Category: HELR Blog

The Legislative History of the National Park Service’s Conservation and Nonimpairment Mandate

By Caitlin Brown, UC Berkeley School of Law, Class of 2017

Introduction

The National Park Service manages over 84 million acres of land divided between 413 different sites, and in 2015 alone, served 307.2 million visitors.[1] Their management goals are based on the 1916 National Park Service Organic Act (“the Act”). Section 1 of the Act defines the Park Service’s purpose as “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[2] How are conservation and impairment from section 1 of the Act defined in the legislative history? How did these concepts originally enter the legislation, and what did Congress think the implications of the standards were? Professor Eric Biber of Berkeley Law posed these questions to me to assist with his research for an article he wrote with Elisabeth Long Esposito, The National Park Service Organic Act and Climate Change.[3] Given that 2016 is the centennial of the National Park Service’s founding by the Organic Act, a deep dive into the legislative history of the National Park Service seemed timely.

In the legislative history, Congress never explicitly defined conservation or impairment. However, the concerns of the Congressmen and the experts who influenced the legislation allow inferences about what these provisions mean. Generally, one can interpret these terms by reference to the differences between National Parks and National Forests. In comparison to National Forests, managed for consumptive use of their resources, National Parks were to be preserved for their scenic value and protected for the benefit of future generations.

As the Park Service manages millions of acres of land vulnerable to the impacts of climate change, these questions are important.[4] The Organic Act and subsequent amendments could offer leeway to Park Service managers as they try to respond to those impacts. Because neither the Organic Act nor its amendments set out specific management directives, I searched the legislative history for any evidence from the debates, conferences, and hearings that was useful in interpreting the extremely broad language of section 1. Ultimately, nothing in these documents prohibits active management by the Park Service to conserve and protect against the effects of climate change.

I. Documents Researched

My research encompassed the legislative history of the National Park Service including hearings beginning in 1912 on what would become the 1916 Organic Act, the 1970 General Authorities Act, and the Redwood Amendments in 1978.  I read the related hearings, reports, and floor debates to better understand the usage and meaning of conservation and impairment as terms in the Act.

II. Discussion and Analysis

  1. 1912-1914: Laying the Groundwork for the Organic Act

The Secretary of the Interior and the American Civic Association[5] first suggested the mandate to prevent detrimental uses of the parks[6] in a proposed bill in 1912.[7] The hope was that this section would define “clearly and definitely the purposes for which the public parks [should] be maintained and . . . to prohibit any uses which would be detrimental to these purposes.”[8] The language of the proposed bill read:

That the parks, monuments, and reservations herein provided for shall not at any time be used in any way contrary to the purpose thereof as agencies promoting public recreation and public health through the use and enjoyment by the people of such parks, monuments, and reservations, and of the natural scenery and objects of interest therein, or in any way detrimental to the value thereof for such purpose.[9]

This ‘purpose’ language, however, did not quite accomplish Congress’s goal of clarity because it did not specify any detrimental uses or create a hierarchy when any of the enumerated purposes conflicted.

However, the legislative history in 1912 explained how the parks, monuments and reservations differed from other public lands, which in turn provides a glimpse into the purpose of the parks.  For example, the Secretary of Agriculture, James Wilson, emphasized the difference between national forests and national parks, namely that national forests “should be managed with a view to their fullest possible development and use, in order that the industries dependent upon them may secure necessary supplies.”[10] Conversely, “the national parks should be managed with a view to preserving their scenic interest and furnishing a recreation ground for the people, only allowing such use of their resources as may be necessary to improve and protect them.”[11] He recommended against including “large bodies of heavy timber” because “there would ultimately be a pressure on the park bureau to cut it on a commercial basis.”[12] However, if parks had to be in “timber country,” they should still be managed with “reference to their scenic beauty.”[13] This recommendation makes it clear that the scenic beauty of parks was to be put ahead of commercial use.  It was for this reason that Secretary Wilson also recommended amending section 4 of the bill which, at the time, allowed for the Secretary of Interior to:

[S]ell or dispose of dead or insect-infested timber and of such matured timber as in his judgment may be disposed of without detriment to the scenic or other purposes for which such parks, monuments, or reservations are established, grant leases and permits for the use of the lands the development of the resources, or privileges for the accommodation of visitors in the various parks, monuments, and reservations herein provided for, for periods not exceeding twenty years.[14]

His amendment struck the language above and only allowed the Secretary of Interior to:

[G]rant leases and permits for such use of the land and such development of its resources as may be necessary for the improvement and protection of such parks, monuments, and reservations, or for privileges for the accommodation of visitors to the various parks, monuments, and reservations herein provided for, for periods not exceeding twenty years.[15]

He narrowed the Secretary of Interior’s authority because he believed the original language authorized “a fuller use than should be allowed.”[16] Under the original bill the Secretary could have authorized harvest of mature timber and only had to explain that in his judgment it was not detrimental to the park. Wilson’s amendment flipped the requirement to only allow timber harvest (or other uses of resources) when it was necessary to improve and protect the parks.

Similar inferences can be drawn from the testimony of the Chief Forester of the Department of Agriculture in 1914 when discussing the Grand Canyon. At that time the Grand Canyon was a National Forest. However, it was recognized that it should be a National Park instead. The Chief Forester noted that the Department of Agriculture was working “with the Interior Department in getting methods and outlining boundary lines,” preparing for it to become a National Park.[17] The Forest Service was already “administering it with reference to its park features” so that when it became a park it would “go right along without any change of policy” and there would not be “any shacks along the rim.”[18] This discussion suggests that the conservation and nonimpairment purposes meant allowing parks to retain their wild characteristics—their “park features”—and remain free of scenery marring structures. In addition to these references in the 1912 and 1914 hearings, the general tone indicates it was obvious that the parks were special and different and needed particular management.[19] Neither these bills nor their legislative history defined the difference between these management practices in any detail.

The driving force, instead, behind these bills leading up to the passage of the Organic Act was not to clearly define conservation and nonimpairment to guide future Park Service leaders, but rather to “to bring the administration of the various parks and monuments under one head, thus substituting uniformity of law and administration for the present disorganized condition.”[20] It is therefore unsurprising that much of this early legislative history concerns the administrative organization and funding of the park system, rather than the meaning of particular terms.[21]

  1. 1916: The Organic Act

In 1916, unified administration of the Park Service and the challenge of making that happen were still the driving force behind the bill.[22]  However, this was also when Congress incorporated language regarding the fundamental purpose of the Park Service:

[It s]hall be determined the fundamental object of the aforesaid parks, monuments, and reservations is to conserve the scenery and the natural and historical objects therein and to provide for the enjoyment of said scenery and objects by the public in any manner and by any means that will leave them unimpaired for the enjoyment of future generations.[23]

This language, framed by Frederick Law Olmstead, was included to “explain what the parks were for.”[24] In testimony, J. Horace McFarland, President of the American Civic Association, discussed what this language meant to him. However, he never specifically defined conservation or impairment; instead his statements allow inferences to be drawn about what these terms meant to him.  He considered establishing the Park Service to be of utmost importance because the purpose of the parks was “unrelated to any other purpose carried out by any other bureau or department in the whole Government scope or service.”[25] The parks were the “Nation’s pleasure grounds and the Nation’s restoring places” while the forests were “the nation’s wood lots.”[26] The national parks needed to be “dignified by a separate handling” in order to be “freer from the assaults of selfishness.”[27] And the “two ideas of the parks” (conservation and enjoyment by the public) should never be weakened, only strengthened.[28] Once again, in distinguishing between the National Parks and National Forests, it is clear that parks were different and special.  It was of the utmost importance to “preserve for [the people] wide spaces of fine scenery for their delight” and “perpetual enjoyment.”[29]

Glimpses into what the purpose of the Park Service meant to Congress can be found in the House Public Lands Committee’s discussion of conservation of wildlife and the protections of national monuments and reservations.  Because the parks were free of “public lumbering” and “protected by law from hunting of any kind,” they alone “had the seclusion and other conditions essential for the protection and propagation of wild animal life” and would become “great public nature schools.”[30] Further, the national monuments and reserves were to be “administered in connection with the national parks, which they strongly resemble.”[31] The “protection and preservation” was “of great interest and importance, because a great variety of objects, historic, prehistoric, and scientific in character, are thus preserved for public use intact, instead of being exploited by private individuals for gain and their treasures scattered.”[32] These discussions recognize conservation and nonimpairment of resources for future generations as the purpose of the Act, despite the lack of express definitions.

In later versions of the bill, Congress slightly changed the fundamental purpose language to “[to] conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means, as will leave them unimpaired for the enjoyment of future generations.”[33] In this committee report, the purposes of the park service are further defined in relation to the management of national forests: “It was the unanimous opinion of the committee that there should not be any conflict of jurisdiction as between” the two departments which could hinder the management of the parks “set apart for the public enjoyment and entertainment” as opposed to the forests which were “devoted strictly to utilitarian purposes.”[34] This “segregation of national park[s]” required “the preservation of nature as it exists.”[35] As such, the conservation and nonimpairment standards were what set the parks apart from the national forests. The discussion of this difference in the legislative history was as close as Congress got to defining the terms.

  1. 1969-1970: The General Authorities Act

The General Authorities Act of 1970 was not a “glamorous bill” and was intended to clarify that the National Park System’s fundamental purpose extended to all of the different areas managed by the Park Service and not just the parks and monuments.[36] Between 1916 and 1970 the concept of the national park system had “broadened to include battlegrounds and historic places, as well as areas primarily significant for their outdoor recreation potential.”[37] The aim of the bill was to make sure that all park system units were “appropriately administered so that the long-term interests of the public [could] be served.”[38] Congress reiterated that the “objective of the national park system [was] to conserve and protect for the edification and enjoyment of the American public—now and in the future—areas and places of national significance.”[39] Again, this bill offered no definition of conservation.

  1. 1977-1978: The Redwood Amendment

The Redwood Amendment reaffirmed Congress’s support that decisions by the Park Service would be based on the criteria provided by 16 U.S.C. § 1—the conservation and nonimpairment language—and that this language would also guide courts when resolving conflicts between “competing private and public values and interests in the areas surrounding Redwood National Park and other areas of the National Park System.”[40] Surprisingly, this transboundary reach was not disputed by the minority views published in the report.[41]

The amendment added the following language to the end of the General Authorities Act:

Congress further reaffirms, declares and directs that the promotion and regulation of the various areas of the National Park System . . . shall be consistent with and founded in the purpose established by the first section of the Act of August 25, 1916, to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress.[42]

It was necessary to reaffirm the purpose of the National Park System because the committee was “concerned that litigation with regard to Redwood National Park and other areas of the system may have blurred the responsibilities articulated by the 1916 Act creating the National Park Service.”[43] “Accordingly,” the committee reported, the “Secretary is to afford the highest standard of protection and care to the natural resources within . . . [the] National Park System. No decision shall compromise these resource values except as Congress may have specifically provided.”[44] While not specifically identifying this as the conservation and nonimpairment mandate, it can be inferred as such given that conservation and nonimpairment were the purposes of the National Park Service defined in section 1 of the Act.

