<h4><em>Under review</em></h4>
<p>U.S. <a href="#" title="Natural resources are “natural assets (raw materials) occurring in nature that can be used for economic production or consumption” according to the Organization for Cooperation and Economic Development. Cornell's LEgal Information Institute defines them as” land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, any State or local government, or any foreign government.” For the purpose of this website, they are naturally occurring items that have economic or ecological importance that have been or may be exploited by humans.">natural resources</a> law is a patchwork of <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=880115&quot; title="For a discussion of the distinction between environmental and natural resources law, see Robert Fischman, “What is Natural Resources Law?”">unrelated statutes</a>, unique to each resource, with the exception of the <a href="#National-Environmental-Policy-Act">National Environmental Policy Act</a> (NEPA). Some reflect a pioneer spirit, such as the laws regulating mineral mining, and some are more modern, such as laws regulating ocean fisheries. For the most part, the statutes governing <a href="#Federal-Land-Policy-and-Management-Act">federal lands</a>, <a href="#Timber-and-Forest-Lands">timber</a>, <a href="#Coal">coal</a>, <a href="#Oil-and-Gas">oil and gas</a>, <a href="#minerals">minerals</a>, <a href="#Soil">soil</a>, and <a href="#Ocean-Fisheries">oceans</a> share a common goal of efficiently and sustainably managing natural resources, but with varying degrees of success. This topic would not be complete without also considering <a href="#Natural-Resource-Damages">natural resource damages</a> and <a href="#ecosystem-services">ecosystem services</a>.</p>
<p>For a groundbreaking effort to integrate pollution control and natural resources law, see Cecilia Campbell-Mohn et al., “<a href="http://www.amazon.com/Sustainable-environmental-law-Integrating-polluti… Environmental Law: Integrating Natural Resource and Pollution Abatement Law from Resources to Recovery</a>.”</p>
<p>Natural resources, in general, belong to the state or federal government unless found on private property or rights to them have been obtained from the government. States retain primary authority over natural resources within their borders, although federal statutes also apply to many resources, especially those found on federal land.The government’s role in managing and preserving natural resources for public use dates back to English <a href="http://www.eli.org/keywords/governance#evolution-environmental-law-poli… law</a> and to Roman law before that. Under the <a href="http://www.eli.org/keywords/governance#evolution-environmental-law-poli… trust doctrine</a><a href="#_msocom_7"></a>, some resources, including access to navigable waterways, fishing areas, and coastal areas, cannot be privately owned but must be held for the use and benefit of all. The concept of a protected public interest in natural resources is in tension with U.S. law’s general preference for well-defined property rights.</p>
<h2><a name="National-Environmental-Policy-Act"></a>National Environmental Policy Act</h2>
<p class="style1">Although no single statute applies to all natural resources, the <a href="http://www.epw.senate.gov/nepa69.pdf">National Environmental Policy Act</a> (NEPA) applies to most government actions that might affect natural resource management. NEPA requires the federal government to take a “<a href="http://openjurist.org/458/f2d/827/natural-resources-defense-council-inc…; title="Natural Resources Defense Council v. Morton">hard look</a>” at the potential environmental impacts of proposed federal actions. Under NEPA the government must consider reasonable alternatives to projects that may lessen the environmental impacts. NEPA also provides opportunities for <a href="http://www.eli.org/keywords/governance#local-environmental-law">public comment</a><a href="#_msocom_9"></a> during the NEPA review process. NEPA review is often required before decisions about natural resource use can be made. For example, NEPA review must be completed before a permit for mining on federal land can be issued, before a hiking trail can be built through federal lands, before federal funding in support of energy development projects can be awarded, before grazing permits on federal lands are issued, and before permits for offshore drilling or wind energy sites will be issued.&nbsp;</p>
<p class="style1">For a discussion of the accomplishments and shortfalls of NEPA, listen to and download materials from the ELI seminar “<a href="http://www.eli.org/Seminars/past_event.cfm?eventid=576">The National Environmental Policy Act 40<sup>th</sup> Anniversary Celebration</a>.”</p>
<p class="style1">For a general overview of the National Environmental Policy Act and its many provisions, see Nicholas Yost, “<a href="http://www.eli.org/eli-press-books/nepa-deskbook%2C-4th-edition">NEPA Deskbook, <sup>4th</sup> ed</a>.” For an examination of how NEPA can be used today beyond its mere procedural requirements, see James McElfish, “<a href="http://www.eli.org/research-report/rediscovering-national-environmental… the National Environmental Policy Act: Back to the Future</a>.” For a discussion of the many successes of NEPA, see “<a href="http://www.eli.org/research-report/nepa-success-stories-celebrating-40-… Success Stories: Celebrating 40 Years of Transparency and Open Government</a>.”</p>
<h2><a name="Federal-Land-Policy-and-Management-Act"></a>Federal Land Policy and Management Act</h2>
<p class="style1">The federal government owns nearly <a href="http://nationalatlas.gov/printable/fedlands.html">650 million acres</a> - almost 30 percent - of all U.S. land. As a result, management of federal lands has a significant impact on the overall environment. The <a href="http://www.eli.org/keywords/federal-land-policy-and-management-act-flpm… Land Policy and Management Act</a> (FLPMA) was enacted in 1976 to establish a unified, comprehensive, and systematic approach to managing and preserving public lands in a way that <a href="#" title="§ 102(a)(8).">protects </a>“the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.” <a href="http://www.blm.gov/flpma/&quot; title="For a general review of FLPMA and its history, visit here">FLPMA</a> is administered by the <a href="http://www.blm.gov/wo/st/en.html">Bureau of Land Management</a> (BLM) within the <a href="http://www.doi.gov">Department of Interior</a>.</p>
<p class="style1">Pursuant to FLPMA, BLM must establish a planning process for the management of public lands that accommodates multiple uses of the land and its resources and achieves sustained yield of natural resources. FLMPA aims to protect and preserve public lands in their natural condition to the extent possible, and to retain federal ownership of public lands unless it is in the national interest to dispose of them. Where it is appropriate to sell federal lands, FLPMA <a href="#" title="See generally 43 U.S.C. § 1701, et seq.">requires </a>that fair market value be received for the lands.</p>
<p class="style1">For an interesting discussion of the coming together of public and private land management, see John Davidson, “<a href="http://elr.info/news-analysis/39/10368/new-public-lands-competing-model… New Public Lands: Competing Models for Protecting Public Land Conservation Values on Privately Owned Lands</a>.”</p>
<h2><a name="Timber-and-Forest-Lands"></a>Timber and Forest Lands</h2>
<p>The <a href="http://www.fs.fed.us/">U.S. Forest Service</a>, under authority from the <a href="http://usda.gov/wps/portal/usda/usdahome">Department of Agriculture</a>, manages 193 million acres of &nbsp;forest and grasslands within the National Forest System. The Forest Service’s <a href="http://www.fs.fed.us/aboutus/mission.shtml">mission </a>is to “sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.” This mission reflects the balance that the Forest Service must strike between allowing productive economic use and conservation of the lands that they manage. Of the 193 million acres they manage, roughly <a href="#" title="Campbell-Mohn, et al., p. 602.">49 million</a><a href="#_msocom_12"></a> are open to timber extraction.</p>
<p>Under the <a href="http://www.fs.fed.us/emc/nfma/includes/RPA_amended_by_NFMA_USCver.pdf">… Forestry Management Act</a>, all national forests are required to prepare <a href="https://fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5367422.pdf&quot; title="For example, see the Tongass National Forest Land and Management Plan">land and resource management plans</a>, which must be updated every 15 years. These plans essentially zone the forest, determining how the lands are to be managed and whether <a href="#" title="The Forest Service follows three steps of elimination to determine whether a piece of land is potentially available for timber harvest: Step 1. Land that physically cannot sustain harvests is excluded. Step 2. Land that cannot be harvested without irreparable harm is excluded. Step 3. Land that cannot be properly returned to forest after harvest is excluded. 36 C.F.R. § 219.27. These steps are not cut and dry, and many economic, cost-benefit considerations may affect the exclusion determination. 36 C.F.R. § 219.14(b). Once it has been determined that land is suitable for timber extraction, the Forest Service auctions its timber to private loggers, based on a minimum price needed to pay for the replanting of trees on the land. See generally 36 C.F.R. § 223.">timber harvesting</a><a href="#_msocom_15"></a> is appropriate. Plans are required to be prepared with public involvement, and are subject to the terms of the <a href="#National-Environmental-Policy-Act">National Environmental Policy Act</a>. &nbsp;16 U.S.C. § 1604(d).</p>
