at the University of British Columbia. Pradeep Singh (HLS ’15, LLM) is a researcher and doctoral candidate at the Center for Marine Environmental Sciences, Bremen (MARUM) and the Faculty of Law, University of Bremen. Julian Aguon is the founder of Blue Ocean Law, a human rights and environmental law practice covering Pacific issues, and Lecturer in Law at the William S. Richardson School of Law. Additional research assistance provided by Autumn Bordner, Stanford Law School.

[1] See, e.g., Brian Clark Howard, The Ocean Could Be the New Gold Rush, Nat’l Geographic (Jul. 13, 2016), https://perma.cc/JW9A-DJEZ; Rebecca Trager, Countries Poised to Roll Out Deep Sea Mining in New ‘Gold Rush’, Chemistry World (Mar. 7, 2017), https://perma.cc/UM66-7TA6.

[2] Kathryn A. Miller et al., An Overview of Seabed Mining Including the Current State of Development, Environmental Impacts, and Knowledge Gaps, 4 Frontiers Marine Science, Jan. 2018, at 9, 10 fig.4. The three main resource types include: 1) manganese nodules: small potato-shaped compounds located on abyssal plains, which are formed over millions of years and contain deposits of manganese, nickel, copper, and other rare earth elements; 2) seafloor massive sulfides: large deposits formed along hydrothermal vents, which contain gold, silver, copper, zinc, and other minerals; and 3) cobalt-rich crusts: hard, metallic coating formed over seamounts, containing deposits of cobalt and other valuable materials (e.g., copper, manganese, platinum). Id at 2–4. Manganese nodules would be plucked from the sea-floor by a remotely operated vehicle, placed in a vertical riser pipe, and pumped to a surface vessel for mineral extraction. Id. at 9. Ore would be mechanically severed from sea-floor massive sulfides and likewise pumped to a surface vessel for extraction. Id. Extracting ore from cobalt-rich crusts is the most technically difficult operation because it requires breaking the crust away from the seafloor without removing too much substrate. International Seabed Authority, Cobalt-rich Crusts 3, https://perma.cc/ZK5B-DJPJ [hereinafter Cobalt-Rich Crusts].

[3] Miller, supra note 2, at 2. See also, James R. Hein et al., Deep-ocean Mineral Deposits as a Source of Critical Metals for High- and Green-technology Applications: Comparison with Land-based Resources, 51 Ore. Geology Rev. 1, 8–9 (2013).

[4] Helen Rosenbaum, Out of Our Depth: Mining the Ocean Floor in Papua New Guinea 6 (Natalie Lowry et al. eds., 2011), https://perma.cc/XK9L-H7WB [hereinafter Out of Our Depth]; see also Brooke Jarvis, Deep-Sea Mining—Bonanza or Boondoggle?, NovaNext PBS (Jan. 25, 2013), https://perma.cc/57DQ-KHJ4.

[5] Ecorys, Study to Investigate State of Knowledge of Deep Sea Mining – Final Report, Annex 5: Ongoing and Planned Activity 194–199 (2014), https://perma.cc/279R-4FJL. Companies are incentivized to pursue DSM because seabed minerals have high expected market value, while governments generally desire to secure their domestic supply of minerals and prevent supply shocks – or in the case of nations licensing their waters for DSM, to gain economically through royalties and taxes on resource extraction. In practice, however, DSM operations are expensive, experimental, and capital-intensive, which drastically reduces and may even negate net financial benefits. See, e.g., Baker et al., Deep Sea Minerals and the Green Economy 47–48 (Elaine Baker & Yannick Beaudoin eds., 2d ed. 2013).

[6] ­See United Nations Convention on the Law of the Sea arts. 55, 57, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. UNCLOS defines the “Exclusive Economic Zone” as “an area beyond and adjacent to the territorial sea,” extending to 200 nautical miles from a baseline constructed from points on the land territory of the State.

[7] Stace E. Beaulieu et al., Should We Mine the Deep Sea Floor?, 5 Earth’s Future 655, 655 (2017), https://perma.cc/56LS-DPZ2.

[8] Japan Successfully Undertakes Large-Scale Deep-Sea Mineral Extraction, Japan Times (Sept. 26, 2017), https://perma.cc/9JRK-EEUZ; see also Bob McDonald, Japan Just Mined the Ocean Floor and People Want Answers, CBC Radio (Oct. 14, 2017), https://perma.cc/B6PP-SLAM. The deposits contained zinc, gold, copper, and lead and were located at an inactive hydrothermal vent “several hundred metres away” from an active chimney. Id.

[9] See UNCLOS, supra note 6, at art. 1(1). UNCLOS defines “the Area” as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.” Id.

[10] The Republic of Korea and ISA Sign Exploration Contract, International Seabed Authority (Mar. 27, 2018), https://perma.cc/2HKC-B75T.

[11] U.N. GAOR, 22d. Sess., 1st comm. debate at 3-5, UN Doc. A/C.1/PV.1515 (Nov. 1, 1967).

[12] Surabhi Ranganathan, Global Commons, 27 Eur. J. Int’l L. 693, 712 (2016).

[13] Id.

[14] Marjorie Ann Browne, Cong. Research Serv., The Law of the Sea Convention and U.S. Policy, at 6–9 (2006), https://perma.cc/56S4-2MHZ.

[15] Michael W. Lodge, The Common Heritage of Mankind, 27 In’l J. Marine & Coastal L. 733, 733–34 (2012).

[16] What Are Hydrothermal Vents?, Woods Hole Oceanographic Inst. (2017), https://perma.cc/6T37-HUHM.

[17] Jon Copley, Mapping the Deep, and the Real Story Behind the “95% Unexplored” Oceans, U. Southampton: Exploring our Oceans (Oct. 4, 2014), https://perma.cc/U8F8-QSJP.

[18] Megan Miner, Will Deep-sea Mining Yield an Underwater Gold Rush?, Nat’l Geographic (Feb. 3, 2013), https://perma.cc/RKA5-85SH; see also Cinzia Corinaldesi, New Perspectives in Benthic Deep-sea Microbial Ecology, 2 Frontiers Marine Sci., Mar. 2015, at 1.

[19] Cindy Lee Van Dover et al., Scientific Rationale and International Obligations for Protection of Active

Hydrothermal Vent Ecosystems from Deep-sea Mining, 90 Marine Pol’y 20, 20–22 (2018).

[20] Deep Sea Ecology: Hydrothermal Vents and Cold Seeps, World Wildlife Fund, https://perma.cc/QG4D-PZRS [hereinafter Deep Sea Ecology].

[21] On average, a new vent species has been discovered every 10 days since vent ecosystems were first discovered in 1977. Id.

[22] Institute of Ocean Sciences, Management and Conservation of Hydrothermal Vent Ecosystems 2 (Paul Dando & S. Kim Juniper eds., 2001); see also Verena Tuncliffe, The Nature and Origin of the Modern Hydrothermal Vent Fauna, 7 PALAIOS 338, 339 (1992) (“The animal assemblage found at hydrothermal vents is . . . endemic to the habitat in that over 90% of the species are found nowhere else . . . .”).

[23] J. Thomas Beatty et al., An Obligately Photosynthetic Bacterial Anaerobe from a Deep-sea Hydrothermal Vent, 102 Proc. Nat’l Acad. Sci. 9306, 9306–10 (2005), https://perma.cc/4Q43-U5DG.

[24] Maria C. Baker et al., Biogeography, Ecology, and Vulnerability of Chemosynthetic Ecosystems in the Deep Sea, in Life in the World’s Oceans: Diversity, Distribution and Abundance 161, 164 (Alasdair D. McIntyre ed., 2010).

[25] W. Martin et al., Hydrothermal Vents and the Origin of Life, 6 Nature Rev. Microbiology 805, 806–10 (2008); see also Tia Ghose, Origin of Life: Did a Simple Pump Drive Process?, LiveScience (Jan. 10, 2013, 4:34 PM), https://perma.cc/HN4R-CEYK; Robert Service, Our Last Common Ancestor Inhaled Hydrogen from Underwater Volcanoes, Sci. (July 25, 2016), http://www.sciencemag.org/news/2016/07/our-last-common-ancestor-inhaled-hydrogen-underwater-volcanoes.

[26] Lisa Levin et al., Hydrothermal Vents and Methane Seeps: Rethinking the Sphere of Influence, 3 Frontiers Marine Pol’y 1,14 ( 2016) (citing Ritger et al., Methane-derived Authigenic Carbonates Formed by Subduction-induced Pore-water Expulsion Along the Oregon/Washington Margin, 98 Geological Soc. Am. Bull. 147, 147–56 (1988); William S. Reeburgh, Oceanic Methane Biogeochemistry, 107 Chemistry Rev. 486 (2007)).

[27] See id.; Jeffrey J. Marlow et al., Carbonate-hosted Methanotrophy Represents an Unrecognized Methane Sink in the Deep Sea, 5 Nature Comm. 1, 6–8 (2014); see also David Stauth, Hydrothermal Vents, Methane Seeps Play Enormous Role in Marine Life, Global Climate, Ore. St. U. (May 27, 2016), https://perma.cc/7JLP-2SHY.

[28] Potency measured over a 50 or 100 year timeframe, respectively. Overview of Greenhouse Gases: Methane Emissions, U.S. Envtl. Prot. Agency (Apr. 14 2017), https://perma.cc/4JQ7-FR5C; see also Global Warming Potentials, U.N. Framework Convention on Climate Change (2014), https://perma.cc/K97V-HNCS..

[29] Levin, supra note 26, at 14 (citing Marlow et al., Microbial Abundance and Diversity Patterns Associated with Sediments and Carbonates from the Methane Seep Environments of Hydrate Ridge, OR, 1 Frontiers Marine Sci., Oct. 2014, at 1; Levin et al., Biodiversity on the Rocks: Macrofauna Inhabiting Authigenic Carbonate at Costa Rica Methane Seeps, 10 PLoS ONE, July 2015, at 1; Stakes et al., Coldseeps and Authigenic Carbonate Formation in Monterey Bay, California, 159 Marine Geology 93, 93–109 (1999)).

[30] David Stauth, Hydrothermal Vents, Methane Seeps Play Enormous Role in Marine Life, Global Climate, Ore. St. U. (May 31, 2016), https://perma.cc/7JLP-2SHY.

[31] See, e.g., Gerald A. Meehl, Model-Based Evidence of Deep-Ocean Heat Uptake During Surface-Temperature Hiatus Periods, 1 Nature Climate Change 360, 360–62 (2011); Xiao-Hai Yan et al., The Global Warming Hiatus: Slowdown or Redistribution?, 4 Earth’s Future 472, 476–79 (2016); Genevieve Wanucha, How the Ocean Reins in Global Warming, MIT News (Mar. 21, 2014), https://perma.cc/HBC6-4DQ8.

[32] Cobalt-Rich Crusts, supra note 2, at 3.

[33] Miller, supra note 2, at 15; see also Cindy Lee Van Dover, Impacts of Anthropogenic Disturbances at Deep-Sea Hydrothermal Vent Ecosystems: A Review, 102 Marine Envtl. Res. 59, 65–66 (2014); see also, e.g., Jochen Halfar & Rodney M. Fujita, Danger of Deep-sea Mining, 316 Sci. 987, 987 (2007); see also Katia Moskvitch, Health Check for Deep Sea Mining: European Project Evaluates Risks to Delicate Ecosystems, 512 Nature 122, 123 (2014), https://perma.cc/H4R8-CSWD.

[34] The studies examined a single disturbance event over areas ranging from 1 to 11 square kilometers. See Adrian G. Glover & Craig R. Smith, The Deep-Sea Floor Ecosystem: Current Status and Prospects of Anthropogenic Change by the Year 2025, 30 Envtl. Conservation 219, 231 fig.3 (2003).

[35] See, e.g., id. at 230–31 (collecting studies); Dmitry M. Miljutin et al., Deep-Sea Nematode Assemblage Has Not Recovered 26 Years After Experimental Mining of Polymetallic Nodules (Clarion-Clipperton Fracture Zone, Tropical Eastern Pacific), 58 Deep Sea Res. I 885, 886 (2011) (also covering collecting studies).

[36] See, e.g., H. Bluhm et al., Megabenthic Recolonization in an Experimentally Disturbed Abyssal Manganese Nodule Area, 13 Marine Georesources & Geotech. 393, 393 (1995); Miljutin, supra note 35, at 891; T. Radziejewska, Responses of Deep-sea Meiobenthic Communities Sediment Disturbance Simulating Effects of Polymetallic Nodule Mining, 87 Int’l Rev. Hydrobiology 457, 466-69 (2002); Rodrigues et al., Impact of Benthic Disturbance on Megafauna in Central Indian Basin, 48 Deep-sea Res. II 3411, 3422-24 (2001); Y Shirayama, The Responses of Deep-Sea Benthic Organisms to Experimental Removal of the Surface Sediment, Proc. IV Ocean Mining Symposium 77, 78-80 (2001).

[37] See, e.g., H. Bluhm, Re-establishment of an Abyssal Megabenthic Community After Experimental Physical Disturbance of the Seafloor, 48 Deep-Sea Res. II 3841, 3841 (2001) (abundance and diversity of megafauna remained below pre-disturbance levels seven years after disturbance); T. Fukushima et al., The Characteristics of Deep-sea Epifaunal Megabenthos Community Two Years After an Artificial Rapid Deposition Event, 39 Publ. Seto Marine Laboratory 17, 25–6 (2000) (two years after disturbance abundance of megafauna remained depressed). But see C. Borowski, Physically Disturbed Deep-sea Macrofauna in the Peru Basin, Southeast Pacific, Revisited 7 Years After the Experimental Impact, 48 Deep-Sea Res. II 3809, 3819–20, 3828–29 (2001) (macrofaunal abundance achieved pre-disturbance levels 7 years after disturbance, but macrofaunal diversity remained depressed).

[38] Glover & Smith, supra note 34, at 231.

[39] Id.

[40] See, e.g., Cindy Lee Van Dover et al., Biodiversity Loss from Deep-Sea Mining, Nature Geosci. 1, 1 (2017); Andrew J. Gooday et al., Giant Protists (Xenophyophores, Foraminifera) Are Exceptionally Diverse in Parts of the Abyssal Eastern Pacific Licensed for Polymetallic Nodule Exploration, 207 Biological Conservation 106, 114–15 (2016); Glover & Smith, supra note 34, at 230 fig.3.

[41] See, e.g., Daniel O.B. Jones et al., Biological Responses to Disturbance from Simulated Deep-sea Polymetallic Nodule Mining, 12 PLoS ONE, Feb. 2017, at 18; see also Diva J. Amon et al., Insights into the Abundance and Diversity of Abyssal Megafauna in a Polymetallic-nodule Region in the Eastern Clarion-Clipperton Zone, 6 Science Rep., July 2016, at 1, 6–8.

[42] Helen Rosenbaum & Francis Grey, Deep Sea Mining Campaign, Accountability Zero: A Critique of the Nautilus Minerals Environmental and Social Benchmarking Analysis of the Solwara 1 Project 10 (2015), https://perma.cc/8Y2B-BB8R.

[43] Most PI nations do not have the resources or capacity to clean up oil spills or other major marine disasters.

See Richard Steiner, Independent Review of the Environmental Impact Statement for the Proposed Nautilus Minerals Solwara 1 Seabed Mining Project, Papua New Guinea 5–6 (2009) (conducted for the Bismarck-Solomon Seas Indigenous Peoples Council), https://perma.cc/H2WD-BP9J.

[44] Geophysicist Maurice Tivey of Woods Hole Oceanographic Institution noted that the highly acidic slurry piped out of the seabed “could acidify a whole reef” if an accident occurred. Jarvis, supra note 4.

[45] Cindy Lee Van Dover et al., Biodiversity Loss From Deep-sea Mining. 10 Nature Geosci. 464, 464–65 (2017). An experimental deep seabed dredging expedition illustrated that some of the mined areas of the deep seabed had shown little sign of recovery after nearly three decades and would potentially never return to pre-disturbance conditions. See Miljutin, supra, note 35 at 889–91, 895–96 (finding that the 26-year period post-disturbance was “not sufficient for the nematode assemblage to re-establish its former density, diversity, and structure,” and that “[i]f the environment returns to its pre-disturbance condition slowly (as in the present study), the original living community may never be re-established”).

[46] Till Markus & Pradeep Singh, Promoting Consistency in the Deep Seabed: Addressing Regulatory Dimensions in Designing the International Seabed Authority’s Exploitation Code, 25 Rev. Eur. Community & Int’l Envtl. L. 347, 360-361 (2016). Onshore processing has been singled out as one of the three chief environmental impacts that would arise from DSM activities. See J.M. Markussen, Deep Seabed Mining and the Environment: Consequences, Perceptions and Regulations, in Green Globe Yearbook of International Co-operation on Environment and Development 33 (H.O. Bergesen & G. Parmann eds., 1994).

[47] T. Markus & P. Singh, supra note 46, at 360–361.

[48] See, e.g., U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26/Rev.1 (Vol. I), princ. 15 (Aug. 12, 1992) (“Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”); Protocol to the Convention of 1972 on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, art. 3, Nov. 7, 1996, 1046 U.N.T.S. 120; The Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 1522 U.N.T.S. 3; Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998). Article 3.3 of the U.N. Framework Convention on Climate Change states: “Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.” United Nations Framework Convention on Climate Change, art. 3.3, Jan. 20, 1994, 1771 U.N.T.S. 107. Article 6 of the Straddling Fish Stocks Agreement also calls for the application of the precautionary approach, stating: “1. States shall apply the precautionary approach widely to conservation, management and exploitation of straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment. 2. States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.” Agreement for the Implementation of the Provisions of the U.N. Convention on the Law of the Sea of December 10, 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, art. 6, Aug. 4, 1995, U.N. Doc. A/CONF. 164/38.

[49] See, e.g., UNCLOS, supra note 6, at arts. 204- 206. Article 206 stipulates that: “When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.” Id. at art. 206. For a detailed analysis, see N. Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration (2008). In the Pulp Mills on the River Uruguay (Arg. v. Uru.) case, the International Court of Justice considered the preparation of EIAs prior to conducting an activity that could potentially cause a transboundary environmental harm as “a requirement under general international law.” Judgement, 2010 I.C.J. Rep. 14, at 82–83 (Apr. 20). This obligation extends to the continuous monitoring of environmental impacts from such activities once it commences. Id at 84. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea referred to the ICJ ruling and observed that the requirement to conduct EIAs is a direct obligation under UNCLOS and a general obligation under customary international law that applies to the Area. See Responsibilities and Obligations of States Sponsoring Persons and Activities with Respect to Activities in the Area, Case No. 17, Advisory Opinion of Feb. 1, 2011, ITLOS Rep. 10, 50 ¶¶ 145, 147–148 https://perma.cc/8SJJ-5MGT.

[50] See, e.g., Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905, 1905 (Perm. Ct. Arb. 1941); United Nations Conference on the Human Environment, Declaration of the United Nations Conference on the Human Environment, princ. 21, U.N. Doc A/CONF.48/14/Rev.1 (June 16, 1972); International Law Commission (ILC), Draft Articles on Prevention of Transboundary Harm from Hazardous Activities [with commentary], in Report of the International Law Commission, 53d Sess., UN G.A.O.R., 56th Sess., Supp. No. 10 at 370, 378 art. 3, UN Doc. A/56/10 (2001) (providing that “[t]he State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof”); Pulp Mills on the River Uruguay (Arg. v. Uru.), Request for the Indication of Provisional Measures Order, 2006 I.C.J. Rep. 113 (July 13), https://perma.cc/9QL7-96P7.

[51] See Alan Boyle, Climate Change, Ocean Governance and UNCLOS, in Law of the Sea: UNCLOS as a Living Treaty 211, 225–27 (Jill Barrett & Richard Barnes, eds., 2016). Applying these laws in practice would entail that EIAs and EMs pertaining to DSM activities include detailed prior assessments on the possible effects of such activities related to degrading ecosystem structures and functions and exacerbating climate change impacts in the deep oceans.

[52] Van Dover et al., supra note 19, at 23–25.

[53] Id. at 25; T. Markus & P. Singh, supra note 46, at 357–358. While states work together through the main organs of the ISA to enact laws and standards pertaining to DSM activities in the international seabed, there has yet to be any multilateral discussion on harmonizing domestic regulations for DSM activities within national jurisdictions. If laws pertaining to seabed activities in national jurisdictions are not aligned, any rigor in regulations or standards employed in areas beyond national jurisdiction could be inconsequential.

[54] Lisa A. Levin et al., Defining “Serious Harm” to the Marine Environment in the Context of Deep-Seabed Mining, 74 Marine Pol’y 245, 255 (2016).

[55] Although there is no official definition of “indigenous” within the UN system, the following are criteria which help determine indigeneity: self-identification as indigenous peoples at the individual level and acceptance by the community as such; historical continuity with pre-colonial and/or pre-settler societies; strong links to territories and surrounding natural resources; distinct social, economic or political systems; and a distinct language, culture and beliefs, among others. See, e.g., Who Are Indigenous Peoples? UN Permanent Forum on Indigenous Issues, https://perma.cc/8UDK-YJEC.

[56] Clarion-Clipperton Fracture Zone, International Seabed Authority, https://perma.cc/TVV2-HBD6. Located beyond national jurisdiction (i.e. in the high seas/Area) in the Eastern Pacific Ocean, the Clarion-Clipperton Fracture Zone (CCFZ) is a vast undersea expanse believed to contain massive mineral deposits worth hundreds of billions of dollars; 17 out of the 29 exploration contracts approved by the ISA are within the CCFZ. Biodiversity Loss from Deep-Sea Mining Will Be Unavoidable, Duke Nicholas Sch. Env’t (June 26, 2017), https://perma.cc/W6NK-V3LQ.

[57] Ecorys, supra note 5, at 146; see also Blue Ocean Law & Pacific Network on Globalisation, Resource Roulette: How Deep Sea Mining and Inadequate Regulatory Frameworks Imperial the Pacific and its Peoples 27–29 (2016), https://perma.cc/WQ9S-XXP3 [hereinafter Resource Roulette].

[58] See, e.g., Secretariat of the Pacific Community, Pacific-ACP States Regional Legislative and Regulatory Framework for Deep Sea Minerals Exploration and Exploitation (2012), https://perma.cc/G594-VAAN; Secretariat of the Pacific Community, Achievements of the SPC-EU Deep Sea Minerals Project: Strengthening the Management of Deep Sea Minerals in the Pacific 1–2 (2014), https://perma.cc/6LTE-77B9; Survey Response, Hannah Lily & Alison Swaddling, Secretariat of the Pacific Community, SPC- EU Deep Sea Minerals Project Response to the ISA Stakeholder Engagement Survey on Developing a Regulatory Framework for Mineral Exploitation in the Area 1 (May 16, 2014), https://perma.cc/EH6B-V6PA.

[59] Nautilus Minerals Inc., Management’s Discussion and Analysis of Financial Condition and Results of Operations 10 (2017), https://perma.cc/M2LK-MN2Y; see also Nautilus Provides Project Update, Nasdaq GlobeNewswire (Oct. 12, 2017), https://perma.cc/7ACK-XCCM.

[60] Resource Roulette, supra note 57, at 21.

[61] Id. at 5.

[62] Id.

[63] Id. Villagers suspect noise from drilling chased the sharks away. Shark calling, whereby sharks are lured from the deep through incantation and a rattle-like instrument fashioned from bamboo and coconut shells, is a sacred cultural practice stretching back several millennia. Interview with Rosa Koian, Environmental and Indigenous Rights Advocate and Researcher, in Port Moresby, Papua New Guinea (Apr. 15, 2016).

[64] The FPIC norm has been recognized in a number of international instruments in recent decades, reflecting its emergence as the standard to be adhered to by all states in their engagements with indigenous peoples. The Declaration on the Rights of Indigenous Peoples, adopted in 2007 by an overwhelming majority of states, represents the clearest contemporary elaboration of the requirement for FPIC in any existing international instrument, with several of its provisions calling upon states to secure indigenous peoples’ FPIC before initiating or approving projects with known or potential deleterious impacts on their traditional lands, territories, and resources. See, e.g., G.A. Res. 61/295, annex art. 32(2) (Sept. 13, 2007) (“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”); see also, e.g., Kichwa Indigenous People of Sarayaku v. Ecuador, Inter-Am. Ct. H.R. (Ser. C.) No. 245, ¶¶ 168, 232 (2012), available at https://perma.cc/5B2U-X296; Saramaka People v. Suriname, Inter-Am. Ct. H.R. (Ser. C.) No. 174 (2007), available at https://perma.cc/D87D-6S86.

[65] There is textual basis for the argument that the UNCLOS already provides some consideration of indigenous rights. See UNCLOS, supra note 6, at art. 138 (“The general conduct of States in relation to the Area shall be in accordance with the provisions of this Part, the principles embodied in the Charter of the United Nations and other rules of international law . . . .”). This language would undoubtedly include international law’s recognition, however belated, of the rights of indigenous peoples. Additionally, in much the same way scholars have argued for heightened rights of coastal states with respect to the resources in Areas Beyond National Jurisdiction (ABNJ), see Dunn et al., Adjacency: How Legal Precedent, Ecological Connectivity, and Traditional Knowledge Inform Our Understanding of Proximity 5 (2017), indigenous peoples within coastal states should likewise be accorded heightened rights in ABNJ, as they represent the subset of mankind most directly connected to the physical world and consequently most vulnerable to environmental harm. This argument is particularly persuasive in light of the fact that the primary governing principle of the seabed mining regime authorized in Part XI of the UNCLOS—that “[t]he Area and its resources are the common heritage of mankind,”—is set out in human-, not state-centric, terms. UNCLOS, supra note 6, at art. 136; accord id. at art. 137 (“All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act.”). Moreover, there is arguably no doctrinal obstacle to establishing additional mechanisms within the UNCLOS framework to safeguard indigenous interests in ABNJ similar to that provided in the Convention on Biological Diversity (CBD) framework. See generally Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, Oct. 29, 2010, UNEP/CBD/COP/DEC/X/1 (referencing indigenous peoples and local communities and mandating benefits-sharing relative to the exploitation of genetic resources, including in transboundary situations).

[66] See G.A. Res. 72/249, ¶ 1–3 (Dec. 24, 2017). Although it is still early to predict the course of the negotiations, the overlap between deep sea marine biodiversity and deep seabed activities such as DSM is obvious. Hence, the intergovernmental conference created to negotiate this new instrument would have to consider all other competing uses of the high seas and international seabed and attempt to harmonize them with conservation and sustainable use of marine biological resources in those areas.

 

Finding the Match in the Haystack Before it Lights Up the West Again: Congress to Create a Wildfire Commission

By Kelly Brantzi* 

This post is part of the Environmental Law Review Syndicate. The original post is linked here.

Introduction

The summer of 2017 set the West on fire, both physically and politically. By early September, the Western states had 65 fires burning at once.[1] As millions of acres burned—along with the U.S. Forest Service’s (USFS) budget—lawmakers gathered in Congress to create a “fire funding fix.”[2] Summer 2018 will likely be no different—even after the celebrated passage of the bipartisan 2018 Omnibus spending bill focused on new budget appropriations for wildfire suppression and prevention.[3] Argued here, the USFS’s budgeting problem represents only one straw in a dry, hot haystack.

In an opinion published in High Country News, retired former USFS Chief Dale Bosworth and retired former USFS National Director of Fire and Aviation Management Jerry T. Williams suggested that, without an investigation into the root-causes of wildfires, federal agencies will remain “bound to convention, [and] . . . left to suffer the next unimaginable disaster” like the wildfires of 2017.[4] The USFS does not have adequate legislation to address the full scope of contributory factors of wildfire—namely, national forests’ altered landscapes created by the mistake of allowing 100 years of fire suppression; wildfires exacerbated by unaccounted for climate change contributory factors; and the public’s apparent unwillingness to allow the USFS to correct its mistake by mitigating environmental harms in forests that depend on wildfire for healthy, sustainable ecosystems.[5] The Omnibus spending bill provides a start to this management paralysis. The USFS needs a “commission on wildfire” (Wildfire Commission) to find the roots of the problem.

Bosworth and Williams presented three strong arguments for the USFS’s inability to effectively manage wildfires. First, altered national forests created by naïve land management practices, such as “take-the-best-and-leave-the-rest-logging,” which created forests dependent on human action for wildfire prevention.[6] When the USFS suppressed fires, it suppressed the forests’ natural ability to reduce fuel loads, thin trees, and regenerate ecosystems through wildfire, it created a forest dependent on human action to remedy the environmental harms that resulted from that suppression.[7] Second, without a strong market for “small-diameter trees and deadfall” cut during wildfire prevention efforts that thin forest understory, the USFS cannot subsidize the woody biomass those mitigating cuts would create.[8] Third, fire suppression appropriations grossly outweigh those needed for wildfire mitigation.[9] The second argument could potentially cure the third: subsidizing wildfire mitigation by creating a market for woody biomass might help balance the budget.

This article uses legislative and historical perspectives to build upon Bosworth and Williams’s suggested solution to create a Wildfire Commission that investigates the fuller spectrum of causal and contributory factors of wildfire, to shift to a new paradigm that includes socio-economic costs, environmental impacts, and historical management of altered, fire-dependent forests.[10] The Wildfire Commission would allow Congress to create more effective legislation and inform the public that accountability for wildfires extends farther than the USFS.[11]

First, this article examines the costs of wildfire and Congress’s fire funding fix. Second, this article provides foundational legislative guidance for Congress to establish the Wildfire Commission using the extant annual reporting requirements within the Consolidated Appropriations Act of 2018[12] (Appropriations Act) and builds off questions addressed by the National Forest Commission of 1896–1897.[13] Finally, this article concludes that a full-scope investigation of contributory factors—if seen through a lens different from the economic-based paradigm that currently exists—elucidates the necessity for a new paradigm that includes socio-economic costs, environmental impacts, and historical management of altered, fire-dependent forests.