Congress meant for the Redwood Amendment to establish “once and for all that the administration of our great park resources is a preeminent responsibility of the United States.”[45] Further, it “elevates and strengthens the management standards establishing the National Park Service in 1916 to requirements of law.”[46] And, importantly for Park Services managers, the Redwood Amendment “insures that management decisions affecting our park system must square with this standard and that competing interests not consistent with the first section of the act
of August 25, 1916, may only be approved if specifically authorized, either previously or through subsequent legislation, by Congress.”[47] In sum, the Redwood Amendment clarified that Congress intended for Park Service managers to have authority to manage the lands for conservation and nonimpairment in order to comply with the legally-mandated management standards.

Conclusion

The Organic Act and subsequent legislation granted the Secretary of Interior authority to manage the National Parks System consistently with the fundamental purpose language. Neither the statute nor the legislative history defines the terms “conservation” or “impairment” clearly.  The Redwood Amendment’s legislative history comes closest to explaining the intent behind these mandates, offering guidance for both Park Service managers and courts when considering disputes between public and private interests and always putting conservation before a detrimental use unless specifically directed by Congress.

When considering the impacts of climate change on the National Parks, the legislative history behind the conservation and nonimpairment mandate supports active management to conserve and protect all units within the Park Service. At the time the Act was passed, the legislators could not have contemplated the potential impacts of climate change. Instead, they planned protection for the parks against detrimental human uses. But it is from the legislators’ protective language that Park Service managers can justify their authority to protect against the detrimental impacts of climate change.

[1] Nat’l Park Serv., National Park Service Overview (2016), https://www.nps.gov/aboutus/news/upload/NPS-Overview-09-01-2016.pdf.

[2] 16 U.S.C. § 1 (1916) (codified at 54 U.S.C. § 100101(a)) (emphasis added).

[3] Eric Biber & Elisabeth Long Esposito, The National Park Service Organic Act and Climate Change, 56 Nat. Resources J. 193, 208 n.84 (2016). My research was used to support the point that “[i]f any lesson can be drawn from the Organic Act’s legislative history, it is probably that Congress intended the Park Service to have broad discretion to protect the scenic nature of its lands, and prioritize protection of scenery over other goals (such as commercial timber harvesting).” Id. at 208.

[4] This was the framing for Professor Biber and Ms. Esposito’s article. Biber & Esposito, supra note 3.

[5] The American Civic Association (“the ACA”), led by J. Horace McFarland, promoted “the beautification of cities and the preservation of national treasures, such as Niagara Falls and Yosemite’s Hetch Hetchy Valley.” Ellen Terrell, John Horace McFarland: Unsung Hero of the National Park Service, Library of Congress (August 25, 2016) https://blogs.loc.gov/inside_adams/2016/08/john-horace-mcfarland-unsung-hero-of-the-national-park-service/. McFarland and the ACA promoted creation of the National Parks Bureau—which would become the National Park Service—arguing that national management of the parks was critical to protect them. See John Horace McFarland, Address of Mr. J. Horace McFarland, 1911 Proceedings of the National Parks Session of the American Civic Association 10 https://babel.hathitrust.org/cgi/pt?id=loc.ark:/13960/t8tb1gb0j;view=1up;seq=5.

[6] When I use the word ‘parks’ in this memo, I am referring to all the different types of units the Park Service managed at the time of the legislation (in 1916, for example, National Parks, National Monuments and National Reservations).

[7] S. Rep. No. 62-676, at 1­–2 (1912). It was at this time, too, that the Secretary of Interior and the ACA recommended, “the name of the organization should be the National Park Service instead of Bureau of National Parks.” Id. at 1.

[8] Id. at 2.

[9] Id. at 1.

[10] Establishment of a National Park Service: Hearing on H.R. 22995 Before the H. Comm. on the Public Lands, 62nd Cong. 5 (1912).

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 3 (emphasis added). Section 4 of this version of the bill would eventually become section 3.

[15] Id. at 5 (emphasis added).

[16] Id.

[17] National Park Service: Hearing on H.R. 104 Before the H. Comm. on the Public Lands, 63rd Cong. 77 (1914).

[18] Id.

[19] See S. Rep. No. 676 (1912); Establishment of a National Park Service: Hearing on H.R. 22995 Before the H. Comm. on the Public Lands, 62nd Cong. (1912); National Park Service: Hearing on H.R. 104 Before the H. Comm. on the Public Lands, 63rd Cong. (1914).

[20] S. Rep. No. 62-676, at 2 (1912).

[21] See, e.g., Bureau of National Parks: Hearing on S. 3463 Before the H. Comm. on Public Lands, 62nd Cong. (1912) (explaining why the Service needs an engineer and an assistant attorney; issues with salaries of these positions); Establishment of a National Park Service: Hearing on H.R. 22995 Before the H. Comm. on the Public Lands, 62nd Cong. (1912) (lack of coordination between the parks and consistent appropriations means that facilities and roads are not well developed); National Park Service: Hearing on H.R. 104 Before the H. Comm. on the Public Lands, 63rd Cong. (1914) (the parks all have similar needs but are not managed as one unit leading to very expensive local administration).

[22] Congressmen were particularly upset at the lack of visitors to the western parks after the 1915 Panama-Pacific International Exposition in San Francisco. Instead of returning by way of Yosemite and Glacier, “75 percent of them returned by the Canadian Pacific thanks to the very efficient advertising which Canada [had] done.”  National Park Service: Hearing on H.R. 434 and H.R. 8668 Before the H. Comm. on the Public Lands, 64th Cong. 35 (1916). They took it as a personal affront and attributed it to a lack of a National Park Service, which Canada had, which would have been coordinated enough to lure people to the American parks: “the Canadian national parks, because of their exploitation and because of the things that had been done to make them ready for the comfort and convenience and safety of the tourists, drew the great, wholesale travel. . . That meant thousands upon thousands of dollars of cold American cash for Canada, to be credited to its parks.” Id. at 6. See also S. Rep. No. 64-662 (1916) (discussing why Park Service is necessary and appropriations needed); 53 Cong. Rec. 12, 150 (1916) (hiring decisions given to Secretary of Interior rather than Congress).

[23] National Park Service: Hearing on H.R. 434 and H.R. 8668 Before the H. Comm. on the Public Lands, 64th Cong. 52 (1916) (emphasis added).

[24] Id.

[25] Id. at 53.

[26] Id.

[27] Id. Selfishness was seen as a threat because “[t]he places of scenic beauty do not increase, but, on the contrary, are in danger of being reduced in number and diminished in quantity, and the danger is always increasing with the accumulation of wealth, owing to the desire of private persons to appropriate these places.” Id. at 54.

[28] Id. at 54.

[29] Id. (quoting the British ambassador in November 1912).

[30] Id. at 43-44.

[31] Id. at 46.

[32] Id.

[33] H.R. Rep. No. 64-700, at 1(1916).

[34] Id. at 3.

[35] Id.

[36] 116 Cong. Rec. 24,955 (1970); see also A Bill Relating to the Administration of the National Park System: Hearing on H.R. 14114, Before the H. Subcomm. on National Parks and Recreation of the Comm. on Interior and Insular Affairs, 91st Cong. (1969).

[37] S. Rep. No. 91-1014 (1970); see H.R. Rep. No. 91-1265 (1970).

[38] S. Rep. No. 91-1014 (1970).

[39] Id. at 1–2.

[40] S. Rep. No. 95-528, at 8 (1978).

[41] See id. at 50-57.

[42] Id. at 24.

[43] Id. at 14.

[44] Id.

[45] 124 Cong. Rec. H2017 (daily ed. March 14, 1978) (statement of Rep. Burton).

[46] Id.

[47] Id.

The Importance of GIS in Emergency Management

By Monika Holser, UCLA School of Law, Class of 2018 

GIS (geographic information system) is a computer system for “capturing, storing, checking, and displaying data related to positions on the Earth’s surface.”[1]  It allows multiple layers of information to be displayed at once, enabling one to visualize and understand relationships on a map.[2]  Different types of information can be overlaid in the program regardless of their original format or source.[3]  According to ESRI, GIS is described as the “go-to technology” for location-based decisions and is fundamental in understanding the current and future issues involving geographic space.[4]

The modern growth of geospatial technology positively interacts with, and influences all aspects of disaster management – such as mitigation (modeling hazards and vulnerability to develop strategies), preparedness (formulating emergency response and evacuation plans), response (executing such plans), and recovery (assessing damages, rebuilding, preventing recurrence, and educating the public).[5]  Considering we cannot prevent natural disasters, it is important to determine potential hazards and where they stand in relation to our communities.  As a visualization tool, GIS can assist in locating, identifying, and understanding relationships between areas of social vulnerability and potential hazard exposure.  For example, available U.S. census data can be layered onto a map to include the distribution of age, income, ethnicity, housing quality, transportation capacity, etc.[6]  This information can be used to create appropriate mitigation strategies, to identify how or where certain areas should be evacuated, or even how first responders (law enforcement, medical personnel, fire service etc.) should approach certain areas during a disaster.[7]

Furthermore, with advances in GIS and computer technology today, individuals and communities can potentially use the increasingly accessible tools to manage their own knowledge and community data.[8]  If promoted within communities, GIS can be utilized to communicate risks and hazards to the population with no requisite specialized knowledge.[9]  Currently, many communities and homeowners lack the knowledge and motivation to take appropriate cautions or mitigate potential hazards.  Having access to personalized and compelling visuals may ameliorate the issue, while providing local governments invaluable information for disaster management and preparedness.[10]

Challenges and Future Steps – A Look at FEMA Flood Mapping

First and foremost, data is the most essential element of GIS mapping – the program itself merely creates a visual display of the inputted data.[11]  Without accurate data, the program cannot produce accurate depictions of the desired information or relationships between them.  Therefore, the greatest challenge is the weakness of current data, or the lack of data in general.  Although currently improving, there is also a deficiency of readily available GIS software, and more importantly, a failure in the communication/utilization of GIS and the information it can provide.[12]

Considering the significant role GIS already plays in emergency management, I believe the government, as well as local governments, should be allocating funds to improve each of these three issues.  First, to increase data collection and to improve the accuracy of existing data, second, to promote the use of GIS software by communities, and third, to improve the accessibility and communication of the information produced.  In regards to these aspects, I would like to discuss the ongoing Federal Emergency Management Agency (FEMA) flood mapping as part of the National Flood Insurance Program (NFIP).

The NFIP was created to provide a means for homeowners to financially protect themselves from flood events – flood insurance is offered to property owners if the community participates in the NFIP and meets floodplain management ordinances established by FEMA.[13]

FEMA’s flood hazard mapping program, Risk Mapping, Assessment and Planning (MAP), identifies flood hazards and assesses risks of certain areas.[14]  This mapping is used to create the Flood Insurance Rate Maps (FIRMs), the basis of NFIP regulations and insurance requirements.[15]  The FIRMs are then used to determine insurance premiums and set minimum floodplain standards for communities based on the assessed risks of the particular location.[16]   Currently, the NFIP states that it is working towards updating the accuracy of flood maps and providing policyholders with information to better understand the program.[17]

1. Improving Accuracy of GIS Data

In cost-benefit analysis, hazard mapping is found to have positive net benefits, thereby indicating that it is beneficial to work towards improving the accuracy of our mapping.[18] A study conducted by FEMA in 2000 found that when considering all costs (flood data updates, map maintenance, new mapping, conversion to new standards, and customer service), the flood maps created a benefit of 1.33 billion dollars, with a cost of 799 million.[19] Currently, flood maps are used an estimated 30 million times a year by government agencies, FEMA contractors, lenders, insurance agents, land developers, community planners, property owners, realtors, and by others for risk assessment, land management, mitigation, and disaster response.[20]  With this in mind, it is clear that the accuracy of these maps is vital and relevant to widespread decisions.