<p>The <a href="http://www.blm.gov/wo/st/en.html">Bureau of Land Management</a> oversees <a href="#" title="Campbell-Mohn, et al., at p. 610.">270 million acres</a> of public land, 8 million of which are commercial forest land. These lands are governed by FLPMA, with management focused on sustainable yield of timber similar to US Forests.</p>
<p>For a discussion of the evolution of forest management plans, see Martin Nie, “<a href="http://elr.info/news-analysis/41/10229/place-based-national-forest-legi… National Forest Legislation and Agreements: Common Characteristics and Policy Recommendations</a>.” For an interesting discussion of the intersection of NEPA and forest management, see Nathaniel Lawrence, “<a href="http://elr.info/news-analysis/39/10651/forest-objections-effort-drop-ne… Forest of Objections: The Effort to Drop NEPA Review for National Forest Management Act Plans</a>.”</p>
<h2><a name="Coal"></a>Coal</h2>
<p>The U.S. has <a href="Campbell-Mohn,%20et%20al.,%20at%20p.%20996.">35%</a> of the world’s recoverable coal resources, making it the most abundant nonrenewable resource in the nation. Coal extraction is generally allocated through leasing on public lands, overseen by BLM, and by contract and conveyance on private lands. Federal coal is leased under the <a href="http://www.blm.gov/style/medialib/blm/ut/vernal_fo/lands___minerals.Par… Leasing Act</a>, and the Secretary of the Interior has discretion to offer federal coal tracts for lease at competitive auction from “<a href="43%20C.F.R.%20§%203400.4.">time to time</a>.”<a href="#_msocom_20"></a></p>
<p>A permit is required in order to mine, process and load coal under the <a href="http://www.gpo.gov/fdsys/pkg/STATUTE-91/pdf/STATUTE-91-Pg445.pdf">Surfa… Mine Control and Reclamation Act</a><a href="#_msocom_21"></a> (SMCRA) of 1977. SMCRA established the <a href="http://www.osmre.gov/about.shtm">Office of Surface Mining Reclamation and Enforcement</a> (OSMRE) to regulate coal mining activities. SMCRA uses the concept of <a href="http://www.eli.org/keywords/governance/&quot; title="Link to #the-Role-of-the-States-and-Tribes">cooperative federalism</a>, under which<a href="#_msocom_22"></a>&nbsp; states are able to develop their own mining regulations to replace those found in SMCRA as long as SMCRA’s minimum standards are met. Today, most coal producing states have developed their own state laws and regulatory systems to address coal mining and handle the permitting process themselves</p>
<p>For a discussion of cooperative federalism under SMCRA, see Mark Squillace, “<a href="http://elr.info/news-analysis/15/10029/cooperative-federalism-under-sur… Federalism under SMCRA: Is this Any Way to Run a Government?</a>”</p>
<h2><a name="Oil-and-Gas"></a>Oil and Gas</h2>
<p>As with most natural resource areas, states oversee the permitting and environmental impacts of most aspects of petroleum extraction from private lands. Petroleum is typically allocated from public lands to private companies through leasing. Before a lease can be issued, it must be consistent with the respective agency’s land-use plan. Both BLM and the Forest Service prepare <a href="#Timber-and-Forest-Lands">land and resource management plans</a><a href="#_msocom_23"></a> to determine which areas are suitable for extraction. Once a plan determines where petroleum exploration may be allowed, the agency must comply with NEPA’s environmental evaluation process before issuing a lease to explore and develop. The BLM may <a href="#" title="Copper Valley Machine Works v. Andrus, 653 F.2d 595 (D.C. Cir. 1981)">decline</a> to issue a lease due to projected environmental impacts. Once planning and environmental assessment are completed, a property can be made available for leasing.</p>
<p>State laws govern the allocation of petroleum on state-owned lands, and many follow a similar leasing system as that required for extraction of petroleum on public lands.</p>
<p>Extraction of petroleum is prohibited in wilderness areas, most national parks, national monuments, national rivers, and areas of critical environmental concern. For exploration or drilling for petroleum in a wetland, the operator must obtain a special permit under the <a href="http://www.eli.org/keywords/water">Clean Water Act</a>.</p>
<p>Offshore petroleum extraction also <a href="Campbell-Mohn,%20et%20al.,%20at%20p.%201141-42.%2043%20U.S.C.%20§%201347">requires</a> planning and leasing, and the extraction fundamentals are essentially the same, however the statutory authority for offshore drilling focuses much more on the increased hazards of drilling in the sea. &nbsp;The <a href="http://www.epw.senate.gov/ocsla.pdf">Outer Continental Shelf Lands Act</a><a href="#_msocom_27"></a> governs offshore leasing and extraction, and <a href="43%20U.S.C.%20§%201344.">requires</a> the Secretary of the Interior “to obtain a proper balance between the potential for environmental damage, the potential for the discovery of oil and gas, and the potential for adverse impact on the coastal zone.”</p>
<p>For an interesting discussion of outer continental shelf legal issues, see Robin Kundis Craig, “<a href="http://elr.info/news-analysis/30/11104/mobil-oil-exploration-environmen… Oil, Environmental Protection, and Contract Repudiation: It’s Time to Recognize the Public Trust in the Outer Continental Shelf</a>.”</p>
<p>The relatively new technique of hydraulic fracturing has made many shale oil and gas deposits in the United States and abroad economically feasible for extraction. For a discussion of the environmental impacts from hydrological fracturing, listen to and download materials from the ELI seminars “<a href="http://www.eli.org/events/hydraulic-fracturing-risks-and-opportunities"… Fracturing Risks and Opportunities</a>” and&nbsp; “<a href="http://www.eli.org/events/nuts-and-bolts-marcellus-shale-drilling-and-f… and Bolts of Marcellus Shale Drilling and Fracking</a>.” For more information on potential environmental and legal issues related to this extraction method, see Sy Gruza, “<a href="http://elr.info/news-analysis/42/10331/will-nysdec%E2%80%99s-proposed-r… NYSDEC’s Proposed Regulations Prevent the Potential Significant Adverse Impacts of Fracking?</a>” and Holli Brown, “<a href="http://elr.info/news-analysis/41/11146/attack-frack-new-york%E2%80%99s-… Attack on Frack: New York’s Moratorium on Hydraulic Fracturing and Where It Stands in the Threat of Takings</a>.”</p>
<h2><a name="Minerals"></a>Minerals</h2>
<p>The <a href="http://www.earthworksaction.org/files/publications/EWfs-1872MiningLaw-W… Mining Law of 1872</a> codified the presumption that public lands are open to exploration by private individuals for all minerals covered by the Act; to remove this presumption requires an affirmative act of Congress. A prospector who finds a valuable mineral has first claim to it, so long as she or he diligently works the claim and continuously occupies the parcel under a doctrine known as <a href="#" title="“Doctrine which normally only governs rights prior to discovery of valuable minerals while party is still prospecting; it protects prospector from intervention by another prospector, but only so long as he remains in actual possession of the claim and is diligently searching for minerals.” Black’s Law Dictionary, 6th ed."><em>pedis possessio</em></a><em>.</em> The claimant must then meet various other <a href="#" title="30 U.S.C. § 28.">requirements</a>, including designating the mineral deposit as lode (vein-like) or placer and maintaining at least $100 a year toward developing the claim, after which the government will convey the land.</p>
<p>A claimant has the option of buying the parcel, for $2.50 per acre on a placer or $5 per acre on a lode, which results in “<a href="#" title="43 C.F.R. § 3862.4-6.">patenting</a>” the claim. When a claim is patented, it results in private ownership of the parcel. Since 1994, however, Congress has annually supported a moratorium on processing new patents, thus restricting private prospectors from obtaining ownership of public mining lands.</p>
<p>For a discussion of the effectiveness of the general mining law that has been in effect since 1872, see Mark Squillace, “<a href="http://elr.info/news-analysis/18/10261/enduring-vitality-general-mining… Enduring Vitality of the General Mining Law of 1872</a>.”</p>
<h2><a name="Soil"></a>Soil</h2>