I. Background

A. The Costs of Wildfire and the “Fire Funding Fix”

After visiting several post-wildfire sites in late 2017,[14] the newly appointed U.S. Secretary of Agriculture Sonny Perdue (Secretary) called upon Congress to create a “fire funding fix.”[15] The Secretary sought legislation that would fix how the USDA receives and allocates funds to suppress wildfires in two ways: first, by establishing an emergency fund to fight existing fires; and second, by allocating more funding for preventative wildfire management practices that remove “fuel load[s]”[16] in national forests.[17] To reduce fuel loads, the Secretary sought to create a categorical exclusion for the USFS to clear “underbrush” under the National Environmental Policy Act (NEPA).[18]

Until the Appropriations Act, funding allocations for wildfire suppression and prevention were interdependent—during a fire, the USFS would “borrow” funds from a separate wildfire prevention fund.[19] Suppression costs rose to over 50% of the budget by 2017,[20] and wildfires’ severity and impacted acreages mirrored this increase, indicating that borrowing is increasingly untenable.[21] The USFS wildfire suppression costs alone reached a record $2 billion in 2017.[22] Without mitigation or better management, wildfires and socioeconomic costs will continue to increase and uncontrollable wildfires will continue to exceed expectations.[23]

B. The Consolidated Appropriations Act of 2018

On March 23, 2018, Congress passed and the President signed the Appropriations Act.[24] The Appropriations Act contains the Wildfire Suppression Funding and Forest Management Activities Act (Wildfire Suppression Act). The Wildfire Suppression Act directly addressed the Secretary’s call to Congress by creating a new eight-year funding structure, beginning in fiscal year 2020.[25] Under the new funding structure, the USDA and Department of the Interior (DOI) have an increased budget allowance of $2.25 billion that incrementally authorizes an additional $100 million each year over the following seven years.[26]

States and counties also benefit from The Appropriations Act.[27] Congress allocated approximately $200 million to rural counties using a two-year extension of the Secure Rural Schools and Self-Determination Act of 2000,[28] which provides funding for prevention, restoration, and stewardship projects to rural counties that contain federal land or are near national forests.[29] The Act also authorizes the DOI and USFS to purchase and acquire privately-held inholdings in areas such as “national parks, national wildlife refuges, [and] national forests.”[30]

C. Wildfire Costs Are Neither a Sole Budget Problem nor a Sole NEPA Problem

The Secretary’s plea to Congress assumes that this new funding structure and associated grants will allow the USFS will be able to fight fires more effectively.[31] However, the fire funding fix is limited in two notable ways: first, it only considers fire suppression; and second, it only creates a limited categorical exclusion under NEPA in forest management planning processes for areas less than 3,000 acres, authorized for “forest restoration treatments” in rural counties, or within the “wildland-urban interface” (WUI).[32] The latter’s categorical exclusion from NEPA[33] only applies to the limited acreage requirements of Wildfire Resilience Projects;[34] it still requires the USFS to prepare an impact statement and annual report that is “transparent and nonexclusive;”[35] and does not apply to “a component of the National Wilderness Preservation System,” National Monuments, “congressionally designated wilderness study area[s],” or areas inconsistent with previously enacted land and resource management plans under section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974.”[36]

The Wildfire Suppression Act authorizes funding and exemptions that reduce the time between authorization and implementation.[37] However, the Act does not address wildfire management, why wildfires have increased so dramatically, and whether they may be contained at all. The DOI and the USFS now need to consider what will happen in eight years when the funding fix expires. The USFS must focus more on regulating human actions in and around national forests, rather than trying to contain the possibly uncontainable—wildfire. A Wildfire Commission should be formed to provide an unbiased answer to these difficult questions.

II. Creating the Wildfire Commission

A. The Wildfire Commission Must Consider Climate Change Factors

Our current forest management structure remains at a “dangerous impasse.” [38] Scientists provide “strong evidence that regional warming and drying, including that directly attributed to anthropogenic climate change,” contributes to an increase in wildfires’ fire severity, frequency, and length. Climate change causes “increased frequency of heat waves,”[39] increased incidents of drought, and extended drought seasons,[40] all of which contribute to wildfire severity.[41] “[N]o environmental issue has captured the scientific community’s interest, the media’s eye, the public’s concern, and even the policymakers’ attention more than the climate change crisis.”[42] Yet, the USFS cannot control these contributory factors. Climate change has changed the world in ways most USFS land-management legislation failed to anticipate.[43] Unless Congress enacts legislation that authorizes the USFS to exercise their expertise in wildfire management, it will continue to fund a fight it cannot win, and the USFS will continue to be “hamstrung by convention.”[44]

A Wildfire Commission needs to investigate new legislation to mitigate an extended and increased wildfire season’s economic and socio-economic costs, and it must incorporate contributing factors associated with altered forests’ health. The increase in wildfires, when compounded by rising global temperatures, requires a shift from the economy-based paradigm read into the USFS’s enabling act[45] to an anthropogenic-based paradigm for analyzing and managing wildfire. [46]

B. The Wildfire Suppression Funding and Forest Management Activities Act of 2018

Appropriations Act amendments provide an apt model for an investigatory Wildfire Commission. The Wildfire Suppression Act requires the Secretary of the DOI or USFS to consult with the Director of the Office of Management and Budget (OMB) to prepare an annual report if either Agency withdraws emergency funds for wildfire suppression in the prior fiscal year.[47] The report only applies to funds taken by either Agency for emergency funds, not funds already appropriated to the USFS. The annual report requires that the Secretary of the DOI or USFS:

(1) document obligations and outlays of the additional new budget authority for wildfire suppression operations;

(2) identify risk-based factors that influenced management decisions with respect to wildfire suppression operations;

(3) analyze a statistically significant sample of large fires, including an analysis for each fire of—

  • (A) cost drivers;
  • (B) the effectiveness of risk management techniques and whether fire operatio  strategy tracked the risk assessment;
  • (C) any resulting ecological or other benefits to the landscape;
  • (D) the impact of investments in wildfire suppression operations preparedness;
  • (E) effectiveness of wildfire suppression operations, including an analysis of  resources lost versus dollars invested;
  • (F) effectiveness of any fuel treatments on fire behavior and suppression                  expenditures;
  • (G) levels of exposure experienced by firefighters;
  • (H) suggested corrective actions; and
  • (I) any other factors the Secretary of the Interior or Secretary of Agriculture (as applicable) determines to be appropriate;

(4) include an accounting of overall fire management and spending by the Department of the Interior or the Department of Agriculture, which shall be analyzed by fire size, cost, regional location, and other factors;

(5) describe any lessons learned in the conduct of wildfire suppression operations; and

(6) include any other elements that the Secretary of the Interior or the Secretary of Agriculture (as applicable) determines to be necessary.[48]

The Wildfire Suppression Act forms a good basis for the Wildfire Commission to begin their investigations.[49] Notably, the Wildfire Suppression Act’s requisite report leaves out factors outside an agency’s control such as climate change-induced weather that impacts fuel types within historically fire-suppressed forests. Thus, the reports primarily focus on whether the wildfires were appropriately budgeted and timely handled during a wildfire emergency. The Wildfire Commission could close this gap.

The Wildfire Commission’s investigation should utilize the Wildfire Suppression Act’s list of factors but focus more on broader, external factors, such as:

  • whether the wildfire risks were appropriately and effectively tracked considering weather conditions;
  • how weather contributed to the fire’s path and strength;
  • whether humans or natural causes ignited the fire and where they started;
  • any ecological benefits or environmental harms existing post-fire,[50] including levels of harmful exposure to community and firefighters (e.g., air and water pollution and at what levels), which could be compared to baseline documentation from previous years; and
  • whether policies altering the forest floor by removing “fuel loads” mitigates the wildfire’s impacts versus abstention from removal or intervention.[51]

These findings may shift some accountability away from the USFS and allow Congress to look beyond the suppression appropriations and limited prevention exceptions, encouraging more apt legislation that considers these contributory factors. Legislation could include restricting access to national forests on high-risk days;[52] implementing development restrictions within the WUI by acquiring property rights or working with land trust organizations to place conservation easements in high-risk areas;[53] or providing a cost-benefit analysis of pre-wildfire and post-wildfire health impacts, loss of homes and property, and loss of human, plant, and animal species to encourage laws that allow for more underbrush removal by prescribed fire or mechanical means within high-risk areas.

III. Legislative and Anthropogenic Considerations

A. A Foundational Commission Example: The National Forest Commission of 1896–1897

Congress established the National Forest Commission in 1896 to determine how the public forest reserves should be managed as a “national forest system.”[54] Hoke Smith, the Secretary of the Interior in 1896,[55] asked the president of the National Academy of Sciences, Wolcott Gibbs, to have the National Forest Commission focus on answering three specific questions:

(1) Should forest lands dedicated to timber growth be protected from fire?

(2) Ecologically, how important is conservation?

(3) What legislation should be passed?[56]

The answers became part of the Administrative Organic Act of 1897 (Organic Act): “[n]o national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens. . . .”[57]

The Wildfire Commission could base its investigations on clauses from the Organic Act. It could investigate water quality, water diversion, nearby agricultural farming practices, and the effects of “uncontrolled residential development” near or the WUI[58] that may contribute to drought conditions. Secretary Smith’s focus on ecology counsels a revisit to those considerations. Additionally, the Organic Act suggests investigating market resources for underbrush cleared during wildfire prevention.

Under these considerations the Wildfire Commission may find reason to restrict property development and water diversion to the WUI, or at least require high fire-prevention standards for their properties. In addition, it may address accountability factors that influence homeowners’ expectations regarding the USFS’s role in fighting deadly wildfires that threaten their homes. Finally, the Wildfire Commission may consider decreased air quality brought on by wildfires versus prescribed burns near their homes.[59]

B. Anthropogenic Factors: Investigating Smaller Scales of Prescribed-Fire Management and Altered Forest Comparisons

The Wildfire Commission could gain a broader perspective on wildfire management by investigating indigenous cultures’ agricultural practices. The Wildfire Commission should investigate work that the USFS performs with Native American tribes and other countries and cultures, including in places where higher average temperatures could prove useful models.[60] Specifically, the Wildfire Commission should consider altitude and forest-types when analyzing fuel loads. Variances in vegetation are critical because, of “the three elements that influence fire behavior-weather, topography, and fuels[, fuels are] the only element that can be manipulated.”[61]

The USFS has historically collaborated with Native American tribes to help combat forest fires resulting from droughts brought on by climate change.[62] In the West, scientists, foresters, and tribes have developed collaborative approaches to utilize “tribal traditional ecological knowledge” (TEK) to improve forest management and wildfire prevention.[63] Scientists recognize that TEK, a combination of “contemporary tribal/indigenous people’s [oral history or ethnographic information] about climate and fire regimes,” creates core knowledge for successful land management.[64]

The USFS’s work with Aborigines in Northern Australia provides a template for how the Wildfire Commission should quantify fuel types and help predict fire behavior, create physical models of fuel types, and suggest a universal standard for fuel assessments.[65] A report by scientists working with northern Australian Aborigines provides an apt overview of why the Wildfire Commission should investigate fuel assessment practices and differences between altered and unaltered forest types:

As combustion is a fundamental process, the same relationships between fuel and fire behaviour occur universally. Consequently, there is potential for developing novel fuel assessment methods that are more broadly applicable and allow fire research to be leveraged worldwide. Such a movement would require broad cooperation between researchers and would most likely necessitate a focus on universal properties of fuel. However, to truly understand fuel dynamics, the complex biotic nature of fuel would also need to remain a consideration—particularly when looking to understand the effects of altered fire regimes or changing climate.[66]

The benefits of the USFS’s work with TEK establishes a reason to investigate different scale models.[67] In investigating these practices, the Wildfire Commission should expand this scope to compare and contrast the agricultural practices of other indigenous cultures. It may be important to note that most indigenous cultures’ agricultural practices are unlike the industrialized, mono-type agricultural practices in the states.[68] The Commission should investigate the differences in agricultural practices, including water resources and diversion schemes, fire-retardants and pesticide effects on soil types, and water run-off of these chemicals in areas close to, or within, national forests.

Conclusion

The Wildfire Suppression Act provides the perfect impetus for Congress to create a Wildfire Commission. Congress should establish a Wildfire Commission to perform investigations that include: (1) examining broader geographic areas and forest types and considering their altered state; (2) performing environmental quality comparisons between prescribed burns and wildfire impacts to consider adjustments to state and federal environmental limitations on prescribed burns;[69] (3) adopting indigenous people’s agricultural management practices in warmer climates; (4) developing climate change models that include temperature inflations and fluctuations, weather patterns, and drought cycles; and (5) considering population migration patterns and proximity to forests to form incentives to leave the WUI and allow for an increase in prescribed burns or forest thinning practices, or—at minimum—encourage an uptake in public accountability.

The Organic Act’s legislative history provides guidance on base models of USFS wildfire policy. Expanding on questions to be addressed in annual reports on emergency funds under the Wildfire Suppression Act may return findings that suppression and prevention efforts still cannot combat climate change effects.[70] Knowledge regarding fuel types and variations between altered and unaltered forests will help predict ignition causes, whether the USFS can control wildfires in certain areas if the risk of socioeconomic harms are too high to justify suppression. If the USFS is unable to control the intensity of predicted fires, legislation may be needed to restrict further alterations and human activities within certain high-risk areas. Studies on the “long-term health and sustainability of wilderness areas” performed by previous foresters and scientists could also offer solutions for creative wildfire management and when to allow forests to burn.[71] That way, nature could possibly pick up the tab on at least part of the federal budget allotted towards wildfire suppression.

In conclusion, the root-causes of wildfire management have still yet to be addressed even with the enactment of the Wildfire Suppression Act.[72] The problem is “not the way we fight wildfires in the West. . . . The problem is the way we manage our fire-dependent forests.”[73]

 

* Kelly Brantzi wishes to express sincere thanks to the Executive Board of VJEL for their superior editing skills; Dale Bosworth, Orville Daniels, and Olleke Rappe-Daniels for their invaluable and unique perspectives on forest management and wildfires; Al Sample for continually sparking my educational curiosity; and special thanks to Dale Bosworth and Jerry Williams for providing the inspiration and impetus to write this article.

[1] Tom Di Liberto, Massive Fires Burning Across the West in September 2017, Climate.gov (Sept. 7, 2017), https://www.climate.gov/news-features/event-tracker/massive-fires-burning-across-west-september-2017.

[2] Press Release, U.S. Dep’t of Agric., Secretary Perdue Applauds Fire Funding Fix in Omnibus (Mar. 23, 2018), https://www.usda.gov/media/press-releases/2018/03/23/secretary-perdue-applauds-fire-funding-fix-omnibus [hereinafter Perdue Applauds Omnibus] (tagging the budget appropriations in the omnibus bill as “the fire funding fix”).

[3] Consolidated Appropriations Act, Pub. L. No. 115-141, div. O, §§ 102, 605 (Mar. 23, 2018) [hereinafter Appropriations Act] (amending the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. 901(b)(2) (2012), and the Healthy Forests Restoration Act of 2003, 16 U.S.C. § 6511(2)).

[4] Dale Bosworth & Jerry T. Williams, We Need a Commission to Take Action on Wildfire in the West, High Country News (Nov. 30, 2017), https://www.hcn.org/articles/opinion-we-need-a-commission-to-take-action-on-wildfire-in-the-west; see also Robert B. Keiter, The Law of Fire: Reshaping Public Land Policy in an Era of Ecology and Litigation, 36 Envtl. L. 301, 310–12 (2006) (detailing lives lost during wildfires that occurred in the last decade).

[5] Jamison Colburn, The Fire Next Time: Land Use Planning in the Wildland/Urban Interface, 28 J. Land Res. & Envtl. L. 223, 225–227 (2008).

[6] Bosworth & Williams, supra note 4.

[7] Diane Smith, From Research to Policy, The White Cap Wilderness Fire Study, Forest history today, Spring/Fall 2014, at 4, 6.

[8] U.S. Dep’t of Agric., Forest Serv., RMRS-GTR-149, Strategic Assessment of Forest Biomass and Fuel Reduction Treatments in Western States, 8–12 (2005) (describing the potential of merchantable timber potentially generated from trees less than 10 inches diameter left behind during fuel reduction treatments).

[9] Bosworth & Williams, supra note 4.

[10] Id.; see also Thomas J. Duff et al., Revisiting Wildland Fire Fuel Quantification Methods: The Challenge of Understanding a Dynamic, Biotic Entity, Forests, Sept. 2017, at 351, 351 (“Fire behaviour is the product of the weather, topography, human intervention and, importantly, the fuel properties at the time a fire occurs.”).

[11] Bosworth & Williams, supra note 4.

[12] Appropriations Act, Pub. L. No. 115-141, div. O, § 104 (Mar. 23, 2018) (amending the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. 901(b)(2)(F)(i)).

[13] Williams & Miller, At the Creation: The National Forest Commission of 1896–97, Forest History Today, Spring/Fall 2005, at 32, 32–34.

[14] Perdue Applauds Omnibus, supra note 2 (detailing the Secretary’s visits to regions impacted by wildfires).

[15] See Dino Grandoni, The Energy 202: Hurricanes Are Dominating the News. But Forest Fires Are Raging out West., Wash. Post (Sept. 20, 2017), https://www.washingtonpost.com/news/powerpost/paloma/the-energy-202/2017/09/20/the-energy-202-congress-want-to-fix-firefighting-in-federal-forests-but-it-can-t-agree-on-how/59c1616530fb045176650d47/?utm_term=.954136dce369 (quoting USFS spokeswoman Babete Anderson, who stated that “[t]he Forest Service is working with the Administration and Congress on a fire funding fix,” and reporting an increase of “about 2.5 million more acres [of burn] than in an average year”).

[16] See Forest Service Manual, ch. 5105, Hazardous Fuels Management and Prescribed Fire, Amend. No. 5100-2014-3 (2014) (defining “fuel as combustible wildland vegetative materials, living or dead”).

[17] Press Release, U.S. Dep’t of Agric., Perdue Calls on Congress to Fix Forest Service Fire Funding Problem (Sept. 8, 2017), https://www.usda.gov/media/press-releases/2017/09/08/perdue-calls-congress-fix-forest-service-fire-funding-problem.

[18] Id.; 40 C.F.R. § 1508.4 (2017); see also Appropriations Act, Pub. L. No. 115-141, div. O, § 605 (Mar. 23, 2018) (amending Healthy Forests Restoration Act of 2003, 16 U.S.C. 6511(2)).

[19] Press Release, U.S. Dep’t of Agric., Forest Service Wildland Fire Suppression Costs Exceed $2 Billion (Sept. 14, 2017), https://www.usda.gov/media/press-releases/2017/09/14/forest-service-wildland-fire-suppression-costs-exceed-2-billion.

[20] Press Release, U.S. Dep’t of Agric., supra note 23; see also USDA Forest Service, Fiscal Year 2017 Budget Overview 3 (2016).

[21] Perdue Applauds Omnibus, supra note 2.

[22] Laura Zuckerman, Cost of Fighting U.S. Wildfires Topped $2 Billion in 2017, Reuters (Sept. 14, 2017, 8:27 PM), https://www.reuters.com/article/us-usa-wildfires/cost-of-fighting-u-s-wildfires-topped-2-billion-in-2017-idUSKCN1BQ01F. These costs do not take into account the socioeconomic costs such as lost lives and homes or claims against the federal government for property damage or negligence. See Keiter, supra note 4, at 350–59 (discussing socioeconomic policy and litigation costs).

[23] See Bosworth & Williams, supra note 4 (“If the aim is to protect life and property, and to minimize natural resource damage at the lowest possible cost, then [the USFS is] headed down the wrong trail.”).

[24] Appropriations Act, Pub. L. No. 115-141, div. O, §§ 102, 104, 605 (Mar. 23, 2018) (amending the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. 901(b)(2) (2012), and the Healthy Forests Restoration Act of 2003, 16 U.S.C. § 6511).

[25] Perdue Applauds Omnibus, supra note 2; Cost of Fire Operations, U.S. Forest Serv., https://www.fs.fed.us/about-agency/budget-performance/cost-fire-operations (last visited Apr. 12, 2018); see Appropriations Act § 102 (defining “wildfire suppression operations” as “the emergency and unpredictable aspects of wildland firefighting, including . . . support, response, and emergency stabilization activities; other emergency management activities; and the funds necessary to repay any transfers needed for the costs of wildfire suppression operations”).

[26] Cost of Fire Operations, supra note 25; see also Appropriations Act §§ 102, 104 (amending 5 U.S.C. § 401(a)) (detailing the USFS’s appropriated emergency allowance under section 102 and the USFS authority under section 605 for prevention measures).

[27] NACo Legislative Brief: Highlights of the FY 2018 Omnibus Federal Spending Package for Counties, NACo (Mar. 23, 2018), http://www.naco.org/featured-resources/highlights-fy-2018-omnibus-federal-spending-package-counties.

[28] Cost of Fire Operations, supra note 26.

[29] Secure Rural Schools Reauthorization, U.S. Dep’t Agric., forest serv. (Mar. 28, 2018), https://www.fs.usda.gov/pts/; Secure Rural Schools, Wilderness soc’y, https://wilderness.org/article/secure-rural-schools (last visited Apr. 12, 2018).

[30] Cost of Fire Operations, supra note 26.

[31] Perdue Applauds Omnibus, supra note 2.

[32] See Appropriations Act § 102 (defining terms in new section 605, Wildfire Resilience Projects, for “hazardous fuel reduction projects, as defined in the Healthy Forests Restoration Act of 2003,” 16 U.S.C. § 6511(2), to be considered “an action categorically excluded from the requirements of [NEPA],” 42 U.S.C. § 4321–4370m-12); 36 C.F.R. § 220.6 (2017).

[33] National Environmental Policy Act, 42 U.S.C. § 4321–4370m-12.

[34] Appropriations Act §§ 201, 202, 605 (defining terms in new section 605, Wildfire Resilience Projects, for “hazardous fuel reduction projects, as defined in the Healthy Forests Restoration Act of 2003,” 16 U.S.C. § 6511(2), to be considered “an action categorically excluded from the requirements of [NEPA]”).

[35] Id. § 605 (establishing that Wildfire Resilience Projects for reducing hazardous fuels shall be “transparent and nonexclusive” under 16 U.S.C. § 1611(2)(a)–(b)).

[36] Id. § 202 (amending 16 U.S.C. § 6511).

[37] See id. § 208 (removing the requirement for additional consultation in the Forest Rangeland Renewable Resources Planning Act, 16 U.S.C. 1604(d)).

[38] Bosworth & Williams, supra note 4; see paradigm, American Heritage Dictionary of the English Language (5th ed. 2016) (“A set of assumptions, concepts, values, and practices that constitutes a way of viewing reality for the community that shares them, especially in an intellectual discipline.”).

[39] Jennifer K. Balch et al., Human-Started Wildfires Expand the Fire Niche Across the United States, 114 Proc. Nat’l Acad. Sci. 2946, 2946 (2017).

[40] Id.

[41] Bosworth & Williams, supra note 4; see also Frank K. Lake, Trails, Fires, and Tribulations: Tribal Resource Management and Research Issues in Northern California, 5 Occasion 1, 14 (2013) (arguing that national wildfire policies should consider climate change).

[42] Mary Jane Angelo, Corn, Carbon and Conservation: Rethinking U.S. Agricultural Policy in a Changing Global Environment, 17 Geo. Mason L. Rev. 593, 599 (2010); see also Climatic Variability Report, supra note 7, at 111 (acknowledging the future changes and threats to forests due to climate change).

[43] Bosworth & Williams, supra note 4.

[44] Bosworth & Williams, supra note 4 (arguing for a Wildfire Commission based on an analogy to the 9/11 Commission’s finding that the “system . . . was hamstrung by convention”).

[45] Administrative Organic Act of 1897, 6 U.S.C. §§ 473–478, 479–482, 455 (2012).

[46] Bosworth & Williams, supra note 4.

[47] Appropriations Act, Pub. L. No. 115-141, div. O, § 102 (Mar. 23, 2018) (amending the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. § 901(b)(3)(F)(i)).

[48] Id. § 104.

[49] Economic factors should not be considered by the Commission; the Wildfire Suppression Act already requires an economic analysis. See id. § 104 (requiring a report that considers “cost drivers”).

[50] Robert L. Beschta et al., Postfire Management on Forested Public Lands of the Western United States, 18 Conservation Biology 957, 959 (2004).

[51] Lake, supra note 41, at 4 (“Tribal TEK may . . . describe how climate and weather influence fire behavior, from the yearly to decadal scale, with generalized understanding of century-scale climate and fire regime changes.”)

[52] See Balch et al., supra note 3, at 2946 (pointing to a survey, which covered roughly two decades of U.S. wildfire research and reviewed over 1.5 million government records, that reported that humans had caused over 84% of wildfires).

[53] V.C. Radeloff et al., The Wildland-Urban Interface in the United States, 15 Ecological Applications 799, 802 (2005) (“The wildland-urban interface (WUI) is the area where houses meet or intermingle with undeveloped wildland vegetation.”).

[54] Id.

[55] In 1896, forest reserves—what are now called national forests—were under the management of the DOI. See Williams & Miller, supra note 18, at 33 (discussing the amendments that shifted the management of forest reserves from the DOI to a newly formed Forest Service).

[56] Id. at 32–33.

[57] 16 U.S.C. § 475 (2012).

[58] Radeloff et al., supra note 53, at 802.

[59] Keiter, supra note 4, at 310–12.

[60] See Climatic Variability Report, supra note 7, at 10 (providing temperature increase projections).

[61] Appendix E – Fuel Model Definitions/Process, U.S. Forest Serv., https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5109750.pdf (last visited Apr. 12, 2018).

[62] See, e.g., Lake, supra note 41, at 15 (outlining the collaborative effort to fight the Orleans Complex-Somes fires in 2006).

[63] Id. at 4.

[64] Id.

[65] Duff et al., supra note 10, at 353; Christine Eriksen & Don L. Hankins, The Rentention, Revival, and Subjugation of Indigenous Fire Knowledge Through Agency Fire Fighting in Eastern Australia and California, 27 Soc’y Nat. Res. 1288, 1296 (2014).

[66] Id. at 351.

[67] Lake, supra note 41, at 14–15 (discussing scaled approaches to determine how anthropogenic factors could be used for modeling hazardous fuel reduction treatments).

[68] See Laurie Ristino & Gabriela Steier, Losing Ground: A Clarion Call for Farm Bill Reform to Ensure a Food Secure Future, 42 Colum. J. Envtl. L. 59, 84–88 (2016) (outlining the industrialization of American agriculture).

[69] Smith, supra note 7, at 6.

[70] See Climatic Variability Report, supra note 7, at 10–11, 37 (providing temperature increase and wildfire severity projections).

[71] Smith, supra note 7, at 4.

[72] Bosworth & Williams, supra note 4.

[73] Bosworth & Williams, supra note 4; see also Beschta et al., supra note 50, at 959 (“The biota of [postfire] landscapes is adapted to, and often dependent upon, the occurrence of fires having highly variable frequency (return interval), season of occurrence, size, severity, and ecological effect.”).

Parsing Rapanos

By Wade Foster

This post is part of the Environmental Law Review Syndicate. The original post is linked here.

I. INTRODUCTION

On January 31, 2018, the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) finalized a rule delaying implementation of the Obama-era Clean Water Rule until February, 2020.[1] The Clean Water Rule had attempted to clarify the definition of “waters of the United States” and the boundaries of federal jurisdiction under the Clean Water Act (“CWA”).[2] Now, with implementation of the Clean Water Rule delayed, we return to a world where federal jurisdiction under the CWA is governed by the Supreme Court’s fractured opinion in Rapanos v. United States.[3]

Much ink has been spilled by lower courts attempting to interpret the 4-1-4 Rapanos decision.[4] The first court to consider the Supreme Court’s opinion in Rapanos determined that it did not provide any clear direction, or binding precedent, and instead decided to apply Fifth Circuit precedent.[5] When another district judge was remanded a case for consideration in light of Rapanos, he asked for a different judge to be assigned because he was “so perplexed by the way the law” had developed around Rapanos.[6] The Sixth Circuit Court of Appeals said that the Rapanos opinion has “indeed satisfied any ‘bafflement’ requirement.”[7] Federal Circuit Courts of Appeals have variously interpreted the fractured opinion: six of the circuit courts have either determined that Justice Kennedy’s concurrence constitutes the “narrowest grounds”[8] or have followed the Rapanos dissent, giving weight to both the plurality’s approach and Kennedy’s concurrence. Interestingly, none of the circuit courts to consider Rapanos have read the plurality’s opinion as controlling.

This article will briefly review the Clean Water Act and previous Supreme Court opinions that led to Rapanos, discuss the Court’s Rapanos opinions, examine how Marks v. United States defined the “narrowest grounds,” provide an overview of the various lower court’s interpretations of Rapanos as they have attempted to apply Marks, and finally consider options going forward.

II. BACKGROUND

To understand the problems posed by Rapanos and some of the challenges the lower courts have faced in parsing the opinion, it is necessary to have a basic understanding of the Clean Water Act and the Supreme Court’s opinions prior to Rapanos.

Congress passed CWA for the purpose to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[9] Two of the ways the Act sought to achieve its lofty goal was to prohibit the discharge of any “pollutants”[10] or “dredged or fill material”[11] to “navigable waters” without a permit. The term “navigable waters” was traditionally defined as navigable-in-fact waterways that could be used as a channel of interstate commerce.[12] However, Congress, recognizing a broader definition was needed to achieve the goals of the act, expanded “navigable waters” to “waters of the United States, including the territorial seas,” without defining “waters of the United States.”[13] This vague definition of “navigable waters” started the flow of litigation leading to Rapanos.

The first Supreme Court case to consider the definition of “navigable waters” was United States v. Riverside Bayview Homes in 1985.[14] In Riverside, the Court held that the Corps did not act unreasonably in interpreting “navigable waters” to include non-navigable wetlands that were adjacent or connected to navigable-in-fact waters.[15] This decision seemed to support deference to the agency, in making what can be a complicated scientific decision, and a broad definition of “navigable waters.” In 2001, however, the Court held that the agency went beyond its jurisdictional authority in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (“SWANCC”).[16] Prior to SWANCC the Corps and EPA had promulgated the Migratory Bird Rule, which extended the Corps’ jurisdiction under the CWA to include intrastate waters and wetlands that were not connected to traditionally navigable waters so long as they were used by migratory birds.[17] The Court, after reviewing the statutory language, struck down the Migratory Bird Rule as beyond the scope of the Act and held that for a wetland to be within the Corps’ jurisdiction it must be adjacent to a navigable water.[18] While the Court recognized that Congress intended to regulate beyond navigable-in-fact waters, it narrowed the Corps’ authority and set what, until Rapanos, was the outer bound of the Corps’ jurisdiction.[19] Despite SWANCC lower courts continued to take a broad reading of “navigable water.”[20]

III. The Rapanos Decision

The preceding history, and the lower courts’ broad reading of “navigable waters,” set the stage for Rapanos. In Rapanos, the Court addressed whether the terms “navigable waters” and “waters of the United States” in the CWA covered wetlands which were not navigable themselves and which were not adjacent to waters that were navigable. Rather, the waters at issue were connected to man-made ditches and drains that eventually emptied into traditionally navigable waters.[21]

Justice Scalia wrote for the plurality, joined by Chief Justice Roberts and Justices Alito and Thomas (hereinafter “the Plurality”). The Plurality found that the Corps’ interpretation of “navigable waters” exceeded the scope of the CWA. The Plurality first narrowed the definition of the phrase “waters of the United States,” with regard to tributaries, such that it includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] . . . oceans, rivers [and] lakes.” The phrase does not include channels, through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.[22]

It is important to note the emphasis on the relative permanency of flow and the geographic features of the waters. The Plurality dropped a footnote to clarify that by “relatively permanent” they did not mean to exclude waters that might dry up in extraordinary circumstances or seasonal rivers which contain flow only during some months.[23] These features of the Plurality’s opinion have become important as lower courts have struggled to apply the law to geology and hydrology.[24]

The second part of the Plurality opinion addressed wetlands, stating that “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.”[25] The opinion explained that “[w]etlands with only an intermittent, physically remote hydrologic connection to ‘waters of the United States’. . . lack the necessary connection” to be jurisdictional.[26] This continuous surface connection test represents the Plurality’s focus on physical features to define “waters of the United States.”