For example, improving the accuracy of FEMA’s flood maps is predicted to directly affect the insurance rates and land use.[21]  More accurate estimates of flood risk allow appropriate insurance premiums to be calculated for certain areas and particular structures.[22]  The accuracy of price may also increase the understanding and trust of flood risk, and therefore encourage and ensure insurance coverage.[23]  In connection to land use, the correctly priced insurance premiums accurately reflect risk, and in turn, reduce the development of land in high-risk areas.[24]  Improvements in accuracy can add restrictions to properties that should have been designated at-risk (reducing future losses of life and property), and conversely, lifting restrictions in areas that were incorrectly designated at-risk (lowering costs and mandatory improvements, enabling the land to be used in other ways).[25]  In fact, FEMA’s website includes an option to contest floodplain boundaries if homeowners believe their properties were incorrectly identified in high-risk areas – increasing accuracy of flood maps may therefore reduce the contesting of boundaries and save time, money, and effort of all parties.

Learning from the NFIP and FEMA’s FIRM flood maps, we can see that it is indeed beneficial to invest in data collection for GIS use in emergency management.  This can be applied to any context, rather than solely floods and national flood insurance – perhaps to fire or earthquake risks, or anything relevant to a community’s planning.

2&3. Promoting Use of GIS Software and Improving Communication of Risks

Little research has been done to show how to effectively communicate risk to the public through hazard maps.[26]  However, previous studies have shown that in particular, there are issues with communicating via FEMA’s FIRM flood maps.[27]  Taking it upon myself to investigate the FEMA website, I found it very difficult to navigate and understand.  There is an overwhelming amount of information and it is unclear how or who it is intended to be used by.  Through the Flood Map Service Center ‘Search by Address’ page, a homeowner can simply type in their address to pull up an interactive flood map, National Flood Hazard Layer (NFHL).  This is where the seemingly simple task becomes complicated.  I downloaded the map corresponding to my current apartment address only to find that I had absolutely no idea what I was looking at, or what any of the data meant.  I then managed to locate an FAQ page on the website, linking a 54 page document available for download titled, “How to Read a Flood Insurance Rate Map Tutorial.”  It is quite possible that I did not spend enough time attempting to read and understand the guidance provided by the FEMA webpage, but it is clear why a homeowner or individual with little to no experience in this area would fail to understand the implications of the data.

Furthermore, FEMA’s in-house mapping software, HAZUS, is available to the public for download.  HAZUS, utilizing GIS systems, is described as a “nationally applicable standardized methodology that estimates potential losses from earthquakes, hurricane winds, and floods.”[28]  Looking to download and examine the software, I found that it requires ESRI’s ArcGIS program to run, and that the FEMA site directs users to ESRI where it can be purchased.  From this, I can assume that the HAZUS program is primarily used by and targeted towards local governments, rather than individuals and homeowners.  Although this makes sense, it again limits the accessibility of invaluable information that can be provided – and even local governments may choose not to pursue the costs of analyzing the public data through GIS mapping (costs of the program and of individuals educated to use the program, time to overlay data, etc.).

Again, based solely off of FEMA’s FIRM maps and HAZUS program, we can see that the accessibility of GIS programs, as well as the communication of risk information, is at issue.  As suggested by Susan Cutter, a Geography Professor at the University of South Carolina, emergency managers should look to community partners such as universities to assist with mapping and analysis needs.[29]  From personal experience, she describes the ongoing partnership between the University of South Carolina and the South Carolina Emergency Management Division, allowing the two to work towards a common goal – students can gain experience, while the organization can utilize the resources produced.[30]  She further suggests that if costs of the program or ability to use a program are at issue (such as ESRI ArcGIS), other mapping tools or platforms may be available.[31]  For example, I downloaded QGIS, a free GIS program rather than the common, but pricey ArcGIS.

Conclusion

Starting with FEMA, and moving towards states and local governments, GIS investment should be prioritized for use in disaster management.  Funds ideally should be directed towards increasing data and improving accuracy of that already existing, towards making GIS programs available for use (or finding assistance through partnerships), and towards promoting the communications of risk assessment with the public.

 

 

 

 

 

 

 

 

 

 

 

 

 

[1] GIS, National Geographic Society, http://nationalgeographic.org/encyclopedia/geographic-information-system-gis/ (last visited Nov. 1, 2016).

[2] Id.

[3] Id.

[4] What is GIS, ESRI, http://www.esri.com/what-is-gis (last visited Nov. 1, 2016).

[5] T.J. Cova, GIS in Emergency Management in Geographical Information Systems: Principles, Techniques, Applications, and Management 845-858, 850 (1999).

[6] Disaster Preparedness and Recovery, Emergency Management, http://www.emergencymgmt.com/disaster/How-GIS-Can-Aid-Emergency-Management.html (last visited Nov. 1, 2016).

[7] Alexandra Enders & Zachary Brandt, Using Geographic Information System Technology to Improve Emergency Management and Disaster Response for People with Disabilities, 17 J. of Disability Pol’y Stud. 223-29, 224 (2007).

[8] Phong Tran et al., GIS and Local Knowledge: A Case Study of Flood Risk Mapping in Viet Nam in Disasters 152-169, 155 (2009).

[9] Id. at 153.

[10] Id.

[11] Enders & Brandt, supra note 7, at 224.

[12] Cova, supra note 5, at 856.

[13] Flood Insurance Reform, FEMA, https://www.fema.gov/flood-insurance-reform (last visited Nov. 1, 2016).

[14] National Flood Insurance Program: Flood Hazard Mapping, FEMA, https://www.fema.gov/national-flood-insurance-program-flood-hazard-mapping (last visited Nov. 1, 2016).

[15] Id.

[16] Flood Insurance Reform – Mapping Flood Hazards, FEMA, https://www.fema.gov/flood-insurance-reform-mapping-flood-hazards (last visited Nov. 1, 2016).

[17] Flood Insurance Reform, FEMA, https://www.fema.gov/flood-insurance-reform (last visited Nov. 1, 2016).

[18] Committee on FEMA Flood Maps et al., Mapping the Zone: Improving Flood Map Accuracy 79 (2009).

[19] Id. at 82.

[20] Id. at 79.

[21] Id. at 80-81.

[22] Id. at 81.

[23] Id.

[24] Id. at 80.

[25] Id.

[26] Id. at 91.

[27] Id.

[28] Hazus-MH Overview, FEMA, https://www.fema.gov/hazus-mh-overview (last visited Nov. 1, 2016).

[29] Disaster Preparedness and Recovery, Emergency Management, http://www.emergencymgmt.com/disaster/How-GIS-Can-Aid-Emergency-Management.html (last visited Nov. 1, 2016).

[30] Id.

[31] Id.

Judging a Book by its Cover: The Tension between Evidentiary Gatekeeping and Compensatory Theories of Tort

By Julie Amadeo, J.D. 2016, New York University School of Law. This article has been adapted from a larger work.

I. Introduction

Human minds are primed to jump to conclusions. Call them intuitions, or things we just know, our ability to draw conclusions is a survival instinct, developed over many years of evolutionary progress. Now assume a man has been largely healthy his entire life. Maybe this man is a line worker at a factory, or a firefighter, or even just a soccer player. Suddenly, he learns that he has a fatal disease that will cause him to suffer for various years before finally killing him. He sees his co-workers falling ill with the same sickness and they all begin to think it must be something they were doing in common. Perhaps it was the chemicals they produced at work, or something burning in the fires, or maybe the turf they played on. But, there’s no evidence of this, it is just a hunch. Producing conclusive scientific evidence is costly and would take years. Perhaps the only way of getting any sort of evidence is to sue the employer, or products producer which would lead to discovery and possible answers. The man approaches a lawyer who is well known in the field of toxic harms and asks him to take on his case. The lawyer, however, declines and informs the man because of the lack of epidemiological – human study—evidence available on the topic, his case would likely be decided in favor of the defendant on summary judgment and he would never get the closure he is looking for.

II. Wrestling with Epidemiological Evidence

Epidemiology is a method of scientific study which measures the “distribution and determinants of disease frequency and occurrence in humans.”[1] In litigation, epidemiological evidence is generally used for the purpose of proving causation.[2] Historically, epidemiology was not a necessary feature of toxic harms cases, for example in Ferebee v. Chevron Chemical Co. the court took the stance that “on questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.”[3] The court ultimately held that there was sufficient evidence for the jury to find that the defendant in this case was at fault.[4] However, courts have taken many different approaches to the ways they evaluate and admit epidemiological evidence. Importantly, there seems to be a distinction in the way courts treat epidemiology with respect to mass tort claims and cases where there is either negative or sparse epidemiological evidence to wrestle with.[5]

In a post-Daubert world of evidence, epidemiology is nearly universally accepted as the most reliable form of evidence for demonstrating a toxic harm. However, epidemiological evidence is not easy to come by. Often the only studies that have been performed are studies done by the defendants in the case, which of course are favorable. This desire for epidemiological evidence is born out of the need for evidentiary rules to help the judge move her docket: they provide efficiency and reliability in the courtroom. In contrast, tort law has developed with the aim of providing deterrence to bad actors and compensating victims of negligent acts. These two different legal systems are at odds when rules that help judges move their dockets also impair the ability for the tort system to evenly sort out and find negligent actors and make them pay the victims they have harmed.

Alternative solutions to the tort system, particularly administrative systems of dispute resolution, seem to hold promise for sorting out the tension between the two systems. An administrative system provides a mechanism for sorting out good evidence from the bad, and sorting out toxic from not toxic products, prior to the dispute resolution process. In contrast with a compensation fund system, which merely compensates victims without really providing the deterrence effects that tort law provides, an administrative system would deter negligent actors by putting them on notice that their product has been noted as toxic. Additionally it would compensate victims and also provide a cheaper way for them to get their “day in court” as they would not have to necessarily prove causation.

III. Artificial Turf: A Case Study

In 2008, the Attorney General of California brought suits against the Beaulieu Group and Fieldturf USA to enjoin their use of lead in artificial turf that was sold within the state of California.[6] Strikingly, the state of California had accepted over a decade prior to this suit being brought that lead was toxic and could lead to cancers and other health issues.[7] Because the State had already named lead as toxic, the plaintiff was able to conclusively state in the complaint that lead could lead to various illnesses and could definitely state the various methods of exposure humans would be submitted to by lead being present in the product.[8] In this case, the suit resulted in a settlement,[9] and while a large part of the desire to settle likely derived from the fact that the Attorney General brought the suit on behalf of the People of California, there was also a likely calculation relating back to the strength of the previously accepted science and thus the strength of the case. Perhaps, it is something like this type of certainty or strength of the evidence that the rules that have been developed regarding the admissibility of expert evidence and  epidemiological evidence specifically, are attempting to strive toward, in particular with respect to an argument regarding the efficiency of the dispute. Where defendants are sure that they will be found negligent in tort they will be more likely to resolve the issues out of court, or perhaps even refrain from the behavior where they uncover strong epidemiological evidence outside the universe of a lawsuit.