<p>Although often not thought of as a natural resource, soil is one of the most important natural resources. It serves as the basis for the crops upon which human society is built. At the federal level, the <a href="http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/home">National Resources Conservation Service</a> plays a significant role in ensuring the conservation of productive topsoil as well as other natural resources.</p>
<p>For a discussion of the importance of and steps for soil protection, see J. William Futrell, “<a href="http://elr.info/news-analysis/39/10077/new-action-soil-protection">New Action for Soil Protection</a>.”</p>
<h2><a name="Ocean-Fisheries"></a>Ocean Fisheries</h2>
<p>Economic statistics released by <a href="http://www.noaa.gov/">NOAA</a&gt; show that commercial and recreational fisheries in the U.S. contributed $72 billion to the Gross National Product and supported 1.4 million jobs in 2010. The average American consumes almost <a href="http://www.nmfs.noaa.gov/mediacenter/2011/09/fus_sept2011.pdf">16 pounds</a> of seafood products annually, and the United States is the <a href="http://www.st.nmfs.noaa.gov/st1/fus/fus10/highlight2010.pdf">third</a&gt; largest consumer of seafood behind only China and Japan.</p>
<p>ELI has a long-running <a href="http://www.eli.org/Seminars/ocean_series.cfm">Ocean Seminar Series</a> that is open to the public to watch and download materials from on topics including “<a href="http://www.eli.org/events/designing-effective-and-enforceable-catch-sha… Effective and Enforceable Catch Share Systems</a>,” “<a href="http://www.eli.org/events/atlantic-bluefin-tuna-challengesustaining-hig… Atlantic Bluefin Tuna Challenge: Sustaining a High-Value Migratory Species in a Highly Impacted Ocean</a>,”&nbsp; and “<a href="http://www.eli.org/events/fisheries-law-enforcement-status-and-challeng… Law Enforcement: Status and Challenges</a>.”</p>
<p>For a discussion on the founding of national marine sanctuaries, see William Chandler, “<a href="http://elr.info/news-analysis/34/10505/history-and-evolution-national-m… History and Evolution of the National Marine Sancturaries Act</a>.”</p>
<p>To effectively manage fisheries and reduce overfishing, the harvesting of fishery resources must be sustainable. The <a href="http://www.nmfs.noaa.gov/sfa/magact/">Magnuson-Stevens Fishery Conservation Act</a> is the basic federal authority covering ocean fisheries management, and was enacted to optimize U.S. utilization of coastal fisheries. The Magnuson-Stevens Act grants sovereign rights and fishery management authority over all fish within the exclusive economic zone, 200 nautical miles from the shore. Its <a href="#" title="16 U.S.C. § 1811. ">purposes</a> are:</p>
<ol start="1">
<li>Acting to conserve fishery resources</li>
<li>Supporting enforcement of international fishing agreements</li>
<li>Promoting fishing in line with conservation principles</li>
<li>Providing for the implementation of fishery management plans (FMPs) which achieve optimal yield</li>
<li>Establishing Regional Fishery Management Councils to steward fishery resources through the preparation, monitoring, and revising of plans which (A) enable stake holders to participate in the administration of fisheries and (B) consider social and economic needs of states.</li>
<li>Developing underutilized fisheries</li>
<li>Protecting essential fish habitats.</li>
<p>To carry out these purposes, the <a href="http://www.nmfs.noaa.gov/">National Marine Fisheries Service</a>, which is delegated power from the Department of Commerce, appoints members to eight <a href="http://www.nmfs.noaa.gov/sfa/management/councils/">regional fishery councils</a>. The councils are responsible for developing <a href="http://www.nmfs.noaa.gov/sfa/domes_fish/FMPS.htm&quot; title="List of current plans">Fishery Management Plans</a><a href="#_msocom_36"></a> (FMPs), which must specify the criteria that determine when a stock is overfished and what measures are needed to rebuild it. FMPs establish rules limiting the size and amount of fish that can be taken, where fishing can occur, and what fishing methods can be used. FMP provisions are implemented through a permitting system for commercial and recreational fishermen.&nbsp; FMPs are enforced by NOAA’s <a href="http://www.nmfs.noaa.gov/ole/">Office of Law Enforcement</a> in conjunction with the <a href="http://www.uscg.mil/">U.S. Coast Guard</a> and <a href="http://www.fws.gov/offices/statelinks.html">state agencies</a>; civil penalties are the primary vehicle to address violations.</p>
<p>For a discussion of fisheries management, see Richard Hildreth, “<a href="http://elr.info/news-analysis/36/10833/achieving-fisheries-sustainabili… Fisheries Sustainability in the United States.</a>”</p>
<h2><a name="Natural-Resource-Damages"></a>Natural Resource Damages</h2>
<p><a href="http://www.epa.gov/superfund/programs/nrd/primer.htm">Natural resource damages</a> is the notion that a party who causes harm to natural resources, like wildlife, marshes, or drinking water, should be held liable to restore the resource and pay reparations to people who may have relied on those resources.&nbsp; For example, when the Exxon Valdez and the Deepwater Horizon spilled oil into the ocean, wildlife were killed; beaches were closed; fish were harmed; and fisheries closed. Natural resource damages allow the federal and state governments, as <a href="#" title="For example, the National Oceanic and Atmospheric Administration and the Department of Interior have extensive natural resource damage assessment programs.">trustees</a> of the resources, to recover money from those who caused the damage as reparation.</p>
<p>For an overview of natural resource damage assessment, see “<a href="http://eli-ocean.org/wp-content/blogs.dir/2/files/NRDA-Participation-20… in Natural Resource Damage Assessment and Restoration</a>.” For an extensive, expert discussion of natural resource damage assessment, see Valerie Lee, “<a href="http://www.eli.org/eli-press-books/natural-resource-damage-assessment-d… Resource Damage Assessment Deskbook: A Legal and Technical Analysis</a>.” For a discussion of natural resource damages from the Deepwater Horizon spill, see Matthew Coglianese, “<a href="http://elr.info/news-analysis/40/11100/importance-determining-potential… Importance of Determining Potential Chronic Natural Resource Damages from the Deepwater Horizon Accident</a>.”</p>
<h2><a name="Ecosystem-Services"></a>Ecosystem Services</h2>
<p><a href="http://www.eli.org/program_areas/ecosystem_services.cfm">Ecosystem services</a> are the suite of environmental goods and services essential to human well-being. These <a href="http://www.esa.org/education_diversity/pdfDocs/ecosystemservices.pdf&qu…; title="For a good overview of ecosystem services, read this from the Ecological Society of America. ">services</a> cover a broad spectrum, ranging from flood control to climate regulation. Society often considers ecosystem services to be free public benefits and does not assign them a value that reflects their societal contribution. By identifying the economic and societal value of ecosystem services, we can protect critical services and compensate for those lost due to environmental impacts.</p>
<p>Listen to an ELI seminar on ecosystem services: “<a href="http://www.eli.org/Seminars/past_event.cfm?eventid=383">2007 Environmental Law Institute Miriam Hamilton Keare Policy Forum — Ecosystem Services: Is There a Business Case for Environmental Protection?</a>” ELI has published <a href="http://www.eli.org/Program_Areas/ecosystem_services_projects.cfm">numer… reports</a> on ecosystem services.</p>
<p>For a general overview of ecosystem services law, read a transcript of the ELI seminar “<a href="http://elr.info/news-analysis/37/10573/law-and-policy-ecosystem-service… and Policy for Ecosystem Services</a>” or see Ira Feldman, “<a href="http://elr.info/news-analysis/37/10756/ecosystem-services-framework-law… Services as a Framework for Law and Policy</a>,” Michael Jeffrey, “<a href="http://elr.info/news-analysis/42/10041/development-payments-ecosystem-s… Development of Payments for Ecosystem Services in China: Cutting Through the Cloud of Confusion Over China’s Eco-Compensation</a>,” and David Cooley, “<a href="http://elr.info/news-analysis/42/10150/stacking-ecosystem-services-paym… Ecosystem Services: Risks and Solutions</a>.”</p>
<p>Increasingly, policymakers are coming to use payment for ecosystem services as a tool for recognizing the value inherent in ecosystem services and helping economic systems to account for this value. This concept is closely related to the idea of pricing pollution—putting a price on carbon emissions, for example, to reflect the externality of climate change imposed on society in general when greenhouse gases are emitted at no cost to the emitter.</p>
<p><a href="http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/ENVIRONMENT/EXTEEI/0,,m… World Bank</a> and others have been pushing for the cost of developing natural resources to be reflected in national accounting, such as gross domestic product. One example is the recent World Bank report “<a href="http://siteresources.worldbank.org/EXTSDNET/Resources/Inclusive_Green_G… Green Growth: The Pathway to Sustainable Development.</a>”</p>