In support of this test, the Plurality also spent some time discussing Congress’ use of the term “navigable” in relation to defining the scope of CWA jurisdiction. Reasoning that Congress must have meant something by using “the traditional phrase ‘navigable waters,’” the Plurality attempted to give it some effect in their interpretation of “waters of the United States.”[27]

Justice Kennedy concurred in the judgment, agreeing that the Corps had exceeded their jurisdiction, but differed from the Plurality in how to define “waters of the United States.”[28] His opinion limited the Corps’ jurisdiction to those wetlands that have a “significant nexus” to “navigable waters in the traditional sense.”[29] To have a significant nexus a wetland must “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of traditionally navigable waters.[30] Conversely, if a “wetlands’ effects on water quality are speculative or insubstantial” it would not be jurisdictional.[31] Justice Kennedy’s test takes a much more ecological approach than the Plurality. This is in part a recognition that Congress’ purpose in passing the act was to restore the ecological health of the Nation’s waterways. The one point where Justice Kennedy and the Plurality agreed was that wetlands that are adjacent to traditionally navigable waters are “waters of the United States.”[32]

Justice Stevens’ dissent, joined by Justices Souter, Ginsburg, and Breyer (hereinafter “the Dissent”), would have granted Chevron deference to the Corps’ interpretation of “navigable waters” and upheld the lower court’s rulings.[33] Recognizing the problems created by the lack of a controlling majority the Dissent pointed out that the Plurality and Justice Kennedy’s concurrence “define different tests to be applied on remand.”[34] The Dissent then went on to advise lower courts that all four justices of the Dissent would uphold the Corps’ jurisdiction under either the Plurality’s or Justice Kennedy’s test, and that “on remand each of the judgments should be reinstated if either of those tests is met.”[35] Justice Stevens recognized that there was not going to be an easily determined “narrowest grounds,” or overlapping directive, between the two opinions.[36] While Justice Kennedy’s concurrence gives the Corps more jurisdiction than the Plurality’s opinion, there is the potential for a wetland to have a continuous surface flow, meeting the Plurality’s test, but not a significant nexus, failing Justice Kennedy’s test.

Chief Justice Roberts also recognized the problems posed by the lack of a controlling opinion and wrote separately to provide guidance to the lower courts. The Chief Justice lamented that “[l]ower courts and regulated entities will now have to feel their way on a case-by-case basis.”[37] The Chief Justice then went on to cite Grutter v. Bollinger for its discussion of Marks.[38] Some have suggested that pointing to the discussion of Marks in Grutter was meant to show lower courts that there was precedent on how to interpret plurality opinions, and that lower courts should apply the Marks doctrine to the fractured Rapanos opinion.[39] However, the actual approach taken by the Court in Grutter, not “[pursuing] the Marks inquiry to the utmost logical possibility,”[40] is much closer, in reality, to the lower courts’ varying treatment of the Rapanos opinion. The message the Chief Justice meant to send with his citation to Grutter as opposed to citing directly to Marks is unknown, but it was prescient.

IV. FINDING MEANING IN MARKS – WHAT ARE THE NARROWEST GROUNDS?

In Marks v. United States, the Court stated that when “a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’”[41] In the case of Marks, the Court held that the narrowest grounds from the prior opinion in Memoirs v. Massachusetts was the plurality’s opinion that “materials were deemed to be constitutionally protected unless. . . they were ‘utterly without redeeming social value,’ and satisfied the. . . other requirements.”[42]

The “narrowest grounds” quote from Marks was derived from a footnote in Gregg v. Georgia, where the Court considered whether the death penalty, as applied, was cruel and unusual punishment and interpreted the fractured opinion of Furman v. Georgia.[43] In Gregg, the Court determined that the narrowest grounds articulated in Furman was that of the two concurring judges who found the death penalty as applied cruel and unusual, but did not find the death penalty per se cruel and unusual.[44] The Gregg Court held that “Furman mandates that where discretion is afforded a sentencing body [on the death penalty], that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”[45]

The Court in both Marks and Gregg, therefore, recognized that despite the lack of controlling majority, Memoirs and Furman yielded controlling law.[46] In both cases the Court spent little time discussing how exactly to define the narrowest grounds, instead identifying the opinions that constituted the “governing standard.”[47]

Where fractured plurality opinions directly overlap, and one opinion is a logical subset of the other(s), finding such a standard may be fairly straight-forward.[48] However, when the fractured opinions are based on divergent reasoning, and thus are not logical subsets of each other, applying the “narrowest grounds” inquiry gets much more complicated.[49] Indeed, as one court has observed “[f]or some issues, asking which of two opinions is narrower is akin to asking, ‘Which is taller, left or right?’”[50] With this in mind, it is useful to examine the various ways in which the Memoirs plurality and the Furman concurrence may constitute the narrowest grounds.

The first approach is the implicit consensus approach, where the opinion that is found to be the “governing standard” is a logical subset of the other opinions. In Memoirs the plurality was a logical subset of the other concurrences in that it arrived at the same outcome but was not as restrictive for future cases as the concurrences.[51] One way to think about this approach is as a “middle-ground opinion,” which falls between the broadest opinion supporting the judgment and the dissent.[52] In other words, the opinion constituting the narrowest grounds would “apply in a subset of cases encompassed by the broader opinion.”[53] This was true for the Gregg Court’s determination that the Furman concurrence constituted the narrowest grounds.[54]

However, when the opinions are not logical subsets of each other, then the implicit consensus approach falls apart. In such cases, another option is the “fifth-vote approach,” which defines the narrowest grounds as the opinion that would enjoy the support of the most judges should they be forced to choose.[55] Marks suggested that the “narrowest grounds” must be found from those judges concurring in the judgment, implying that the dissent should not be considered.[56] However, some courts have determined that the dissent may be included in this calculation.[57] Indeed, this is what Justice Stevens counseled in his Rapanos dissent by noting that the four dissenting justices would find jurisdiction under either the Plurality’s test or Justice Kennedy’s test.[58] However, courts have been hesitant to employ this approach.[59]

Another way to view the Marks and Gregg analysis is that the “least far-reaching” approach constitutes the “narrowest grounds.”[60] In the case of Marks this could be either the opinion least restrictive of the government’s ability to police obscene material, or the opinion which changes the status quo the least. In the case of Gregg the “least far-reaching” might mean the opinion that changes the status quo the least, or is the least restrictive of the government’s ability to use the death penalty. In either case, however, it is hard to see how these rationalizations might be described as the “narrowest” except that they make the narrowest change to existing law.

Finally, Professor Ryan Williams advances the “issue-by-issue” approach to finding the “narrowest grounds,” where the lower court looks to fractured opinions (including the dissent) to “determine each proposition where five or more justices agree.”[61] Several courts have taken this approach in parsing Rapanos,[62] demonstrating what has become clear from lower courts’ attempts to find meaning in Rapanos: the clearest guidance may have been that of Chief Justice Roberts’ concurrence, telling courts “to feel their way on a case-by-case basis.”[63]

V. LOWER COURTS TACKLE RAPANOS

To date the Rapanos opinion has been cited in over ninety cases in at least thirty-five states. Six circuit courts have attempted to apply the fractured opinion with varying results.[64] The first appellate court to consider the Rapanos opinion was the Seventh Circuit in United States v. Gerke Excavating.[65] The Supreme Court had remanded Gerke to the Seventh Circuit with express instructions to reconsider the decision in light of Rapanos. Applying Marks, the Gerke court determined that Justice Kennedy’s concurrence constituted the narrower test because it was less restrictive of federal authority.[66] The Gerke court reasoned that where Justice Kennedy found jurisdiction so would the four Rapanos dissenters.[67] In reaching its decision, the court did recognize that in some cases the Rapanos plurality would find jurisdiction where Justice Kennedy would not and that the four dissenters would join the Plurality in those rare cases, but found that as a “practical matter the Kennedy concurrence was the least common denominator.”[68]

The Ninth Circuit and Eleventh Circuit arrived at similar conclusions as the Seventh Circuit, determining that Justice Kennedy’s test constituted the narrowest grounds.[69] Even though these three circuit courts arrived at the same conclusion, they got there by very different reasoning. The Seventh Circuit and Ninth Circuit both employed an issue-by-issue approach in determining that a majority of the justices, including the dissenters, would most often find CWA jurisdiction under Justice Kennedy’s test.[70] In contrast, and despite also holding that Justice Kennedy’s approach was the narrowest, the Eleventh Circuit explicitly rejected the issue-by-issue approach, instead determining that Marks prevented it from considering the dissent when determining the narrowest grounds.[71]

The next circuit court to consider Rapanos after the Seventh Circuit was the First Circuit in United States v. Johnson.[72] After an extensive analysis of Marks and subsequent decisions analyzing Marks, the Johnson court noted that the Supreme Court had “moved away from Marks” and determined that neither the Plurality nor Justice Kennedy’s concurrence constituted the “narrowest grounds.”[73] The Johnson court decided to take Justice Stevens advice and find jurisdiction if either the Plurality’s or Justice Kennedy’s tests were met. The Third and Eighth Circuits have followed the First Circuit in this reasoning.[74]

The Second, Fourth, Fifth, and Sixth Circuits have thus far avoided determining which approach to apply. These circuits have either accepted the parties’ stipulation that Justice Kennedy’s test applied or found that both tests have been met, thereby leaving resolution of a standard to a future case.[75]

The Supreme Court has refused to grant certiorari in any of the cases attempting to resolve CWA jurisdiction.[76] Where it has taken a case that raises the issue, it has carefully avoided the issue.[77] Given the challenges associated both with the underlying scientific issues of determining hydrologic connectivity and parsing fractured opinions, the Supreme Court may be waiting for more percolation on the issue, in hopes of identifying a more manageable legal standard.[78] In his Rapanos concurrence, Chief Justice Roberts also admonished the Corps for not promulgating a new rule clarifying their jurisdiction under the CWA in-light of the Court’s ruling in SWANCC.[79] The Supreme Court may have hoped to have the agencies take up the issue and propose a rule before reconsidering the issues raised in Rapanos. As it stands, with the Trump administration’s delay of implementation of the Clean Water Rule pending a new rule being proposed, lower courts are left to grapple with the Rapanos decision.[80]

VI. MOVING AHEAD

Perhaps the most interesting thing about the Rapanos opinion is not its lack of clarity, but that two justices saw fit to give lower courts advice on how to interpret it. While Chief Justice Roberts cited to Grutter and Marks, Justice Steven’s advised courts to consider the votes of the dissenters. Unfortunately, neither directive has proved very helpful. As discussed above, applying Marks to Rapanos is problematic. Likewise, taking account of the dissenting justices, which effectively tries to predict the outcome of the case should the Court grant certiorari, raises concerns that judges are counting noses instead of applying the law. The confirmation of Justice Gorsuch to the bench and the rumors of Justice Kennedy’s retirement make clear that “counting noses” to find the “narrowest grounds” is not a reliable strategy. Should the current Court reconsider its holding in Rapanos, it is likely to split along similar lines, but if Justice Kennedy retires, the Court may take a new position either restraining, or broadening, federal jurisdiction.

Generally, the lower courts have determined that Justice Kennedy’s opinion constitutes the narrowest grounds, either because it would enjoy the support of a majority of justices (i.e. the fifth vote approach) or because it is the most deferential to the government’s authority. The Plurality opinion has never been considered the “narrowest” and has only been adopted as an alternative way to find jurisdiction. Notably, none of the courts have held that jurisdiction should be found when both the Plurality’s test and Justice Kennedy’s test are met. If Marks requires the position that the majority of the justices supporting the judgment of the Court must be found, then in the case of Rapanos this would require that both the Plurality’s and Justice Kennedy’s tests are met to find jurisdiction. In this way, the majority of those supporting the “narrowest” judgment would also support the corresponding outcome of the lower court on appeal.

Yet, lower courts have been reluctant to narrow the jurisdiction of the Corps under the CWA, largely because the language and congressional history of the Act support a broad reading to address the multitude of challenges to achieving clean water.[81] This underlying purpose points to another approach for the lower courts to take, which several of them have, to interpret the Rapanos opinion in-light of the purpose of the CWA and grant deference to the Corps in their interpretation of both the act and the Rapanos opinion. Following SWANCC the outer bounds of the Corps’ jurisdiction are clearer. And, granting deference up to this outer bound where the Corps have otherwise met the less restrictive Rapanos opinion (either the Plurality’s or Justice Kennedy’s as the case may be) might hold truer to the intent of Congress in passing the CWA.

Unfortunately, until the agencies further clarify the definition of “waters of the United States,” or the Court deems it appropriate to clarify its opinions in both Marks and Rapanos, the lower courts will be left with little guidance. Perhaps Chief Justice Roberts was correct to cite Grutter for the proposition that Marks is unworkable in situations like Rapanos and the lower courts should look beyond Rapanos to determine jurisdiction under the CWA.

[1] See 83 Fed. Reg. 5200 (Feb. 6, 2018); Amena H. Saiyid, Pruitt Signs off on Blocking Clean Water Regulation, Water L. & Pol’y Monitor (BNA), Feb. 1, 2018.

[2] 33 U.S.C. § 1251 et seq.

[3] 547 U.S. 715 (2006).

[4] See e.g., Berkolow, Much Ado About Pluralities: Pride and Precedent Amidst the Cacophony of Concurrences, and Re-Percolation After Rapanos, 15 Va. J. Soc. Pol’y & L. 299, 319 (2008) (discussing the use of Marks in Rapanos analysis).

[5] United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 613 (N.D. Tex. 2006) (holding that under Fifth Circuit precedent dry stream beds were not “navigable waters” under the meaning of the CWA, the court did not consider Marks).

[6] United States v. Robison, 521 F. Supp. 2d 1247, 1248 (N.D. Ala. 2007) (“Remarkably, … the Eleventh Circuit held that a test which serves to broaden federal jurisdiction (‘i.e., less restrictive of CWA jurisdiction’) is the ‘less far reaching’ and ‘narrowest’ of two purported tests.”).

[7] United States v. Cundiff, 555 F.3d 200, 208 (6th Cir. 2009).

[8] Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’” (citing Gregg v. Georgia, 428 U.S. 153, 169 n.15, (1976) (opinion of Stewart, Powell, and Stevens, JJ.)).

[9] 33 U.S.C. § 1251.

[10] Id. at § 1311(a) (the term “pollutant” is defined in the Act, point source dischargers (commonly thought of as industrial sources) are able to apply for a pollution control permit from the EPA).

[11] Id. at § 1344 (“dredged or fill material” is not defined in the Act but is typically thought of to include fill dirt from uplands or dredged material removed to keep waterways open to ships, the Corps has authority to issue permits for deposition of dredged or fill material to “navigable waters”).

[12] The Daniel Ball, 77 U.S. 557 (1870) (defining “navigable waters” as navigable-in-fact “when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water”).

[13] 33 U.S.C. § 1362(7) (the CWA charges the EPA and Corps with further defining “waters of the United States”).

[14] United States v. Riverside Bayview Homes, 474 U.S. 121 (1985).

[15] Id. at 133 (wetlands were defined as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions”).

[16] 531 U.S. 159 (2001).

[17] Id. at 163.

[18] Id. at 171. The Court also discussed concerns that the Migratory Bird Rule may be beyond Congress’ authority to regulate under the Commerce Clause, and that the rule would be a “significant impingement of the States’ traditional . . . power over land and water use.” Id. at 174.

[19] Id.

[20] See, e.g., United States v. Hubenka, 438 F.3d 1026, 1030–31 (10th Cir. 2006) (recognizing that Congress intended to define waters covered by the act broadly).

[21] Rapanos, 547 U.S. at 716. The Rapanos decision came from two consolidated cases. In the first, John Rapanos had filled wetlands without the appropriate permits. The wetlands on the Rapanos’ property connected remotely through ditches or man-made drains to the Lake Huron and Tittabawassee River. Id. at 729. In the second, Carabell v. Army Corps of Eng’rs, 257 F.3d 704, the Carabell’s had sought, and were denied, a permit to fill wetlands on their property. The Corps denied the permit because of the damage caused to water quality, wildlife, and overall ecology of the area. The wetlands were separated by a dirt berm from a man-made ditch that connected to a creek and eventually entered Lake St. Clair. The district court found that the berm did not always block overflow from wetlands from entering the ditch and rejected the Carabell’s challenge. Id. at 706.

[22] Rapanos, 547 U.S. at 739 (citing Webster’s Second for the internally quoted phrases).

[23] Id. at 732, n.5 (The Plurality went on to state that: “Common sense and common usage distinguish between a wash and seasonal river.”).

[24] See Jeffrey G. Miller, Plain Meaning, Precedent, and Metaphysics: Interpreting the “Navigable Waters” Element of the Clean Water Act Offense, 45 Envtl. L. Rep. News & Analysis 10548, 10569 (2015) (analyzing lower courts’ application of the Plurality’s test). Miller also provides a more in-depth critique of the Plurality’s approach.

[25] Rapanos, 547 U.S. at 742 (emphasis added).

[26] Id. (discussing the Riverview and SWANCC opinions to distinguish past precedent).

[27] See id. at 733–35. The Plurality also felt it important that Congress had recognized the rights of the States in the CWA and felt that the Corps’ interpretation would severely restrict state autonomy.

[28] Id. at 759 (Kennedy, J., concurring). Justice Kennedy’s opinion focused almost solely on wetlands and did not address tributaries, except to take issue with the Plurality’s requirement that they be “relatively permanent.” Id. at 769.

[29] Id. at 779. Justice Kennedy believed that by requiring a significant nexus to a traditionally navigable water he was giving some meaning to Congress’ use of the term “navigable”.

[30] Id. at 780.

[31] Id.

[32] Id. at 782.

[33] Id. at 788 (citing Chevron v. NRDC, 467 U.S. 837 (1984)) (when statutory language is ambiguous the court will grant deference to the agency’s interpretation).

[34] Id. at 810.

[35] Id. Justice Stevens included a footnote, perhaps to provide some guidance in-light of Chief Justice Robert’s reference to Marks. “I assume that Justice Kennedy’s approach will be controlling in most cases because it treats more of the Nation’s waters as within the Corps’ jurisdiction, but in the unlikely event that the plurality’s test is met but Justice Kennedy’s is not, courts should also uphold the Corps’ jurisdiction. In sum, in these and future cases the United States may elect to prove jurisdiction under either test.” Id. at 810, n.14.

[36] See id. at 810.

[37] Id. at 758.

[38] Id. (citing Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (discussing Marks v. United States, 430 U.S. 188 (1977)).

[39] See Berkolow, supra note 4, at 319.

[40] Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (citing Nichols v. United States, 511 U.S. 738, 745–746, (1994)).

[41] Marks, 430 U.S. at 193–94.

[42] Id. at 194 (citing A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen. of Com. of Mass., 383 U.S. 413, 419 (1966)). In Memoirs the plurality opinion had struck down the conviction but also left plenty of room for finding materials obscene. Marks, 430 U.S. at 194. See also Berkolow, supra note 4, at 322–26 (discussing the Marks opinion’s analysis of Memoirs).

[43] Gregg v. Georgia, 428 U.S. 153, 168–69 (1976) (citing Furman v. Georgia, 408 U.S. 238 (1972)).

[44] Id. at 169 n.15 (“Since five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds Mr. Justice Stewart and Mr. Justice White.”).

[45] Id. at 189 (citing Furman v. Georgia, 408 U.S. 238, 308 (1972) (Stewart, J., concurring)).

[46] See id.; Marks, 430 U.S. at 194 (“Memoirs therefore was the law.”).

[47] Marks, 430 U.S. at 194.

[48] See Ryan C. Williams, Questioning Marks: Plurality Decisions and Precedential Constraint, 69 Stan. L. Rev. 795, 808 (2017).

[49] Id. at 811.

[50] Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331, 1337 (11th Cir. 2015) (discussing the challenges of applying Marks).

[51] Marks, 430 U.S. at 194 (the concurrences would have either found that the first amendment served as an absolute bar to obscenity regulation, or that only “hardcore pornography” would be considered obscene).

[52] United States v. Duvall, 740 F.3d 604, 610 (D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of rehearing en banc).

[53] Williams, supra note 48, at 808 (citing United States v. Robison, 521 F.3d 1319, 1323 (11th Cir. 2008) (Wilson, J., dissenting from the denial of rehearing en banc)).

[54] See Gregg, 428 U.S. at 188 n.36.

[55] Williams, supra note 48, at 814.

[56] Marks, 430 U.S. at 194. See also id.

[57] See Williams, supra note 48, at 815.

[58] Rapanos, 547 U.S. at 810.

[59] United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007).

[60] Id. (describing the “least far-reaching” as being the least restrictive of CWA jurisdiction).

[61] Williams, supra note 48, at 817. See also Duvall, 740 F.3d at 613 (D.C. Cir. 2013) (discussing how to arrive at a result consistent with precedent when there is no “common rationale” between the fractured opinions).

[62] See United States v. Robertson, 496 F.3d 993, 1289 (9th Cir. 2017).

[63] Rapanos, 547 U.S. at 758 (Roberts, C. J., concurring).

[64] See generally Kristen Clark, Navigating Through the Confusion Left in the Wake of Rapanos: Why a Rule Clarifying and Broadening Jurisdiction Under the Clean Water Act is Necessary, 39 Wm. & Mary Envtl. L. & Pol’y Rev. 295, 306–08 (2014).

[65] 464 F.3d 723 (2006).

[66] Id. at 724–25.

[67] Id. at 725.

[68] Id. The Gerke court did not foreclose application of the Plurality’s test in future cases where jurisdiction would be met under that test, it only held that Justice Kennedy’s test governed the current litigation. Id.

[69] N. Cal. River Watch, 496 F.3d 993, 999–1000 (9th Cir. 2007) (stating that Justice Kennedy’s concurrence provided “the controlling rule of law for our case” and that it is “the narrowest ground to which a majority of the Justices would assent if forced to choose in almost all cases”); United States v. Robison, 505 F.3d 1208, 1219–21 (11th Cir. 2007) (recognizing that Marks does not easily apply to Rapanos, but stating that the court “simply cannot avoid the command of Marks,” that Marks does not allow lower courts to consider the opinion of the dissent, and determining that the “narrowest” opinion would be least-restrictive of CWA jurisdiction); see also United States v. Robertson, 875 F.3d 1281, 1292 (9th Cir. 2017).

[70] Berkolow, supra note 4, at 336.

[71] Robison, 505 F.3d at 1219.

[72] 467 F.3d 56 (1st Cir. 2006).

[73] Id. at 64–66 (noting that the Seventh Circuit assumed that the narrowest grounds would be the opinion which granted the most deference to the government, but questioning how that logic would be applied when the government wasn’t a party to the litigation, and discussing the constitutional implications of granting deference to the government when the government’s interpretation may extend beyond Congress’ commerce clause authority).

[74] United States v. Donovan, 661 F.3d 174, 183 (3rd Cir. 2011); United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009).

[75] See Cordiano v. Metacon Gun Club, 575 F.3d 199 (2d Cir. 2009); United States v. Cundiff, 555 F.3d 200, 208–12 (6th Cir. 2009) (the court engaged in an extensive analysis of Marks vis-à-vis Rapanos and highlighted many of the problems associated with attempting to apply Marks to Rapanos but decided that both tests were met so it didn’t need to pick one); United States v. Lucas, 516 F.3d 316 (5th Cir. 2008). The Fourth Circuit considered whether wetlands were jurisdictional in Precon Development Corp. v. Army Corps Eng’rs, 633 F.3d 278 (4th Cir. 2011), the court accepted the parties’ stipulation that Justice Kennedy’s test controlled and noted that application of the Plurality’s test would be “questionable” under the facts of the case. Id. at 288, n.9.

[76] United States v. Donovan, 661 F.3d 174 (3d Cir. 2011), cert. denied, 2012 WL 1190315 (U.S. 2012); United States v. Cundiff, 555 F.3d 200 (6th Cir. 2009), cert. denied, 130 S. Ct. 74 (2009); Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 64 (9th Cir. 2007), cert. denied, 128 S. Ct. 1225 (2008).

[77] See U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016) (ruling that a jurisdictional determination is final agency action).

[78] See Berkolow, supra note 4, at 344 (discussing the Supreme Court allowing challenging legal issues to “re-percolate” in the lower courts after handing down a less than clear standard).

[79] Rapanos, 547 U.S. at 757 (Roberts, C.J., concurring).

[80] See Saiyid, supra note 1.

[81]See generally Miller, supra note 24, at 10551 (discussing congressional history of the CWA).

 

Conduit for Peace in the Middle East: An Analysis of the Red Sea-Dead Sea Water Conveyance Project

By Sarah L. Fine*

This post is part of the Environmental Law Review Syndicate.

I. Introduction

The mythic Dead Sea—the highly salinated, low-altitude lake of international interest and importance—is drying up.[1] Although the Jordan Rift Valley, where the Dead Sea is located, is known for frequent droughts, the decline of the Dead Sea is primarily due to human intervention—namely, the diversion of the Jordan River, the main lake source which feeds the Dead Sea,[2] to provide potable water to increasing populations.[3] A water level drop of one meter per year has led the surface area to decrease from 960 km2 to 620 km2 in the last fifty years.[4] Today, the rate of decline is only increasing, giving rise to “extensive environmental degradation and damage to industry and infrastructure and . . . substantial intangible impacts and costs,” with an estimated direct cost to government and industry to be “some $2.9 billion over the next 60 years.”[5]

Despite the lack of stability between the Dead Sea’s three bordering entities—the State of Israel, the Hashemite Kingdom of Jordan, and the Palestinian Authority—a series of agreements between the groups have sought to address the problem of the disappearing Dead Sea alongside the problem of access to potable water.[6] Facilitated by the World Bank Group, the Red Sea­–Dead Sea Water Conveyance Study investigated the feasibility of reversing the environmental degradation of the Dead Sea by transferring seawater from the Red Sea. By introducing desalination into the transfer process, the hope of the three parties is that the Red Sea­–Dead Sea Water Conveyance will address the environmental degradation of the Dead Sea and the lack of affordable energy and drinking water in the Jordan Rift Valley, while increasing political goodwill and cooperation between the parties.[7]

II. Issues Sought to Be Addressed

The Dead Sea—neither dead, nor a sea—supports a wide variety of microfauna and macrofauna at the lowest point on the Earth’s surface.[8] As the lowest point on Earth, the Dead Sea acts as “the water seismograph of the region . . . express[ing] the nonsustainable use of fresh water.”[9] Since the 1960s, the surface area of the Dead Sea has declined by one-third,[10] resulting in increased incidence of dust storms, “losses of freshwater springs, river bed erosion, and occurrence of over one thousand sinkholes.”[11] The sinkholes occur because

[t]he retreat of the water (which is almost 10 times saltier than the ocean’s) has        allowed fresh groundwater to well up and dissolve the layer of salt within the land’s subsurface. Underground cavities form and eventually trigger collapses. . . . The deepest pit could fit an eight-story building. . . . Today’s sinkholes, located almost exclusively on the sea’s Israeli side, first appeared in the early 1980s. . . . According to Eli Raz, a geology consultant who has tracked the problem almost since it began, more than 4,000 sinkholes now pockmark the land.[12]

The decline of the Dead Sea water level also disrupted the water tables; the low level of groundwater has “allow[ed] seawater intrusion,”[13] contaminating an aquifer in the Gaza Strip.[14]

There are multiple causes of the Dead Sea water level decline. The Jordan River’s flow into the Dead Sea has been most significantly impacted by diversion to satisfy increasing water consumption in Israel, Jordan, and Syria, driven by rapidly growing populations.[15] In addition, the large evaporation-based chemical industries in Israel and Jordan consume a significant amount of raw Dead Sea water, further contributing to the water level decline.[16] Further, as this is all occurring in desert nations, the problems of water scarcity will be only “exacerbated by the anticipated negative climate change scenarios” over time.[17]

A. Water Resources by Region

  1. Hashemite Kingdom of Jordan

The Hashemite Kingdom of Jordan, once a relatively water-rich nation, is now “the third most water insecure country in the world.”[18] Jordan, which has rationed water since the 1980s, found itself in 2013 in a full-blown water crisis—having integrated into their population nearly 1.4 million people seeking refuge from the Syrian Civil War.[19]

In 2008, Jordan implemented a water strategy expected to protect its water needs until at least 2022.[20] This strategy centered on the building of the Disi aquifer, which opened in 2013 and pumps 100 million cubic meters of water per year.[21] However, this strategy also relied upon pre-Syrian crisis population assessments. In a 2014 study, Jordan determined that the new $1.1 billion aquifer could only support the population through 2016.[22] According to Jordan’s Ministry of Water and Irrigation, water needs will exceed resources by more than 26% by 2025.[23]

To address its water crisis, in 2014 Jordan enacted “Water Wise Women” with funding from Germany’s Agency for International Cooperation (GIZ), a program which trains women to be plumbers and community outreach representatives.

Each group of “Water Wise Women” goes through eight different levels of training run by a German expert from GIZ and supervised by program alumni. The levels include: eradicating water leakage, harnessing technology, reducing water usage in the household, and improving hygiene. Each trained woman is expected to disseminate the technology and information within their community, and to reach out to at least 20–25 other women. They are given funding for travel for this outreach, and at the end of the course, each participant receives a box of tools.[24]

The program has trained more than three hundred women plumbers in fifteen locations across the Kingdom.[25] In those areas, Jordan’s Ministry for Water and Irrigation found “there has been a 30–40% reduction in household water consumption.”[26]

In March of 2017, the Kingdom’s first desalination plant opened in Aqaba.[27] This plant doubled Jordan’s potable water supply, providing five million cubic meters of potable water per year. In spite of these efforts, in December of 2017, the Economist reported that Jordan could provide only 15% of the threshold the World Bank defined as “water scarcity.”[28]

In early 2018, the Jordanian government partnered with another community group to promote conservation: college students. In a partnership with students at Princess Sumaya University for Technology, Jordan’s Ministry of Water and Irrigation launched a game application in February of 2018 to raise water conservation awareness among the general public.[29] In the style of Chutes and Ladders, the game entertains players while educating them about water rationing and water waste.[30]

  1. State of Israel

In 2008, after a decade-long drought, “its worst in at least 900 years,” Israel was running out of water.[31] But a few years of rain, combined with new, highly efficient preservation and desalination technology, put Israel in a vastly different position: by 2014, rather than experiencing water scarcity, it suddenly had a surplus.[32] Today, Israel leads the world in water reclamation: “87% of its wastewater is purified and reused for agriculture. For reference, Singapore, second on the list, reclaims some 35% of its sewage water, and most countries . . . reclaim less than 10% of their water.” [33] In support of this innovative water treatment system is a wholistic approach of water conservation, using “low-flow toilets and showerheads . . . installed nationwide” and an agricultural system powered by drip irrigation.[34]

The most significant change has been Israel’s newest source of freshwater: desalinated seawater.[35] Even as the world’s leader in water conservation, “Israel still needed about 1.9 billion cubic meters . . . of freshwater per year and was getting just 1.4 billion cubic meters . . . from natural sources.”[36] Desalination, or desal, was once considered a method of “last resort” due to its expense and inefficiency.[37] But a breakthrough innovation by Israel’s Zuckerburg Institute for Water Research changed that:

Desal works by pushing saltwater into membranes containing microscopic pores. The water gets through, while the larger salt molecules are left behind. Microorganisms in seawater quickly colonize the membranes and block the pores, and controlling them requires periodic costly and chemical-intensive cleaning. But [the Institute] developed a chemical-free system using porous lava stone to capture the microorganisms before they reach the membranes. . . . Israel now gets 55 percent of its domestic water from desalination.[38]

Israel’s Mediterranean coast is now home to five desalination plants, producing “roughly 550 million cubic meters per year” of potable water.[39] By 2025, “the Israel Water Authority plan[s] to establish another [plant] in Western Galilee and another four large facilities along the coast.”[40]

Today, as the nation faces its fifth consecutive drought year, Israel is no longer in a state of water surplus and has resumed water rationing.[41] This demonstrates the continued incentive Israel has for participating in the water conveyance project apart from concerns for the Dead Sea.