Artificial turf has come under fire for various toxic and environmental harms, broadly defined, in recent years. For example, in the world of sports, artificial turf has long been vilified for causing unprecedented and beyond normal injuries in athletes at an increased statistical rate when compared to natural grass.[10] Harkening back to claims of efficiency and deterrence, it has been argued that the best way to deter manufacturers of artificial turf from promoting the product is to embroil these manufacturers in litigation and hold them accountable for injuries.[11] However, attempts to bar the use of this turf by the National Football League Players Association in the 1970’s were undermined by insufficient medical data.[12] This was in face of a study done for the NFL by the Stanford Research Institute in 1974, demonstrating that natural grass is safer to play on than artificial turf, across the board.[13] Yet the U.S. Consumer Product Safety Commission still found that “based on evidence presently available, the use of artificial turf as a surface cover for athletic playing fields does not present an unreasonable risk of injury.”[14] Recently, the same year that the California Attorney General was granted an injunction against artificial turf companies for their use of lead, the same agency evaluated various samples of artificial turf and found that the “evaluation showed that newer fields had no lead or generally had the lowest lead levels.”[15] The discrepancy between the results, on the same or similar issues, before different law making bodies within the United States demonstrates why the rules which have developed on the admissibility of epidemiological evidence are important despite the various criticisms of them. For courts to deliver consistent results regarding issues of toxic harms, there needs to be a standard measuring stick. However, the issue remains that science and the law have different ideas of causation, and thus what science finds unsafe and what the law finds unsafe might differ. In the above scenario, California was able to go around the toxic harm tort causation issue by passing legislation. It remains to be seen whether a legislative command is always necessary to resolve possibly ambiguous causal issues in toxic harms. Perhaps, there are other alternatives either within the court system, or in an alternative dispute arena that would allow these issues to be resolved in a way that is both “fair” as well as practically effective.

A. Artificial Turf and Cancer

Another area of contention in the world of artificial turf is a potential link between the rubber tire crumbs used in the product and cancer. Recently, many concerned citizens have noticed and pointed out a correlation between cancer and artificial turf, especially among young athletes.[16] Crumb rubber was a solution created by engineers in the 1990’s as a method of recycling old rubber tires that were no longer useful.[17] This recycled material is then used to fill the artificial turf and provided stability and shock prevention to the turf.[18] However, since this solution arrived, studies have been done demonstrating that the tire crumbs, or crumb rubber, is laden with carcinogenic toxins.[19] The main problem is that despite this finding there is still a dearth of research on crumb rubber and its side effects, particularly when it comes to the human population.[20]

The Environment and Human Health organization produced a report based on studies done by various organizations on this issue.[21] Of these studies, only one of them is epidemiological.[22] This study, produced by the California Office of Environmental Health Hazard Assessment found that the levels of toxicity in artificial turf with crumb rubber filling were relatively low.[23] However, this study and others done by the same agency on crumb rubber, were funded by CalRecyle, the California state agency in charge of finding methods of recycling used rubber tires.[24] This presents a conflict of interest that neither Rule 702 nor the Daubert doctrine, and much less the current jurisprudence on epidemiological evidence, deals with. Courts would look to the epidemiological evidence provided and likely would conclude that there was insufficient evidence to present to a jury.[25] Yet, outside the courtroom, various agencies involved admit that there is a lack of sufficient evidence to draw the conclusions about the toxicity of the crumb rubber that have been drawn. In 2013, chairman of the Consumer Product Safety Commission, Eliot Kaye admitted that there was not enough evidence to draw conclusions as to safety.[26] This is the same commission which previously issued a press release stating this turf is safe in 2008.[27]

The Consumer Product Safety Commission is not the only agency that is calling for more research to be done on artificial turf and crumb rubber. In 2016, the Environmental Protection Agency, in conjunction with the Consumer Product Safety Commission and the Centers for Disease Control and Prevention as well as Agency for Toxic Substances and Disease Registry launched an action plan to study these issues.[28] Despite this, any argument brought before a court of law regarding the lack of evidence on this issue would fail, because it is not the job of the courts to decide which chemicals are toxic, it is merely the job of the court to proportion blame when issues arise out of negligent actions. Thus, it is not surprising that a lawsuit brought by the San Francisco Bay Chapter of the Sierra Club alleging that the San Francisco Recreation and Park Department did not do sufficient research on the issue of crumb rubber to determine that the toxicity in the artificial turf met the acceptable levels of toxins set by the local government ended in an unfavorable result.[29] On appeal, the Court of Appeals found that the report done in advance of the Beach Chalet project that was the center of the Sierra Club’s suit was adequate.[30]

Although, some might argue that given what is known and what is not known about the state of toxins within artificial turf and the crumb rubber that is used to fill it, a rule of evidence that does not allow information about this type of uncertainty is broken, the court’s stance on epidemiological evidence allows the court to manage a docket of cases and legal decisions about scientific problems in an efficient manner. Ultimately, it is the role of the legislature in conjunction with the scientific community to make policy decisions about what the acceptable amount of risk is when it comes to daily human interaction with toxins. Unfortunately, this leaves concerned citizens, and injured parties waiting for the holes in the science to be filled in by government actors and other nonprofit organizations in order to receive compensation for the issues that have been caused by the toxins. However, the resolution of the issues with regard to the presence of lead in artificial turf sheds some light on alternative solutions to the issue of toxic harms outside of the courtroom.

Again, the various cases dealing with artificial turf sheds light on the tension between evidentiary gatekeeping and compensatory theories of tort. While it is undeniable that more research could be done on artificial turf, toxicity studies have been done that demonstrate a baseline issue. Viewing these facts from the perspective that courts and court dockets must optimize efficiency, perhaps it makes sense that no compensation for plaintiffs can be awarded until a cut and clear chain of causation can be examined via the widely accepted epidemiology. However, in a system where companies are often influenced by risk of litigation and are the most able to study the products they offer to the public, having a compensatory tort system that precludes valid expert evidence on theories of reliability forecloses the court as a venue for certain plaintiffs and allows companies to get away with actions that might be unsavory. In this sense, the amount of litigation surround artificial turf, which is only beginning to lead to further research, represents a system failure wherein strict evidentiary gatekeeping encourages scant scientific research of potentially harmful consumer products.

B. Artificial Turf Outside the Tort System

There are two alternatives to remedies within the tort system: an ex ante administrative regulation system and a compensatory administrative system in the form of a victim’s compensation fund. Either system is designed to provide a solution to the problem presented by the admissibility of epidemiological evidence: causation.[31] However, whereas an ex-ante administrative regulation system is meant to deter and prevent toxic harms from occurring by identifying and prohibiting certain toxins from entering the market, an administrative compensatory system merely identifies and acknowledges harms that have occurred and compensates victims without the need for a full trial, though that process can take many forms. An administrative system could be designed in a variety of ways, however the benefits lie in the government assigning fault to actors without the need for trial.[32] Even outside a strict administrative system government involvement could take place in a variety of ways: as the settlement in the Beaulieu case suggests, actors are more likely to settle when a government actor is involved.[33] Government actors lend authority and facility to toxic harm suits by making it more likely that there will be injunctive relief and that negligent actors will settle suits.[34] Perhaps then, if government actors are required to fully accomplish the goals of tort law,[35] it would make sense to move fully from a system of tort to an administrative system where the government would decide fault based on a system of allocating the risk. Ex-ante government action is already taken in situations where certain types of behavior are regulated by administrative agencies.[36] Practically, an administrative system of allocating risk could be done either ex-ante, like regulation, or ex-post, like litigation.[37] However, in the case of toxic harms, because lack of proof and lack of notice tend to be issues, ex-ante processes may make the most sense in providing plaintiffs and potential litigants with swift and efficient justice.[38]

It has been argued that the tort system does little in terms of deterring, correcting, and compensating victims in the area of toxic harms due to the issues of causation that have largely been the focus of this paper.[39] Administrative systems of dispute resolution in the area of toxic harms would provide all the benefits that agencies are already lending to issues such as the artificial turf problem: specialist knowledge, independent investigations, flexibility with the ex-ante vs. ex-post view of the problems, as well as the ability to make policy decisions that are not within the ambit of the court.[40] There are various models of administrative systems including a tort and no-fault hybrid system, a narrowly tailored no-fault system, a broad no-fault system, a strict liability system, or a complex assessment of risk system.[41] These systems will be laid out briefly for the sake of comparing their various virtues and applying them to the case at hand.[42]

C. Models of Administrative Systems

The hybrid tort and no-fault administrative system is visible in the Price-Anderson Act that was promulgated with the purpose of promoting the development of nuclear testing and innovation in the scientific community.[43] The statute sets up a system where licensees under the statute must keep a certain amount of insurance and waive immunity from public liability.[44] The licensees are covered both by private insurers and by fees paid into a pool administered by the Nuclear Regulatory Commission.[45] Rabin suggests, that the hybrid characterization comes from the fact that the insurance model makes it a no-fault system, however the provision for private actors to bring a claim in order to receive compensation from the insurance creates a two-party system akin to torts.[46]

The model for the narrow no-fault system, according to Rabin, is the National Childhood Vaccine Injury Act of 1986.[47] The program lays out in a table a time period during which the injury related to the vaccine must occur in order of the victim to receive compensation.[48] This chart eliminates the question of causation. Thus a no-fault system is created where the “compensation fund is financed by an excise tax on each does of vaccine disbursed.”[49] This act was also promulgated with the purpose of stimulating private industry and insulating risky business for the public good from tort liability.[50]

An expansive no-fault system is modeled in both the Superfund Section 301(e) Student Group Report and the Environmental Law Institute Model Statute.[51] Due to the environmental nature of the case studies presented in this paper, we will focus on the Environmental Law Institute Model Statute (ELI Model). The ELI Model seeks to provide a truly regulated body of toxic chemicals by listing as one of its stated purposes “to reduce and prevent exposure to hazardous chemical substances or mixtures that cause or contribute to chronic or progressive diseases.”[52] The model sets up a strict liability system for substances or diseases covered within the proposed statute but leaves open a back door of discretion for the court to limit the liability of defendants if the defendants can show by a preponderance of the evidence that there were other factors involved in the plaintiffs illness.[53] The model allows for switching out of the administrative system back into the torts system, however Rabin notes that the lack of a possibility for switching from the torts system to the administrative system “once the hazardous nature of a product is well documented” is problematic.[54]

Clifford Fisher points out the many inefficiencies in the tort system when proposing his switch to a strict liability system: namely, that the burden of proof rests with the victim who likely does not have the access or resources to get the information they need to put on their case.[55] He goes so far to suggest, “the present system also creates a disincentive for risk-creators to act responsibly because it is not in their best economic interest to do so.”[56] In essence, he is suggesting that the tort system does not achieve deterrence of negligent actors nor compensation of victims in the realm of toxic harms. Instead, he suggests a strict liability system called an Environmental Compensation program, comparable to the Worker’s Compensation program where victims would file their claims to an insurance company.[57] This would allow the market to regulate the cost of risk, in so far as companies pay into the insurance system, which would incentivize risk takers to take the cost of that risk into account when planning business costs.[58] Fisher envisions, in addition to the deterrence effects afforded by companies paying into an insurance system, minimum health regulations that would help maintain socially acceptable levels of risk.[59] One last feature of Fisher’s proposal is to have a proportional liability system that “holds the risk-creator liable for the increased risk and for the losses of each victim of disease in the exposed population discounted by the probability that the risk-creator’s hazardous activity was the cause.”[60]