Tax Evasion That Harms the GlobalCommons: No Problem If It's Legal?
Bruce Rich - Environmental Law Institute
Environmental Law Institute
Current Issue
Bruce Rich

Illicit financial flows from developing countries total over $1.1 trillion a year, about 5 percent of these nations’ gross national income. In contrast, official development assistance from rich countries to help the poor totaled $146.6 billion in 2017. Numerous studies document how “dirty money” flows support human trafficking, global drug mafias, terrorist networks, and arms smuggling, as well as fueling international wildlife trafficking, poaching, and deforestation.

But another important component of international tax evasion and capital flight is technically legal, namely the use by national and multinational investors and companies of tax havens. A 2016 International Monetary Fund study estimated the long-term loss to developing nations from tax havens at $200 billion a year.

The environmental consequences of this “legal” money laundering are becoming apparent. Studies have linked companies involved in palm oil expansion and deforestation in Indonesia, diamond mining in West Africa, and Singapore pulp and paper companies operating in Indonesian forests to the British Virgin Islands and other tax haven jurisdictions.

A seminal paper published last August in Nature Ecology and Evolution by researchers at Stockholm and Amsterdam universities and the Royal Swedish Academy of Sciences suggests that tax havens may be playing a significant role in undermining the global environmental commons, particularly the tropical forest biome and ocean fisheries. Using unprecedented access to records of the Brazilian central bank, the researchers found that from 2000 to 2011, 68 percent of the foreign capital investment of the nine most important soya and beef companies operating in the Brazilian Amazon forest was transferred through tax havens, mainly the Cayman Islands, British Virgin Islands, and Netherlands Antilles.

Transfer of these funds resulted in very low or zero corporate taxes, and provided a veil of financial secrecy. The study found that although only 4 percent of all fishing vessels in the world are registered in tax havens, 70 percent of vessels caught in illegal, unreported and unregulated fishing violations are registered in tax haven, so-called “flag of convenience” jurisdictions, especially Belize and Panama.

The paper notes that the currrent legal status of tax havens, and associated lack of transparency, make it “difficult, if not impossible, for scholars and policymakers” in many cases to identify the direct environmental and social effects of tax haven capital flows.

But there are important, troubling correlations that need to be investigated more fully. Loss of tax revenue to poorer countries (and added profits for investors) facilitated by tax havens could be viewed, the article states, as massive indirect subsidies — analogous, for example, to fossil fuel subsidies — for environmentally harmful economic activities with global consequences. The authors urge international organizations to undertake independent assessments of the natural capital costs (loss of biodiversity, climate impacts, etc.) of “these until now unquantified subsidies.” National and international legal action based on such research should be a priority in carrying out the UN Sustainable Development Goals.

Leading international financial and development institutions are not taking meaningful action on the “legal tax haven” question. A 2016 Oxfam study found that in the previous year 51 of 68 companies supported by the World Bank’s International Financial Corporation in Sub-Saharan Africa, accounting for 84 percent of IFC investment in the region, were using tax havens. Over the previous five years IFC finance for companies in the region using tax havens doubled.

An October 2018 Foreign Policy article reiterated these criticisms of the IFC, noting that Mauritius (the favored tax haven for IFC Sub-Saharan clients) had 21,000 recorded businesses (the vast majority entailing a physical presence of a paper registration) with assets of over $630 billion, 25 times the country’s GDP. Mauritius provides, as do other tax havens, the benefits of “round-tripping,” whereby company capital is shifted offshore to avoid local taxes and returns disguised as foreign direct investment for which poorer governments often offer tax breaks and other financial incentives.

IFC officials have maintained that the corporate clients it supports use tax havens as a legal and widely accepted practice. In 2016 over 300 of the world’s leading economists, from 30 nations, including Nobel economics laureate Angus Deaton and former IMF chief economist Olivier Blanchard, wrote a public appeal to world leaders stating that “the existence of tax havens does not add to overall global wealth or well-being; they serve no useful economic purpose. Whilst these jurisdictions undoubtedly benefit some rich individuals and multinational corporations, this benefit is at the expense of others, and they therefore serve to increase inequality.”

Tax evasion that harms the global commons: no problem if it's legal?

As Our Problems Out Race Our Solutions, Humanity Needs a Completely New Strategy
Current Issue
As Our Problems Out Race Our Solutions, Humanity Needs a Completely New Strategy

On the first Earth Day, in April 1970, Senator Edmund Muskie called for “a total strategy to protect the total environment.” We have had time to pull this off — nearly a half-century after Muskie’s clarion call — but have failed. Yes, gains in environmental quality have happened, but as time has passed, we have witnessed the emergence of global-level, existential threats. These include the thinning ozone layer, the crash of biodiversity, ocean acidity and the demise of top predator fish and coral ecosystems that spawn marine life, sea-level rise and the forced relocation of hundreds of millions of people, and of course the accelerating change in the Earth’s overall climate and the resulting change in weather patterns and spawning of monster storms.

The human race is pushing on or through what the Stockholm Resilience Center has called “planetary boundaries” with a certain reckless abandon even as the governance mechanisms needed to address these threats are under daily assault by anti-state activists and science deniers among the pundit class. The environmentalist Bill McKibben, commenting on last fall’s report of the Intergovernmental Panel on Climate Change, observed that, “We’re running out of options, and we’re running out of decades.”

Over the past 50 years, society has pinned its hopes on a variety of actors: companies that have moved beyond compliance and embraced sustainability, cities pursuing novel strategies to meet urban environmental challenges, citizens mobilized with new technologies, from blockchains to big data to artificial intelligence. But none of these alone, no matter how well funded or motivated, can solve the environmental challenges we now face. As the IPCC concluded, the changes needed have “no documented historical precedent.”

What follows is a coming together of sorts that focuses on the bricks and mortar of a possible strategy to address our total environment at a time of urgent need. The discussion took place at the ELI-Miriam Hamilton Keare Policy Forum, with a panel of experts drawn from industry, academia, the legal community, and the public sector who discussed a preliminary sketch for a new environmental paradigm presented by ELI’s Scott Fulton and David Rejeski in the September 2018 edition of the Environmental Law Reporter.

Scott Fulton: Our purpose today is to talk about the emergence and convergence of some new and important drivers of environmental behavior and how to harness them and integrate them into a composite that helps us achieve the future that we all want. Two new drivers are private-sector environmental governance systems and technology.

To tee up this conversation, here is the central thinking from an article that our moderator, David Rejeski, and I wrote for the September 2018 edition of the Environmental Law Reporter entitled “A New Environmentalism: The Need for a Total Strategy for Environmental Protection.”

We came up with a chart to encapsulate our analysis. We put a vertical axis to reflect that some of the drivers are top-down in operation and some of them are bottom-up. We added a horizontal axis to reflect that some of the drivers are externally induced while others are internally motivated. That creates four quadrants. Each encapsulates and describes both a driver and a resultant system that emerges.