  1. Palestinian Authority: West Bank & Gaza Strip

The 1995 Oslo II Accords, an interim resolution meant to be revised within five years, granted Palestinian Authority jurisdiction over 40% of the West Bank, with Israel retaining control over Area C.[42] To “deal with all water and sewage related issues in the West Bank,” Oslo II established a Joint Water Committee (JWC).[43]

Oslo II also established the amount of water Israel is required to “make available to the Palestinians during the interim period a total quantity of 28.6 mcm/year,” based on a joint estimate of the “future needs of the Palestinians in the West Bank [as] between 70–80 mcm/year.”[44] B’Tselem, the Israeli Information Center for Human Rights in the Occupied Territories, reported in 2016 that because the “Palestinian population of the West Bank has nearly doubled . . . the Palestinian Authority (PA) is forced to purchase from Mekorot [the Israeli state-owned water distribution company] an amount two and [a] half times greater than [those] set out in the accords.”[45]

The World Health Organization recommends a minimum water consumption of one hundred liters per capita per day.[46] In 2014, the Palestinian Water Authority reported an average Palestinian water consumption of seventy-nine liters per capita per day.[47] B’Tselem reported that while this figure is reflective of Palestinians who are hooked up to the water grid, the figure for Palestinians who are not is much lower, an estimated twenty to fifty liters per capita per day.[48]

A significant component to the Palestinian Authority’s water scarcity is the extensive damage to the Gaza Strip’s water and wastewater infrastructure during the Second Intifada from 2000–2005.[49] In order to restore access to water and wastewater services to the area, the World Bank engaged in the Gaza Emergency Water Project, which closed in January 2012.[50] This project completed:

Drilling of more than 50 water production wells with small pumping capacity (new wells or replacement of existing polluted wells); Supply of chemicals and dosing pumps and chlorination of 99.7 percent of water supply; Replacement of more than 30,000 meters of old service connections and old asbestos main pipes, and installation of 15,000 domestic meters and 20 public meters; Monitoring program established for wastewater plants; [and] Emergency response plan established following the rupture of the temporary effluent basin at Beit Lahia wastewater treatment plant.[51]

Historically, the water source for the Gaza Strip has been an underlying coastal aquifer.[52] Complicating matters further, in 2012, the United Nations Country Team reported that, due to declining groundwater levels and resultant seawater infiltrates, the aquifer could become unusable as early as 2016, with the damage irreversible by 2020.[53]

Due to the Gaza Strip’s location on the Mediterranean coast, combined with the newly reduced cost of desalination, other sources of water have become possible. In January 2017, with contributions by UNICEF and the European Union, Gaza opened a significant seawater desalination plant in Deir al Balah.[54] This plant initially produced 6,000 cubic meters of desalinated water per day (or 2.19 million cubic meters per year), and has a projected target of approximately 20,000 cubic meters per day by 2020 (or 7.3 million cubic meters per year).[55]

The 1995 water allocation agreement in Oslo II was updated in July 2017 in the bilateral water agreement between Israel and the Palestinian Authority.[56] This agreement increased the amount Israel agreed to allocate to the Palestinian Authority from 28.6 million cubic meters per year to 32 million cubic meters of water per year.[57]

B. Lateral Water Agreements

While the possibility of an inter-basin transfer from the Red Sea to the Dead Sea has been studied in many forms since the mid-1800s, the significant Dead Sea water level decline in the last fifty years and wide-spread potable water scarcity led to an agreement in the 1994 Jordan–Israel Peace Treaty (joined by the Palestinian Authority) to consider a water conveyance to “save” the Dead Sea.[58] This treaty built on the water-sharing agreements in the Oslo I Accord in 1993[59] and was reinforced by Oslo II Accord.[60] In the 1994 treaty, the water conveyance was described as “The Two Seas Canal or the Peace Conduit.” [61] From the beginning, it was not only meant to provide 850 million cubic meters of potable water to Jordan, Israel, and Palestine,[62] but was also intended to be “a symbol of peace and cooperation in the Middle East.”[63]

In 2005, the Palestinian Authority, Israel, and Jordan (“the Beneficiary Parties”) signed a joint letter requesting that the World Bank “coordinate donor financing and manage the implementation of the Study Program.”[64] From the beginning, there was a “general consensus on the need to restore the Dead Sea, but opinions on how to achieve this objective var[ied].”[65] The resultant “Red Sea–Dead Sea Water Conveyance Study Program” was therefore multi-faceted, consisting of five main studies: a Feasibility Study, an Environmental and Social Assessment, a Study of Alternatives “examin[ing] other options available to the Beneficiary Parties to address the degradation of the Dead Sea and the production of additional potable water by means other than the identified water conveyance option,” a Red Sea Modelling Study, and a Dead Sea Modeling Study.[66]

As the various studies progressed, the Beneficiary Parties and the World Bank made a series of bilateral and trilateral agreements in negotiations to continue the project. First, in 2011, two Palestinian civil society organizations, Stop the Wall Campaign and the Palestinian Farmers Union, as well as the Global Initiative for Economic, Social and Cultural Rights, representing residents of the West Bank, filed a Request for Inspection of the Study Program.[67] This Request stated that West Bank residents “rely on ground water resources that are put at risk by the decline of the Dead Sea and which do not appear to be effectively addressed by the . . . Program,” and identified flaws in the Study Program Terms of Reference which “would result in inadequate and incomplete Environmental Social Assessments.”[68] Then, in 2013, all three Beneficiary Parties signed a “milestone regional cooperation agreement,” in the form of a Memorandum of Understanding, outlining “three major regional water sharing initiatives” to be pursued by the parties.[69] At this stage, the initiatives included:

the development of a desalination plant in Aqaba at the head of the Red Sea, where the water produced will be shared between Israel and Jordan; increased releases of water by Israel from Lake Tiberias for use in Jordan; and the sale of about 20–30 million m3/year of desalinated water from Mekorot (the Israeli water utility) to the Palestinian Water Authority for use in the West Bank. In addition, a pipeline from the desalination plant at Aqaba would convey brine to the Dead Sea to study the effects of mixing the brine with Dead Sea water.[70]

In 2015, Israel and Jordan signed a bilateral water cooperation agreement to further the project. Pursuant to this agreement, the two parties agreed to “share the potable water produced by a future desalination plant in Aqaba, from which salty brines will be piped to the Dead Sea. In return for its portion . . . Israel will be doubling its sales of Lake Kinneret (Sea of Galilee) water to Jordan.”[71] As the proposed pipeline would “lie[] entirely in Jordanian territory,”[72] in 2016, Jordan and the World Bank entered into a “Country Partnership Framework” to fund the pipeline.[73]

In 2017, Israel and the Palestinian Authority signed a bilateral agreement allocating thirty-two million cubic meters of water to the Palestinian Authority to be split, twenty-two million cubic meters to the West Bank, and ten million cubic meters to the Gaza Strip.[74] Recall that the 2013 trilateral Memorandum of Understanding included an agreement for Israel to sell “about 20–30 million m3/year of desalinated water . . . to the Palestinian Water Authority for use in the West Bank.”[75]

Today, the future of the water project is uncertain.[76] Just as the Dead Sea is “the water seismograph of the region,”[77] the water conveyance project is the region’s political seismograph.

III. The Water Conveyance

The proposed water conveyance seeks to address the environmental degradation of the Dead Sea and the lack of affordable energy and drinking water in the Jordan Rift Valley, while increasing political goodwill and cooperation between the parties. As a “three birds with one stone” approach, “[o]n paper, Red–Dead looks as elegant as it is ambitious—a simple solution for a huge environmental crisis that includes jobs, infrastructure, and profits.”[78] It is planned that with one conveyance, all three issues would be addressed:

A hydroelectric plant would be built, generating energy; desalination plants would pump out drinking water; and the reject brine, the by-product of the desalination process, would replenish the Dead Sea like a hose filling a swimming pool. The Israelis and Jordanians would share responsibility for building, maintaining, and operating the system. Thus, water, a historic cause of anxiety, contention, and even war in the region, becomes a conduit for economic and social cooperation.[79]

Taking into account the technological, political, and financial complexity of the water conveyance, the Study Program examined the numerous impacts and effectiveness of the proposal over many years.

The objective of the Red Sea–Dead Sea Water Conveyance Project Study Program was to “investigate the feasibility of the concept as a solution to the decline of the Dead Sea water level” and was originally intended to be completed by 2010.[80] In order to get the full picture, the environmental impacts—both earthly and social—were studied.[81] A study of alternatives was also made, informed by a chemical industry analysis study.[82] Once these were completed, the Feasibility Study was finalized and published.

The Feasibility Study, completed in 2014, evaluated “six potential project configurations . . . based on three alternative conveyance systems.”[83] It considered estimated capital costs, whole lifecycle net present costs, environmental impacts during construction and operation, and the effect on the microbiome of mixing Red Sea and Dead Sea waters.[84] Based on a “weighted multi-criteria assessment process,” the Feasibility Study concluded that a “pipeline conveyance combined with a high level desalination plant is the recommended optimum solution.”[85] In reaching this conclusion, the Study Program explored multiple limitations and potential adverse effects of the conveyance plan, and in so doing introduced a number of safeguards and mitigation factors to address the myriad needs of the three Beneficiary Parties.[86]

There is one factor not addressed in the 2014 Study Program findings: the impact of large-scale use of desalination plants—something only beginning to be studied in Israel, where desalinated water has recently become the majority source of potable water. While the quality of the water produced in desalination is high, it is also “devoid of some key minerals found in normal water, like magnesium,” as the mineral is removed in the reverse-osmosis process alongside other salts.[87] Use of desalinated water in agriculture has therefore been shown to require an increased need for fertilizer. In addition, long-term consumption of desalinated water has also been linked to “an elevated mortality risk of myocardial infarction”—i.e., heart attacks. It is theorized that this can be alleviated by the addition of magnesium to the treated water, which must be considered when implementing wide-spread use.

IV. Conclusion

Having adequately addressed the multi-faceted concerns of all three Beneficiary Parties, by all accounts the Red Sea–Dead Sea Water Conveyance Project will break ground in the coming year.[88] In the two decades since the 1994 Jordan-Israel Peace Treaty and the 1993 and 1995 Oslo Accords, the political dynamics between the Dead Sea’s three bordering entities has remained complex, if not outright violent.[89] And yet, the inevitability of the Dead Sea’s decline, the inevitability of climate change, and the continued water scarcity in the entire Jordan River Basin has inexorably tied these parties together just as strongly as any treaty.

If the water conveyance project can be the region’s political seismograph, perhaps peace in the Middle East is closer than we think.

 

* Sarah L. Fine is a J.D. candidate at Lewis & Clark Law School and an Online Journal Editor of Environmental Law.

[1] The surface area of the Dead Sea has shrunk by at least one-third since 1960; the water level falls at “an alarming pace of 0.8 to 1.2 meters per year.” World Bank Grp., Red Sea – Dead Sea Water Conveyance Study Program: Overview – Updated January 2013, at 1 (2013), http://siteresources.worldbank.org/EXTREDSEADEADSEA/Resources/Overview_RDS_Jan_2013.pdf?resourceurlname=Overview_RDS_Jan_2013.pdf%26.

[2] Stephen C. McCaffrey, The Shrinking Dead Sea and the Red–Dead Canal: A Sisyphean Tale?, 19 Pac. McGeorge Global Bus. & Dev. L.J. 259, 260 (2006).

[3] Envtl. Res. Mgmt. et al., Red Sea-Dead Sea Water Conveyance Study Environmental and Social Assessment: Preliminary Scoping Report 13, 16 (2008).

[4] Coyne et Bellier et al., Red Sea – Dead Sea Water Conveyance Study Program Feasibility Study: Final Feasibility Study Report Summary 1 (2014).

[5] Id.

[6] The Dead Sea is “roughly bisected from the north to the south by the border between Jordan on the eastern side, and Palestine (the West Bank) and Israel on the western side, placing it in the middle of some of the most hotly-contested land on earth.” See McCaffrey, supra note 2, at 259, 260 n.4. Likely as a result, many of the document and agreements which comprise the Red Sea­–Dead Sea Water Conveyance are confidential.

[7] See World Bank Grp., supra note 1, at 2.

[8] Regarding microfauna: “In 2009, a marine biologist from Germany’s Max Planck Institute for Marine Microbiology discovered new species of green sulfur bacteria, cyanobacteria, and diatoms [in the Dead Sea]. Found within sediments nourished by underwater springs, these microorganisms have metabolisms allowing them to adapt to extreme changes in salinity.” Todd Pitock, Could Water from the Red Sea Help Revive the Dead Sea?, Nat. Resources Def. Council (Jan. 23, 2017), https://www.nrdc.org/onearth/could-water-red-sea-help-revive-dead-sea. Regarding macrofauna:

Located off the Dead Sea’s northwestern shore, the nature reserve is the world’s lowest in altitude, and its wetlands are the only place on the planet where rare blue and Dead Sea killifish coexist. The landscape’s altered hydrology is putting them at risk as well as causing the springs on the Dead Sea floor to migrate eastward.

Id.

[9] Michael Beyth, Water Crisis in Israel, in Water: Histories, Cultures, Ecologies 171, 174 (Marnie Leybourne & Andrea Gaynor eds., 2006).

[10] See World Bank Grp., supra note 1, at 1.

[11] World Bank Grp., Red Sea – Dead Sea Water Conveyance Study Program: Background Note – October 2010, at 1 (2010), http://siteresources.worldbank.org/INTREDSEADEADSEA/Resources/Background_Note_October_2010.pdf; see Envlt. Res. Mgmt. et al., supra note 3, at 4.

[12] Pitock, supra note 8.

[13] Natan Odenheimer, Israel – A Regional Water Superpower, Jerusalem Post (May 13, 2017), http://www.jpost.com/printarticle.aspx?id=484996.

[14] Stephen C. McCaffrey, Water Scarcity and Security Issues in the Middle East, 108 Am. Soc’y Int’l L. Proc. 297, 299.

[15] John Anthony Allan et al., Study of Alternatives: Final Report, Executive Summary and Main Report (2014).

[16] Id.

[17] Id. at 35.

[18] MercyCorps, Tapped Out: Water Scarcity and the Refugee Pressures in Jordan 12 (2014).

[19] Id. at 4–5.

[20] Id. at 14.

[21] Id.

[22] Id.

[23] Jordan’s Water Wise Women, Al Jazeera (May 17, 2017), http://www.aljazeera.com/programmes/earthrise/2017/05/jordan-water-wise-women-170516110004513.html.

[24] Odette Chalaby, Jordan Is Solving Its Water Crisis by Training Women as Plumbers, Apolitical (Nov. 3, 2017), https://apolitical.co/solution_article/jordan-solving-water-crisis-training-women-plumbers/.

[25] Id.

[26] Id.

[27] Jordan’s First Water Desalination Plant Opens in Aqaba, Jordan Times (Mar. 18, 2017), http://www.jordantimes.com/news/local/jordan%E2%80%99s-first-water-desalination-plant-opens-aqaba.

[28] Diplomatic Drought: Jordan’s Water Crisis Is Made Worse by a Feud with Israel, Economist (Dec. 2, 2017), https://www.economist.com/news/middle-east-and-africa/21731844-thirsty-kingdom-can-ill-afford-fall-out-its-neighbour-jordans-water.

[29] Ministry Launches Water Conservation Awareness Game, Jordan Times (Feb. 19, 2018), http://www.jordantimes.com/news/local/ministry-launches-water-conservation-awareness-game.

[30] Id.

[31] “Israel’s largest source of freshwater, the Sea of Galilee, had dropped to within inches of the ‘black line’ at which irreversible salt infiltration would flood the lake and ruin it forever.” Rowan Jacobsen, How a New Source of Water Is Helping Reduce Conflict in the Middle East, Ensia (July 19, 2016), https://ensia.com/features/water-desalination-middle-east/.

[32] Id.; Julia Pyper, Israel Is Creating a Water Surplus Using Desalination, E&E News: Climatewire (Feb. 7, 2014), https://www.eenews.net/stories/1059994202.

[33] See Odenheimer, supra note 13.

[34] See Jacobsen, supra note 31.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Brett Walton, Israel’s Mediterranean Desalination Plants Shift Regional Water Balance, Circle Blue (July 25, 2016), http://www.circleofblue.org/2016/middle-east/israels-mediterranean-desalination-plants-shift-regional-water-balance/.

[40] Zafrir Rinat, Desalination Problems Begin to Rise to the Surface in Israel, Haaretz (Feb. 6, 2017), https://www.haaretz.com/israel-news/.premium-desalination-problems-begin-to-rise-to-the-surface-in-israel-1.5494726.

[41] Hagai Amit, Dry, Dry Again: After Several Wet Years, the Big Drought Is Back Again in Israel, Haaretz (Jan. 19, 2018), https://www.haaretz.com/israel-news/.premium-after-several-wet-years-the-big-drought-is-back-in-israel-1.5746445.

[42] World Bank, West Bank and Gaza: Assessment of Restrictions on Palestinian Water Sector Development 5–6 (2009).

[43] Id. at 5. In their 2009 report, the World Bank criticized the JWC as an “[in]effective mechanism for facilitating sector investment.” Id. at 47 & n.77.

[44] Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Isr.-Palestine, Sept. 28, 1995, U.N. Doc. A/51/889.

[45] Summer 2016 – Israel Cut Back on the Already Inadequate Water Supply to Palestinians, B’TSELEM (Sept. 27, 2016), https://www.btselem.org/video/201609_water_salem#full.

[46] Id.

[47] Id.

[48] Id.

[49] Gaza Emergency Water Project, World Bank (Apr. 29, 2013), http://www.worldbank.org/en/results/2013/04/29/gaza-emergency-water-project.

[50] Id.

[51] Id.

[52] United Nations Country Team, Gaza in 2020: A Liveable Place? 11 (2012).

[53] Id.

[54] Largest Seawater Desalination Plant Opened in Gaza, U.N. Off. Coordination Humanitarian Aff. (Mar. 11, 2017), https://www.ochaopt.org/content/largest-seawater-desalination-plant-opened-gaza.

[55] Id.

[56] Press Release, White House, Donald J. Trump Administration Welcomes Israeli-Palestinian Deal to Implement the Red–Dead Water Agreement (July 1, 2017), https://www.whitehouse.gov/briefings-statements/donald-j-trump-administration-welcomes-israeli-palestinian-deal-implement-red-dead-water-agreement/.

[57] Id.; see also Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 44.

[58] See World Bank Grp., supra note 11, at 1–2.

[59] Declaration of Principles on Interim Self-Government Arrangements, Isr.-Palestine, Sept. 13, 1993, U.N. Doc. A/48/486.

[60] See Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 44, at Annex III art. 40.

[61] Saad Merayyan & Salwa Mrayyan, Jordan’s Water Resources: Increased Demand with Unreliable Supply, 3 Computational Water Energy & Envtl. Engineering 48, 49 (2014).

[62] Id.

[63] World Bank Grp., Red Sea – Dead Sea Water Conveyance Concept Feasibility Study and Environmental and Social Assessment: Information Note – July 2007, at 3 (2007), http://siteresources.worldbank.org/MENAEXT/Resources/RDS_Background_Note_V050707.pdf?resourceurlname=RDS_Background_Note_V050707.pdf.

[64] Id. at 5.

[65] World Bank Grp., supra note 63, at 2.

[66] World Bank Grp., Red Sea-Dead Sea Water Conveyance Study Program: Questions and Answer Sheet 1 (2011), http://siteresources.worldbank.org/INTREDSEADEADSEA/Resources/RDSQ&A13Dec2011_final.pdf.

[67] Memorandum from Roberto Lenton, Chairperson, Inspection Panel, World Bank, to President of the International Bank for Reconstruction and Development and the International Development Association (Oct. 20, 2011), http://documents.worldbank.org/curated/en/510341468184139751/pdf/651110IPNR0Box000INSP0SECM201100008.pdf.

[68] Id.

[69] Press Release, World Bank, Senior Israeli, Jordanian and Palestinian Representatives Sign Milestone Water Sharing Agreement (Dec. 9, 2013), http://www.worldbank.org/en/news/press-release/2013/12/09/senior-israel-jordanian-palestinian-representatives-water-sharing-agreement.

[70] Id.

[71] Sharon Udasin, Israeli, Jordanian Officials Signing Historic Agreement on Water Trade, Jerusalem Post (Feb. 26, 2015), http://www.jpost.com/Israel-News/New-Tech/Israeli-Jordanian-officials-signing-historic-agreement-on-water-trade-392312.

[72] See World Bank Grp., supra note 11, at 2.

[73] See generally Int’l Bank for Reconstruction & Dev. et al., Country Partnership Framework for Hashemite Kingdom of Jordan for the Period FY17–FY22 (2016).

[74] See Press Release, White House, supra note 56; Dalia Hatuqa, Water Deal Tightens Israel’s Control Over Palestinians, Al Jazeera (Aug. 1, 2017), http://www.aljazeera.com/indepth/features/2017/07/water-deal-tightens-israel-control-palestinians-170730144424989.html.

[75] See Press Release, World Bank, supra note 69 (emphasis added).

[76] In November of 2017, Israeli media reported that Israel was refusing to further participate in the project until it was allowed to reopen its embassy in Amman. In February of 2018, Israeli and Jordanian media reported that “Jordan is committed to implementing the . . . Project despite repeated Israeli signals that it was withdrawing from the regional scheme.” Hana Namrouqa, Jordan to Go Ahead with Red-Dead Water Project Despite Israel Withdrawal, Jerusalem Post (Feb. 12, 2018), http://www.jpost.com/Arab-Israeli-Conflict/Jordan-to-go-ahead-with-Red-Sea-Dead-Sea-project-542417. In late January, after six months of shut down and diplomatic dispute, the Israeli embassy began the process of gradually reopening; in early February, a Jordan government official reported they had not yet been notified of the naming of a new ambassador. Mohammad Ghazal, Jordan Says ‘Not Officially Notified’ of New Israeli Ambassador, Jordan Times (Feb. 8, 2018), http://www.jordantimes.com/news/local/jordan-says-not-officially-notified%E2%80%99-new-israeli-ambassador.

[77] See Beyth, supra note 9.

[78] See Pitock, supra note 8.

[79] Id.

[80] See World Bank Grp., supra note 63, at 4.

[81] See generally Envtl. Res. Mgmt. et al., Red Sea-Dead Sea Water Conveyance Study Environmental and Social Assessment: Final Environmental and Social Assessment (ESA) Report – Executive Summary (2014); Tahal Grp. & Geological Survey of Isr. & Assocs., Dead Sea Study: Final Report (2011); Thetis SpA et al., Red Sea Study: Draft Final Report (2013).

[82] See generally Vladimir Zbranek, Chemical Industry Analysis Study: Final Report (2013); Allan et al., supra, note 15.

[83] See Coyne et Bellier et al., supra note 4, at 82.

[84] Id. at 82–83.

[85] Id. at 83.

[86] See Envtl. Res. Mgmt. et al., supra note 81, at 4, 9, 34.

[87] Rinat, supra note 40.

[88] See supra note 76 and accompanying text.

[89] See supra note 49 and accompanying text.

Mitigating Greenhouse Gas Emissions in the Northeast and Mid-Atlantic Transportation Sector: A Cap-and-Invest Approach

James D. Flynn*

This post is part of the Environmental Law Review Syndicate

Introduction

In recent years, states in New England and the mid-Atlantic region have made significant progress in reducing climate change-inducing greenhouse gas (GHG) emissions from the electricity generation sector.[1] Several factors¾including the effects of the economic recession, shifts in energy markets from coal to natural gas and renewable energy sources, and carbon pollution mitigation and clean energy programs like renewable portfolio standards¾have been identified as principal drivers of these reductions.[2] Another is the Regional Greenhouse Gas Initiative (RGGI), a cooperative effort among nine northeastern and mid-Atlantic states to reduce carbon dioxide (CO2) emissions from the power sector.[3] RGGI employs a cap-and-invest approach in which the participating states set a regionally uniform, decreasing cap on CO2 emissions from covered power plants, periodically auction off emission allowances, and invest auction proceeds in other programs including end-use energy efficiency, renewable energy, greenhouse gas abatement, and direct customer electric bill assistance.[4] One study estimates that CO2 emissions in the RGGI region would have been approximately 24 percent higher in 2015 but for the program, which took effect in 2009.[5] At the same time, it is estimated that through 2015, RGGI generated approximately $2.9 million in net economic benefits,[6] and that the investment of RGGI allowance auction proceeds in 2015 alone will return $2.31 billion in lifetime energy bill savings for consumers.[7]

Over approximately the same period of time, however, CO2 emissions from the transportation sector in RGGI states have remained relatively level or have increased. Transportation accounts for 44 percent total CO2 emissions in the region, more than any other sector.[8] Each RGGI member state has adopted a long-term GHG reduction goal, set by statute or executive order, or in climate- or energy-related plans, “generally consistent with achieving an 80 percent reduction of GHG emissions by 2050 from 1990 levels.”[9] Most states’ goals do not include sector-specific emission targets, but because transportation is the largest source of emissions in the region, shifting to a cleaner transportation system is a “critical component of the action needed to meet economy-wide goals and to avoid further catastrophic harms of climate change.”[10] RGGI states already employ a variety of policy mechanisms aimed at decarbonizing transportation,[11] but have been considering whether to employ a cap-and-invest approach similar to RGGI or California’s multi-sector cap-and-invest program, which includes the state’s transportation sector.[12]

This paper first discusses the mechanics of RGGI and California’s cap-and-invest program generally, including how auction proceeds are invested. It then discusses the potential to use a cap-and-invest approach to mitigate GHG emissions from transportation in the Northeast and mid-Atlantic and addresses two key policy considerations: the type of fuels to be covered and the point of regulation. It concludes that, if properly designed, a cap-and-invest approach could achieve significant GHG reductions from transportation in the region and generate substantial funds for other GHG mitigation and climate change adaptation initiatives.

I. The Cap-and-Invest Model

Cap-and-trade programs generally operate as follows.[13] The government sets an overall emissions target¾the cap¾and determines which facilities will be covered. Emission allowances, each generally equal to one ton of emissions, are periodically auctioned or distributed without cost—or both—to covered facilities.[14] The total number of allowances is equivalent to the cap number, which decreases over time.[15] A market is created in which covered facilities may purchase or sell allowances from other covered facilities. Covered facilities are required to hold enough allowances to cover their emissions at the end of a compliance period, which may range from one to three years.[16] If a facility lacks sufficient allowances, it will be assessed a monetary penalty in addition to having to purchase enough allowances to cover the shortfall.

This market-based approach provides covered facilities three options: (1) they may reduce their emissions to meet the number of allowances they purchase or receive; (2) they may purchase additional allowances on the market and emit more; or (3) they may reduce their emissions below the allowances they hold and sell the remainder on the market.[17] The advantage of cap-and-trade programs is that facilities that can reduce their emissions more cost-effectively will do so, while those that face higher emissions reduction costs will purchase additional allowances at auction or on the market.[18] Accordingly, cap-and-trade schemes provide firms with flexibility to design cost-effective, tailored emissions plans, and the regulator achieves its policy objective by means of the overall emissions cap.[19] “Cap-and-invest” refers to cap-and-trade programs that invest their proceeds into other policy initiatives intended to address the pollutant or its effects.

a. RGGI

RGGI is the first market-based regulatory program in the United States designed to reduce GHG emissions.[20] It is a cooperative effort among the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont to cap and reduce CO2 emissions from the electricity generation sector.[21] RGGI is composed of individual CO2 budget trading programs implemented in each participating state. Through independent regulations, each state’s CO2 budget trading program limits emissions of CO2 from electric power plants with the capacity to generate 25 megawatts or more (some 164 facilities), issues CO2 allowances, and establishes participation in regional CO2 allowance auctions.[22]

RGGI began with discussions among the governors of seven New England and mid-Atlantic states, which led to a 2005 Memorandum of Understanding that outlined the program.[23] In 2008, the RGGI states issued a Model Rule that participating states could use as guidance to establish and implement their individual programs.[24] RGGI’s designers expected the initial program might be expanded in the future by covering other emission sources, sectors, GHGs, or states.[25] CO2 emissions from covered facilities in RGGI states account for approximately 20 percent of GHG emissions in the region.[26]

At the end of each three-year compliance period, covered facilities must surrender one allowance for each ton of CO2 emissions generated during the period.[27] Covered facilities are permitted to bank an unlimited number of emission allowances for future use.[28] Over 90 percent of allowances are distributed through periodic auctions, and a reserve price sets a price floor for allowances.[29] RGGI employs a “cost containment reserve” that allows for additional allowances to be auctioned if certain price thresholds are met.[30] In limited circumstances, covered facilities may also submit offsets, which are measurable reductions, avoidances, or sequestrations of emissions from non-covered sources, in lieu of emission allowances.[31] The RGGI states agreed that each would use at least 25 percent of its individual auction proceeds “for a consumer benefit or strategic energy purpose.”[32]

Member states invest the proceeds from allowance auctions in a variety of consumer benefit programs at scale.[33] In October 2017, RGGI, Inc. (the corporate entity that administers RGGI) released a report that tracks the investment of RGGI auction proceeds in 2015 and the benefits of these investments throughout the region.[34] The report estimates that “[t]he lifetime effects of these investments are projected to save 28 million MMBtu of fossil fuel energy and 9 million MWh of electricity, avoiding the release of 5.3 million short tons [4.8 million metric tons] of carbon pollution.”[35] The report also notes that “RGGI investments in 2015 are estimated to return $2.31 billion in lifetime energy bill savings to more than 161,000 households and 6,000 businesses which participated in programs funded by RGGI investments, and to 1.5 million households and over 37,000 businesses which received direct bill assistance.”[36] RGGI states have discretion as to how they invest RGGI proceeds.

The report breaks down these investments into four categories. Energy efficiency makes up 64 percent of investments. Funded programs are expected to return $1.3 billion in lifetime energy bill savings to over 141,000 participating households and 5,700 regional businesses.[37] Clean and renewable energy makes up 16 percent of investments, and investments in these technologies are expected to return $785.8 million in lifetime energy bill savings to 19,600 participating households and 122 regional businesses.[38] Greenhouse gas abatement makes up 4 percent of investments and are expected to avoid the release of 636,000 short tons of CO2.[39] Finally, direct bill assistance makes up 10 percent of investments accounting for $40.4 million in bill credits and assistance to consumers.[40] One independent report notes that while RGGI states each have their own unique auction revenue investment programs, “[o]verall, greater than 60 percent of proceeds are invested to improve end-use energy efficiency and to accelerate the deployment of renewable energy technologies,”[41] which far exceeds the 25 percent investment “for a consumer benefit or strategic energy purpose” required by the Model Rule.