The most recent administrative system proposed is Albert Lin’s, which creates an internalized system of risk with federal levies imposed on sources of pollution.[61] Lin’s proposal would have the levies imposed be proportional to the amount of pollution released by sources.[62] The system does not supersede the tort system, but merely preempts claims that are foreseen and thus covered by the funds collected by the government.[63] However, his proposal does not allow individuals to opt out of the system, thus leaving the administrative system as the only recourse for the covered claims.[64] Lin’s proposal avoids the causation issue by awarding compensation for exposure to risk, not for injury in fact.[65] The last part to Lin’s proposal involves the use of database which would identify different toxins that would be covered under the administrative system; he suggests use of one of two already existing databases: the Agency for Toxic Substance and Disease Registry or the EPA’s Integrated Risk Information System.[66] While either of these databases would need to be updated with the help of the scientific community, Lin acknowledges that the informational needs of this system would be expansive.[67]

While an administrative system offers various tools to solve the problem of victims being compensated for their harms, they do not necessarily offer the best solution to this problem in terms of toxic and environmental harms. Certain no fault systems, such as the Price-Anderson Act and the National Childhood Vaccine Injury Act of 1986 were developed to encourage use of certain products which could be considered, or are, toxic.[68] In the case of environmental and toxic harms, the hope is to deter actors from using and abusing these chemicals rather than encourage them by giving them an easy out. The one improvement afforded by even an encouraging no fault system, is that a no fault system guarantees some compensation for victims, whereas a courtroom without epidemiological evidence guarantees failure. In an indirect way, a no fault system might require companies to think about the toxic harms they might be causing and weigh them, whereas as a court system that has created a loophole for these actors does not deter the behavior at all. Thus, although not fully resolving the tension between evidentiary gatekeeping and compensatory theories of tort, an ex-ante system relieves plaintiffs of evidence production that would allow for compensation without having to think about which evidence works best and then searching for that form of evidence among the research that is available on the topic.

Administrative systems such as the ELI model or Albert Lin’s proposal have heavy informational burdens. Thus, these proposals may suffer in areas such as environmental and toxic harms where the science is often catching up to the realities of plaintiffs’ situations. For example, in Lin’s proposal, if the harm has not yet been recognized by the database, the claim will then be kicked back into the court system, which defeats the purpose of creating a separate administrative system. These informational issues that are related to whether a claim goes into the administrative system or are litigated in tort create a dual system of treating claims that are relatively similar.

In the case of artificial turf, the administrative proposals would perhaps present a halfway solution to the problem presented by a need for epidemiological evidence. As the Beaulieu case demonstrates, if the toxin is recognized on a list either one presented by the administrative proposals, or one already in existence, then the administrative proposals for strict liability present a more manageable system that affords compensation without administrative costs in terms of evidentiary gatekeeping. However, in the case of crumb rubber, because more research on the issue is underway these systems just will not fix the current issue presented by the need for epidemiological evidence in order to put on a successful toxic harms case. In an ideal world, an administrative system proposal might have a wider statute of limitations window, not for latent harms, but for victims of harms that are newly discovered. So, if in five years a link were found between crumb rubber and cancer sufficient to put crumb rubber on the list for strict liability, a victim or victim’s estate could bring a claim at that time.

Another out of court solution to the issue of causation in environmental harms is the creation of victim compensation funds. Victim compensation funds have been used in situations of mass tort, for example September Eleventh, Agent Orange, and the Love Canal.[69] They are funds that pay out to victims of major accidents, natural disasters, and the like without respect to whether the insurer was the party at blame or not.[70] Typically, they shift the standard of care from negligence, used most often in the tort system, to strict liability, which is used sparingly.[71] A compensation fund can act similarly to an administrative system, for example having a no fault opt in system.[72] However, unlike administrative systems that typically have some criteria to be met before payout can occur, many compensation funds merely require victims to demonstrate they meet certain prerequisites, in order to keep evidentiary burdens low.[73] While the legal justifications for tort law include deterrence and compensation, the victims who file suits often begin seeking answers—but in the compensation fund system forego the answers they seek for compensation.[74] Administrative compensatory systems only present a solution to the tension between evidentiary gatekeeping and compensatory theories of tort if the evidentiary hurdles are less stringent than they are in a courtroom. Ex-ante administrative systems demonstrate a different approach to the acceptance of evidence; compensatory schemes, such as the September Eleventh fund, merely demonstrated the acceptance of causation where the cause is readily and easily ascertained. Thus, it is less clear that a compensatory scheme would provide a good solution or alternative to the tort system in the case of toxic harms.

Maritime law provides an example of a system which is a hybrid of the administrative system and compensation fund systems in the environmental realm, where the polluter pays the victims of its pollution[75] . However, as previously mentioned, this overlaps with administrative systems in many ways: polluter pays principle can be applied to civil liability cases, or the principle can be applied through an administrative trial.[76]

In the case of artificial turf, a compensation fund system may be different to plan and administer. For example, in the Benedictin cases, the medication that the scientists found and were published in the medical journals, demonstrated some fear and apprehension in the medical community that the drug was causing genital defects.[77] In the artificial turf cases this link in the scientific community is missing. In this manner, the compensation fund system is more similar to the actual tort system than an outside the tort system. Here, both suffer from an evidentiary causation problem: where there is missing information or linkage, the chances of compensation become slimmer and slimmer. Ultimately, it seems that between the administrative system and the compensation fund system, the administrative fund something is the better choice for smaller legal battles spread over many defendants with uncertainty.

IV. Conclusion

This paper has explored the tension between evidentiary rules that aim to foster reliability and efficiency with tort law whose purpose is to provide deterrence and compensation. There doesn’t seem to be one solution which would perfect the system to provide deterrence and reliability at the same time. What does seem apparent is that an administrative system, with a fact finding and research arm outside the dispute resolution system would provide a faster method of victims to be compensated for wrongs, and for those harms to be recognized widely without the need for epidemiological evidence in a court room. However, that conclusion presupposes that the administrators of a system would be proactive in researching potentially harmful chemicals, and also that findings that do not stem from epidemiology will be accepted.

The other potential solution to this issue would be to find a way in an adversary system for there to be a rule that allows evidence in which would not unfairly privilege one party over the other. However, since the rules are based on efficiency and reliability, not fairness, this does not seem to be relevant, nor would it function to improve the system. One question that begs to be asked is why not move from aims of reliability, efficiency, deterrence, and compensation to fairness? Firstly, those aims and justifications are attempting to get at versions of fairness. Secondly, it is impossible to be truly fair in a system where we entertain different versions of the same story and put decision making in the hands of impartial, but ultimately human jurors.

[1] Michael Dore, Law of toxic Torts §28:1 (3rd ed. 2015).

[2] James T. O’Reilly, 1 Toxic Torts Prac. Guide §4:6 (2015).

[3] Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1534 (D.C. Cir. 1984)

[4] Id. at 1539.

[5] David L. Faigmna, et. al., 3 Mod. Sci. Evidence § 23:4 (2016) (“Complete order cannot be imposed on the different positions taken by the courts as to whether the plaintiff must present epidemiological data on general causation. The two following distinctions, however, explain many apparent inconsistencies: (a) whether the case involves a mass tort or not; and (b) whether there is adverse epidemiology or no epidemiological evidence at all.”)

[6] Consent Judgment as to Defendant Beaulieu Group ¶ 2-15, ECF RG 08407310; Consent Judgment as to Defendant Fieldturf USA, Inc. ¶ 2-15, ECF RG 08-407310.

[7] Compl. ¶ 20, ECF 08407310; although the legislative history for this regulation was not accessible at the time of writing, the author notes that the inclusion of lead as a toxic chemical was likely the result of scientific study which would have been probative within the scope of this paper.

[8] Id. at ¶ 22.

[9] Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Benedictin Litigation, 86 Nw. U. L. Rev. 643, 646 (1992) (discussing types of evidence that can demonstrate causation and why epidemiology is particularly favorable).

[10] Allan Mazur and Jennifer Bretsch, Looking Back: Synthetic Turf and Football Injuries, 10 Risk: Health, Safety & Env’t 1, 2 (1999).

[11] Nicholas P. Ruggiero, Are the Rights of Athletes Swept under the Carpet?, 3 Seton Hall J. Sport L. 237, 243 (1993) (assuming that artificial turf is in fact harder on the bodies of athletes than natural grass and determining the best ways to deter the advocacy of the product).

[12] Brian J. Duff, Game Plan for a Successful Products Liability Action Against Manufacturers of Artificial Turf, 5 Seton Hall J. Sport L 223, 231 (1995) (pointing to NFLPA grievances filed with the U.S. Consumer Products Safety Commission).

[13] John Underwood, Just an Awful Toll, Sports Illustrated, Aug. 12, 1985, http://www.si.com/vault/1985/08/12/620602/just-an-awful-toll.

[14] United States Consumer Product Safety Commission, CPSC Denies Petition on Artificial Turf and Lead Levels in Paint, CPSC.gov, Sep. 3. 1976 (Feb. 17, 2016, 1:10 am), http://www.cpsc.gov/en/newsroom/news-releases/1976/cpsc-denies-petitions-on-artificial-turf-and-lead-levels-in-paint/.

[15] United States Consumer Product Safety Commission, CPSC Staff Finds Synthetic Turf Fields OK to Install, OK to Play On, CSPC.gov, Jul. 30, 2008 (Feb. 19, 2016, 11:07 pm), http://www.cpsc.gov/en/newsroom/news-releases/2008/cpsc-staff-finds-synthetic-turf-fields-ok-to-install-ok-to-play-on/.

[16] Julie Foudy, Turf Wars: How Safe are the Fields where we Play?, ESPNW, Nov. 24, 2105 (Feb. 27, 2016, 7:23 PM), http://espn.go.com/espnw/news-commentary/article/14206717/how-safe-fields-where-play (opening with an anecdote about Coach Amy Griffith keeping a list of all of the athletes who have developed lymphoma cancers, which are rare for the age group of the athletes).

[17] Id.

[18] Julia Cheever, Beach Chalet Fake Grass Survives Appeal, Bay City News, Oct. 1, 2015 (Feb. 28, 2016, 7:52 PM), http://sfbay.ca/2015/10/01/beach-chalet-fake-grass-survives-appeal/.

[19] Environment and Human Health, Inc., Artificial Turf: Exposures to Ground up Rubber Tires – Athletic Fields, Playgrounds, Garden Mulch, Environment and Human Health, Inc. (Feb. 27, 2016, 7:44 PM), http://www.ehhi.org/reports/turf/health_effects.shtml (discussing different studies which have found cancer to be linked to crumb rubber).

[20] Supra, Foudy.

[21] Supra, Environment and Human Health, Inc.