Working counterclockwise, let’s start at the quadrant in the upper right hand corner. In Quadrant 1, the driver is law and the system is traditional government action. Variations of command-and-control regulation are here.

In Quadrant 2 the driver is risk management and the system is private environmental governance that manages and reduces that risk — whether reputational or financial. This quadrant emerges from what we believe are enduring changes in the business orientation toward the environment. These are changes that derive from the environmental values that we carry into our jobs. These values are strongly reinforced by shareholder initiatives, desires for sustainability, and customer and supply chain demands. Managers increasingly regulate environmental behavior not only of their own operations but also of suppliers.

These values are reinforced by investor and insurer demands that perceive environmental challenges as financial risks. They are also driven by the opportunity to pivot from a risk-reduction orientation to brand enhancement, with green branding offering a marketing distinction. We should note that the accountability system associated with this quadrant is powerful. The levers are market access and access to finance, the very lifeblood of business.

In Quadrant 3, the driver is technology and the system is autonomous monitoring and correction. That includes systems that automatically change in the face of observed phenomena. In our article, we use the example of a sensor-based snowpack monitoring system in the Sierra Nevada. That in turn informs operation of a hydroelectric dam and the distribution of water resources for irrigation and human consumption. With the advent of artificial intelligence and blockchain approaches, it’s reasonable to expect that we’ll see self-monitoring systems proliferating in the future.

In Quadrant 4, the driver is Big Data. The system is a community platform for sharing those data and the stories that they tell. There is a data tsunami coming — we will all be monitoring our local air quality and the water we drink in much the same fashion that many of us monitor our heart rate and other biometrics.

Across these four quadrants, the drivers are going to operate in an interactive way. For example, data-based community pressures can be expected to influence behaviors in both private governance and public governance. Autonomous systems, to the extent that they are well designed and effective, can be expected to reduce the demand for the other three drivers. Effective private governance systems should in theory reduce the need for intervention by public governance mechanisms.

What is emerging will ultimately influence the shape of the governmental role going forward, and that’s ELI’s traditional area of engagement, partly because law-based systems in Quadrant 1 can either be barriers to or enablers of the evolution of the other three quadrants. Work needs to be done to ensure that law provides a supporting system for the changes we value.

But these other quadrants have attributes that relate to and may draw from government experience, in that they are in effect rules-based systems, built on contracts, preferred-sourcing criteria and sustainability criteria — even the social license to operate. The accountability mechanisms, ranging from denial of capital or market access, to product deselection, to public or social media rebuke, are different but nonetheless relatable to government compliance assurance systems.

Our moderator today is David Rejeski, who is the head of the technology initiative at ELI and came to us from the Woodrow Wilson Center, the Environmental Protection Agency, and the White House.

David Rejeski: I’m going to start with Michael Vandenbergh, who is the David Daniels Allen Distinguished Chair of Law at Vanderbilt and a leading scholar on private environmental governance. He is the author of Beyond Politics: The Private Governance Response to Climate Change. Mike also runs a project at Vanderbilt on how to reduce carbon emissions at the individual and household level.

Michael Vandenbergh: From my perspective, the great ideas out there are only great if they can also be institutionalized. I would like to see more focus, particularly from an organization like ELI, on the institutional strategy that would push companies and communities toward a more sustainable, lower-carbon future. But what kinds of institutions are needed to move technology in the right direction? We can have all the best technologies in the world, but if the incentives are not right, companies won’t deploy them.

Much of what guides the way people think about the environment is worldview. How do you account for the effects of worldview on behavior in striving toward sustainability? That is a challenge that has bedeviled the Intergovernmental Panel on Climate Change. I don’t know that you’re going to solve it, but a sophisticated incorporation of some kind of behavioral component would be a useful addition to the decisionmaking model.

David Rejeski: Ann Condon is now an ELI visiting scholar, after a long career at General Electric focusing on its chemical stewardship program and the company’s sustainability work.

Ann Condon: Among my challenges at GE was figuring out how to meet our greenhouse gas goals, how to green our supply chain, and how to deal with reporting on conflict minerals.

Attorneys are comfortable with public law. We’re even comfortable with private environmental governance. But Big Data, additive manufacturing, blockchain — it is all happening so fast. Lately people have been telling me how blockchain is going to solve sourcing traceability problems. But we need all four of Scott and David’s quadrants to enable a tool like blockchain to work. Because if you don’t have standardization in deploying it, there will be four thousand blockchain traceability systems: one for every platform.

Take the conflict-free sourcing initiative which involved a lot of work to standardize the data gathering. That was critical to ensure the material traceability efforts were usable. These common data fields have to be negotiated, which requires collaboration. Collaboration in turn requires organizations that can facilitate that standardization. It also requires a push from the regulators.

If we don’t figure it out, we are going to look back in five or six years and realize blockchain will be just like other initiatives, RFID comes to mind, that showed great promise but haven’t solved the problem. If you can get the data right, it can be very powerful.

David Rejeski: Michael Mahoney is Pfizer’s vice president and assistant general counsel, and chief environmental health and safety officer and compliance counsel. He’s also a member of the Environmental Sustainability Steering Council and the past chair of the Environmental Law Committee of the New York Bar Association.

Michael Mahoney: I started at Pfizer as an environmental engineer in the mid 1980s. I spent most of my time helping the company comply with command-and-control regulations. It was never perfect because of the nature of the way the regulations were promulgated, but we worked hard to comply.

In the mid 1990s we witnessed the birth of private governance. I was very fortunate to be involved in the drafting of our environmental, health, and safety standards. We did it because we thought it was the right thing to do.

In 2006 we developed our environmental sustainability program. We went to management and sold it as the right thing to do. But we also sold it as a means to differentiate Pfizer from our competitors.

Today, we are beginning to see customers, including large governmental buyers, become more interested in our environmental footprint. Those companies that have good programs are going to be selling to these entities and those that don’t will not. The market opportunity is developing very quickly. It’s driving companies to action. But to succeed a company needs to have a solid program, including how it manages its supply chain.

We need a system where all these drivers are working in harmony. That would be the most efficient and effective. But in the meantime we should leverage those drivers for the opportunities they currently present.

So I would emphasize the market as a driver. Customers are demanding sustainability throughout the supply chain.

David Rejeski: Adrienne Hollis is both an environmental toxicologist and an environmental lawyer. She works on environmental justice issues and is director of federal policy in the D.C. office of WE ACT for Environmental Justice. I’ll ask her to give the perspective from a community level.

Adrienne Hollis: David and Scott’s article resonates with me both from a scientific perspective and also from a legal perspective.

Because I work with environmental justice communities, I look at it through that lens. In a perfect world, we would be touching all four quadrants equally. But there are some factors that people normally don’t take into account in such an analysis, and that’s the trust of the community.

In Quadrant 1, the role of government is to promote the will of the majority while protecting the rights of the minority. That really hasn’t happened, at least not recently. In this administration we see a shift away from legislation designed to protect the public. Privatization is also a big issue for communities. It is not just an economic issue, but an economic justice issue as well.

I want to talk about the need for community science. We used to call it citizen science, but it is really community science because we’re talking about exposure to everyone. Perfect examples are the immigrant camps and the people who are situated next to facilities that may be emitting toxic substances.

But I need to speak about the fact that science is under attack. It makes me question the fourth quadrant. Until we can reach a point where we respect the data, that quadrant is definitely at risk. The whole theory of the four quadrants is at risk.

David Rejeski: John Lovenburg is the environmental vice president for BNSF Railway. His portfolio includes remediation, hazardous material sustainability, environmental litigation, compliance, environmental permitting, agency engagement, environmental engineering, and environmental policy.

John Lovenburg: The four quadrants appear to be an accurate representation of what we are seeing in the environmental space. A good example of where integration is occurring is in data.

For instance, there are now very active community air monitoring programs. High school students are doing air monitoring. Agencies are doing mobile air monitoring. The result is a real explosion of data.