Whether or not RGGI has been successful is the subject of debate. As designed, it applies only to CO2 and only to emissions from some 164 power plants with the capacity to generate twenty-five megawatts or more.[42] Since CO2 accounts for only 20 percent of total GHG emissions in the RGGI states, and electricity generation accounts a fraction of total CO2 emissions, RGGI’s potential is limited.[43] The Congressional Research Service has thus described the initiative’s contribution to global GHG reductions to be “arguably negligible.”[44] In addition, RGGI significantly overestimated emissions from member states for its first compliance period and set an initial emissions cap that was actually above realized emissions levels.[45] This limited participation in the program and allowed participating facilities to bank substantial amounts of unused allowances. After the 2012 program review, RGGI lowered the cap by 45 percent between 2014 and 2020.[46] And after the most recent review in 2016, RGGI lowered the cap by an additional 30 percent between 2020 and 2030.[47] The extent to which these adjustments will hasten emissions reductions to be seen. On the other hand, several studies have shown that the combination of the price signal created by RGGI and the investment of allowance auction proceeds in other environmental programs has been the dominant driver of the recent emissions decline in the region.[48]

b. California’s Cap-and-Invest Program

In 2006, California enacted its landmark climate change law, the Global Warming Solutions Act, also known as AB (“assembly bill”) 32.[49] The statute established an aggressive goal of reducing GHG emissions to 1990 levels by 2020, and an 80 percent reduction from 1990 levels by 2050, across multiple sectors of the state’s economy.[50] AB 32 directed the California Air Resources Board (CARB), the state’s air pollution regulator, to implement a cap-and-trade program, which went into effect in 2013.[51]

According to CARB, the program, which covers approximately 450 entities, “sets a statewide limit on sources responsible for 85 percent of California’s greenhouse gas emissions, and establishes a price signal needed to drive long-term investment in cleaner fuels and more efficient use of energy.”[52] It is “designed to provide covered entities the flexibility to seek out and implement the lowest-cost options to reduce emissions.”[53] The 2013 cap was set at about 2 percent below the emissions level forecast for 2012, declines an additional 2 percent in 2014, and declines 3 percent annually from 2015 to 2020.[54]

Unlike RGGI, California’s program distributes free allocations of emission allowances earlier in the program, but those allocations decrease over time as the program transitions to an auction process.[55] The allocation for most industrial sectors is set at approximately 90 percent of average emissions and is updated annually based on each facility’s production.[56] Electrical distribution and natural gas facilities receive free allowances on the condition that the value of allowances must be used to benefit ratepayers and achieve GHG emission reductions.[57] The allocation for electrical distribution utilities is set at about 90 percent of average emissions, and for natural gas utilities, is based on natural gas supplied in 2011 to non-covered entities.[58] The program includes cost containment measures and allows for the banking of allowances, has a three-year compliance period with an annual obligation to surrender 30 percent of their previous year’s emissions, and allows for offsets of up to 8 percent of a facility’s compliance obligation.[59] AB 32 also employs a substantial penalty mechanism for facilities that fail to meet their compliance obligations: “If the compliance deadline is missed or there is a shortfall, four allowances must be provided for every ton of emissions that was not covered in time.”[60]

California’s cap-and-trade program became linked with Québec’s cap-and-trade system on January 1, 2014 and became linked with Ontario’s cap-and-trade program on January 1, 2018.[61] All allowances issued by the California, Québec, and Ontario programs before and after the linkage can be used for compliance interchangeably across jurisdictions.[62] The three jurisdictions also hold joint allowance auctions.

On January 1, 2015, suppliers of transportation fuels, including gasoline and diesel fuel, became covered under the program.[63] A fuel supplier is defined as “a supplier of petroleum products, a supplier of biomass-derived transportation fuels, a supplier of natural gas including operators of interstate and intrastate pipelines, a supplier of liquefied natural gas, or a supplier of liquefied petroleum gas.”[64] All fuel suppliers that deliver or import 10,000 metric tons or more of annual CO2 equivalent emissions are subject to a reporting requirement, but only suppliers that reach a 25,000 metric ton threshold are covered by the cap-and-trade program.[65]

Proceeds from the allowance auctions are deposited in the state’s Greenhouse Gas Reduction Fund and are appropriated by the state legislature for “investing in projects that reduce carbon pollution in California, including investments to benefit disadvantaged communities, recycling, and sustainable transit.”[66] As of 2017, some $3.4 billion had been appropriated to state agencies implementing GHG emission reduction programs and projects, collectively referred to as the California Climate Investments.[67] Of that amount, $1.2 billion has been expended on projects “expected to reduce GHG emissions by over 15 million metric tons of carbon dioxide equivalent.”[68]

II. Applying a Cap-and-Invest Approach to Northeast and Mid-Atlantic Transportation Sector

Under business-as-usual trends, carbon emissions in RGGI states will be 23 percent below the 1990 baseline in 2030.[69] These states must achieve much deeper emissions reductions across multiple economic sectors in order to achieve their “greenhouse gas emission reduction targets for 2030 that range from 35 to 45 percent, centered around a 40 percent reduction from 1990 levels.”[70] Since transportation represents the largest share of GHG emissions in the RGGI states, that sector should be a primary focus of policymakers’ attention.

One study finds that the levels of emissions reductions necessary to meet the GHG reduction goals of the states in the region could be accomplished “through a suite of clean transportation policies” including financial incentives for the purchase of clean vehicles, such as electric and hybrid light-duty vehicles and natural gas powered heavy-duty vehicles; investments in public transit expansion including bus rapid transit, light rail, and heavy rail; promotion of compact land use; investment in bicycle infrastructure; support for travel demand management strategies; investment in system operations efficiency technologies; and investment in infrastructure to support rail and short-sea freight shipping.[71]

One potential mechanism for achieving the levels of reductions necessary for the RGGI states to meet their targets “would be to implement a transportation pricing policy, which could both achieve GHG reductions and generate proceeds that could be used to fund clean and resilient transportation solutions.”[72] For example, “carbon-content-based fees, mileage-based user fees, and motor-fuel taxes” could “generate an average of $1.5 billion to $6 billion annually in the region.”[73] A mid-range pricing policy that generated approximately $3 billion annually “would create a price signal that would promote alternatives to single-occupancy vehicle travel and result in modest additional emission reductions. It would also raise a cumulative $41 billion to $46 billion for the region during 2015-2030.”[74] Proceeds from such a pricing policy would offset projected declines from existing state and federal gasoline taxes and could be used to fund other clean transportation initiatives.[75]

A hypothetical regional cap-and-invest program for vehicle emissions might be structured as follows. Member states would establish a mandatory regional cap on GHG emissions from the combustion of fossil transportation fuels calculated using volumetric fuel data and fuel emission factors available from the Environmental Protection Agency.[76] The cap would decline over time. States would auction allowances equal to the cap and establish an entity like RGGI, Inc. to administer the program, auction platform, and allowance market.[77] Regulated entities would achieve compliance by purchasing allowances at auction or from other market participants, and possibly with offsets earned from reductions in other aspects of their operations.[78] As with RGGI, individual member states would commit to invest a percentage of their auction proceeds into other initiatives aimed at reducing GHG emissions, including from transportation, and could retain the discretion to decide individually how to allocate those funds.[79]

Because power plants are stationary and relatively few in number, their GHG emissions can be regulated directly, i.e., at the stack. Vehicles, however, are mobile and far more numerous. To regulate the emissions from every fossil fuel powered vehicle at the tailpipe would entail a substantial and possibly prohibitive administrative burden, and would likely be politically unpalatable. An alternative is to use transportation fuel as the point of regulation. Determining which types of fuels and which entities in the fuel supply chain to cover under the cap-and-invest program will be critical.

Transportation fuels that could be covered include gasoline, on-road and off-road diesels, aviation fuels, natural gas, propane/butane, and marine fuels.[80] Considering both the volume of each type of fuel consumed and the comparative emissions resulting from its consumption, the program should cover, at a minimum, gasoline and on-road diesel, which account for approximately 85 percent of carbon emissions from transportation in the region.[81] Other fuels may make up too small a portion of total emissions to justify the additional technical and regulatory burden of covering them.[82] In addition, because all states in the region currently require reporting on gasoline and on-road diesel, the most straightforward approach would be to regulate those fuels. Covering other fuels would require at least some states that do not already require reporting of these fuels to establish new reporting requirements.[83]

Another key design choice is the point of regulation: which entities within the transportation fuel supply chain should be subject to the regulatory obligation to hold sufficient allowances. Because all states in the region have existing reporting and enforcement mechanisms for gasoline and on-road diesel (and many also tax off-road diesel and aviation fuel), one option would be to regulate existing state points of taxation for these fuels.[84] However, state points of taxation are not uniform throughout the region. They can include many different types of entities in the supply chain and in some states the point of taxation is different for different fuels.[85] State regulations also differ with respect to what actions by covered entities trigger the reporting requirement.[86] Many states have points of regulation low in the supply chain, such as entities that purchase fuel from the terminal rack and distribute it to retailers.[87] Thus, while using existing state points of taxation to regulate transportation fuels would make use of existing state regulatory mechanisms, it would also require regulating over one thousand entities across the region, many of which are smaller distributors.[88]

Another possible point of regulation would be one that is as far upstream as possible, i.e., entities that refine fuel in the region for use in the region, and those that import fuel into the region for use in the region.[89] This would include refineries, and for fuels refined outside the region, the first importers into the region.[90] Eight refineries in the region and an unknown number of first importers, including foreign suppliers and suppliers from U.S. states outside the region, would be subject to regulation.[91] This option would require reporting of the destination of all fuel produced in or that enters the region to ensure that a fuel to be used outside the region is not inadvertently covered.[92] While the Energy Information Administration (EIA) and the Environmental Protection Agency generally require destination data from refiners and importers into the U.S. and from interstate suppliers, the agencies do not publicly disclose this data.[93] Thus, regulating refiners and importers would likely cover many fewer entities as compared to existing state points of taxation, most of which would be large petroleum companies.[94] However, because only three states in the region have refineries within their borders, and because importers are not systematically tracked throughout the region, accounting for fuels that are transported through states to prevent double-counting would likely require the establishment of new regional reporting requirements that would include points of origin and destination.[95]

A third possible point of regulation would be entities known as prime suppliers, defined by the EIA as “suppliers who produce, import, or transport product across state boundaries and local marketing areas and sell to local distributors, local retailers, or end-users.”[96] For the region, this includes approximately 30 refiners, other producers of finished fuel, interstate resellers and retailers, and importers.[97] EIA requires these entities to report the amount of fuel, including gasoline, diesel, and aviation fuel, sold or transferred for end use by state on a monthly basis.[98] Although EIA does not publicly provide disaggregated prime supplier data because of statutory privacy restrictions, organizations may enter into data-sharing arrangements with EIA to obtain individual prime supplier data.[99] Thus, while the prime supplier group would include a larger number of regulated entities than importers and refiners, it would provide a consistent definition of a point of regulation already understood by the regulated entities.[100] Regulating prime suppliers, most of which are higher in the supply chain than existing state points of taxation, would also relieve most smaller entities of compliance obligations.[101]

Conclusion

States in states in New England and the mid-Atlantic region must make much deeper emissions reductions in the transportation sector in order to meet their overall GHG emission reduction targets. Recognizing this reality, representatives from Connecticut, Delaware, Maryland, Massachusetts, New York, Rhode Island, Vermont, and Washington, D.C., at the 2017 Conference of the Parties to the United Nations Framework Convention on Climate Change, signed a joint statement affirming their commitment to reducing GHG emissions from the transportation sector. In that statement, they identified “market-based carbon mitigation strategies” as potential pathways to achieving needed emissions reductions.[102]

Despite its early struggles, the cap-and-invest approach to mitigating emissions in the northeast and mid-Atlantic electricity generation sector has achieved, at a minimum, some emissions reductions, substantial investment in other GHG mitigation efforts, and overall net benefits within the region. California has achieved substantial GHG emissions reductions across multiple sectors, including transportation, and has invested substantial sums in a suite of other green programs. These examples demonstrate the potential of using a cap-and-invest approach to accomplish environmentally and economically sound policy objectives, both within the RGGI region and in the context of transportation. If properly structured, such an approach could achieve significant emissions reductions in the region and raise substantial funds for other GHG mitigation and climate change adaptation initiatives.

How would a cap-and-invest approach to transportation emissions be structured? The fundamental aspects of RGGI and California’s cap-and-invest program are similar in most respects. California occupies a unique position in federal regulation of automobile emissions and had the benefit of constructing a program applicable only to itself, although its program is now linked with programs in other jurisdictions. RGGI already covers much of the Northeast and mid-Atlantic region, could be expanded to include other sectors of those states’ economies, including transportation, and could be linked with the California-Québec-Ontario cap-and-invest system to create a larger and more efficient allowance market.

Owing to the practical differences between directly regulating emissions from power plants and indirectly regulating transportation emissions by fuel type and supply chain point, the mechanics of using a cap-and-invest approach to mitigate transportation emissions, especially across jurisdictions, poses some potentially challenging design issues. The program should cover, at a minimum, gasoline and on-road diesel. Identifying the appropriate point of regulation will require policymakers to consider a host of technical, administrative, and policy issues. Existing state points of taxation are numerous and vary by jurisdiction and by fuel type within jurisdictions. Upstream refiners and importers are far fewer in number but regulating these entities would likely require the development of new regional reporting mechanisms that might make this option administratively undesirable. While the prime suppliers group is larger in number than refiners and importers, regulating prime suppliers would provide a consistent state-based definition of a point of regulation already understood by the regulated entities, and would not subject most smaller entities to compliance obligations.

* James Flynn is an LL.M. candidate at New York University School of Law and the graduate editor of the NYU Environmental Law Journal.

[1] See Energy Information Administration, State Carbon Dioxide Emissions Data (last visited Feb. 10, 2018), https://www.eia.gov/environment/emissions/state/.

[2] See Gabe Pacyniak, et al., Reducing Greenhouse Gas Emissions from Transportation: Opportunities in the Northeast and Mid-Atlantic, Georgetown Climate Center 8 (2015), http://www.georgetownclimate.org/files/report/GCC-Reducing_GHG_Emissions_from_Transportation-11.24.15.pdf.

[3] Regional Greenhouse Gas Initiative, Welcome (last visited Feb. 10, 2018), https://www.rggi.org.

[4] Regional Greenhouse Gas Initiative, RGGI Benefits (last visited Feb. 10, 2018), https://www.rggi.org/investments/proceeds-investments.

[5] Brian C. Murray and Peter T. Maniloff, Why have greenhouse emissions in RGGI states declined? An econometric attribution to economic, energy market, and policy factors, Energy Economics 51, 588 (2015).

[6] See Paul J. Hibbard, et al., The Economic Impacts of the Regional Greenhouse Gas Initiative on Nine Northeast and Mid-Atlantic States, Analysis Group 5 (July 14, 2015), http://www.analysisgroup.com/uploadedfiles/content/insights/publishing/analysis_group_rggi_report_july_2015.pdf; Ceres, The Regional Greenhouse Gas Initiative: A Fact Sheet (2015), https://www.ceres.org/sites/default/files/Fact%20Sheets%20or%20misc%20files/RGGI%20Fact%20Sheet.pdf.

[7] Regional Greenhouse Gas Initiative, The Investment of RGGI Proceeds in 2015 3 (Oct. 2017), https://www.rggi.org/sites/default/files/Uploads/Proceeds/RGGI_Proceeds_Report_2015.pdf.

[8] See Energy Information Administration, supra note 1; Gerald B. Silverman and Adrianne Appel, Northeast States Hit the Brakes on Carbon Emissions From Cars, BNA (Oct. 16, 2017), https://www.bna.com/northeast-states-hit-n73014470981/.

[9] Pacyniak, supra note 2.

[10] Id.

[11] See Gabe Pacyniak, et al., Reducing Greenhouse Gas Emissions from Transportation: Opportunities in the Northeast and Mid-Atlantic, Appendix 3: State GHG Reduction Goals in the TCI Region, Georgetown Climate Center 4-13 (2015), http://www.georgetownclimate.org/files/report/Apndx3_TCIStateEnergyClimateGoals-Nov2015-v2_1.pdf.

[12] See, e.g., Center for Climate and Energy Solutions, California Cap and Trade (last visited Feb. 10, 2018), https://www.c2es.org/content/california-cap-and-trade/.

[13] See Joel B. Eisen, et al., Energy, Economics and the Environment 326 (4th ed. 2015).

[14] Id.

[15] Id.

[16] See id.

[17] Id.

[18] See id.

[19] See id.

[20] See Regional Greenhouse Gas Initiative, supra note 3.

[21] See id.

[22] Regional Greenhouse Gas Initiative, Program Design (last visited Feb. 10, 2018), https://www.rggi.org/program-overview-and-design/elements.

[23] Regional Greenhouse Gas Initiative, A Brief History of RGGI (last visited Feb. 10, 2018), https://www.rggi.org/program-overview-and-design/design-archive.

[24] Id.

[25] Jonathan L. Ramseur, The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress,

Congressional Research Service 3 (May 16, 2017), https://fas.org/sgp/crs/misc/R41836.pdf.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id. at 4.

[32] Id. at 3.

[33] See Brian M. Jones, Christopher Van Atten, and Kaley Bangston, A Pioneering Approach to Carbon Markets: How the Northeast States Redefined Cap and Trade for the Benefit of Consumers, M.J. Bradley & Associates 4 (Feb. 2017), http://www.mjbradley.com/sites/default/files/rggimarkets02-15-2017.pdf.

[34] Regional Greenhouse Gas Initiative, The Investment of RGGI Proceeds in 2015 (Oct. 2017), https://www.rggi.org/sites/default/files/Uploads/Proceeds/RGGI_Proceeds_Report_2015.pdf.

[35] Id. at 3.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Jones, supra note 33.

[42] Id.

[43] See id. at 3.

[44] Id. at 17.

[45] Id. at 4.

[46] Regional Greenhouse Gas Initiative, Elements of RGGI (last visited Feb. 10, 2018), https://www.rggi.org/program-overview-and-design/elements.

[47] Regional Greenhouse Gas Initiative, Summary of RGGI Model Rule Updates 1 (Dec. 19, 2017), https://www.rggi.org/program-overview-and-design/elements.

[48] See Murray, supra note 5 at 25-26; Man-Keun Kim and Taehoo Kim, Estimating impact of regional greenhouse gas initiative on coal to gas switching using synthetic control methods, Energy Economics 59, 334 (2016).

[49] California Air Resources Board, Assembly Bill 32 Overview (last visited Feb. 10, 2018), https://www.arb.ca.gov/cc/ab32/ab32.htm.

[50] Id.

[51] Id.

[52] Id.

[53] California Air Resources Board, Overview of ARB Emissions Trading Program 1 (last visited Feb. 10, 2018), https://www.arb.ca.gov/cc/capandtrade/guidance/cap_trade_overview.pdf.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id. at 2.

[60] Id.

[61] California Air Resources Board, Facts About The Linked Cap-and-Trade Programs 1 (updated Dec. 1, 2017), https://www.arb.ca.gov/cc/capandtrade/linkage/linkage_fact_sheet.pdf.

[62] Id.

[63] California Air Resources Board, Information for Entities That Take Delivery of Fuel for Fuels Phased into the Cap- and-Trade Program Beginning on January 1, 2015 1 (last visited Feb. 10, 2018), https://www.arb.ca.gov/cc/capandtrade/guidance/faq_fuel_purchasers.pdf.

[64] Id. at 2.

[65] Id.

[66] California Air Resources Board, 2017 Report to the Legislature on California Climate Investments Using Cap-And-Trade Auction Proceeds i (2017), https://www.arb.ca.gov/cc/capandtrade/auctionproceeds/cci_annual_report_2017.pdf.

[67] Id.

[68] Id. at v.

[69] Elizabeth A. Stanton, et al., The RGGI Opportunity, Synapse Energy Economics, Inc. 3 (revised Feb. 5, 2016), http://www.synapse-energy.com/sites/default/files/The-RGGI-Opportunity.pdf. Notably, this study took into account the anticipated effect of the Clean Power Plan, which President Donald Trump and Environmental Protection Agency Administrator Scott Pruitt propose to repeal. See id. at 4.

[70] Id. at 2.

[71] Pacyniak, supra note 2 at 22. The Georgetown Climate Center serves as the facilitator for the Transportation Climate Initiative, which is “a collaboration of the agency heads of the transportation, energy, and environment agencies of 11 states and the District of Columbia, who in 2010 committed to work together to improve efficiency and reduce greenhouse gas emissions from the transportation sector throughout the northeast and mid-Atlantic region.” Id. at i.

[72] Id. at 25.

[73] Id.

[74] Id.

[75] Id. at 26-27.

[76] Drew Veysey, Gabe Pacyniak, and James Bradbury, Reducing Transportation Emissions in the Northeast and Mid-Atlantic: Fuel System Considerations, Georgetown Climate Center 7 (Nov. 13, 2017), http://www.georgetownclimate.org/files/report/GCC_TransportationFuelSystemConsiderations_Nov2017.pdf.

[77] Id.

[78] Id.

[79] See id.

[80] Id. at 9.

[81] See id. at 11-13.

[82] See id. at 33.

[83] Id. at 20.

[84] Id.

[85] Id. at 16.

[86] Id.

[87] Id. at 17.

[88] Id. at 33.

[89] Id. at 21.

[90] Id.

[91] Id.

[92] Id. at 22.

[93] Id.

[94] Id. at 33.

[95] Id.

[96] Id. at 24.

[97] Id.

[98] Id.

[99] Id. at 25.

[100] Id. at 33

[101] Id.

[102] See Transportation and Climate Initiative, Northeast and Mid-Atlantic States Seek Public Input As They Move Toward a Cleaner Transportation Future (Nov. 13, 2017), https://www.transportationandclimate.org/northeast-and-mid-atlantic-states-seek-public-input-they-move-toward-cleaner-transportation-future; Sierra Club, Northeast and Mid-Atlantic Governors Lauded for Announcement on Transportation and Climate, Press Release (Nov. 13, 2017), https://www.sierraclub.org/press-releases/2017/11/northeast-and-mid-atlantic-governors-lauded-for-announcement-transportation.

Reinstating CERCLA as the “Polluter Pays” Statute with the Circuit Court’s Mutually Exclusive Approach

By Brianna E. Tibett[i]

This post is part of the Environmental Law Review Syndicate

Introduction

The purpose of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is to facilitate the “timely cleanup of hazardous waste sites and to ensure that the [cleanup costs are] borne by those responsible for the contamination.”[ii] The proper application of CERCLA’s two private causes of action is necessary to achieve these goals. When applied properly they encourage private parties to voluntarily cleanup hazardous waste sites, effectively spread the cost of cleanup to the responsible parties, and encourage settlement.

For example, when a private potentially responsible party (PRP) voluntarily cleans up a site before any action regarding the site is commenced the PRP eliminates their exposure to uncertain liability, and avails itself of the “arguably preferred recovery vehicle for a PRP,” the cost recovery action. The private cost recovery action, under § 107(a)(4)(B), allows private parties to seek to recover the costs they incurred in voluntarily cleaning up a contaminated site from PRPs (regardless of their contribution to the site’s contamination).[iii] The PRP subject to the § 107(a)(4)(B) cost recovery action, can counterclaim in or bring against multiple other PRPs a § 113(f)(1) contribution action, requiring the equitable apportionment of the response costs.[iv] The remedy and the shorter statute of limitations afforded by contribution actions incentivizes PRPs to immediately locate other PRPs and initiate lawsuits sooner.[v]

The Supreme Court’s framework for the application of these private causes of action created in Atlantic Research[vi] jeopardizes CERCLA’s mechanisms that encourage PRPs to settle with the EPA. The Court’s framework identifies the cause of action that applies exclusively in some circumstances but not all. Specifically, the framework leaves open the availability of both causes of action in situations in which costs are directly incurred as a result of forced cleanup. Uncertainty around the cause of action that a court will allow in circumstances of compelled cleanup may cause PRPs to stray away from settling with the Environmental Protection Agency (EPA), and thus make it more difficult for the EPA to negotiate cleanup and reimbursement settlements.[vii] Or it could incentivize PRPs to attempt to pass their tab on to another PRP by settling [to cleanup] and then bringing a cost recovery action to recover those cleanup costs. Which if permitted would leave the defendant unable to counter-sue for contribution, because of the plaintiff-PRP’s contribution bar, defeating CERCLA’s goal to have the responsible parties pay for cleanup.[viii]

The United States’ Courts of Appeals, have advanced a mutually exclusive framework that fully clarifies the applicability of and the interplay between the private causes of action. This Article supports the mutually exclusive approach. First, the Article provides a brief overview of the history and development of the private causes of action. Second, the Article highlights the issues regarding the applicability of the private causes of action left unresolved by the Court. Third, the Article demonstrates how the mutually exclusive framework, established by the U.S. courts of appeals, seamlessly resolves those issues and facilitates the advancement of CERCLA’s goals.

I. History and Development of CERCLA’s Private Causes of Action

A. CERCLA’s Enactment

Congress’s prime motivation for passing CERCLA was to provide the EPA with the ability to promptly respond to the country’s hazardous waste sites and to place the cost of the response on the responsible parties, the “polluters.”[i] To that end, Congress furnished the EPA with the means to undertake cleanup itself,[ii] sue PRPs for reimbursement,[iii] and the authority to compel PRPs to clean up contaminated sites.[iv] However, Congress recognized that the EPA would not be equipped on its own to address 30,000 to 50,000 improperly managed hazardous waste sites.[v] CERCLA would also have to induce private parties to perform cleanup.[vi] Accordingly, Congress included § 107(a)(4)(B), to enable private parties to recover their costs of cleanup from PRPs.[vii]

Because of CERCLA’s liability scheme, the remedies available to PRPs were in dispute.[viii] Under § 107(a)(4)(A) the courts have interpreted CERCLA’s liability to apply retroactively, strictly, jointly, and severally.[ix] Additionally, CERCLA liability extends beyond polluters to also include those who would benefit from cleaned sites, such as current owners and operators.[x] Thus, a current owner of contaminated property who did not contribute to the release of hazardous waste, or a past owner who only contributed a small part of the waste, may be a PRP.[xi] PRPs may find themselves subject to a cost recovery action, and if so, ultimately liable for the entire cost of cleanup.

To mitigate these harsh results, some courts held either that § 107(a)(4)(B) or federal common law provided litigants subject to a § 107 cost recovery claim an implied right to contribution.[xii] This allowed PRPs to either counterclaim for contribution or sue other PRPs for contribution.[xiii] A successful contribution action permits the equitable apportionment of costs among PRPs,[xiv] ameliorating the harsh effects of joint and several liability. As a result, more PRPs were required to pay their proportionate share of the cleanup instead of leaving a single PRP liable. Despite these efforts, extensive litigation continued, necessitating a CERCLA amendment.[xv]

B. SARA’s Contribution Action and Contribution Protection

Congress passed the Superfund Amendments and Reauthorization Act (SARA) in 1986 to address: (1) the EPA’s inability to timely recover response costs; (2) the threat that the courts would erode joint and several liability into a “fair share” allocation; and (3) the effectiveness of contribution actions in spreading the cost of cleanup to responsible parties.[xvi] SARA created an express cause of action for contribution and incorporated statutes of limitations.[xvii] The right to contribution, codified in § 113(f)(1),[xviii] allows a PRP, “during or following” a § 106 (compelled clean-up) or § 107 civil action, to seek contribution payments from another PRP that has not resolved its liability.[xix] The “settlement bar” created by SARA in § 113(f)(2), provides parties who have reached an “administrative or judicially approved settlement” with “contribution protection”—immunity from contribution claims that concern matters within the agreement.[xx]

The new provisions, although preserving contribution, did not fully resolve existing issues and indeed generated new ones. For example, SARA did not answer whether an implied right to contribution still remains when contribution pursuant to § 113(f) is unavailable—i.e., whether PRPs may pursue contribution only through § 113(f).[xxi] Many United States Courts of Appeals, while attempting to navigate § 107(a) and § 113(f) claims, have held that a claim for contribution under § 113(f) was the exclusive remedy for PRPs.[xxii] By preventing PRPs from pursuing an action under § 107(a), § 113(f) served as PRPs’ sole avenue to seek contribution.[xxiii] Still, some courts expanded § 113(f)’s provisions to allow recovery actions even in the absence of a suit under § 106 or § 107.[xxiv]

C. The Supreme Court’s Cooper Industries Decision

In Cooper Industries, Inc. v. Aviall Services, Inc. the Court addressed the expanded application of § 113(f)(1) and ultimately limited its availability to PRPs “during or following” a § 106 or § 107 civil action.[xxv] The Court held that current property owners who voluntarily cleaned up the contaminated site could not maintain a contribution action under § 113(f)(1) because the claim did not arise out of a § 106 or § 107 civil action.[xxvi] First, the Court held that “may” in § 113(f)(1) should not be read as permissive; it should be read to only authorize § 113(f)(1) contribution claims “during or following” § 106 or § 107 civil actions.[xxvii] The Court stated that reading “may” to allow a PRP to bring a “contribution action at any time, regardless of the existence of a . . . civil action,” would render the language “during or following” superfluous, along with § 113(f)(3)(B), which permits contribution actions after settlement.[xxviii] Second, the Court found that § 113(f)(1)’s saving clause, does not change its reading.[xxix] The Court specified that the saving clause functions only to prevent the loss of “any cause(s) of action for contribution that may exist independently of § 113(f)(1).”[xxx] Therefore, it does not expand the scope of § 113(f)(1) or create a cause of action, it only “rebuts any presumption that the express right of contribution provided by . . . [§ 113(f)(1)] is the exclusive cause of action for contribution available to a PRP.”[xxxi]

Following this application of § 113(f)(1), several Courts of Appeals reconsidered whether PRPs have any right of action under § 107(a)(4)(B).[xxxii] After revisiting this issue, some courts permitted private cost recovery actions under § 107(a)(4)(B).[xxxiii] However, the Third Circuit continued to hold § 113(f) as the exclusive cause of action available for PRPs.[xxxiv] Accordingly, the Third Circuit in E.I. DuPont De Nemours and Co. v. U.S. held that there was no cause of action for PRPs who engaged in “sua sponte voluntary cleanups,”[xxxv] effectively disincentivizing voluntary cleanup.