[22] This is based on the studies provided via hyperlinks that are still functioning on the EHHI’s website. They can be found here: http://www.ehhi.org/reports/turf/health_effects.shtml. See, Office of Environmental Health Hazard Assessment, Evaluation of Health Effects of Recycled Waste Tires in Playground and Track Products, Integrated Waste Management Board, January 2007 (February 28, 2016, 11:30 AM) http://www.calrecycle.ca.gov/publications/Documents/Tires%5C62206013.pdf.

[23] Office of Environmental Health Hazard Assessment, Evaluation of Health Effects of Recycled Waste Tires in Playground and Track Products, Integrated Waste Management Board, January 2007 at 1-3 (February 28, 2016, 11:30 AM) http://www.calrecycle.ca.gov/publications/Documents/Tires%5C62206013.pdf.

[24] Supra, Foudy.

[25] See generally, Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584 (D.N.J. 2002); Baldonado v. Wyeth, 2012 WL 1965408 (N.D. Ill. 2012).

[26] Supra, Foudy.

[27] Supra, United States Consumer Product Safety Commission.

[28] United States Environmental Protection Agency, Federal Research on Recycled Tire Crumbs Used on Playing Fields, EPA.gov, February 18, 2016 (Feb. 28, 2016, 2:00 PM), http://www.epa.gov/chemical-research/federal-research-recycled-tire-crumbs-used-playing-fields.

[29] Sierra Club appeals Beach Chalet court decision that ignores critical safety hazards, Sierra Club Yodeler, Jan. 30, 2014 (Feb. 28, 2016, 6:34 PM), http://theyodeler.org/?p=9013.

[30] Julia Cheever, Beach Chalet Fake Grass Survives Appeal, Bay City News, Oct. 1, 2015 (Feb. 28, 2016, 7:52 PM), http://sfbay.ca/2015/10/01/beach-chalet-fake-grass-survives-appeal/.

[31] Robert L. Rabin, Some Thoughts on the Efficacy of a Mass Torts Administrative Compensation Scheme, 52 Md. L. Rev. 951, 952 (1993) (“Critics have argued, in essence, that the present tort system, designed to achieve corrective justice goals in simple two-party accidental harm cases, is not well-constituted to adjudicate effectively mass toxics episodes, where litigation involves identifying the sources of long-latent disorders, resolving a vast array of probabilistic causation issues, dealing with enormous numbers of parties widely distributed geographically, and other related complications.”).

[32] Id. at 954.

[33] See supra note 6, in this case the lawsuit was brought by the Attorney General of the state, but it was within the tort litigation system.

[34] James T. O’Reilly, 2 Toxic Torts Prac. Guide §28:3 (2015)

[35] Rabin, supra, at 952 (noting that torts are most effective when the damages are related to the injury, the claimants are involved in the litigation, costs are low, trials are speedy, and the award provides incentive for deterrence).

[36] Albert C. Lin, Beyond Tort: Compensating Victims of Environmental Toxic Injury, 78 S. Cal. L. Rev. 1439, 1461 (2005).

[37] Id. at 1462.

[38] Id.

[39] Id. at 1452-1459, 1465.

[40] Id. at 1465.

[41] Rabin, supra, at 955-962 (describing the administrative systems behind the Price-Anderson Act, National Childhood Vaccine Act of 1986, and Environmental Law Institute Model); Clifford Fisher, The Role of Causation in Science as Law and Proposed Changes in the Current Common Law Toxic Tort System, 9 Buff. Envtl. L.J. 35, 131 (2001) (describing a system that deals with the failure of causation in mass torts to bring sufficient deterrence); Lin, supra, at 1487 (describing a system where the government would use the newest forms of technology available to it to draw conclusions about risk assessment across a wide variety of industries).

[42] This section will utilize the methodology and theories laid out in the articles in note 113, supra.

[43] Rabin, supra, at 955; 42 U.S.C. § 2210 (2006).

[44] 42 U.S.C. § 2210 (2006).

[45] Id.

[46] Rabin, supra, at 955-57.

[47] Rabin, supra, at 958; 42 U.S.C.A. §300aa-33 (2003).

[48] 42 U.S.C.A. § 300aa-14 (1993, published by Westlaw 2015).

[49] Rabin, supra, at 960.

[50]Id.

[51] Rabin, supra, 960; Jeffrey Trauberman, Statutory Reform of “Toxic Torts”: Relieving Legal, Scientific, and Economic Burdens on the Chemical Victim, 7 Harv.Envtl.L.Rev. 177, 250-96 (1983).

[52] Trauberman, supra, at 251.

[53] Id. at 258.

[54] Id. at 284-286; Rabin, supra, at 961-62.

[55] Fisher, supra, at 131.

[56] Id.

[57] Id. at 143.

[58] Id. at 144.

[59] Id.

[60] Id. at 150.

[61] Lin, supra, at 1486.

[62] Id. at 1487.

[63] Id. at 1488.

[64] Id.

[65] Id. at 1490.

[66] Id. at 1491.

[67] Id.

[68] See, infra.

[69] Kenneth S. Abraham,  Individual Action and Collective Responsibility: The Dilemma of Mass Tort Reform, 73 Virginia L. Rev. 845 (1987).

[70] Id.; Gillian K. Hadfield, Framing the Choice between Cash and the Courthouse Experiences with the 9/11 Victim Compensation Fund, 42 L. & Soc. Rev. 645, 647 (2008).

[71] Id. at 854-55.

[72] Rochelle Chodock, et. al. “Insuring” the Continued Solvency of Pharmaceutical Companies in the Face of Products Liability Action, 40 Tort Trial & Ins. Prac. L. J. 997, 1000 (2005) (proposing a compensation fund or private insurance fund that would support pharmaceutical groups).

[73]Hadfield, supra, 647 (describing how some victims would have preferred to use the court system to filling our a form).

[74] Jill Schachner Chanen, Accounting for Lives, 93 ABA J. 58, 59 (describing the story of the mother of one victim who acknowledged that she was giving up the answers she sought for compensation).

[75] Chen-Ju Chen, The Liability and Compensation Mechanism under International Marine Environmental Law, LOSI Conference Papers (2012).

[76] Id.

[77] Abraham, supra, 855.

 

 

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

 

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

This post is part of the Environmental Law Review Syndicate.

Introduction

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

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

I.  Environmental Law in the United States

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

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

II. Environmental Rights Abroad

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

A. South Africa

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

Everyone has the right––

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

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

(i) Prevent pollution and ecological degradation;

(ii) Promote conservation; and

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

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

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

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

(a) Anyone acting in their own interest;

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

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

(d) Anyone acting in the public interest;

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

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

B. India

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

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

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

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

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

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

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

C.  Nigeria

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

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

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

III. Translating Rights into Enforcement

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

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

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

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

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

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

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

Conclusion

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

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

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

[2] Id.

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

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

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

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

[7] Id.

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

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

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

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

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

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

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

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

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

[17] Id.

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

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

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

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

[22] Id.

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

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

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

[26] Id.

[27] Id. at 161.

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

[29] Id.

[30] See id. at 166.

[31] Id.

[32] Id.

[33] Id.

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

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

[36] Id. at 168.

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

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

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

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

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

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

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

[44] Id.

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

[46] Id.

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

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

[49] Id.

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

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

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

[53] See id.

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

[55] Id.

[56] Id. at 289.

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

[58] Id. at 289.

[59] Id. at 290.

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

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

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

[63] 42 U.S.C. § 4331(a) (2012).

[64] Id. § 4331(b).

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

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

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

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

[69] Id.

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

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

[72] Id.

[73] Id.

[74] Id.

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

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

[77] Id. at 561.

[78] Id. at 563–64.

[79] Id. at 562.

[80] Id. at 563.

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

[82] Id. at 568.

[83] Cannon, supra note 1, at 29–30.

[84] See supra Part II.A.

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

[ELRS] With Energy Law Federalism Under Construction, State Policymaking May Be Delayed

By John Bullock, Executive Editor, Harvard Environmental Law Review.*

This post is part of the Environmental Law Review Syndicate

Introduction

As the public has become more aware of the intense connection between the practices of electric utilities and greenhouse gas emissions, interested groups have shone a brighter spotlight on the regulation of utilities in the United States. Some have called on the Federal Energy Regulatory Commission (“FERC”) to take on a more environmentally conscious role when exercising their authority to set wholesale rates.[1] While FERC still hasn’t explicitly taken environmental considerations into wholesale rate setting, it has taken steps to continue to ensure reliability as the nation’s energy portfolio composition shifts.[2]

Generally, under the Federal Power Act, FERC has jurisdiction over sales of electricity for resale in interstate commerce (wholesale sales), electricity transmission, and practices “affecting” rates.[3] The Supreme Court recently authorized a construction of FERC’s jurisdiction in FERC v. Electric Power Supply Association (“EPSA”) to include practices that “directly affect” wholesale rates.[4] This decision was seen as good for clean energy, as it removed barriers for demand response resources[5] to compete in the wholesale market in the short-term, while allowing FERC to have more regulatory flexibility in the long-term.[6]

At the state level, legislators and regulatory bodies generally retain the authority to set retail rates, maintain and site local facilities, and to establish resource portfolios.[7] There are a wide range of potential policies that can be used to foster clean energy, including feed-in tariffs,[8] renewable portfolio standards,[9] rebates for renewables,[10] a carbon tax,[11] a ban on carbon imports and new coal plant construction,[12] and net-metering policies.[13] A majority of states in the country have passed some form of a renewable portfolio standard mandating a certain percentage of the state’s electricity come from renewable resources.[14] These policies can originate in the state legislature or can come from the state utility regulator directly.[15] These state policies use several different regulatory tools, from market-based incentives like renewable energy credits to other state law mechanisms such as long-term power purchase agreements or mandated utility-owned renewable generation.

Some of these state clean energy policies have recently been challenged or are currently being challenged in the federal courts on preemption and dormant commerce clause grounds.[16] Challenges to these policies typically allege that the state programs are either preempted by the Federal Power Act, or are an impermissible intrusion into Congress’s exclusive power to regulate interstate commerce.

The Court, by authorizing an expansion of FERC’s jurisdiction in EPSA, and by failing to clarify the preemption analysis under the Federal Power Act in another recent case, Hughes v. Talen Energy Marketing LLC, may have inadvertently created considerable uncertainty about the extent of federal and state authority—or at least failed to remedy existing uncertainty. More thorough discussions on the shifting approach to the division of state and federal authority in energy law can be found elsewhere.[17] This Article will instead offer some speculation about the impacts of EPSA and Hughes on state policymaking.

FERC v. EPSA and Hughes v. Talen Energy Marketing

In Federal Energy Regulatory Commission v. Electric Power Supply Ass’n, the Supreme Court upheld FERC’s assertion of jurisdiction by allowing it to regulate practices that “directly affect” wholesale rates.[18] At issue in EPSA was whether FERC had authority to regulate demand response transactions (where a provider contracts with consumers to reduce energy consumption), or whether those transactions should be classified as “retail sales.”[19] The Federal Power Act grants FERC jurisdiction over practices affecting rates, and in EPSA, the Court adopted a D.C. Circuit test that cabined that authority to practices “directly affecting” rates.[20] After adopting the directly affecting test, the Court found that FERC had jurisdiction over demand response practices, that the rule did not impermissibly tread into authority reserved to the states, and that FERC did not act arbitrarily and capriciously in its decision to compensate electricity users at the same rates as electricity generators.