While there are obvious opportunities, from industry there is some initial reluctance. So from a public governance role, there is a real value in the agencies building the confidence of all of the stakeholders to trust the data.

I was a consultant during the 1990s and 2000s. We spent a lot of money collecting highly precise, very expensive data points. With current technologies, we’re collecting hundreds of data points very cheaply and very rapidly. As we get our arms around that data, the level of confidence among all stakeholders is going to go up.

As to private governance, for BNSF, environmental management systems are our way of internalizing all of the external systems — best practices, audits, corrective actions. I tell my team that if they find an error, use that as an opportunity to find potential system-wide fixes. This flips the usual attitude on its head. We are looking for errors so we can turn them into positives for the whole organization.

This is one way that private governance takes governance to an nth degree above an external system alone. For us the ratio is probably twenty to one: faults that we find internally through audits and other means versus problems a regulator may find during an inspection.

So in terms of what’s missing from this ecosystem of drivers, in Quadrant 2, included is managing risks, but there is also opportunity in discovering and handling issues.

A good example is TCFD, the new carbon reporting framework put together by the G20 nations. TCFD, the task force for climate-related financial disclosure, looks at opportunities and risks around climate. It is the first model that I have seen that dispassionately looks at policy, carbon pricing, physical risks, and impacts on markets.

Balancing risk and opportunity would be a good addition to the framework.

Second, I would add sustainability and sustainable solutions as the best way to find common ground.

I am co-leading an initiative with the railroad around electrification. It is a win-win because electric vehicles have triple the efficiency of internal combustion vehicles. That means using two-thirds less energy to move trains, trucks, cargo-handling equipment, et cetera.

Our team is charged up around BNSF’s electrification initiative because it is a sustainable solution. We eliminate onsite emissions, because we get electricity from offsite power plants. We can cut operating costs by two-thirds. We’re going to use fewer resources. We’re going to reduce our carbon footprint. That’s a perfect example of a sustainability win-win solution, and why I would add it to this framework.

David Rejeski: Paul Hagen practices both U.S. and international law as a partner at Beveridge & Diamond. He also works with corporations and trade associations.

Paul Hagen: Most of my work is in the product stewardship space. Our orientation creates a race to the top, because there is often a market access driver. The EU requires the electronics sector to fully understand what is in their products and to create a timeline for eliminating certain restricted substances. Today, whether you’re selling products in Vermont or Beijing, you have to orient yourself around global market access requirements and supply chains. We’ve seen what happens with conflict minerals as a for instance across the economy.

But the legal infrastructure that we’re working with is cumbersome and often antiquated. If we look at the four quadrants, and the evolution of data in driving technology solutions, in promoting environmental governance, those don’t operate in a vacuum. They operate in a world with disparate countries’ laws and international legal frameworks.

I spend a lot of my time working on the circular economy. Companies are committed to extending the life of products through repair and reuse. By reusing products, materials, and recycling, we really take advantage of those environmental and economic benefits at scale. Some of that is being driven by the EU, but a lot is driven by scarcity and efficiency interests.

Unfortunately, we are moving used and end-of-life products across international borders under a 30-year-old environmental treaty that the United States has not ratified. I have sat in the back of the room with U.S. government and other non-party observers to the Basel Convention on hazardous waste, watching as other governments decide how we’ll classify and move used products across frontiers.

One of the areas the circular economy focuses on is the reuse of plastics. In an effort aimed at minimizing plastic pollution, Norway has proposed bringing a larger universe of waste plastics under control under the Basel Convention. For parties to the Convention, it is a question of controlling certain shipments. But because the United States is a non-party, that’s really an import and export ban for us. The United States is operating in a legal framework that’s entirely different from the other 185 countries because we are a non-party.

It is hard for companies to innovate and for NGOs to collaborate if the legal infrastructure is not keeping up. So don’t overlook the importance of that legal quadrant. It’s the one on which these other dynamics can be built and operationalized.

David Rejeski: It’s time to bring in the audience, and I know Douglas Keare has a question.

Douglas Keare: I was pleased that the last three speakers focused on risk in the system. The consideration of risk in private-sector governance, whether financial or reputational, is nowhere even in the ballpark of the kinds of risk we should be paying attention to.

There are two factors that motivate me to stress this. The first is an excellent article by Henry Kissinger in The Atlantic, which is spurred by the headlong rush into artificial intelligence. It concentrated on the fact that science and technology, each motivated by their own monsters, are rushing to the future without restraint because what we have is an exponentially widening gap between what science and technology are discovering and our ability to understand it, let alone manage it or control it, and that’s not sustainable. The second factor is that some of the directions they’re rushing in are not desirable.

I am in favor of linking opportunity and risk. Maybe the way to look at the diagram is that it ought to be a pentagon rather than a square. The fifth section should be managing or identifying and avoiding existential risk but doing it within an opportunity framework such that a new technology emerges somewhere in the system.

Dave Rejeski: Gary Marchant of Arizona State University raises what he calls the pacing problem — to what extent can the legal framework of Quadrant 1 keep up with the rate of change — whether the instrument of change is AI, or blockchain, or anything else. Every time we discuss the issue of science and tech and the existential risks they raise, we find we are unable to figure out how to make this system change. Michael Lewis in his new book The Fifth Risk raises the issue of the way governments deal with existential risk.

Michael Vandenbergh: The overall goal of the system is to avoid catastrophic risk. Any chart like this assumes roughly an equilibrium status moving forward with growing GDP. If you take that away, then boom, everything goes haywire.

In terms of transitions, you can argue about what the Founders thought concerning how information would flow in a democracy and how that has changed. With today’s technology, if you wish you will only hear one side of what used to be an impartial presentation of the day’s events. That makes structuring a democratic discourse on environmental protection difficult. The very ability of governance systems, whether public or private, to function is being directly affected by developments in technology.

David Rejeski: Dan Hillis, who was one of the people who invented parallel computing, recently wrote an article titled “The Enlightenment is Dead, Long Live the Entanglement.” His thesis is that we are all essentially entangled with one another — through our machines and our organizations. That is going to lead to behavior that is difficult to predict and govern and to indeterminacy in a legal system.

Michael Vandenbergh: Many of us may not know that household electricity use has gone down in the last couple of years for the first time since World War II. A recent economics paper shows that the decline correlates almost perfectly with the introduction into the market of attractive, low cost LED light bulbs. Why did that happen? It happened partly because of government.

Ann Condon: “Ban the Bulb.”

Michael Vandenbergh: Indeed — government had a role but also companies like Walmart said if you can make one under $10 that looks good, we’ll sell it. So the manufacturers played a role as well. None of this was anticipated.

Paul Stern: I’m Paul Stern, working nowadays at the Social and Environmental Research Institute. But after a long career at the National Research Council, where I was a director in a number of projects in some of these areas, I wanted to focus on the issue of data in Quadrant 4 and the question about whether we’re getting a tsunami of information. Data are useful when they’re trusted and trustworthy. Data producers may be biased. They may be perceived to be biased. You want good data and you want trust for good data in order to inform decisionmaking.

I see this as an institutional challenge. How do you design institutions that allow the various parties interested and affected by decisionmaking to have data that they trust and that they ought to trust?

John Lovenburg: Let’s talk about corporate use of data. I received an updated number from our technology VP just two days ago. We generate 35 million readings per day from the sensors that we have on the railroad — thermal, acoustic, hyperspectral, cameras on locomotives, cameras in yards, drones flying over track. We use these sensors for safety, efficiency, and environmental purposes.

After track construction, you plant native vegetation to restore the ecosystem. The way we used to do it is to hire a biologist who would over the course of a week look at 30 miles of new track. Now we are flying a drone in ten minutes over the same area. It uses infrared cameras that plug into agricultural algorithms — and I can get quantitative data on restoration progress.

The issue of trust comes up when there are shared data. With air quality data, there can be skepticism among multiple parties that there could be the needed level of trust. With time, we’ll build some confidence. When you have overlapping data that produce the same answer, you start building confidence in the system. That speaks to the role agencies can play, to step in and help multiple parties adjudicate that data and build confidence.