D. Supreme Court’s Atlantic Research Decision

The Court again revisited the scope of CERCLA’s private causes of action. In United States v. Atlantic Research Corp., the Court: (1) held that PRPs have a right to cost recovery under § 107(a)(4)(B);[xxxvi] (2) clarified that §§ 107(a) and 113(f) provide distinct remedies; and (3) provided a framework for the application of §§ 107(a)(4)(B) and 113(f)(1) actions.[xxxvii] The Court made the inference that Congress sculpted § 113(f)(1) based on the traditional sense of contribution, which is contingent “upon an inequitable distribution of common liability among liable parties.”[xxxviii] However, because the statute authorizes PRPs to seek contribution “during or following” a civil action, liability does not need to be established before bringing a contribution action under § 113(f)(1).[xxxix]

The Court held that PRPs may utilize a cost recovery action, pursuant to § 107(a)(4)(B), only to recover costs the PRP “‘incurred’ in cleaning up a site.”[xl] For instance, when a PRP reimburses another party, the PRP has not incurred its own cleanup costs and thus cannot recover them under § 107(a)(4)(B).[xli] Additionally, the Court held that § 107(a)(4)(B) is the sole cause of action to recover costs incurred during voluntary cleanup.[xlii] With these distinctions made, the Court states that the remedies available in §§ 107(a) and 113(f) “provid[e] causes of action ‘to persons in different procedural circumstances,’” and as a result they do not cause conflict, or provide an opportunity for a PRP to choose its remedy.[xliii]

To summarize, § 113(f) authorizes a right to contribution “to PRPs with common liability stemming from an action instituted under § 106 or § 107(a).”[xliv] Respectively, after a PRP pays money pursuant to a settlement agreement or a court judgment, in which they are reimbursing those parties they may, and may only, pursue § 113(f) for contribution.[xlv] On the contrary, “§ 107(a) permits cost recovery . . . by a private party that has itself incurred cleanup costs.”[xlvi] As a result, in cases of reimbursement, a PRP cannot circumvent § 113(f)(1)’s three-year statute of limitations by attempting to bring an action in cost recovery, which has a six-year limitation.[xlvii]

Lastly, the Court claims PRPs that utilize § 107(a) “will not eviscerate the settlement bar set forth in § 113(f)(2).”[xlviii] The settlement bar provision “prohibits § 113(f) contribution claims against ‘[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement.’”[xlix] The Court explains that although the contribution bar “does not by its terms protect against cost-recovery liability,” the defendant can trigger equitable apportionment by filing a § 113(f) counterclaim.[l] In footnote 6, the Court states that in cases of reimbursement and voluntary cleanup, §§ 107(a)(4)(B) and 113(f) have no overlap, but there may be overlap when a PRP incurs expenses pursuant a consent decree.[li] In cases of “compelled costs” a PRP does not incur costs voluntarily (which would have the effect of precluding a § 113(f)(1) contribution action) but also does not reimburse the costs of another party (which would have the effect of precluding § 107(a)(4)(B) cost recovery action).[lii] The Court did not address whether these compelled costs of response are recoverable under § 107(a) or § 113(f).

II. Issues Left Unresolved by the Supreme Court 

Although the framework provided by the Court’s Cooper Industries and Atlantic Research decisions reinstate PRP’s ability to utilize § 107(a)(4)(B) for cost recovery and § 113(f) for contribution, the decisions do not clarify the complete applicability and interplay of the private causes of action. The Court’s framework for CERCLA’s private actions is limited to the following: (1) PRPs who pay money to satisfy a settlement agreement or a court judgment—incur costs in the form of reimbursement—may only pursue § 113(f) contribution actions; and (2) PRPs who have incurred cleanup costs directly—not reimbursement costs—may only seek to recover those response costs from other PRPs pursuant to § 107(a)(4)(B). Thus, in those limited “procedural circumstances,” §§ 107(a)(4)(B) and 113(f) are mutually exclusive.[i]

This limited framework leaves unresolved the cause of action or actions available to private parties in other situations, specifically when PRPs incur costs directly.[ii] The following issues, which were unresolved by the Court’s framework, have not only spurred considerable litigation, but have also caused apprehension to settling claims:

  1. Whether settling-PRPs may sue other PRPs for cost recovery pursuant 107(a)(4)(B) to recover cleanup costs that were incurred voluntarily, i.e., costs incurred independent of the administrative or judicially approved settlement.
  2. What causes of action do settling-PRPs that incur costs directly in order to comply with settlement obligations have when such settlement does not satisfy the requirements set forth in 113(f)(3)(B).
  3. What cause of action is available to PRPs who directly incur cleanup costs under an obligation in an “administrative or judicially approved settlement?” May they bring an action in cost recovery pursuant § 107(a)(4)(B) and as a result: (1) circumvent the contribution bar which prevents them from bringing an action in contribution against the other PRPs in their settlement agreement; and (2) render both non-settling PRPs and settling-PRPs unable to counterclaim in contribution because the plaintiff-PRP can utilize the contribution bar.
  4. Whether a PRP that settled with a state entity has a cause of action under CERCLA.
  5. Whether a private entity that finances a cleanup pursuant to a private agreement has a cause of action under CERCLA to recover costs.
  6. If the statute of limitations for a PRP’s contribution claim runs out—and a PRP can no longer pursue its right to contribution—may the PRP pursue cost recovery pursuant § 107(a)(4)(B) when it had incurred cleanup costs as a result of its obligations flowing from an “administrative or judicially approved settlement.”

Strictly adhering to the Court’s framework to resolve these issues would permit either a § 107(a)(4)(B) or § 113(f) action in all the above circumstances. Allowing settling-PRP’s to choose which cause of action they can utilize could cause any PRP, regardless their responsibility of contamination, to be stuck with the entire or a significant portion of the cleanup costs while other PRPs skirt liability.[iii] For example, under the Court’s framework, settling-PRPs could pursue cost recovery actions under § 107(a)(4)(B) for costs incurred directly from cleanup required in order to satisfy the “administrative or judicially approved settlement.” As a result, defendant PRPs subject to § 107(a)(4)(B) causes of action brought by a settling-PRP, can be subject to joint and several liability without the ability to counterclaim for contribution pursuant § 113(f)(1) because of the plaintiff-PRP’s contribution bar under § 113(f)(2). This application would not advance Congress’s intent of CERCLA being a “polluter pays” statute, where the responsible parties bear the financial responsibility of the cleanup. To the contrary, under this framework CERCLA functions more like a game of Uno.[iv]

III. The Mutually Exclusive Approach Adopted by the U.S. Courts of Appeals 

Litigation over the unresolved issues has ensued in the lower federal courts since the Court’s holding in Atlantic Research.[1] The United States’ Courts of Appeals that have heard the issues, collectively hold that the causes of action available to private parties apply mutually exclusively.[2] This framework provides a seamless application of the private causes of action in all circumstances, including those that were left unresolved by the Court.

When a private party incurs costs directly, the mutually exclusive approach resolves the issue of what proper cause of action the PRP is authorized to utilize. The lower courts agree that once it is determined that either a § 113(f)(1) or § 113(f)(3)(B) contribution action is available for the costs sought, the PRP must pursue an action for contribution, and is barred from pursuing a § 107(a)(4)(B) cost recovery action.[3] If, however, contribution is not available to recover the costs sought, the private party may pursue a § 107(a)(4)(B) cost recovery action to recover its response costs.[4] The mutual exclusive approach provides a framework for determining the causes of action for each of the unresolved issues mentioned above, while simultaneously advancing CERCLA’s goals.

A. Availability of §§ 113(f)(1) and 113(f)(3)(B) Contribution Actions Under the Mutually Exclusive Approach

All contribution claims under § 113(f) are contingent upon “an inequitable distribution of common liability among” PRPs at the time the underlying claim is resolved.[5] Following the Court’s rulings in Cooper Industries and Atlantic Research, PRPs subject to a civil action under either § 106 or § 107 may only seek contribution. The unresolved issues following the Court decisions thus lie within the application of § 113(f)(3)(B).

Section 113(f)(3)(B) provides that contribution claims are available to entities who have resolved their “liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement[.]” Following the language of § 113(f)(3)(B), the agreements that trigger contribution claims must be “administrative or judicially approved settlement[s].”[6] A judicially approved settlement can take the form of a consent decree, which results from a court’s approval of a settlement that is “fair, reasonable, and consistent with CERCLA’s goals.”[7] The “defining feature of an ‘administrative settlement’ is” the resolution of a “PRP’s liability to the United States . . . for some or all of a response action or for some or all of the costs of such action.”[8]

For an administrative settlement to trigger the application of § 113(f)(3)(B), the federal government must have followed the procedures set forth in § 122(i).[9] Although § 112(i) procedural requirements apply only to the federal government, several courts have held that in light of due process concerns, CERCLA administrative settlements entered into with a state entity require hearings or public comments, as required for federal entities in § 112(i).[10] Thus, a state administrative settlement should provide non-settling parties with notice and an opportunity to be heard.[11] If procedural safeguards similar to those set forth in § 122(i) are not followed, a settlement cannot constitute an “administrative settlement” that triggers § 113(f)(3)(B).[12] Those PRPs will neither have an action in contribution, nor will they be afforded contribution protection.[13]

Congress provided contribution protection to those parties entering into settlements to further incentivize settling, as well as to support the “polluters pay” philosophy.[14] Section 113(f)(2) bars contribution claims against entities that have resolved their liability to the United States or a state in an “administrative or judicially approved settlement” if the costs arise from matters addressed in the settlement.[15] The party claiming contribution protection, whether defendant or plaintiff, must demonstrate that it is afforded such protection. Contribution protection will not be afforded to parties that cannot demonstrate the resolution of their CERCLA liability.[16] In other words, PRPs must demonstrate that they have been subject to “an administrative or judicially approved settlement.”[17]

For example, the Pennsylvania Middle District Court held that the agreement between the Pennsylvania Department of Environmental Protection and United States did not constitute an administrative settlement because it was devoid of any procedures designed to safeguard due process concerns.[18] As a result, the court permitted the plaintiff to pursue a contribution claim against the federal government because the federal government was not afforded contribution protection[19].

When adhering to the mutually exclusive approach, if the requirements to satisfy an “administrative or judicially approved settlement” are not met by the agreement that causes the PRP to incur cleanup costs directly, that party may pursue a cost recovery action to recover those costs, because it does not have an action for contribution. On the other hand, “a party who may bring a contribution action for certain expenses must use the contribution action, even if a cost recovery action would otherwise be available.”[20]

Parties cannot circumvent the mutually exclusive approach by waiting for their contribution action to run so they can employ an action for cost recovery. When a party could have brought a § 113(f) contribution claim, but failed to do so in a timely manner (three years had passed since the party had the availability of an action under § 113(f)) the party cannot evade the statute of limitations and the allocation scheme of a § 113(f) contribution claim by bringing a § 107(a) cost recovery action.[21]

Moreover, the mutually exclusive approach permits a PRP that has incurred costs as a result of both a civil action or settlement agreement and voluntary cleanup at a single site to pursue both cost recovery and contribution actions without compromising CERCLA’s liability structure. Under the mutually exclusive approach, when any of the statutory triggers for a contribution claim occurs for certain expenses the party may only bring a § 113(f) contribution action for those expenses.[22] But, the same party may also bring a § 107(a)(4)(B) action to recover expenses that fall outside of the contribution action.[23] “[A] party’s right to contribution for some of its expenses at a site does not necessarily mean that the party loses its right to bring a cost recovery action for other expenses.”[24] Thus, costs incurred from work performed outside the obligations of an “administrative or judicial settlement” are recoverable under § 107(a)(4)(B).

B. Availability of Cost Recovery Pursuant § 107(a)(4)(B) Under the Mutually Exclusive Approach

Following the Court decision in Atlantic Research, private parties may bring a cost recovery action against other PRPs to recover costs directly incurred from engaging in cleanup pursuant to § 107(a)(4)(B).[25] This distinction does not resolve the issue of what cause of action is applicable when PRPs are obligated to incur cleanup costs pursuant to a civil action, an “administrative or judicially approved agreement,” or a private agreement. In all of these circumstances, a PRP does not reimburse another entity, but rather incurs costs directly.

The Third Circuit Court in Agere Systems applied the mutually exclusive approach to determine which, if any, private cause of action is available to a private entity that is obligated under a private settlement agreement to fund a response action. The Third Circuit held that in such circumstances the private party may recover their costs with a § 107(a)(4)(B) cost recovery action.[26] In Agere, the plaintiffs that had been subject to EPA § 107(a) civil actions were required to comply with consent decrees by doing work such as cleanup at the contaminated facilities.[27] The two plaintiffs not subject to the consent decree (Agere and TI)[28] joined a private settlement agreement with the plaintiffs subject to the consent decree.[29] The private settlement agreement required Agere and TI to fund the other plaintiffs’ two consent decrees.[30] Agere and TI then brought a cost recovery action under § 107(a)(4)(B) against other PRPs.[31] The Third Circuit Court held that the Agere and TI were permitted to bring a cost recovery action pursuant § 107(a)(4)(B).[32]

The Third Circuit explains that this holding is in-line with the Court’s decision in Atlantic Research. First, Agere and TI “incurred” costs in the ordinary sense since they were paying for ongoing work.[33] Second, when the Court made the statement that payments made pursuant to a settlement agreement are not recoverable with a § 107(a)(4)(B) cost recovery claim, those parties had § 113(f) contribution claims for their settlement amounts.[34] In contrast, the two Agere plaintiffs did not have such contribution claims, and as a result they would not have an avenue to recover those amounts under CERCLA if they were not permitted to utilize § 107(a)(4)(B).[35]

The Third Circuit goes on to explain that Congress could not have intended such an outcome because CERCLA’s goal is “to encourage private parties to assume the financial responsibility of cleanup by allowing them to seek recovery from others.”[36] CERCLA should not be read to discourage private entities’ participation in cleanup in situations where they have not yet been sued, but are aware that they may bear some responsibility for cleaning up hazardous waste.[37] The Third Circuit correctly explained that private entities would be less likely to settle if it is uncertain whether they can seek to recover some of the amounts they will contribute.[38] If they cannot recover costs for participating in cleanup, then they will wait for a party to file a civil action against them to ensure they can sue for contribution against other PRPs.[39]

Most courts have drawn this line, holding “that costs may be recovered under § 107(a)[(4)(B)] notwithstanding that they may have been ‘compelled’ under an administrative order or settlement with the government where that order or settlement does not give rise to contribution rights under § 113(f)(3)(B).”[40] But if a PRP meets one of the requirements for suit under 113(f)(1) or (3)(B), it must proceed under that § 113 subsection.[41]

C. The Benefits of the Mutually Exclusive Approach

This mutually exclusive framework advances CERCLA’s goals by bringing all of the responsible parties to the settlement table, therefore ensuring responsible parties pay their fair share of the cleanup.[42] This framework promotes the private causes of action that Congress contemplated when it enacted SARA.[43] It does not allow a settling party to circumvent the contribution bar by bringing a § 107(a)(4)(B) action against another settling party for compelled costs pursuant to its settlement agreement. Moreover, the mutually exclusive framework does not allow a settling party to wait until its contribution claim is no longer ripe once the statute of limitations has run.

Although settling parties may be subject to § 107(a)(4)(B) cost recovery actions as a result of the mutually exclusive approach, settlements in most situations do not “‘resolve liability’ for response actions not yet completed or costs of responses not yet incurred.”[44] Thus, a cost recovery action that is permitted under the mutually exclusive approach against a PRP that has already settled or been subject to a civil action is for cleanup that the party did not yet resolve its liability for, and they may counterclaim for contribution under § 113(f)(1). Furthermore, settling PRPs may be subject to claims of contribution for settlements to which it was not a party. The idea is that by the end of response actions, each phase will have a settlement with possibly different PRPs. Through the exhaustion of contribution actions, each PRP will ultimately be responsible for their fair share, and thus fully reimbursing the entities cleaning up the contamination.

However, if instead of settling, a PRP decides to wait and see whether the United States, the State, or another entity brings an action against them, they risk the possibility of being subject to a recovery action for all costs incurred from a facility. As a result, they will bear the costs of: (1) the initial litigation; (2) the substantial judgment amount; and (3) the burden of seeking out other PRPs and bringing claims in contribution, until they are relieved of the inequitable dispersion of costs. This is the original intent of CERCLA.

CONCLUSION

CERCLA’s purpose is to facilitate the prompt cleanup of contaminated sites that pose a risk to health and welfare of the country. CERCLA’s success and integrity hinges on PRPs’ cooperation in voluntarily cleaning up sites, reimbursing the EPA for response costs, and sorting out amongst themselves the equitable allocation of the costs based on their responsibility. The mutually exclusive framework created by the United States’ Courts of Appeals encourages that cooperation. It maintains the liability structure that Congress contemplated when it adopted SARA, and ensures that the responsible parties at some point throughout a site’s cleanup will be allocated their share of the costs. In conclusion, circuits that have not yet heard these issues should adopt the mutually exclusive approach to maintain CERCLA through consistency and reliability.

[1] Gaba, supra note 62, at 142.

[2] Id.

[3] See Diamond X. Ranch LLC v. Atl. Richfield Co., 2016 U.S. Dist. LEXIS 114799, 12 (2016) ( “[A] party who may bring a contribution action for certain expenses must use the contribution action, even if a cost recovery action would otherwise be available.”) (quoting Whittaker Corp. v. United States, 825 F.3d 1002, 1007 (9th Cir. 2016)); see also Niagara Mohawk Power Corp. v. Chevron U.S.A., 596 F.3d 112, 118 (2d Cir. 2010); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 767 (6th Cir. 2014); Bernstein v. Bankert, 733 F.3d 190, 206 (7th Cir. 2013); Solutia, Inc. v. McWane, Inc., 726 F.Supp. 2d. 1316, 1342 (N.D. Ala. 2010); Morrison Enters., LLC v. Dravo Corp., 638 F.2d 594, 603 (8th Cir. 2011); Agere Sys. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010).

[4] See discussion infra Section III.B.

[5] Atl. Research Corp., 551 U.S. at 139; Agere Sys. v. Advanced Envtl., Tech. Corp., 602 F.3d 204, 220 (3d Cir. 2010); see Solutia, Inc. v. McWane, Inc., 726 F. Supp. 2d 1316, 1336 (N.D. Ala. 2010) (quoting Atlantic Research, 551 U.S. at 139.).

[6] 42 U.S.C. § 9613(f)(2).

[7] Pa. Dep’t of Envtl. Prot. v. Lockheed Martin Corp., 2015 U.S. Dist. LEXIS 10814 at *15–16 (2015) (citing United States v. Cannons Eng’g Corp., 899 F.2d 79, 85 (1st Cir. 1990)).

[8] Fla. Power Corp. v. First Energy Corp., 810 F.3d 996, 1001(6th Cir. 2015) (alterations omitted) (citing Hobart v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 768 (6th Cir. 2014)).

[9] 42 U.S.C. § 9612(i) (2012); Lockheed Martin Corp., 2015 LEXIS 10814 at *16.

[10] See Lockheed Martin Corp., 2015 LEXIS 10814 at *17 (holding that the agreement was neither an administrative settlement nor judicially approved settlement because the agreement was made without following administrative procedures and no impartial arbiter determined whether the settlement amount was fair and reasonable); see CPC Int’l v. Aerojet-Gen. Corp., 759 F. Supp. 1269, 1283 (W.D. Mich. 1991) (stating that an “administrative or judicially approved” settlement must include hearings and public comment).

[11] Lockheed Martin Corp., 2015 LEXIS 10814 at *16.

[12]Id. at *18 (2015).

[13]Id.

[14] Id. at *15; Gray, supra note 13, 175 (2016).

[15] Lockheed Martin Corp., 2015 LEXIS 10814 at *14; U.S. v. Aerojet General Corp., 606 F.3d 1142, 1149 (9th Cir. 2010); Gray, supra note 11, 175 (2016) (This benefit is limited as it only applies to “matters addressed in the settlement.”); see also 42 U.S.C. § 9613(f)(2) (2012).

[16] Lockheed Martin Corp., 2015 LEXIS 10814 at *15.

[17] Id.

[18] Id. at *18 (2015).

[19] Id. at *29 (2015).

[20] See Diamond X. Ranch LLC v. Atl. Richfield Co., 2016 U.S. Dist. LEXIS 114799, at *12 (2016) (quoting Whittaker Corp. v. United States, 825 F.3d 1002 (9th Cir. June 13, 2016)); Niagara Mohawk Power Corp. v. Chevron U.S.A., 5966 F.3d 112, 112 (2d Cir. 2010); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 767 (6th Cir. 2014); Bernstein v. Bankert, 733 F.3d 190, 206 (7th Cir. 2013); Solutia, Inc. v. McWane, Inc., 726 F. Supp. 2d 1316, 1342 (N.D. Ala. 2010); Morrison Enters., LLC v. Dravo Corp., 638 F.2d 594, 603 (8th Cir. 2011); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 229 (3d Cir. 2010).

[21] ITT Indus. v. BorgWarner, Inc., 615 F.Supp.2d 640, 646–48 (W.D. Mich. 2009).

[22] See Whittaker Corp. v. United States., 825 F.3d 1002, 1011 (9th Cir. 2016)(holding that the plaintiff could only bring a contribution action for expenses it was found liable for in a prior action).

[23] See Whittaker Corp., 825 F.3d at 1009 (9th Cir. 2016) (holding that plaintiffs could recover costs with a cost recovery action for expenses separate from those which the plaintiff was found liable for in a prior action); Bernstein v. Bankert, 733 F.3d 190, 202–03 (7th Cir. 2012) (holding that plaintiffs could bring cost recovery action for expenses separate from those for which the plaintiffs had a right of contribution); NCR Corp. v. George A. Whiting Paper Co., 768 682, 690–92 (7th Cir. 2014) (holding that the plaintiff was required to bring all claims in contribution because each set of expenses was covered by an order triggering the right to contribution); Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602, F.3d 204, 225 (3d Cir. 2010) (holding that a party who had been sued in a § 107(a) cost recovery action could bring a cost recovery action for expenses separate from the liability established by the prior suit, because § 113(f) had not been triggered for those separate costs and a contribution action was therefore unavailable for those costs it seeks).

[24] Whittaker Corp. v. United States, 825 F.3d 1002, 1011 (9th Cir. 2016).

[25] See discussion supra Section III.

[26] Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602, F.3d 204, 225 (3d Cir. 2010).

[27] Id. at 21l.

[28] Id. at 225–26

[29] Id. at 212.

[30] Id.

[31] Id. at 225.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id. at 226 (3d. Cir. 2010) (citing Key Tronic Corp. v. United States, 511 U.S. 809, 819 n.13 (1994)).

[37] Id.

[38] Id.

[39] Id. (citations omitted).

[40] See Solutia, Inc. v. McWane, Inc., 726 F.Supp. 2d 1316, 1341 (N.D.A.L., 2010) (citing W.R. Grace & Co.Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 90–91 (2d Cir. 2009) (holding that the plaintiff could bering § 107(a) claim based upon cleanup costs incurred pursuant to administrative settlement with state environmental agency that did not give rise to contribution rights under § 113(f)(3)(B), because agreement did not settle liability under CERCLA).

[41] PCS Nitrogen, Inc., v. Ross Dev. Corp. 104 F. Supp. 3d 729, 740 (D.S.C. 2015); Niagara Mohawk Power Corp. v. Chevron, (2d Cir. 2010); Hobart Corp. v. Waste Mgmt. of Ohio, Inc., 758 F.3d 757, 766 (6th Cir. 2014).

[42] A Bill to Extend and Amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and for Other Purposes: Hearings Before the Senate Committee on the Judiciary on S. 51, 99th Cong. 1, 52 (1985).

[43] See discussion supra Section I.B..

[44] Light, supra note 63, at 10791–800.

 

[i] See id. at 138–41 (describing the distinct differences between § 107 and § 113).

[ii] Jeffrey M. Gaba, The Private Causes of Action Under CERCLA: Navigating the Intersection of Section 107(a) and 113(f), 5 Mich. J. Envtl. & Admin. L. 117, 141 (2015); Gray, supra note 13, at 258 (2016).

[iii] Alfred R. Light, Avoiding the Contribution “Catch-22”: CERCLA Administrative Orders for Cleanup Are Civil Actions, 46 ELR 10791, 10791–92 (2016).

[iv] An American card game where the aim of the game is to discard all of your cards to get out of the game first, the last one holding a deck of cards is the loser.

[i] Elizabeth F. Mason, Comment, Contribution, Contribution Protection, and Nonsettlor Liability Under CERCLA: Following Laskin’s Lead, 19 B.C. Envtl. Aff. L. Rev. 73, 74–75 (1991).

[ii] 42 U.S.C. § 9604(a).

[iii] Id. § 9607(a).

[iv] Id. § 9606(a).

[v] Peter L. Gray, The Superfund Manual: A Practitioner’s Guide to CERCLA Litigation 255 (2016); Judy & Probst, supra note 7, at 193 (citing H.R. Rep. No. 1016, 96th Cong., 2d Sess., pt. 1, at 18 (1980), reprinted in 1980 U.S.C.C.A.N. (94 Stat.) 6119).

[vi] United States v. Chem-Dyne Corp., 572 F. Supp. 802, 805 (S.D. Ohio 1983) (citing 1980 U.S.C.C.A.N. (94 Stat.) 6119, 6119–20).

[vii] Gray, supra note 13, at 255; Judy & Probst, supra note 7, at 225.

[viii] Gray, supra note 13, at 256.

[ix] See Id. at 85 n.1, 86 n.2, 88 n.10 (listing the cases establishing CERCLA’s liability scheme).

[x] Judy & Probst, supra note 7, at 214; Luis Inaraja Vera, Compelled Costs Under CERCLA: Incompatible Remedies, Joint and Several Liability, and Tort Law, 17 Vt. J. Envtl. L. 394, 396 (2016); see also 42 U.S.C. § 9607(a) (providing the scope of those persons that may be held liable under CERCLA).

[xi] Vera, supra note 18, at 397.

[xii] United States v. Atl. Research Corp., 551 U.S. 128, 141 (2007); see Gray, supra note 11, at 257 n.3 (citing cases that found an implied right for contribution pursuant § 107(a) and federal law).

[xiii] The court in United States v. New Castle County, 642 F. Supp. 1258, 1262 (D. Del 1986) questioned whether CERCLA provided contribution rights and found a right to contribution under federal common law…In Wehner v. Syntex Agribusiness, Inc., 616 F. Supp. 27, 31 (E.D. Mo. 1985) the court that § 107(e)(2) implied a right of contribution. Look to Cooper Industries, 161-162, 125 S.Ct. 577 for a listing of these cases (if needed); Key Tronic Corp. v. United States, 511 U.S. 908, 816, also has listings of such cases.

[xiv] United States v. Atl. Research Corp., 551 U.S. 128, 140 (2007).

[xv] Judy & Probst, supra note 5, at 214; Vera, supra note 16, at 396.

[xvi] Richard H. Mays, Settlements with SARA: A Comprehensive Review of Settlement Procedures Under the Superfund Amendments and Reauthorization Act, 17 ELR 10101, 10102 (1987).

[xvii] Id. at 10102.

[xviii] 42 U.S.C. § 9613(f)(1) (2012) (emphasis added) (“Any person may seek contribution from any other person who is liable or potentially liable under [§ 107(a)] of this title, during or following any civil action under [§ 106] of this title or under [§ 107] of this title.”).

[xix] Mays, supra note 22, at 10102.

[xx] Vera, supra note 16, at 398.

[xxi] Gray, supra note 13, at 257.

[xxii] United States v. Atl. Research Corp., 551 U.S. 128, 131 (2007).

[xxiii] Id. at 132.

[xxiv] Id. at 133.

[xxv] Cooper Industries, Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167–68 (2004).

[xxvi] Id.

[xxvii] Id. at 166.

[xxviii] Id.

[xxix] Id. at 166–67.

[xxx] Id. at 166.

[xxxi] Id. at 166–67.

[xxxii] United States v. Atl. Research Corp., 551 U.S. 128, 133 (2007).

[xxxiii] Id.; see, e.g., Metro. Water Reclamation Dist. v. N. American Galvanizing & Coatings, Inc., 473 F.3d 824, 835 (7th Cir. 2007) (“Nothing in subsection [§ 107(a)(4)](B) indicates that a potentially liable party . . .  should not be considered ‘any other person’ for purposes of a right of action.”).

[xxxiv] Atl. Research Corp, 551 U.S. at 133 (citations omitted).

[xxxv] E.I. DuPont de Demours & Co. v. United States, 460 F.3d 515, 543 (3d Cir. 2006), vacated, 551 U.S. 1129 (2007).

[xxxvi] Atl. Research Corp., 551 U.S. at 135–37.

[xxxvii] Id. at 138–41.

[xxxviii] Id. at 138–39 ( “[A] ‘tortfeasor’s’ right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share.”).

[xxxix] Id.

[xl] Id. at 139.

[xli] Id.

[xlii] See id. (explaining § 107, as opposed to § 113, must be used for party who incurs cleanup costs).

[xliii] Id.

[xliv] Id.

[xlv] Id.

[xlvi] Id.

[xlvii] Id.

[xlviii] Id. at 140.

[xlix] Id. (citation omitted).

[l] Id. at 140–41.

[li] Id. at 139 n.6.

[lii] Id.

[i] J.D. Candidate, 2018, Vermont Law School; Administrative Editor, Vermont Journal of Environmental Law. I would like to thank Martha Judy for her guidance and advice and the Vermont Journal of Environmental Laws Volume 19 Executive Board, for without them this article would not be possible.

[ii] Burlington N. & Santa Fe Ry. Co v. United States, 556 U.S. 599, 602.

[iii] 42 U.S.C. § 9607(a)(4)(B) (2012). Cost recovery is seen as the preferable cause of action because it has a longer statute of limitation and it provides the “opportunity for joint and several recovery.” Whittaker Corp. v. United States, 825 F.3d 1002, 1007 n.4 (9th Cir. 2016).

[iv] The contribution actions, under §§ 113(f)(1) and 113(f)(3)(B), allow parties to recover from other PRPs some of the costs they paid either pursuant to a CERCLA civil action or to “an administrative or judicially approved settlement” through equitable apportionment. 42 U.S.C. §§ 9613(f)(1), (3)(B).

[v] 42 U.S.C. § 9613(g)(3) (contribution actions are subject to a three-year statute of limitations); Whittaker Corp. v. United States, 825 F.3d 1002, 1013 (9th Cir. 2016).

[vi] United States v. Atl. Research Corp., 551 U.S. 140, 140 – 41 (2007).

[vii] Martha L. Judy & Katherine N. Probst, Superfund at 30, 11 Vt. J. Envtl. L. 191, 244–46 (2009) (explaining that after Atlantic Research Corp., the contribution-protection provision—provided to private entities in settlement agreements with the United States or States and to parties that have been subject to enforcement actions—have been called into question because uncertain whether private party cost recovery claims may be able to circumvent the contribution bar, dis-incentivizing settlements).

[viii] Luis Inaraja Vera, Compelled Costs Under CERCLA: Incompatible Remedies, Joint and Several Liability, and Tort Law, 17 Vt. J. Envtl. L. 394, 415–16 (2016).

Opportunities to Address Climate Change in the Next Farm Bill

By Sara Dewey,[1] Liz Hanson,[2] & Claire Horan[3]

This post is part of the Environmental Law Review Syndicate

Introduction

The Farm Bill affects nearly every aspect of agriculture and forestry in the United States. Therefore, its next reauthorization offers an important opportunity to better manage the risks of climate change on farms, forests, and ranches by supporting resilience practices that also offer greenhouse gas (GHG) emission reductions.

Agriculture is vulnerable to the impacts of climate change, including rising temperatures, changes in rainfall and pest migration patterns, extreme weather events, and drought. In addition to being heavily affected by climate change, agriculture is also a significant contributor to climate change. Agricultural practices are responsible for about eight percent of U.S. GHG emissions.[4] Estimates of total food system emissions, which include the CO2 emissions from energy use and transportation, increase the agricultural industry’s proportion of U.S. GHG emissions to between 19 and 29 percent.[5]

To better align their practices with their long-term interests, farmers and ranchers can adopt practices that enhance their resilience, while also reducing GHG emissions, and increasing carbon sequestration. Many of these practices improve the long-term productivity and profitability of farms. For example, farmers are already adopting practices that reduce emissions or sequester carbon in the soil and in woody biomass while also improving productivity and resilience on their land.

This paper proposes a suite of practices that should be considered during the next authorization of the Farm Bill to improve on-farm efforts to adapt to and mitigate climate impacts. It is organized into four main sections. Part I provides background on the Farm Bill and the ways that the U.S. agricultural system contributes to GHG emissions. Part II provides an overview of opportunities for on-farm mitigation and adaptation. Many of the practices we recommend can reduce on-farm emissions and build a more resilient agricultural system. Part III identifies a set of metrics that we used to assess potential proposals. Lastly, Part IV summarizes how climate practices can be incorporated across titles and highlights three policy options.