Whereas EPSA dealt primarily with the extent of FERC’s jurisdiction under the Federal Power Act, Hughes v. Talen Energy tackled the separate but related issue of whether a state program was preempted under the Federal Power Act.[21] The case was on review from the Fourth Circuit, where the appellate court found that a Maryland program was preempted both as a matter of field preemption (because FERC “occupies the field” of setting wholesale rates), and also as a matter of conflict preemption (because rates under Maryland’s program conflicted with FERC approved rates).[22] On review, the Supreme Court affirmed the lower court’s ruling, albeit on narrow grounds, finding that the Maryland program “impermissibly intrude[d] upon the wholesale electricity market, a domain Congress reserved to FERC alone.”[23]

One could argue that the Supreme Court narrowed the scope of the Fourth Circuit holding. For example, the Court distinguished between contracts-for-differences (which was the regulatory mechanism that Maryland deployed to encourage new natural gas plant development) and other more traditional long-term power purchase agreements.[24] However, in other ways, the Court’s opinion is actually more ambiguous—the Court does not clarify whether the correct analytical approach here should be conflict, field, or another form of preemption analysis,[25] and two Justices wrote concurring opinions to advocate for their distinct approaches.[26]

Because the opinion only addressed a narrow set of situations, the court did little if anything to address whether any other state regulatory mechanisms designed to encourage renewable deployment would be preempted under the Federal Power Act, and specifically limited their holding to Maryland’s program.[27] The decision provides no guidance on how to analyze these state law regulatory programs unless they contain contracts-for-differences that are pegged to a FERC-approved wholesale price, as Maryland’s program did. Therefore, the case is unlikely to act as a prophylactic to the litigation that is ongoing in the lower courts.[28] It makes one wonder why the Supreme Court took the case in the first place—there was no circuit split after the Fourth Circuit’s decision, and the Court failed to use the case as an opportunity to instruct the lower courts.

Putting Hughes and EPSA Together:
Examining Impacts on State Regulatory Authority

Combining the holding from EPSA with Hughes along with some of the more archaic language in previous energy preemption cases provide ample fuel for challenges to state renewable energy policies. Simply, if the Federal Power Act draws a jurisdictional “bright-line,”[29] or if “[i]t is common ground that if FERC has jurisdiction over a subject, then the States cannot have jurisdiction over the same subject,”[30] then any practice that “directly affects” wholesale rates should be exclusively within FERC’s jurisdiction. This could result in effectively shrinking state regulatory authority after EPSA and Hughes.

Still, the extent of practices that come within FERC’s “affecting” jurisdiction is unknown, and it may be that FERC must first exercise this jurisdiction over a particular practice before it has a preemptive effect. However, this doesn’t prevent litigants from making those arguments in the lower courts to invalidate clean energy programs, and Hughes may stand as a missed opportunity to clarify the scope of preemption under the Federal Power Act.

In fact, litigants are already citing Hughes and EPSA to challenge state clean energy programs. On October 2016, the Coalition for Competitive Energy filed a challenge to the New York Public Service Commission’s Clean Energy Standard in the Southern District of New York.[31] The Clean Energy Standard was issued in August,[32] and set a target for New York to obtain fifty percent of their electricity from renewable resources by 2030.[33] In addition to continuing New York’s renewable energy credit program,[34] the Clean Energy Standard included a requirement that load-serving entities purchase Zero-Energy Credits that correlate with electricity generated by nuclear facilities.[35] Coalition for Competitive Energy is challenging this specific program (the zero-emissions credits) in their complaint, alleging that it “operates within the area of FERC’s exclusive jurisdiction” and should therefore be preempted.[36] The petition cites EPSA to argue that “[s]tate actions that ‘directly affect the wholesale rate’” are invalid.[37]

Additionally, the Second Circuit recently granted Allco’s request for an injunction to prevent state officials from conducting a clean energy request for purchase (“RFP”) in Connecticut.[38] The decision did not enjoin state officials in Massachusetts and Rhode Island who are also participating in the RFP.[39] While the Second Circuit did not disclose their reasoning when it granted the injunction,[40] Allco’s petition for injunction pointed to Hughes when arguing that the program was preempted under the Federal Power Act.[41]

While it may seem that uncertainty in the preemption context is a net loss for individuals concerned about an accelerated transition to clean energy, climate advocates may also weaponize Hughes in other contexts to argue that other state polices that prop up coal and natural gas plants are preempted by the Federal Power Act. For example, the Ohio Public Utilities Commission recently attempted to use power-purchase agreements—which can sometimes be a tool to generate procure renewables[42]—to subsidize coal plants in the state.[43] The proposal was blocked by FERC before it could take effect,[44] but the program could have been challenged under Hughes if it remained in place.

Both examples citing to Hughes show challenges to state energy programs that operate outside of FERC-approved markets, unlike the Maryland program at issue in Hughes where the parties adjusted the FERC-approved rate.[45] Perhaps the biggest challenge going forward for clean energy advocates will be how to distinguish state programs that do not advance climate goals (like the Maryland program at issue in Hughes) from those that do (such as the program at issue in Allco), when both often use the exact same regulatory tools.

The Supreme Court may return to the question of the extent of federal and state authority under the Federal Power Act sometime within the next few years. It could reach one of several conclusions. It may reaffirm past language about the “bright-line” between federal and state regulatory authority—confirming that EPSA represented an expansion of FERC’s power and a simultaneous restriction on state authority. It may endorse some form of concurrent jurisdiction, as it did in the Natural Gas Act context in Oneok Inc. v. Learjet, Inc.,[46] and if it does, it may then decide how to restructure the preemption analysis under this concurrent jurisdictional model. It may establish some method of floor preemption,[47] or alternatively, it may leave the preemption decision up to the federal agency,[48] as it does in some other contexts.[49] Also, the Court may simply leave the resolution of these issues up to the lower federal courts.

Conclusion

Regardless of the approach the court takes, the fact that all of these questions remain open and unresolved currently creates considerable legal uncertainty for state regulators that are trying to update and craft effective clean energy laws. States are already testing the boundaries of their authority in many instances,[50] and many may continue to do so despite these new uncertainties. Further, it may be impossible to disaggregate the influence that legal uncertainty is having on state regulators from other influences such as political pressures. I would assume state legislators and regulators—some that are designing state laws to ensure their compliance with the Clean Power Plan—would likely prefer clarity on what regulatory mechanisms they are allowed to use without running afoul of the Supremacy Clause. Hughes thus represents a missed opportunity, and the recent power trio of Oneok, EPSA, and Hughes may shortly turn into a quartet.

* J.D. Candidate, Harvard Law School. The author would like to thank Ari Peskoe, Senior Fellow in Electricity Law at the Harvard Environmental Law Program Policy Initiative, and Robin Smith and Nate Bishop for their help and advice. Any mistakes or omissions are the author’s own.

[1] See, e.g., Christopher Bateman and James T.B. Tripp, Towards Greener FERC Regulation of the Power Industry, 38 Harv. Envtl. L. Rev. 275 (2014) (arguing that consideration of environmental consequences by FERC is permissible under the Federal Power Act); Joel B. Eisen, FERC’s Expansive Authority to Transform the Electricity Grid, 49 U.C. Davis L. Rev. 1783, 1788 (2016) (arguing that under recent case law, FERC may now include environmental considerations into wholesale rates so long as those considerations “directly affect” those rates); Steven Weissman & Romany Webb, Berkeley Center for Law, Energy & the Environment, Addressing Climate Change Without Legislation: Volume 2, How the Federal Energy Regulatory Commission Can Use Its Existing Legal Authority to Reduce Greenhouse Gas Emissions and Increase Clean Energy Use (2014), https://perma.cc/JH8H-FLYT (arguing that FERC can add the cost of carbon when setting the prices in the wholesale market).

[2] Order No. 1000, Transmission Planning and Cost Allocation by Transmission Owning and Operating Public Utilities, 136 FERC ¶ 61,051, 76 Fed. Reg. 49841 (Aug. 11, 2011) (codified at 18 C.F.R. § 35) (requiring regional transmission planning to consider state and local public policy requirements); Order No. 745, Demand Response Compensation in Organized Wholesale Energy Markets, 134 FERC ¶ 61,187, 76 Fed. Reg. 16657 (Mar. 24, 2011) (codified at 18 C.F.R.§ 35.28(g)(1)(v)) (allowing demand response providers to bid into the wholesale market).

[3] New York v. FERC, 535 U.S. 1, 6–7 (1996).

[4] 136 S. Ct. 760, 773 (2016).

[5] FERC defines demand response as “a reduction in the consumption of electric energy by customers from their expected consumption in response to an increase in the price of electric energy or to incentive payments designed to induce lower consumption of electric energy.” 18 C.F.R. § 35.28(b)(4) (2015).

[6] See Joel B. Eisen, FERC v. EPSA and the Path to a Cleaner Energy Sector: Introduction, 40 Harv. Envtl. L. Rev. Forum 1, 7–8 (2016) (“In the long run, this concise, broad jurisdictional standard gives FERC considerable flexibility to promote a cleaner, more efficient Smart Grid.”).

[7] See 16 U.S.C. § 824 (a)–(b) (2016); New York, 535 U.S. at 19–25 (“FERC has recognized that the states retain significant control over local matters . . . [including] generation and transmission siting . . . [and] authority over utility generation and resource portfolios”) (citing Order No. 888, Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities, 75 FERC ¶ 61,080, 61 Fed. Reg. 21540, 21,626 n.543, n.544 (May 10, 1996) (codified at 18 C.F.R. § 35 and § 385)).

[8] See generally Toby Couture and Karlynn Cory, National Renewable Energy Laboratory, State Clean Energy Policies Analysis (SCEPA) Project: An Analysis of Renewable Energy Feed-in Tariffs in the United States (2009), https://perma.cc/G2MZ-AY7F.

[9] See generally David Hurlbut, National Renewable Energy Laboratory, State Clean Energy Practices: Renewable Portfolio Standards (2008), https://perma.cc/JWE4-J9BB.

[10] See generally Eric Lantz and Elizabeth Doris, National Renewable Energy Laboratory, State Clean Energy Practices: State Renewable Rebates (2009), https://perma.cc/HWE7-EBZM.

[11] The State of Washington considered a carbon tax in a 2016 ballot initiative. See, Initiative Measure No. 732 (filed March 29, 2016) https://perma.cc/26ZL-Z9D8.

[12] Minn. Stat. § 216H.03, subd. 3(2) and (3) (2007) (“no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions; or (3) enter into a new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions.”)

[13] See generally Edison Electric Institute, Solar Energy and Net Metering (2016), https://perma.cc/Z3GU-5LKV.

[14] Jocelyn Durkay, “State Renewable Portfolio Standards and Goals,” National Conference of State Legislatures (July 27th, 2016) (reporting that “Twenty-nine states, Washington, D.C. and three territories have adopted an RPS, while eight [additional] states have set renewable energy goals”). https://perma.cc/DV9L-JRRL.

[15] See Public Service Commission of N.Y., Order Adopting a Clean Energy Standard (Aug. 1 2016). https://perma.cc/3GSF-Q36Z.