Adrienne Hollis: On the issue of trust — people are going to have their own agendas. When communities are able to participate in data gathering, and to develop guidelines, that generates trust.

There are now personal air-quality monitors that update in real-time. In practice, ten people in the same community who were exposed to the same pollution plume and suffered adverse health effects would have a response to an industry monitor that says there was no release above the government standard.

So whom do you trust? Do we need to get people to agree that there is one particular trusted source of information that we all must acknowledge? Or do we say there’s a certain protocol that must be followed in order for data to be seen as valid?

Scott Schang: I’m Scott Schang with Landesa and formerly with the Environmental Law Institute. One point and two questions.

I wonder if we’re missing a driver in the form of private capital from philanthropies and unaccountable political donations that these days has such a force.

I wonder what this would look like if you did it in a developing world context. Is it the same map? Maybe it is but I’m not sure. Will it look like this in China, India, Myanmar, and Malawi? It might be interesting to ask that question, because it might inform our thinking about what our system looks like.

And then, finally, resources. What happens in each of these four quadrants when you resource them or don’t resource them? I would argue the only one of the four that is really resourced is technology. The other three, including private environmental governance, are largely starved because companies aren’t really putting much money into it.

Ann Condon: Can I weigh in on the developing country aspect? Because the model, maybe not the specifics of AI or Big Data, but of sustainable business tools, is actually even more important in many respects in the developing world because some of the other institutions aren’t very strong. There may be different tools in the buckets, but the concept is right.

Scott Schang: Where I work in the developing world, it’s the government that is acting as the business promoter, trying to get land to companies, and the companies are being asked to act like the government by providing basic social services and the environmental rule of law. So the roles have been exactly swapped and I wonder if that’s where we’re headed in the United States as well.

Holly Elwood: I’m Holly Elwood. I work at EPA. And for me, looking at the quadrants, I see my work very much 100 percent in the left quadrants. We are thinking of it as purely where the private sector lives, but there’s a really strong role for the federal government there. And as purchasers, as developers of product sustainability standards that we use to meet our sustainable procurement requirements, that’s a place where trust is absolutely vital.

I am glad you brought that topic up because without it no one will use those standards or eco-labels and we won’t be able to get to an agreed understanding of what we are trying to make happen in the market. I see a lot of work happening in that space right now and a lot of engagement from the private sector.

Michael Vandenbergh: I couldn’t agree more. You could argue that the disclosure of the Toxics Release Inventory data was one of the drivers for what you see in the private sector. As to trust, maybe this is a place where the public and the private side come together. Maybe it is time for a certification and standards system that applies to community-based data. That’s a place where the private sector might play a role if the public sector can’t.

Paul Hagen: Holly raises an excellent point in that this is a domain where there is a lot of evolution, a lot of action, particularly in the green-electronics space. There are expanding product certification schemes. There are governance issues. There are green procurement requirements.

The government is learning and adjusting. The private sector is learning and adjusting. The NGO community is trying to figure out how to come up with what Scott has described as the optimal solution space. Lawyers are not used to dynamic systems, where you have steady adjustments over time rather than etchings in stone.

Unfortunately, even the best private environmental governance schemes are operating at a scale that might be noteworthy but ultimately is insufficient.

Instead, we need to appreciate the role of governments. If we can come up with an approach with all the OECD governments, for example, it might take a little bit more time, but it would operate at a larger scale. Instead of letting one jurisdiction, for example, set the energy-efficiency standard for a product and everybody else has to fall in line because it’s a global marketplace, there is more of a collaborative process across multiple OECD countries. And then we could roll that standard or framework into the developing world.

David Rejeski: The trust issue actually goes through all four quadrants. I had an interesting discussion with somebody at the Defense Advanced Projects Research Agency. DARPA has a group focused on explainable AI. One of their big worries is the machine learning algorithms are starting to make decisions that they can’t explain to the humans. Do we trust the algorithm? If you’re the decisionmaker in a company or you’re a CIA analyst, it’s a huge issue of whether this machine learning algorithm has told you something you didn’t know.

Thomas McHenry: I am the dean and president of Vermont Law School. This has been a fascinating discussion. It makes me wonder. Three quarters of our students come to Vermont Law School because they’re interested in pursuing careers in environmental law. What should we be teaching to allow students to take advantage of this paradigm?

Ann Condon: I have hired many legal interns over the years. Teaching environmental law is an important foundation, but a lot of folks that I see coming out of these very specialized environmental programs do not understand basic contracts. They don’t understand commercial relationships, including antitrust law. If lawyers don’t have that essential business background, they can’t integrate the environment into core business strategies.

Michael Mahoney: I would add that building a business case is vital to embedding sustainability in an organization. It is important that lawyers have the fundamentals in business and in finance. Students coming out of a sustainability background can really move a program if they have the tools. They can work with the right people in the company, explain where the trend is going, then make a business case. But lawyers coming out of school don’t have those basic tools. I didn’t when I graduated. I often think of going back and getting an MBA, because I think it is important to marry that with law.

Michael Vandenbergh: I published a short piece called “The New Private Advocacy” last fall that is directed at private lawyers. It is designed to do what you are saying. This is not just happening in law. I talked to a manager of one of the big environmental groups not long ago, and he told me he had to find a bunch of new people who understand the supply chain contract for bananas. It wasn’t enough to know which Senate committee did what. A complete lawyer today is someone who understands the public and the private side of environmental governance and knows all those different instruments.

Cross-training is really helpful. We teach a class with MBA students and law students together. They have to figure out how to interact with one another. That helps because their thinking patterns are so different.

Monica Medina: I now run a small environmental newsletter called Our Daily Planet, but I was in the government for a long time in and out many administrations.

The world of weather data is highly advanced and is a useful model. There may be lessons that could be learned from the way the World Meteorological Organization has pulled together science and business and created products and tools that we all know and use. The European model is more accurate potentially than the U.S. model, but the point being that there are a lot of data that have been collected for a long time on weather. The data sit in the government but are shared very well. There is an infrastructure in place to allow government-to-government sharing even with governments we don’t get along with.

Dave Rejeski: One of the earliest citizen science projects was connecting citizen meteorologists together via the telegraph. That was the Victorian Internet. It led to breakthroughs in forecasting. The Weather Service has been able to take legacy data from a century ago and integrate it with current data and use that for prediction. Weather forecasting is an area to look at for models, for anyone who is trying to learn how to do data integration, aggregation, and basically how to use distributed networks of both human and other types of sensors including satellites.

Unidentified Questioner: I have a question on the impact of what’s happening in Quadrant 1 on Quadrant 2. I speak as someone who spent the last 28 years in Quadrant 1. In the United States, as resources are being radically cut at the federal level and even as the legitimacy and role for environmental regulations are being questioned, will that have an effect on the demand in Quadrant 2 on the private side? I would like to think not­ — that reputational risk and financial risk will grow regardless of what is happening again at the national level in Quadrant 1. But am I being too hopeful?

Ann Condon: Standardization may drive the process here. When there are lots of conflicting requirements, product manufacturers will say, “Now we need to standardize.” Because if you have the Ohio rule and California rule and the Beijing rule, it almost becomes impossible for a manufacturer to figure out. If the federal government isn’t going to do it, then we need to have a private effort. That is when you get the push for private environmental governance.

Paul Hagen: Most of the folks we work with say they like a robust regulator because they can occupy an important part of the conversation. Even with the most well-regarded companies or NGOs, there’s always a conversation to frame.

John Lovenburg: We often get customers who will ask for carbon emissions data. We normalize our emissions by weight transported. If they want it normalized by volume, there is a disconnect. A different language is being spoken.

So BNSF is involved with EPA SmartWay and the Smart Freight Centre, all striving to come up with a single way of normalizing supply chain transportation carbon emissions.

Dave Rejeski: I spent yesterday with the Food and Drug Administration, which was having two days of meetings to create an enabling environment for the next 20 years of protein development. I was stunned with the foresight that FDA had. They’re listening to technology developers and creating an enabling environment. That could be setting standards, thresholds for data collection, whatever.