I. Background

A. Agricultural Sources of GHG Emissions

Greenhouse gases trap heat in the atmosphere and contribute to increases in global temperatures. Although this a natural process, increased greenhouse gas emissions since the industrial revolution have increased atmospheric greenhouse gases to levels never before recorded. Agriculture, including raising crops and animals as well as resulting land use changes and farm equipment usage, is a source of three GHGs: methane (CH4), nitrous oxide (N2O), and carbon dioxide (CO2).[6]

Figure 1. GHG Profiles[7]

Globally, emissions from food systems are responsible for nearly a third of all GHG emissions.[8] Domestically, EPA’s Inventory of U.S. Greenhouse Gas Emissions and Sinks divides up agriculture-related emissions into different categories. N2O and CH4 emissions are categorized as “Agricultural,” and accounted for 8.3 percent of total greenhouse gas emissions in the United States in 2014.[9] In 2014, N2O emissions were 336 million metric tons of carbon dioxide equivalent (MMT CO2 Eq.); these emissions were caused primarily by soil management such as the use of synthetic fertilizers, tillage, and organic soil amendments.[10] Manure management, and biomass burning, also contribute to N2O emissions. CH4 emissions were 238 MMT CO2 Eq. and were produced by enteric fermentation during ruminant digestion (164 MMT CO2 Eq.), manure management (61 MMT CO2 Eq.), and the wetland cultivation of rice (12 MMT CO2 Eq.)[11]

CO2 emissions from agriculture-related land use changes and equipment usage are accounted for in the “Land Use, Land-Use Change, and Forestry” and the “Energy” categories, respectively. Estimates of total food system emissions, which include the CO2 emissions from energy use and transportation, increase the agricultural industry’s proportion of U.S. GHG emissions to between 19 and 29%.[12]

II. Strategies for Managing Climate Risk through Mitigation and Adaptation

Given agriculture’s contributions to GHG emissions that are contributing to climate change, which in turn affects agricultural productivity, it is appropriate to consider how climate change can be incorporated across the titles of the Farm Bill. The anticipated reauthorization in 2018 can play a critical role in addressing climate change in the United States by promoting practices that encourage mitigation and adaptation practices on farms.

Adopting new agricultural practices can be challenging, especially for small farmers or operations without access to large amounts of capital or information about adaptation opportunities. However, doing so will not only assist the U.S. farmers and ranchers confront shifting seasons, more severe storm events, new pests, drought, and other challenges,[13] it will also reduce the Farm Bill’s fiscal burden on taxpayers.[14] A number of land managers are already adopting strategies that not only reduce emissions or sequester carbon in the soil, but also have the important co-benefits of improving productivity and resilience.[15]

A. Mitigation Measures

Land managers can mitigate GHG emissions by offsetting current emissions, sequestering carbon, and/or preventing future emissions.[16] Figure 2 describes these strategies and the practices to achieve them.

First, land managers can reduce the GHG emissions of their farming practices in a number of ways. Practices such as conservation tillage reduce soil disturbance, and prevent some erosion, which can lower soil carbon loss. Precision agriculture strategies can reduce fertilizer inputs on cropland, which in turn reduces GHG emissions from fertilizer production and application.[17] Reincorporating livestock manure onto cropland as well as improved management of liquid manure using anaerobic digesters or other on-farm technology can reduce methane emissions from livestock waste by capturing it rather than emitting it.[18]

Second, land managers can sequester additional carbon through on-farm practices. Soil carbon can be increased by incorporating cover crops, including legumes, into crop rotations, reducing tillage, and agroforestry practices.[19] In addition, planting perennial crops or incorporating trees into farms through alley cropping, hedgerows, and riparian forest buffers can lead to long-term sequestration of carbon in woody biomass.

Finally, land managers can take steps to avoid future emissions. The most critical way to avoid new on-farm emissions is to avoid land conversion, which releases carbon that was previously sequestered in the soil and in woody biomass.

Figure 2. Practices for agricultural greenhouse gas mitigation[20]

B. Adaptation Measures

Adapting to a changing climate will require farmers, foresters, and ranchers to prepare for and respond to new risks, including extreme weather events, shifts in growing seasons, and different pests and plant diseases. Figure 3 provides an overview of the range of practices that farmers can undertake to adapt to climate change.

To make farming operations more resilient, farmers can enhance soil health, which will make agricultural systems better able to withstand extreme weather, drought, and erosion due to high winds or flooding.[21] Strategies for enhancing soil health include adjusting production inputs, timing of planting and soil amendments, cover crops, tillage, new crop species, and diversified crop rotations.[22]

Farmers can also take additional steps to make their farms more resilient to other climate risks. For example, to prepare for flooding, heavy rainfall, and other risks, farmers can implement resilient farm landscapes that include buffer strips and the return of marginal cropland to native vegetation. To prepare for new pests and diseases, farmers can diversify their crop selection and alter crop rotations. To adjust to changing seasons and a warming climate, farmers can plant different crops; crop scientists can also develop more heat- and drought-resistant crop varieties. Resilience planning is also important on the community level, as rural communities can ensure that new infrastructure investments supported by the Farm Bill, such as rural water and energy systems, are resilient to climate change effects.

Figure 3. Practices for agricultural adaptation to climate change[23]

C. Opportunities for Complementary Mitigation and Adaptation

Importantly, many on-farm practices can help with both climate adaptation and mitigation.[24] For example, improving soil health not only mitigates climate change, it also makes farms more resilient and better able to withstand the shifting, and at times extreme, conditions of a changing climate. Efficient fertilizer application will reduce GHG emissions while enhancing soil resilience. Similarly, cover cropping, diversified crops, and other practices that stabilize the soil will reduce GHG emissions from the soil while building soil health. It is important to note that the efficiency of these on-farm practices will vary by region, impacting the ways they can and should be implemented.[25]

Mitigation and adaptation strategies for agricultural systems often require long-term planning to strengthen “climate-sensitive assets,” such as soil and water, over time and in changing conditions.[26] Developing better regionally specific agricultural climate and conservation practice adoption data is required for this long-term planning to be successful. From those baseline data, regional efforts will be critical to identify mitigation opportunities, develop strategic adaptation planning, and implement enhanced soil and livestock management practices.[27]

III. Metrics for Prioritizing Reform Proposals

As the summary above indicates, there are many actions that can promote climate change mitigation or adaptation in agriculture. In addition, changes can be made to every Title of the Farm Bill that would promote one or more of these mitigation and adaptation strategies. Given this complexity, the uncertainties associated with quantitative estimates of the mitigation potential of different strategies, and the qualitative differences between mitigation and adaptation as goals, we developed a range of qualitative metrics that we used to analyze potential reforms. In particular, we considered:

  • Potential magnitude of climate impact: Priority was given to proposals that had proven climate benefits, did not require significant additional research, and targeted the largest sources of agricultural GHG emissions.
  • Co-benefits: Priority was given to proposals that could increase resiliency or economic benefits of farms.
  • Equity: Priority was given to programs that could benefit small and large farms in all regions.
  • Scalability: Priority was given to proposals that seemed replicable and applicable to farms across the country or where Climate Hubs could facilitate regional diversity.
  • Enforceability/Administrability: Priority was given to proposals that could be tied in with or build upon existing requirements or programs in the Farm Bill.
  • Feasibility: Feasibility considerations included ease of implementation technically, economically, and politically. Because any legislative change will need to be passed in Congress, political feasibility was determined to be one of the most important considerations. Accordingly, we prioritized proposals that seemed, based on stakeholder engagement, suitable for the next Farm Bill, given competing interests for funding and stakeholder sentiment towards climate action.

An analysis of these metrics is included throughout our recommendations. However, these should be considered as only a first step. While we have attempted to target the largest sources of GHG emissions, more detailed proposals will be required before there can be precise estimates of the potential for emission reductions. The USDA’s COMET-Farm, an online farm and ranch GHG accounting tool, can likely facilitate this effort.[28] Similarly, determining the economic feasibility of specific reform proposals has been difficult because of taxpayer subsidization, the uncertainty of how appropriations may be allocated, and the varying degrees of stringency that reforms could encompass (e.g. mandate vs. incentive). Finally, while previous Farm Bill reauthorizations can serve as a guide, the ongoing transitions at U.S. federal agencies engaged in Farm Bill programs will likely have impacts on the political feasibility of proposals that cannot be appropriately assessed at this time. For these reasons, we recommend that additional research measure the climate impact of proposals, outline the benefits and co-benefits for farmers and the public, articulate the administrability of the program, and gather stakeholder input and support for proposals.

IV. Pathways for Addressing Climate Change in the Farm Bill

To determine how the Farm Bill could better address climate change, we first categorized the range of mitigation and adaptation practices identified in Figures 2 and 3, above, in terms of their potential applicability to the Farm Bill. We then examined how these practices mapped onto the current titles in the Farm Bill. Finally, we assessed how the upcoming Farm Bill could better incentivize these actions across titles, with an eye toward win-win practices with both mitigation and adaptation benefits.

Figure 4 contains the range of possibilities we identified for addressing climate mitigation and adaptation by title. To fully assess the impact of each of these policy options – and its interaction with other policies and programs –requires additional research and outreach to stakeholders affected. We discuss in more detail below a set of recommendations that best fit our metrics, indicated by bold font in this table.

Figure 4. Options for Addressing Climate Change by Farm Bill Title

All of these areas for reform have the potential to advance climate-ready agricultural practices through the Farm Bill. Many of these areas for reform also have wide-ranging benefits beyond climate change mitigation or adaptation such as enhancing on-farm productivity and more efficiently using taxpayer dollars. We elected to focus on three recommendations we judged to be particularly important based on the metrics we established in Part III).

  • Recommendation 1: Incorporate climate measures into crop insurance and conservation compliance to better manage on-farm climate risks under Title II (Conservation) and Title XI (Crop Insurance).
  • Recommendation 2: Ensure the best available science and research—including the outcome of pilot programs—are incorporated into Farm Bill programs; support dissemination of downscaled climate data through USDA regional offices and land grant universities to develop agricultural climate mitigation and adaptation capacity under Title VII.
  • Recommendation 3: Advance manure management collection and storage methods, as well as biogas development under Title IX to mitigate GHG contributions from livestock.

Recommendation 1: Incorporate Climate into Crop Insurance and Conservation Compliance

 a. Reform crop insurance to incentivize climate risk management and eliminate   disincentives for adopting climate-friendly practices

Crop insurance, Title XI, makes government-subsidized crop insurance available to producers who purchase a policy covering losses in yield, crop revenue, or whole farm revenue. Farmers can select and combine several types of crop insurance policies: catastrophic coverage, “buy-up” coverage, and a supplemental coverage option for selected crops. USDA’s Risk Management Agency (RMA) sets insurance premium subsidy rates and develops specific contracts,[29] working with 18 insurance companies to administer the program.[30]

Crop insurance is deeply subsidized by the federal government, and it represents the single largest federal outlay in the farm safety net.[31] On average, taxpayers cover 62 percent of crop insurance premiums.[32] The insurance companies’ losses are reinsured by USDA, and the government also reimburses their administrative and operating costs.[33] The Congressional Budget Office anticipates that this program will cost taxpayers over $40 billion from 2016 to 2020.[34]

These subsidies disproportionately benefit large farms: while only about 15 percent of farms use crop insurance, insured farms account for 70 percent of U.S. cropland.[35] Small farmers struggle to utilize crop insurance because of the high administrative burden and challenges of insuring specialty crops.[36] In addition to clear equity concerns involving access to crop insurance, this situation is problematic from a climate perspective because larger farms are more likely to grow monocultures, which are both more vulnerable to pests and extreme weather events and can degrade soil health. Indeed, just four crops—corn, cotton, soybeans, and wheat—make up about 70 percent of total acres enrolled in crop insurance.[37]

The current loss coverage policies in the crop insurance program can discourage farmers from proactively reducing their risks by taking steps to enhance soil health and resilience. Because farmers with crop insurance are protected against losses incurred from impacts likely to increase with climate change, farmers may not be properly incentivized to respond to the changing conditions.[38] Some environmental organizations have even raised concerns that in response to the crop insurance transfer of risk, some farmers may be more willing to engage in unsustainable practices, such as aggressive expansion, irresponsible management, and use of marginal land.[39] In addition, farmers may make planting decisions based on the insurance program incentives rather than market-based signals.[40] In these ways, crop insurance can push farmers towards practices that pose risks to both their operations and taxpayer obligations.[41] It is therefore important that the crop insurance program better align farmers’ risk management incentives with the real and growing risks they face from climate change.

One way to achieve this objective is through incentivizing or requiring farmers to undertake actions to improve soil management and promote soil health. Some specific changes to the crop insurance program that could promote these practices include:

  • Incorporating climate projections to account for changing growing seasons and planting dates.
  • Providing insurance premium rebates for farmers who voluntarily undertake beneficial practices.
  • Incentivizing improved soil management practices, diversified crops, and manure management.
  • Adjusting the length of policies to better reflect the value added from changes that improve long-term soil health.
  • Writing soil health requirements into insurance policies.

More generally, changes to the crop insurance program that reduce the magnitude of the subsidy offered to farmers, such as setting a dollar-per-acre cap, could reduce the moral hazard that current policies create.[42] The methodology used to set premiums could also be adjusted to be based more on the projected frequency and intensity of events such as droughts and floods rather than on backward-looking data. RMA has started to incorporate climate-related risk metrics into annual rates by weighting recent loss experience more heavily, thereby more accurately reflecting the risks that growers face. However, it is important to consider future risks from climate change as well.

Requirements of the crop insurance program that act as disincentives to climate-friendly farming practices should be updated to account for growing climate risks farmers face. For example, RMA has guidelines in place about the termination of cover crops, because of concerns that these crops will scavenge water from the commodity crops.[43] This requirement can act as a disincentive to farmers’ adoption of cover cropping, a practice that builds the soil and reduces runoff in the non-growing season.[44] The next Farm Bill could specify that there should be no specific termination requirements for cover crops.

Insurance policies may also serve to incentivize some environmentally harmful practices, such as early and excess fertilizer application and cultivation of environmentally sensitive land.[45] Because early application maximizes crops’ uptake of nitrogen, it can increase yield in the short term, but it contributes to nitrous oxide emissions, unhealthy soils that become less able to fix nitrogen and must rely increasingly on fertilizer, and polluted runoff. In addition, synthetic fertilizers, which are made from non-renewable materials, including petroleum and potash, are produced at a huge energy cost.[46] Some studies have suggested that crop insurance may incent some farmers to convert highly erodible or wetlands to farmland.[47] Therefore, the next Farm Bill could also indicate this type of practice is not required to be eligible for crop insurance. This change could be complemented by an increase in the length of insurance policies, as discussed above, because insurance companies would benefit from the longer-term improvements in soil health.

b. Tie crop insurance to a new conservation compliance provision for building soil health for climate ready agriculture

Currently, in order to qualify for crop insurance, farmers must satisfy two conservation compliance requirements, the Wetland Conservation (“Swampbuster”) and Highly Erodible Land Conservation (“Sodbuster”) provisions.[48] These provisions ensure, respectively, that farmers do not convert a wetland or plant crops on highly erodible land or a previously converted wetland.[49] While these current conservation requirements are beneficial in addressing some climate impacts, adding a conservation compliance requirement directly targeted at climate-related practices would improve upon them.

With 70 percent of farmland in the crop insurance program, changes in conservation compliance through the next Farm Bill or through RMA’s policies can drive big climate change benefits. Under Title II, Congress could create an additional conservation compliance requirement for climate-friendly agricultural practices, which could either be required to obtain crop insurance or could make farmers eligible for rebates. The types of on-farm practices that could mitigate risk and enhance climate resilience include more precise irrigation and fertilizer application, reduced tillage of the soil, cover cropping, altering crop rotations, and building buffer strips and riparian buffers. Particularly beneficial practices for building resilient soil include cover cropping, diversified crop rotations, reducing tillage, and efficient irrigation.[50]

In addition, enforcement gaps have limited the success of the existing conservation compliance requirements. To make the mechanism effective, it will be important to establish simple and effective enforcement, for example by using remote sensing, and to ensure that Natural Resources Conservation Service (NRCS) offices have sufficient resources to carry out enforcement efforts.

First, these proposals could produce significant climate benefits from increasing soil health, in terms of both mitigation and adaptation. Reform of the crop insurance and conservation titles could also help address some of the equity issues that currently exist between small and large farms. Existing USDA programs, described in the next section, could help with scalability and administrability. Finally, in terms of feasibility, while any change may be difficult, our stakeholder engagement indicated that farmers are open to programs that target soil health, given the potential economic benefits to their farms. While the actual on-farm impacts will vary based on how the program is designed and constructed, building more resilient, healthy soil can help improve environmental outcomes and decrease the risk of crop loss.[51]

Recommendation 2: Ensure Best Available Science and Research Guides Farm Bill Programs

Agricultural practices that promote climate change mitigation and adaptation, including those described above, are often regionally specific in their implementation. For many new climate-ready practices to be included in conservation compliance or crop insurance, the USDA would need to account for this regional specificity. For example, the benefits of many of the on-farm practices that improve soil health, including more precise irrigation and fertilizer application, reduced tillage of the soil, and altering crop rotations, vary by region and soil type. In some areas, no-till methods may be infeasible; farmers who try to implement no-till in these areas would likely continue to till to some degree or after a short period of time, resulting in quick reversal of the achieved carbon sequestration benefits. Furthermore, the technical specificity of choosing among these practices and correctly implementing them requires guidance at a local level.

To address these types of knowledge gaps and to provide technical assistance to states and farmers, the USDA has created a range of programs, including Climate Hubs, which were established at public land-grant universities in 2014.[52] The Hubs deliver science-based knowledge, practical information, and program support for farmers to engage in “climate-informed decision-making” by farmers.[53]

Increasing funding in the 2018 Farm Bill in Title VII, the Research title, could solidify and expand USDA’s ability to administer and scale climate research and outreach efforts across all regions of the country. Additionally, creating systems to collect and analyze regional data on pilot programs and ensure best practices are adopted could assist long-term efforts to incorporate climate policies into Farm Bill programs.[54] For these reasons the Farm Bill should provide additional funding for climate research and monitoring, especially focused on regional resilience.

Recommendation 3: Address the Significant GHG Contributions of Livestock Management

Improving livestock management, especially manure management, is a significant opportunity for mitigating emissions of methane and achieving several co-benefits for the public and farmers. There is currently very little regulation of livestock manure management. Manure is sometimes stored—uncovered—in a single collection site, which causes the methane to be released directly into the atmosphere. In addition to being a major GHG emissions source, it can cause a range of considerable environmental harms.[55]

a. Require improved manure management, including the covering of lagoons

First, the upcoming Farm Bill could address manure management collection and storage methods. Practices can be improved through actions such as allowing livestock to roam,[56] covering manure lagoons, flaring the methane produced, or producing biogas for use. Simply covering a manure lagoon results in significant decreases in methane emissions, as well as decreased odors. Flaring is the combustion of methane, which yields water and carbon dioxide. Although flaring still emits GHGs, carbon dioxide is a less potent GHG than methane.

The Farm Bill could promote these practices either through incentives or mandates in the Conservation or Crop Insurance titles. For example, the Farm Bill could mandate or incentivize farmers with a threshold number of cattle, swine, or poultry cover manure and flare the produced methane to be eligible for crop insurance. Such a mandate would have the greatest impact at Concentrated Animal Feeding Operations (CAFOs), which may also be better able to bear the high capital costs associated with biogas production.

b. Pursue strategies to decrease methane emissions, including biogas and other on-farm renewable energy production

Second, the Energy Title could incentivize on-farm biogas. On farms, many different substrates may be used to produce biogas, including animal excrements (including that of cattle, swine, poultry,[57] and horse), food waste, milling by-products, and catch crops (such as clover grass on farms without livestock).[58] Farmers can realize substantial savings from biogas production, including through substituting biogas for other energy sources, through substituting digestate[59] for commercial fertilizers,[60] and by avoiding disposal and treatment of substrates (such as for waste-water treatment). Farmers may also be able to sell carbon offsets.[61] In addition, farmers producing biogas can avoid some of the worst problems with animal agriculture: farmers must do something with the manure, and its storage can produce strong odors,[62] unhealthy conditions for workers and families,[63] and pollution through runoff in the worst scenarios.[64]

Farmers have two main options for biogas use: (1) generation of electricity for on-site use or sale to the grid; and (2) direct use of biogas locally, either on-site or nearby.[65] Using the biogas to fuel a generator to produce electricity is considered the most profitable use for most farms.[66] Another use is to upgrade the biogas, then called biomethane, to be injected into the national natural gas pipeline network as a substitute for extracted natural gas.

Because farmers could benefit financially from on-farm use or the sale of biogas, the Farm Bill should continue and expand funding for the Rural Energy for America Program, which offers cost-sharing grants and loans for renewable energy improvements. [67] However, these programs are most likely to benefit large farms because anaerobic digesters are expensive and require a large and constant supply of substrate to produce a return on investment. We therefore suggest the Farm Bill also fund pilot programs to assist small farm communities to form cooperatives so that they are also able to utilize this technology and participate in the grant or loan program.

Even with the available grants and loans, farmers are still taking a substantial financial risk. USDA or land-grant universities should actively help communities or cooperatives with the planning and application process. Large farms or cooperatives who are unable or unwilling to operate and maintain anaerobic digesters themselves could hire a company to lease the equipment and manage the biogas production process.[68] USDA Rural Development Agencies could be a valuable liaison between biogas management companies and farmers.

CAFOs could be part of a voluntary program or required to use anaerobic digesters due to their greater contribution to climate change and other environmental harms. Because CAFOs are responsible for high levels of greenhouse gas emissions and because anaerobic digesters are economically feasible for large operations, there is reason to consider the benefits that could be achieved by requiring these practices for large CAFOs in the Farm Bill.

Livestock management is a critical area for addressing climate impacts, and biogas has the potential to be a win-win for farmers willing to invest in alternative energy production.

Conclusion

The U.S. agricultural system must evolve to mitigate climate change and adapt to the effects of a changing climate. Opportunities for climate change mitigation and adaptation exist across the Farm Bill titles, from bolstering climate resilient infrastructure in the Rural Development title to incentivizing sustainable forest management in the Forestry Title. Taking action on climate measures in the next Farm Bill reauthorization will help farmers better plan for changing conditions, protect taxpayers from increasing risks, and assist the United States in meeting its global climate commitments. The next Farm Bill should incorporate climate risk management provisions, and state and local actors should consider ways to support these efforts.

[1] J.D., Harvard Law School, Class of 2017.

[2] M.P.P. Candidate, Harvard Kennedy School, Class of 2018.

[3] J.D. Candidate, Harvard Law School, Class of 2018.

[4] EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2015, at ES-21 (2017).

[5] Research Program on Climate Change, Agriculture, and Food Safety, Food Emissions (2016), https://perma.cc/YYL8-YSPM.

[6] EPA, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990 – 2014, at 5-1 (2016) [hereinafter EPA, Inventory], https://perma.cc/HQ9B-BJYP.

[7] EPA, Overview of Greenhouse Gas Emissions [hereinafter EPA, Overview], https://perma.cc/7WS6-JXQY. The two to three percent of emissions unaccounted for are fluorinated gases, which are synthesized during industrial processes. Id.

[8] Natasha Gilbert, One-third of our Greenhouse Gas Emissions Come from Agriculture, Nature (Oct. 31, 2012), https://perma.cc/2GF7-ASMM.

[9] EPA, Inventory, supra note 7, at 5-1.

[10] Id.

[11] Id.

[12] Research Program on Climate Change, Agriculture, and Food Safety, Food Emissions (2016), https://perma.cc/YYL8-YSPM.

[13] See U.S. Dep’t of Agric., USDA Agriculture Climate Change Adaptation Plan 9 (2014) [hereinafter USDA, Adaptation Plan], https://perma.cc/8SM9-5NDX; Louise Jackson & Susan Ellsworth, Scope of Agricultural Adaptation in the United States: The Need for Agricultural Adaptation, in The State of Adaptation in the United States (2012), https://perma.cc/HS57-K35T.

[14] For example, a recent report from the Office of Management and Budget and the Council of Economic Advisers estimates that the annual cost of the crop insurance program will increase by $4 billion per year in 2080 as a result of the impacts of climate change. OMB & CEA, Climate Change: The Fiscal Risks Facing the Federal Government 6 (Nov. 2016), https://perma.cc/4Y22-P85V; see also USDA, Adaptation Plan, supra note 14, at 9.

[15] U.S. Dep’t of Agric., Climate Change and Agriculture in the United States: Effects and Adaptation 126–27 (2013) [hereinafter USDA, Effects and Adaptation], https://perma.cc/QW8T-Y4RL.

[16] M. McLeod et al., Cost-Effectiveness of Greenhouse Gas Mitigation Measures for Agriculture: A Literature Review, OECD Food, Agriculture and Fisheries Papers, No. 89, at 26 (2015).

[17] Peter Lehner & Nathan Rosenberg, Legal Pathways to Carbon-Neutral Agriculture, 47 Envtl. L. Rep. 10,845, 10,849 (2018).

[18] Id. at 19–21.

[19] For a more detailed review of how carbon sequestration can be increased in agriculture, see Daniel Kane, Nat’l Sustainable Agric. Coal., Carbon Sequestration Potential on Agricultural Lands: A Review of Current Science and Available Practices (2015), https://perma.cc/R4WA-2PPK.

[20] Adapted from P. Smith et al., Greenhouse Gas Mitigation in Agriculture, Philosophical Transactions of the Royal Society B, 363, 789–813 (2008).

[21] Alexandra Bot & José Benites, Food & Agric. Org. Of the United Nations, FAO Soils Bulletin 80, The Importance of Soil Organic Matter: Key to Drought-Resistant Soil and Sustained Food and Production 19 (2005), https://perma.cc/6VE8-6KG7.

[22] USDA, Effects and Adaptation, supra note 16, at 123; see also Nat’l Sustainable Agric. Coal., Climate Change and Agriculture Recommendations for Farm Bill Conservation Program Implementation 2 (2014), https://perma.cc/2JKC-AXSY.

[23] While these practices may generally lead to better resilience on farms, adaptation practices are highly region-specific.

[24] USDA, Effects and Adaptation, supra note 16, at 126–27 (2013).

[25] For example, in the Central Valley of California, an adaptation plan that included integrated changes in crop mix and altered irrigation, fertilization, and tillage practices, was found to be most effective for managing climate risk. Id. Along with the USDA Climate Hubs, the following organizations have undertaken projects related to regional agricultural adaptation research and planning: California Healthy Soils Initiative; Wisconsin Initiative on Climate Change Impacts; Southeast Florida Regional Climate Change Compact; The Mid-Atlantic Water Program; U.S. Midwest Field Research Network for Climate Adaptation.

[26] Id. at 126.

[27] Id.

[28] See COMET-Farm, https://perma.cc/4GR3-DHJH.

[29] U.S. Dep’t of Agric., About the Risk Management Agency, https://perma.cc/N49E-KQ3H.

[30] Dennis A. Shields, Cong. Research Serv., Crop Insurance Provisions in the 2014 Farm Bill 3 (2015).

[31] Id.

[32] Id.

[33] Dennis Shields, Cong. Research Serv., Federal Crop Insurance: Background 2 (2015).

[34] Cong. Budget Office, March 2016 Baseline for Farm Programs (2016), https://perma.cc/896T-TUJ9; see also Heritage Found., Addressing Risk in Agriculture (2016).

[35] U.S. Dep’t of Agric., Structure and Finances of U.S. Farms: Family Farm Report, 2014 Edition 32–33 (2014), https://perma.cc/S9YP-P6CY.

[36] Generally, the more diverse or specialized crops and livestock a farmer produces, the harder it is to obtain insurance. These policies are not designed to support small producers and the policies are administratively complex and burdensome for small farmers, with high premiums for small farmers. On the one hand, if small farmers used yield-based or revenue-based insurance policies, those farmers would need to purchase insurance for each crop, which requires producing a significant volume of each single crop to justify the paperwork and setting up a contracted purchase price from a processor. On the other hand, whole farm insurance policies base policies on average adjusted gross revenue of the farm, regardless of the variety of products the farmer grows. This type of policy is more appropriate for diversified farmers, but may still be too cumbersome for small farms to participate. See Jeff Schahczenski, Nat’l Sustainable Agric. Info. Serv., Crop Insurance Options for Specialty, Diversified, and Organic Farmers (2012), https://perma.cc/64P6-CTRC; Nat’l Sustainable Agric. Coal., Have Access Improvements to the Federal Crop Insurance Program Gone Far Enough?, NSAC’s Blog (July 28, 2016), https://perma.cc/PT37-RNNL.

[37] Shields, Federal Crop Insurance: Background, supra note 35, at 1.

[38] Linda Prokopy et al., Farmers and Climate Change: A Cross-National Comparison of Beliefs and Risk Perceptions in High-Income Countries, 56 Envtl. Mgmt. 492, 497 (2015).

[39] Bruce Babcock, Environmental Working Group, Cutting Waste in the Crop Insurance Program 10 (2013).

[40] Id.

[41] C. O’Connor, NRDC Issue Paper 13-04-A, Soil Matters: How the Federal Crop Insurance Program Could Be Reformed to Encourage Low-risk Farming Methods with High-reward Environmental Outcomes (2013).

[42] See, e.g., Heritage Found., Addressing Risk in Agriculture (2016).

[43] NSAC, 10 Ways USDA Can Address Climate Change in 2016, NSAC’s Blog (Dec. 30, 2015), https://perma.cc/L5AZ-NAF5.

[44] See Practical Farmers of Iowa, Cover Crops, https://perma.cc/7GHL-NVXQ.

[45] USDA’s Economic Research Service found that “[l]ands brought into or retained in cultivation due to these crop insurance subsidy increases are, on average, less productive, more vulnerable to erosion […] then cultivated cropland overall. Based on nutrient application data, these lands are also associated with higher levels of potential nutrient losses per acre.” USDA Economic Research Service, Report Summary: Environmental Effects of Agricultural Land Use Change (Aug. 2006); see also Daniel Sumner and Carl Zulauf, The Conservation Crossroads in Agriculture: Insight from Leading Economists. Economic and Environmental Effects of Agricultural Insurance Programs, The Council on Food, Agricultural and Resource Economics (2012).

[46] See Stephanie Ogburn, The Dark Side of Nitrogen, Grist (Feb. 5, 2010), https://perma.cc/9J6E-ZD9J (“About one percent of the world’s annual energy consumption is used to produce ammonia, most of which becomes nitrogen fertilizer.”).

[47] See, e.g., Anne Weir and Craig Cox, Envtl. Working Grp., Crop Insurance: An Annual Disaster (2015).

[48] Sodbuster, 16 U.S.C. § 3811 et seq.; Swampbuster, 16 U.S.C. § 3821 et seq.

[49] See Nat. Res. Conservation Serv., U.S. Dep’t of Agric., Conservation Compliance Provisions, https://perma.cc/6V9X-URBP.

[50] Id. at 7.

[51] O’Connor, Soil Matters, supra note 43, at 7.