[16] See, e.g., North Dakota v. Heydinger, 825 F.3d 912 (8th Cir. 2016) (of three separate opinions, two held that Minnesota statute was preempted by the Federal Power Act); Rocky Mountain Farmers Union, et al., v. Richard W. Corey, 730 F.3d 1070 (9th Cir. 2013); Energy and Environmental Legal Institute v. Epel, 793 F.3d 1169 (10th Cir. 2015); Allco Finance Ltd. v. Klee, 805 F.3d 89, 95–96 (2d Cir. 2015) (rejecting plaintiff’s argument that solar contracts approved by the state regulator were preempted by the Public Utilities Regulatory Policies Act); see also Harvard Environmental Law and Policy Institute, State Power Project: Examining State Authority in Interstate Electricity Markets, https://statepowerproject.org (2016).

[17] Jim Rossi, The Brave New Path of Energy Federalism, 95 Tex. L. Rev. (forthcoming 2016).

[18] EPSA, 136 S.Ct. at 773.

[19] The D.C. Circuit found that FERC’s regulation of demand response transactions impermissibly intruded outside of FERC’s authorized jurisdiction under the Federal Power Act. EPSA v. FERC, 753 F.3d 216, 222 (D.C. Cir. 2014).

[20] EPSA, 136 S.Ct. at 774 (citing Calif. Independent System Operator v. FERC, 372 F.3d 395, 403 (D.C. Cir. 2004)).

[21] Hughes v. Talen Energy Marketing LLC, 136 S. Ct. 1288 (2016).

[22] PPL Energy Plus, LLC v. Nazarian, 753 F.3d 467 (4th Cir. 2014).

[23] Hughes, 136 S. Ct. at 1292.

[24] Id. at 1299 (“But the contract at issue here differs from traditional bilateral contracts in this significant respect: The contract for differences does not transfer ownership of capacity from one party to another outside the auction.”).

[25] Id. at 1297 (“A state law is preempted where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,” as well as “where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (citations omitted).

[26] Id. at 1300 (Sotomayor, J., concurring) (clarifying that the purpose of the Federal Power Act should serve as the “ultimate touchstone” for the preemption analysis and the Court should resist “talismanic” preemption vocabulary); id. at 1301 (Thomas, J., concurring) (stating that he would not rest his holding on principles of implied-preemption).

[27] Id. at 1299 (“Our holding is limited: We reject Maryland’s program only because it disregards an interstate wholesale rate required by FERC. We therefore need not and do not address the permissibility of various other measures States might employ to encourage development of new or clean generation, including tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector. Nothing in this opinion should be read to foreclose Maryland and other States from encouraging production of new or clean generation through measures untethered to a generator’s wholesale market participation.”).

[28] See supra note 16 and accompanying text.

[29] Federal Power Commission v. Southern Cal. Edison Co., 376 U.S. 205, 215–216 (1964) (“Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction. . .”). But see Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1601 (2015) (describing the clear division between federal and state authority in the Natural Gas Act context as a “Platonic ideal”); FERC v. EPSA, 136 S.Ct. 760, 780 (2016) (“The [Federal Power Act] makes federal and state authority complementary”); Hughes v. Talen Energy Marketing, LLC., 136 S.Ct. 1288 (2016) (Sotomayor, J., concurring) (“the Federal Power Act, like all collaborative federalism statutes, envisions a federal-state relationship marked by interdependence”).

[30] Mississippi Power & Light Co. v. Mississippi ex. rel. Moore, 487 U.S. 354, 377 (1984) (Scalia, J., concurring). The majority opinion also acknowledges “FERC has exclusive authority to determine the reasonableness of wholesale rates. . .” Id. at 355.

[31] Complaint, Coalition for Competitive Energy v. Zibelman (S.D.N.Y. filed Oct. 19, 2016) (No. 1:16-cv-08164), https://perma.cc/U9Z9-2UR6.

[32] Public Service Commission of New York, Order Adopting a Clean Energy Standard (Aug. 1 2016), https://perma.cc/J82W-XSZP.

[33] Id. at 6.

[34] Id. at 38.

[35] Id. at 45.

[36] Complaint at 5, Coalition for Competitive Energy v. Zibelman, (S.D.N.Y. filed Oct. 19, 2016) (No. 1:16-cv-8164), https://perma.cc/U9Z9-2UR6.

[37] Id. at 11.

[38] Order Granting Preliminary Injunction, Allco Finance Ltd. v. Klee (2d. Cir. 2016) (No. 16-2946).

[39] See id.

[40] See id.

[41] Petition for Injunction at 2, Allco Finance Ltd. v. Klee, No. 16-2946 (2d. Cir. 2016) (No. 16-2946).

[42] Cf. American Council on Renewable Energy, Renewable Energy in Massachusetts (2014), https://perma.cc/V6GF-GEF8 (“In February 2014, the state approved 12 long-term power purchase agreements with four Massachusetts utilities for 409 MW of wind projects in Maine and New Hampshire”).

[43]See In the Matter of the Application of Ohio Electric Company, Case No. 14-1297-EL-SSO (Pub. Util. Comm’n of Ohio 2016), https://perma.cc/T24L-6XCA.

[44] Gavin Bade, FERC Blocks Ohio Power Plant Subsidies for AEP and FirstEnergy, Utility Dive (Apr. 28, 2016), https://perma.cc/4ZCG-SPQT.

[45] Hughes v. Talen Energy Marketing LLC, 136 S. Ct. 1288, 1299 (2016).

[46] 135 S. Ct. 1591, 1599 (instructing that for preemption under the Natural Gas Act, the appropriate inquiry is to examine the target at which state law “aims”).

[47] Jim Rossi and Thomas G. Hutton, Federal Preemption and Clean Energy Floors, 91 N.C. L. Rev. 1283 (2013).

[48] See Rossi, supra note 17 at 65 (stating that whether state programs are preempted may be left to FERC, as opposed to a case-by-case determination by the judiciary).

[49] See generally Brian Galle & Mark Seidenfeld, Administrative Law’s Federalism: Preemption, Delegation and Agencies at the Edge of Federal Power, 57 Duke L. J. 1933 (2008).

[50] See supra note 16 and accompanying text.

[ELRS] Pipelines, Protests and General Permits

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

This post is part of the Environmental Law Review Syndicate

Abstract

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

Introduction

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

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

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

Nationwide Permits

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

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

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

NWP 12

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

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

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

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

NWP 12 and DAPL

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

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

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

Conclusion

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

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

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

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

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

[5]           Id.

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

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

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

[8]           Id.

[9]           Id.

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

[11]         Id. at 50.

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

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

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

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

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

[17]         Id.

[18]         Id. at *7.

[19]         Id. at *1.

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

[21]         Id.

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

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

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

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

[26]         Id. at 10,185.

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

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

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

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

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

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

[33]         Id.

[34]         Id. § 7(b)(3).

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

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

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

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

[38]         Id. at 1.

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

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

[41]         Id.

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

[43]         Id.

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

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

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

[47]         Id. at 43.

[48]         Id. at 45.

[49]         Nationwide Permit 12, at 2.

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

[51]         33 C.F.R. § 330.1(d).

[52]         Gulf Coast Pipeline, at 900.

[53]         Id.

[54]         Id. at 896.

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

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

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

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

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

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

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

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

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

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

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

[66]         Id. at *18-9.

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

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

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

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

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

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

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

This post is part of the Environmental Law Review Syndicate

Introduction

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

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

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

The APA and the Arbitrary and Capricious Standard

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

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

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

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

Meaning of Arbitrary and Capricious

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

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

Deference

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

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

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

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

Best Available Science Under the Endangered Species Act

History

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

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

What is Required Under the Best Available Science Mandate?

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

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

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

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

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

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

Deference

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

Ninth Circuit Deference on Matters of Science

A Substantive Mandate in 2005

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

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

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

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

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

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

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

Clarification of the Arbitrary and Capricious Standard in 2008

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

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

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

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

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

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

Current Cases

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

[8] See cases cited supra note 2.

[9] 16 U.S.C. § 1536(a)(2) (2012).

[10] Id.

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

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

[13] See cases cited supra note 2.

[14] See cases cited supra note 2.

[15] 5 U.S.C. § 706 (2012).

[16] Id.

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

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

[19] See 5 U.S.C. §706(2)(A) (2012).

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

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

[22] Id. at 224.

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

[24] See Marsh, 490 U.S. at 377–78.

[25] Id.

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

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

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

[29] § 1(c), 80 Stat. at 926.

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

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

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

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

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

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

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

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

[38] See id.

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

[40] Id. at 1081.

[41] See id.

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

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

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

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

[46] Id.

[47] 16 U.S.C. § 1536(a)(2) (2012).

[48] Id.

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

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

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

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

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

[54] See id. at 1087.

[55] See id.

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

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

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

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

[60] Id.

[61] Id. at 1089.

[62] See id.

[63] Id. at 1091.

[64] Id. at 1092.

[65] Id.

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

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

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

[69] Id. at 998.

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

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

[72] Id. at 990.

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

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

[75] Id. at 992.

[76] Id. at 994–95.

[77] Id. at 995.

[78] Id. at 996.

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

[80] Id.

[81] Id.

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

[83] See Renshaw, supra note 12.

[84] See cases cited supra note 2.

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

[86] Id. at 490.

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

[88] Id.

[89] Id.

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

[91] Id. at 1035.

[92] Id.

[93] Id. at 1048.

[94] Id.

[95] Id.

[96] Id.

[97] Id.

[98] Id.

[99] Id. at 1049–50.

[100] Id. at 1049–51.

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

[102] Id. at 1235–36.

[103] Id.

[104] Id. at 1236.

[105] Id. at 1238–41.

[106] Id. at 1241–42.

[107] Id. at 1242.

[108] Id. at 1243.

[109] Id. at 1243–44.

[110] Id.

[111] Id.

[112] Id.

[113] Id. at 1244.

[114] Id.

[115] See cases cited supra note 50.

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

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

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

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

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

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

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

This post is part of the Environmental Law Review Syndicate

Introduction

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

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

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

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

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

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

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

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

Environmental Ethics and Their Divorce from Environmental Law

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

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

Value Theory and the Strategy of Nature’s Standing

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

 

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

Ecojustice and Environmental Justice

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

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

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

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

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

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

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

The Limits of Value Theory

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

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

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

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

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

Mechanisms Responsible for the Gulf Between Environmental Ethics and Law

[Omitted]

Toward A Liberationist Approach in Environmental Ethics

[Omitted]

Conclusion

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

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

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

[2] Id. at 8.

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

[4] Matthew 25:31-45.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[24] Id. at 42.

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

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

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

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

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

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

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

U.S.C. §§ 7401–7671).

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

U.S.C. §§ 1251–1387).

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

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

[34] See id. at 41.

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

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

[37] Id. at 872.

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

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

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

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

[42] O’Neill, supra note 37, at 119.

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

[44] Id. at 61.

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

[46] Id. at 64.

[47] Id. at 62.

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

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

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

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

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

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

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

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

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

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

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

[59] Id. at 63.

[60] Id.

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

[62] See id.

[63] Id.

[64] Id.

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

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

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

[68] Id.

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

[70] Id. at 874.

[71] Id.

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

[73] See supra page 8.

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

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

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

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

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

[79] Id. at 875.

[80] Id.

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

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

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

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

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

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

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

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

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

[90] Matthew 22:21.