[52] U.S. Dep’t of Agric. Climate Hubs, Mission and Vision, https://perma.cc/T46E-CSBT.

[53] Id.

[54] The existing ARS LTAR system, which conducts longterm sustainability research, could be used to inform the regional best practices communicated in outreach efforts. See Agric. Research Serv., U.S. Dep’t of Agric., Long-Term Agroecosystem Research (LTAR) Network, https://perma.cc/6XRT-FBTC.

[55] For example, manure management practices can create a public nuisance for which neighbors have little recourse. In addition, runoff from agriculture is not adequately regulated under the Clean Water Act and results in pollution to the nation’s waterways. Every year a hypoxic zone, also called a dead zone, develops where the Mississippi River dumps pollution from Midwest livestock and fertilizers into the Gulf of Mexico. See Kyle Weldon & Elizabeth Rumley, Nat’l Agric. L. Ctr., States’ Right to Farm Statutes, https://perma.cc/Y8XA-KUBR; Ada Carr, This Year’s Gulf of Mexico “Dead Zone” Will Be the Size of Connecticut, Researchers Say, Weather.com (Jun. 15, 2016), https://perma.cc/36ZZ-NKY9.

[56] Farms where the cattle range freely do not release as much methane to the atmosphere because the less consolidated manure is more likely to be absorbed into the soil rather than anaerobically digested to produce methane.

[57] Using poultry manure as a substrate can be difficult because feathers and poultry litter can clog anaerobic digesters. See Donald L. Van Dyne & J. Alan Weber, Special Article, Biogas Production from Animal Manures: What Is the Potential?, Industrial Uses/IUS-4 20, 22 (Dec. 1994).

[58] SustainGas, Sustainable Biogas Production: A Handbook for Organic Farmers 38 (2013), https://perma.cc/8354-G3A4.

[59] Digestate is the solid that is left over after biogas has been produced. Digestate can be sold or used on farm as fertilizer. It smells better than manure, is free of harmful bacteria, and contains nitrogen in a form that is more bioavailable for crops.

[60] 40 organic farms in Germany, in a region without livestock, have found it worthwhile to cooperate in supplying and transporting clover grass up to 50 km to an AD because the digestate provides them with a flexible organic fertilizer. See SustainGas, supra note 60, at 28. They find that the digestate leads to higher quality for their food crops. Id. “Biogas has to serve food production via improved nutrient supply,” one farmer says. Id.

[61] If farmers can show that they have reduced their methane emissions, they may be able to sell the carbon offsets in exchanges such as the California GHG cap and trade market. See Cal. Air Resources Bd., Compliance Offset Protocol, Livestock Projects: Capturing and Destroying Methane from Manure Management Systems (2014), https://perma.cc/68EF-2SB9.

[62] The odor-reducing benefits are viewed as especially desirable for poultry and swine farms.

[63] Biogas plants dispose of waste and sewage, making conditions healthier. Not only does the anaerobic digestion process remove pathogens, but because biogas production requires collecting manure at a central location, some unhygienic conditions are avoided. See Julia Bramley, et al., Tufts Department of Urban & Environmental Policy & Planning, Agricultural Biogas in the United States: A Market Assessment 122 (2011), https://perma.cc/Z4ER-S4SD.

[64] Livestock manure generated at cattle yards and dairy farms can contaminate surface and ground water through runoff. Anaerobic digestion sanitizes the manure to a large extent, decreasing the risk of water contamination. Id.

[65] EPA, AgSTAR Handbook: A Manual for Developing Biogas Systems at Commercial Farms in the United States, 2d. ed. 2-5 (K.F. Roos et al. eds. Feb. 2004).

[66] Id. at. 3-1. For most farms, electricity comprises 70% to 100% of energy use. Id.

[67] U.S. Dep’t of Agric., Rural Energy for America Program Renewable Energy Systems & Energy Efficiency Improvement Loans & Grants, https://perma.cc/5LE3-2QRF.

[68] This model is frequently used for wind energy production. See Agric. Research Serv., U.S. Dep’t of Agric., Wind and Sun and Farm-Based Energy Sources, Agric. Res., Aug. 2006, https://perma.cc/ZBJ9-R74Q.

The Case for Cap-and-Trade: California’s Battle for Market-Based Environmentalism

By Theodore McDowell, J.D. 2017, University of Virginia School of Law

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

I. Introduction

The California Cap-and-Trade Program (“CAT”) is derived from the California Global Warming Solutions Act of 2006 (“Global Warming Act”), which requires the State to reduce its greenhouse gas (“GHG”) emissions to 1990 levels by 2020.[1] The California Air Resource Board (“CARB”) is the State regulatory agency responsible for the project.[2] In 2011, the CARB adopted cap-and-trade regulations and created the CAT to set limits on GHG emissions.[3] The first auctions for the CAT were held in 2012, and the program went into full effect on January 1, 2013.[4]

The CAT operates in two phases each year. First, a number of emission allowances are freely distributed to entities that fall under the purview of the program.[5] Second, the remaining allowances are auctioned off on a quarterly basis.[6] The free distributions are reduced annually, and eventually all the allowances will be distributed via auctions.[7] The program also permits carbon offsets to satisfy up to eight percent of an entity’s compliance obligations.[8] The ultimate objective is to create incentives for businesses to craft environmentally friendly industrial practices as the number of yearly allowances decreases over time.

The CAT also has an enormous scope, and it is the world’s second largest market-based mechanism designed to reduce GHG emissions.[9] This size makes the successful implementation of the program especially impressive. The success is due largely to a design structure that draws upon the shortcomings of previous cap-and-trade initiatives, such as the Regional Greenhouse Gas Initiative (“RGGI”) in the northeastern United States and the Emissions Trading System (“ETS”) in the European Union.

II. Lessons Learned from the Regional Greenhouse Gas Initiative

The CAT was not the first emissions marketplace in the United States. In 2009, the RGGI went into effect as a cap-and-trade marketplace for CO2 emissions in the following nine states: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont.[10] However, the RGGI has been plagued with numerous shortcomings that have frustrated the performance of the initiative and which impart several lessons on how to more effectively design a cap-and-trade system.

A. Lesson 1: Cap-and-Trade Programs Need a Broad Scope

A key drawback of the RGGI is its limited scope. The program applies exclusively to CO2 emissions and only covers electrical power plants with the capacity to generate twenty-five or more megawatts.[11] Predictably, the results of the RGGI have been underwhelming, as only 163 facilities fall under the regulatory reach of the program.[12] Furthermore, CO2 emissions merely account for twenty percent of the GHG emissions in the nine participant states—a number that shrinks even further since the RGGI only regulates the electrical sector.[13] This narrowed scope has undermined the efficacy of the RGGI so drastically that Congress considers the program’s contribution to global GHG reductions to be “arguably negligible.”[14]

B. Lesson 2: Emission Forecasts Must Be Accurate

The second significant failing of the RGGI was that it overestimated the amount of CO2 emissions among the member states.[15] In fact, the RGGI set an initial emissions cap that was above actual emissions levels.[16] This was a gross oversight that stemmed from two key defects in the RGGI’s design.

First, the RGGI emission limits for the first cap period, which ran from 2009–2013, were based on emission estimations made in 2005.[17] Between 2005 and 2009, the amount of electricity generation in the member states decreased by thirty-six percent due to energy efficiency improvements and structural changes in energy generation portfolios.[18] Second, the RGGI distorted its emission forecasts by including all electrical power plants that had the capacity to generate twenty-five or more megawatts in its estimates.[19] Limiting the emission calculations to power plants that actually generated twenty-five or more megawatts would have produced more accurate projections.

These errors have been catastrophic for the initiative. The initial regulations had no effect on most businesses, which were already emitting below the inflated emissions cap.[20] Participation in the RGGI was therefore minimal, since many of the targeted businesses had no need to reduce emissions, purchase allowances, or generate offset credits.[21] Furthermore, because the RGGI does not limit the amount of allowances that can be “banked” and used in subsequent years, many companies have stored substantial amounts of these initial surplus allowances for future use.[22]

The administrators of the RGGI have taken extreme measures to try and remedy these miscalculations. Most notably, they implemented a “revised emissions cap,” running from 2014–2020, that slashes the emission limits by forty-five percent in an effort to match actual emission levels.[23] Such radical action would not have been necessary if the initial emissions cap had been more precise.

C. Lesson 3: Auctions Need Robust Price Floors

A final pitfall of the RGGI is its undervalued price floor for auctions. The reserve price has hovered around two dollars per allowance, despite being scheduled to increase according to the Consumer Price Index (“CPI”).[24] But the fact that auctioned allowances have been sold at prices exceeding five dollars indicates that businesses are willing to pay more.[25] The program therefore severely underappreciated the corporate demand for allowances and forfeited substantial potential earnings. Moreover, by greatly undervaluing the price floor, the RGGI administrators neglected to protect against suboptimal years when allowance prices have plummeted. A higher reserve price would have preserved the revenue generation capacity of the program, even during these off years.[26]

III. Lessons Learned from the European Union’s Emission Trading System

There are also numerous lessons to be learned from the deficiencies of the European Union’s ETS, which is the world’s largest market-based mechanism for reducing GHG emissions.

A. Lesson 1: Cap-and-Trade Programs Need Ambitious Initial Targets

At the conclusion of Phase I of the ETS, the “Learning Phase” that ran from 2005–2007, it was apparent that the initial targets for emission reductions were far too lenient.[27] Indeed, the lax regulations during Phase I only produced GHG reductions of three percent.[28] The EU was forced to compensate by crafting extreme targets for Phases II and III of the program, setting emissions goals of six percent below 2005 levels for Phase II and twenty-one percent below 2005 levels for Phase III.[29] If the EU had formulated a more ambitious target for Phase I rather than over-prioritizing the transition of members into the program, it would have avoided the need for these drastic adjustments.

B. Lesson 2: Allowances Must Be Apportioned Judiciously

Similar to the RGGI, the ETS grossly over-allocated emission allowances. In fact, ETS allowances initially exceeded the amount of actual emissions by four percent.[30] This miscalculation was devastating for Phase I of the ETS, as it enabled European businesses to emit 130 million tons more in GHGs than they had emitted prior to the implementation of the program.[31] This surplus destroyed the demand for allowances in the ETS marketplace, and auction prices fell precipitously.[32] The EU was forced to heavily reconfigure ETS allowance allocations to try and mitigate the damage caused by these initial overestimations, and it is still attempting to normalize the ETS marketplace.[33]

C. Lesson 3: Cap-and-Trade Programs Need Balanced Market Designs

The ETS has also been hamstrung by its inferior market design. Phase I of the program did not permit any allowances to be banked for future use.[34] Coupled with the initial over-allocation of allowances, this meant that most regulated entities possessed surplus allowances they had to expend by the year-end. This resulted in extreme downward price volatility at the conclusion of trading periods, as many companies attempted to dump the remainder of their emission allowances into the auctions.[35] The EU was once again forced to implement significant revisions to correct this oversight.[36] And while the ETS now permits allowances to be banked, the initial trading instability across Europe nearly destroyed the program.[37]

The EU also does not set a reserve price for ETS auctions, meaning there is no price protection for emission allowances.[38] This remains a gross oversight by the EU, as the lack of a price floor fails to account for the inevitable fluctuation of allowance prices due to changes in weather or energy price cuts. As a consequence, the ETS has lost significant revenue during periods of low auction demand where allowances have sold for pennies on the dollar, and the program will continue to be financially vulnerable until this design flaw is remedied.[39]

D. Lesson 4: Cap-and-Trade Programs Need Administrative Uniformity

Administrative inefficiencies have also plagued the ETS. The most glaring hole was the initial lack of a single registry for ETS participants.[40] Prior to 2012, each nation participating in the ETS had its own registry, which resulted in inconsistent regulation across the system.[41] The Danish registry, for example, failed to vet its registrants for two years.[42] The registry ultimately became so saturated with fraudulent companies that over ninety percent of account holders had to be deleted in 2010.[43] Even after the EU moved all participants into a single registry, the credibility lost among consumers during these initial years continues to plague the reputation of the program.

E. Lesson 5: Cap-and-Trade Programs Need Strong Cyber-Security

The final shortcoming of the ETS is that its cyber-security has been extremely assailable. “Phishing” has been one particularly vexing problem. The scam involves the creation and promotion of fake registries that solicit users to reveal their ETS identification codes. The “phishers” then use this information to carry out carbon trading transactions in legitimate registries. These deceptions have had severe economic ramifications, and as much as three million euros have been stolen in a single month.[44]

Hacking has been another key cyber-security issue for the ETS. Hackers have been able to infiltrate users’ computer systems and sell off all their allowances for immediate cash payments on the “spot market.”[45] Numerous companies have been crippled by this scam, and hackers have defrauded certain businesses of more than seven million euros worth of emission allowances.[46]

IV. The Success of the California Cap-and-Trade Program

When considering the numerous oversights of the RGGI and ETS programs, the success of the CAT is doubly impressive. This success is due to the balanced design of the CAT, which incorporates the strengths of the RGGI and ETS while mitigating their weaknesses.

A. Success 1: The CAT Has Precise Methods for Accurately Allocating Allowances

Both the RGGI and ETS erred by overestimating actual emission levels and allocating excessive allowances. The CARB avoided this mistake by crafting a precise allocation methodology that prevented surplus allowances from derailing the auction marketplace. Foremost, the CARB calculated California emission levels for the years immediately preceding the creation of the CAT to more accurately forecast future emissions. The CARB also narrowed the variability of its emissions estimates by only including emitters who had actually emitted 25,000 or more metric tons of CO2 or equivalents.[47] Emitters who merely had the capacity to emit beyond the 25,000 metric ton threshold were not included in the calculations. The greater accuracy of the CAT estimates was evidenced during the program’s first quarterly auction in 2012, where all twenty-three million allowances offered at the auction were purchased above the reserve price.[48]

B. Success 2: The CAT Began Ambitiously While Also Facilitating Transition

Another common error of the RGGI and ETS was that their design strategies over-prioritized transitioning members into their systems. The programs initially neglected to implement substantive emission reduction targets for fear of overwhelming participants, and they have subsequently instituted dramatic reforms to compensate. By contrast, the CARB recognized the need to balance the transition of members into the program against regulatory efficacy, lest one derail the other.

The CARB facilitated the transition of participants into the CAT by narrowing the scope of the first compliance period to only cover electrical and industrial sectors. It waited until the second compliance period to expand into the transportation and heating fuel sectors to provide companies time to adjust their business practices.[49] Yet the CARB also implemented considerable GHG reduction targets. The CARB initially set a 2020 reduction goal of seventeen percent below 2013 levels, which still eclipses the target of the RGGI.[50] Due to these ambitious benchmarks, the CAT has already produced “non-negligible” emission reductions and economic gains, with 2013 alone seeing GHG reductions of over a million and a half metric tons and statewide economic growth of two percent.[51] The CAT has benefitted greatly from such a stable infrastructure, and it remains on track to reach its ultimate emission reduction target by 2020.[52]

C. Success 3: The CAT Has a Broad Scope

The CARB also built off the mistakes of the RGGI by broadening the regulatory scope of the CAT. Because it only regulates CO2 emissions, the RGGI covers less than twenty percent of the GHG emissions generated across its nine participating states.[53] By contrast, the CAT emulates the ETS by also covering CO2 equivalents such as CH4, N2O and other fluorinated GHGs, resulting in more effective emission restrictions.[54] The CARB also recognized that the RGGI erred in solely regulating electrical power plants. Accordingly, the CARB extended CAT regulations into other sectors heavy in GHG emissions, such as industrial, transportation, and heating fuel sectors.[55] Because of this broader scope, the CAT already covers over 600 facilities in California, whereas the RGGI only reaches 163 facilities across nine states.[56] The CAT also covers more than eighty-five percent of California’s GHG emissions, which is almost four times the amount of GHG coverage under the RGGI.[57]

D. Success 4: The CAT Has a Balanced Market Design

The CAT also avoided the severe design blunders of the RGGI and ETS. Rather than undervaluing or ignoring auction price floors, the CARB instituted a strong reserve price of ten dollars in 2012, which has been set to increase each year thereafter by five percent (in addition to increases for inflation).[58] Allowances have consistently sold above these amounts, but the price floor has provided steady protection against downward price volatility during poor trading periods.[59] Moreover, the built-in mechanism for annual increases to the reserve price has ensured that the price floor continues to increase irrespective of CPI circumstances.[60]

The CAT further protects against precarious price drops by permitting allowances to be banked.[61] This avoids the price instability problems of the ETS by discouraging businesses from dumping surplus allowances into auctions at the end of trading periods. Nevertheless, the CAT imposes limits on the maximum amount of allowances that can be held by a business.[62] This circumvents the design flaw of the RGGI that allows businesses to bank an inordinate amount of allowances and eliminate any need to subsequently reduce emissions.[63]

The revenues generated by the CAT best demonstrate the success of its market design. The first auction raised more than $289 million, and the first compliance period generated $969 million in revenue for California.[64] Projections estimate that the CAT will generate two billion dollars or more per year as the program’s regulatory scope continues to scale upwards.[65]

E. Success 5: The CAT Has Strong Administrative and Security Practices

The CAT has also benefitted immensely from its efficient administration and strong security practices. Foremost, the CAT keeps a single registry for all its regulated entities, ensuring vigilant and orderly monitoring of all participants.[66] The cyber-security protocols of the CAT have been extremely successful as well.[67] To prevent hackers and phishers from infiltrating the program, CAT auctions take place over a four-hour window that is constantly supervised by state employees.[68] The bidders and supervisors remain undisclosed to the public, and all parties must surrender their electronic devices during the auction.[69] This “sealed bid” approach to the auctions has protected the CAT from the fraud and counterfeiting issues that tormented the RGGI and ETS.[70]

V. A Recent Legal Challenge: Are Cap-and-Trade Auctions Tax Programs?

Despite the success of the CAT, the program has faced serious legal obstacles. The principal challenge took place in the recent Morning Star Packing Company v. California Air Resources Board case, where the plaintiffs alleged that the auctions were unconstitutional and violated California law.[71] The chief contention was that the CAT constituted a tax on companies for emitting GHGs.[72] The plaintiffs argued that the statutory authorization of the CAT, the Global Warming Act, therefore fell under the purview of California’s Proposition 13, which requires legislators to pass by two-thirds vote “any act to increase state taxes for the purpose of increasing revenue.”[73] Because the Global Warming Act was not passed by a two-thirds vote, the plaintiffs asserted that the CARB exceeded its regulatory authority when it created the CAT.[74]

The dispositive issue in the case was whether the auctions were unconstitutional taxes or whether they were permissible regulatory fees placed on tradable commodities.[75] The Sacramento superior court ultimately upheld the CAT, concluding that emission allowances were tradable commodities in a marketplace.[76] The court considered several distinctions between taxes and regulatory fees, but the chief difference seemed to be that whereas the government sets tax prices, the market determined the auction price of the emission allowances.[77] Thus, the fact that the allowances had no value independent of the California regulatory scheme did not transform the auctions into a tax program, and the allowances remained tradable commodities.[78]

Yet the superior court ruling did not mark the end of the contentious litigation. The Morning Star decision was appealed to the Sacramento appeals court, which affirmed the lower court judgment by a two-to-one majority decision.[79] In turn, the appellate court ruling was appealed to the California Supreme Court, which ultimately declined to hear the case in June of 2017.[80] What should have been a resounding victory, however, was diminished by the fact that the State Supreme Court did not issue a written opinion on the program itself.[81] Nevertheless, the affirmation of the CAT provided market-based environmentalism with a new lease on life and has galvanized California policymakers and legislators.

VI. The Aftermath of Morning Star

The ramifications of the Morning Star have already been substantial in California. State legislators quickly capitalized on the State Supreme Court’s dismissal of the case by voting to extend the CAT an additional ten years through 2030.[82] The extension produced newfound confidence in environmentalism and revitalized the market economy surrounding the CAT – whereas previous quarterly auction sales had dropped sharply, the California government sold every emission permit offered in the August 2017 auction.[83]

Yet these successes have not been replicated on a national scale. This is somewhat perplexing, as the CAT provides a workable model upon which to base the creation of a federal cap-and-trade program. In particular, Congress could convincingly argue that the Morning Star case supports the notion that cap-and-trade programs deal with tradable commodities and do not constitute tax programs. Congress could therefore avoid having to rely on the Taxing and Spending Clause of the Constitution to justify the creation of an auction program and, instead, could derive its authority from the broader powers of the Commerce Clause.

The affirmation of Morning Star also provides strong persuasive reasoning for Congress to resolve the longstanding debate on whether emission allowances are “physical” (or “nonfinancial”) commodities, which are physically deliverable and consumable, or “financial” commodities that are satisfied through cash settlements.[84] Relying upon the Morning Star court’s description of allowances as being consumable and involving the physical transfer of title, Congress now has a strong basis for asserting, on the federal level, that allowances are physical commodities.[85] This would shield a federal cap-and-trade program from the administrative burdens of complying with the Commodity Exchange Act and other commercial regulations. [86]

Despite the reasoning provided by Morning Star, recent federal policy has demonstrated a marked shift away from the environmentalist approach espoused by the Obama Administration. The recent withdrawal of the Clean Power Plan, the Obama-era rule regulating greenhouse gas emissions, best evinces this change in protocol.[87] Indeed, with the Environmental Protection Agency consistently the choice target of President Trump’s proposed budget cuts, environmentalism on a national level has been placed in a precarious position.[88]

It remains to be seen whether this federal paradigm shift will take a toll on the CAT. It is certain, however, that the demise of the CAT would be the death knell for market-based environmentalism in the United States. Fortunately, the CAT has several contingency protocols to counteract market volatility. In particular, the CARB can hold unsold allowances off the market for at least nine months to compress the supply and force participants back to the auctions.[89] This foresight proved to be invaluable in the wake caused by the initial Morning Star appeal in 2016, during which time the May 2016 and August 2016 auctions only sold eleven percent and thirty-five percent, respectively, of the allowances offered.[90] The remedial mechanisms built into the CAT allowed administrators to re-stabilize the market, and the November 2016 auction resulted in the successful sale of eighty-nine percent of the offered allowances.[91] Nevertheless, these contingencies are merely stopgap solutions, and hesitation among market participants will likely resurface as Californian and national policy progress along their collision course. Until a clear and unified path towards environmentalism is forged across the nation, an ominous shadow will remain cast over the CAT.

 VII. Conclusion

The CAT has been a landmark initiative for environmentalism in the United States. Incorporating lessons from the RGGI and ETS, the program has struck a masterful balance in its market design and has produced significant environmental and financial gains for California. The affirming decision of the California judiciary and recent expansion of the program by the California legislature have been beacons of hope for cap-and-trade. Despite these successes, the future of the CAT remains in doubt, plagued by an uncertain socio-political climate where federal support for environmentalism has recently waned. And while the CAT has withstood previous legal and economic challenges, it is undeniable that the decisive battle for market-based environmentalism across the United States has begun.

 

[1] California Environmental Protection Agency, Assembly Bill 32 Overview, http://www.arb.ca.gov/cc/ab32/ab32.htm.

[2] Id.

[3] California Cap-and-Trade Program Summary, Center for Climate and Energy Solutions (Jan. 2014), https://www.c2es.org/docUploads/calif-cap-trade-01-14.pdf.

[4] Id.

[5] Id. From 2013–2015, the program covered electrical and industrial power plants that emitted 25,000 or more metric tons of CO2 or equivalent gases per year. Since 2015, fuel distributors have also been covered.

[6] Id.

[7] Id.

[8] Id. Carbon offsets are greenhouse gas emission reductions that are credited to a company that funds or participates in an activity that reduces carbon footprints in the environment.

[9] Id.

[10] Lucas Bifera, Regional Greenhouse Gas Initiative, Center for Climate and Energy Solutions 1 (Dec. 2013), https://www.c2es.org/docUploads/rggi-brief-12-18-13-updated.pdf.

[11] Jonathan Ramseur, The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Congress, Congressional Research Service 2 (Apr. 27, 2016), https://www.fas.org/sgp/crs/misc/R41836.pdf.

[12] Id.

[13] Id. at 3.

[14] Id. at 19.

[15] Id. at 3–7.

[16] Id. at 4.

[17] Id. at 4–5.

[18] Id. at 5.

[19] See id.

[20] Id. at 4–5.

[21] Id. at 3­–7.

[22] Overview of RGGI CO2 Budget Trading Program, Regional Greenhouse Gas Initiative 6 (Dec. 2007), http://www.rggi.org/docs/program_summary_10_07.pdf.

[23] Ramseur, supra note 12 at 7–8.

[24] Id. at 8–12.

[25] Id.

[26] Id.

[27] Emissions Trading in the European Union: Its Brief History, Pew Center on Global Climate Change 1–2 (Mar. 2009), https://www.c2es.org/docUploads/emissions-trading-in-the-EU.pdf.

[28] Id.

[29] Id.

[30] Tamra Gilbertson, Fraud and Scams in Europe’s Emissions Trading Systems, Climate & Capitalism, May 5, 2011, http://climateandcapitalism.com/2011/05/05/fraud-and-scams-in-europes-emissions-trading-system/.

[31] Id.

[32] Id.

[33] See id.

[34] Emissions Trading in the European Union, supra note 28 at 1–2.

[35] Id.

[36] Id.

[37] Id.

[38] Flawed Application of the Auction Reserve Price in the EU ETS, Emissions-EUETS.com (Feb. 23, 2013), http://www.emissions-euets.com/auctionsco2allowances/153-flawed-application-of-the-auction-reserve-price-in-the-eu-ets.

[39] Gilbertson, supra note 31.

[40] Id.

[41] Id.; Union Registry, European Commission, https://ec.europa.eu/clima/policies/ets/registry_en (last visited Feb. 17, 2017).

[42] Gilbertson, supra note 31.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] California Cap-and-Trade Program Summary, supra note 4.

[48] Dana Hull, 13 Things to Know About California’s Cap-and-Trade Program, San Jose Mercury News (Feb. 22, 2013), http://www.mercurynews.com/ci_22092533/13-things-know-about-california-cap-trade-program.

[49] California Cap-and-Trade Program Summary, supra note 4.

[50] Id.

[51] Dave Clegern, California greenhouse gas inventory shows state is on track to achieve 2020 AB 32 target, California Environmental Protection Agency (June 30, 2015), http://www.arb.ca.gov/newsrel/newsrelease.php?id=740.

[52] Id.; Michael Hiltzik, California’s cap-and-trade program has cut pollution. So why do critics keep calling it a failure?, L.A. Times (July 29, 2016), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-captrade-20160728-snap-story.html.

[53] Ramseur, supra note 12 at 2.

[54] California Cap-and-Trade Program Summary, supra note 4.

[55] Id.

[56] Id.

[57] Id.; Emily Reyna, Four Reasons California Cap and Trade Had an Extraordinary First Year, Forbes (Jan. 14, 2014), http://www.forbes.com/sites/edfenergyexchange/2014/01/08/four-reasons-california-cap-and-trade-had-an-extraordinary-first-year/#58ffab0e4dfc.

[58] California Cap-and-Trade Program Summary, supra note 4.

[59] Archived Auction Information and Results, California Environmental Protection Agency, http://www.arb.ca.gov/cc/capandtrade/auction/auction_archive.htm.

[60] California Cap-and-Trade Program Summary, supra note 4.

[61] Archived Auction Information and Results, supra note 60.

[62] California Cap-and-Trade Program Summary, supra note 4.

[63] Id.

[64] Hull, supra note 47; Michael Hiltzik, Emissions cap-and-trade program is working well in California, L.A. Times (June 12, 2015), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-20150613-column.html.

[65] Hiltzik, supra note 65.

[66] California Cap-and-Trade Program Summary, supra note 4.

[67] Laurel Rosenhall, Why hasn’t California’s cap and trade pollution program been the model for the U.S.?, L.A. Daily News (July 31, 2015), http://www.dailynews.com/environment-and-nature/20150731/why-hasnt-californias-cap-and-trade-pollution-program-been-a-model-for-us.

[68] Id.

[69] Id.

[70] Id.; Gilbertson, supra note 31.

[71] Morning Star Packing Co., et al. v. California Air Resources Board, et al., Sacramento Superior Court, Case No. 34-2013-80001464 [hereinafter Morning Star Superior Court Ruling]. The case was consolidated and decided jointly with California Chamber of Commerce, et al. v. California Air Resources Board, et al., Sacramento Superior Court, Case No. 34- 2012-80001313. The joint decision is available at: http://www.edf.org/sites/default/files/content/decisionchambermorningstar.pdf.

[72] Id. at 5.

[73] Id.

[74] Id.

[75] Id. at 11–14.

[76] Id. at 16–18.

[77] Id.; Allie Goldstein, Cap-and-Trade Is Not A Tax, California Court Says, Ecosystem Marketplace (Nov. 18, 2013), http://www.ecosystemmarketplace.com/articles/cap-and-trade-is-not-a-tax-california-court-says/.

[78] Goldstein, supra note 78.

[79] See generally Morning Star Appellate Decision.

[80] Dan Whitcomb, California Supreme Court Upholds Cap-and-Trade Law, CNBC (June 28, 2017), https://www.cnbc.com/2017/06/28/reuters-america-california-supreme-court-upholds-cap-and-trade-law.html.

[81] Id.; Chris Megerian, California Supreme Court Leaves in Place Decision Upholding Cap-and-Trade System, L.A. Times (June 28, 2017), http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-cap-and-trade-supreme-1498684764-htmlstory.html.

[82] Melanie Mason & Chris Megerian, California Legislature Extends State’s Cap-and-Trade Program in Rare Bipartisan Effort to Address Climate Change, L.A. Times (July 17, 2017), http://www.latimes.com/politics/la-pol-ca-california-climate-change-vote-republicans-20170717-story.html.

[83] California Cap-and-Trade Program: Summary of Joint Auction Settlement Prices and Results, California Air Resources Board (Aug. 2017), https://www.arb.ca.gov/cc/capandtrade/auction/results_summary.pdf.; Chris Megerian, California Cap-and-Trade Program Gets Shot in the Arm with Strong Permit Auction, L.A. Times (Aug. 23, 2017), http://www.latimes.com/politics/la-pol-sac-cap-trade-auction-results-20170823-story.html.

[84] CFTC Glossary, United Statutes Commodity Futures Trading Commission, http://www.cftc.gov/ConsumerProtection/EducationCenter/CFTCGlossary/glossary_p.

[85] See generally Morning Star Superior Court Ruling.

[86] See, e.g., 7 U.S.C. § 1a(47)(B)(ii) (2012) (excluding from the definition of “swap” “any sale of a nonfinancial commodity or security for deferred shipment or delivery, so long as the transaction is intended to be physically settled”).

[87] Daniella Diaz et al., EPA Administrator Scott Pruitt Announces Withdrawal of Clean Power Plan, CNN (Oct. 10, 2017), http://www.cnn.com/2017/10/09/politics/environmental-protection-agency-scott-pruitt-clean-power-plan/index.html.

[88] Brady Dennis & Juliet Eilperin, EPA Remains Top Target with Trump Administration Proposing a 31 Percent Budget Cut, Washington Post (May 23, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/05/22/epa-remains-top-target-with-trump-administration-proposing-31-percent-budget-cut/?utm_term=.c5889f6eca1d.

[89] Hiltzik, supra note 53.

[90] Summary of Joint Auction Settlement Prices and Results, supra note 84.

[91] Id.