Michael Mahoney: If industry sees a reason to standardize because they see that the environment needs to be better protected, they can go a long way toward building the framework for a program that the government might step in and implement more widely. This is thus a great opportunity for partnership, where the industry can do some of the work until the government has the information and resources it needs.

Michael Vandenbergh: Lawyers can serve an enormously important role. One of the greatest benefits we bring to the table is that we’re comfortable working with environmental engineers and physicists and others. That’s a role ELI can continue to play as the field goes from being essentially a subfield of administrative law to something much broader.

We might think here as an institution about how to create convening settings where people from lots of different disciplines can work on common problems. This conversation was a start. TEF

On the first Earth Day, in April 1970, Senator Edmund Muskie called for “a total strategy to protect the total environment.” We have had time to pull this off — nearly a half century after Muskie’s clarion call — but have failed. Yes, gains in environmental quality have happened, but as time has passed, we have witnessed the emergence of global level, existential threats. The human race is pushing on or through what the Stockholm Resilience Center has called “planetary boundaries.” The old approaches have failed. But what would a new paradigm, built on lessons learned, look like?

ELI Report
Laura Frederick - Environmental Law Institute
Environmental Law Institute
Current Issue

Judicial education fighting Indonesian deforestation through new civil society mechanisms designed to protect resources

ELI and the Indonesian Center for Environmental Law have been diligently carrying out a training project in the archipelago to help judges become a player in the fight against deforestation and the path toward sustainable development.

Indonesia is home to incredible biodiversity. The country covers only 1.3 percent of the planet’s surface but it is home to 4 percent of the world’s most ecologically undisturbed forests. Indonesia also possesses about 50 percent of the world’s tropical peatlands, which serve as an important carbon sink.

However, these natural resources are increasingly under threat from the pressures of a growing population and expanding, often unlawful economic activity that together are diminishing Indonesia’s rich biodiversity, threatening the health and livelihoods of communities that depend on natural resources, and releasing enormous amounts of carbon into the atmosphere.

To address these issues, there is a promising new legal tool in Indonesia enabling civil society organizations and the government to file claims to hold responsible parties liable for environmental damages. However, many judges lacked the knowledge and capacity to ensure this authority was effectively applied.

In response to requests from the Supreme Court’s Working Group for Judicial Certification on the Environment for support in its efforts to certify judges to rule on environmental issues, ELI’s Judicial Program and its collaborators developed a capacity-building curriculum to train the country’s judiciary to be a critical part of the efforts to improve environmental quality. ELI and the project team launched this curriculum in Pekanbaru, Indonesia, this summer.

ELI and partners convened a five-day workshop that brought together 38 judges from different regions of the country as well as three Supreme Court justices to discuss economic valuation, restoration, and compensation of environmental damages.

The workshop emphasized the role the environment plays in human well-being and economic prosperity, as well as limitations to ecosystem resilience in the face of degradation. Sessions addressed topics such as principles of environmental science, valuation of natural resources in the context of compensation and restoration, scientific evidence and uncertainty in the courts, standards of liability, and mechanisms for ensuring that judicial decisions are carried out.

The participants also had the opportunity to attend a field trip to a peat ecosystem affected by fires, providing the judges with a unique opportunity to observe the complex dynamics of damage and degradation to ecosystem services and to conduct experiments illustrating the challenge in collecting scientific evidence in these case.

By transferring critical knowledge to the judiciary to understand and address liability for environmental damages, this project will improve environmental quality in Indonesia by promoting environmental accountability through judicial enforcement. Ultimately, the benefits will include reduced deforestation and greenhouse gas emissions and improved biodiversity and quality of life, especially for vulnerable communities.

The curriculum draws on the local expertise of partners at ICEL. Judge Merideth Wright, a Distinguished Judicial Scholar with ELI and a former environmental judge for the state of Vermont, and Judge Anders Bengtsson of the Växjö Land and Environment Court in Sweden are contributing their experience as members of the judiciary.

ELI Visiting Scholar Carol Jones lent her expertise on the economics of valuing damage to the environment and Alejandra Rabasa, director of ELI’s Judicial Program, discussed scientific evidence and uncertainty.

This project is generously supported by the Swedish Postcode Foundation, an organization dedicated to seeking long-term solutions to local and global challenges.


Report helps trustees in natural resource damage process

Eight years after the Deepwater Horizon oil spill, restoration activities in the region remain ongoing. ELI’s gulf team has focused recent efforts on helping project trustees strategically coordinate their activities to make the most of time and material and financial resources.

In March the team released a paper that surveyed some of the tools available to Deepwater Horizon natural resource damage assessment trustees to help coordinate their activities.

As a follow up to this work, the Institute recently released Coordination in the Natural Resource Damage Assessment Process: Project Planning and Selection. Building on previous research, this guide describes some additional tools that are available during project planning and selection that could help coordinate the trustees’ activities internally within the NRDA program (namely, among the Trustee Implementation Groups) as well as with other entities. This paper focuses on project screening criteria, strategic frameworks, and joint restoration.

When selecting projects for their restoration plans, the TIGs use a systematic screening process. The TIGs could develop additional project screening criteria that will promote coordination with external entities, other TIGs, or both. Examples could include encouraging or favoring projects that leverage funds from outside sources, are consistent with existing plans or efforts, or leverage activities of other TIGs or external entities.

Strategic frameworks are another tool available during project planning and selection to help coordinate activities.

In 2017, the region-wide TIG released four strategic frameworks — one each for birds, marine mammals, oysters, and sea turtles. Frameworks such as these provide a useful starting point. They ensure that trustees and others have the same information about the resource.

There may be additional information the frameworks could provide to support coordination. For example, they could identify specific activities and mechanisms that support coordination.

Another tool that may be useful in helping the TIGs coordinate internally during project planning and selection is joint restoration planning. This type of planning could be an effective way for TIGs to coordinate across restoration areas.


Extra! ELI Breaking News webinars bring the latest developments

In response to demand for unbiased analysis, the Institute has been at the forefront of educating members and the public on impending changes in state and federal government policies and judicial action through Breaking News webinars, allowing the Institute to provide answers on the most recent relevant topics affecting environmental law in a timely fashion.

The first Breaking News webinar reflected on Justice Anthony Kennedy’s retirement from the Supreme Court. For the past three decades, Kennedy had been a crucial swing vote on a variety of issues including the environment. His retirement came at an especially crucial time, as the Supreme Court’s 2019 docket includes cases that cover a litany of environmental issues. Attracting over 350 viewers, the webinar featured expert panelists exploring the influence Kennedy had on environmental law, and what his departure from the court could mean for the future.

The second Breaking News webinar discussed comprehensive changes proposed by the Department of the Interior and National Oceanic and Atmospheric Administration in how the Endangered Species Act is implemented.

These regulations and policies address the species listing process, including the definition of “foreseeable future,” critical habitat designations, and the Section 7 process that directs all federal agencies to consult with the Fish and Wildlife Service when any agency action might affect an endangered or threatened species.

This panel provided an advanced look into potential benefits and repercussions of utilizing the ESA under this regulatory proposal. Each panelist highlighted his or her areas of interest in the proposals and described improvements that could be made in the process to finalize the regulations. The webinar allowed participants to learn about the proposed changes as they were opened to public comment.

ELI’s most recent webinar focused on the Waters of the United States regulatory decisions and the ramifications and implications of district court Judge Norton’s August decision to enjoin EPA’s suspension rule. His decision re-instated WOTUS as the applicable legal standard in 26 states not already subject to two prior district court injunctions staying WOTUS. Panelists from law firms, environmental groups, and industry discussed what this change means for the future of the Clean Water Act.

Believing in rational, nonpartisan discussion, ELI provides a perfect venue to explore these major changes in environmental governance. The Institute will continue to provide education on the most pressing and time-sensitive environmental issues.


Field Notes: Helping nation protect sensitive marine areas

At the 2017 Our Ocean Conference, Niue’s minister for natural resources, Dalton Tagelagi, announced that the South Pacific Island nation would create a marine protected area covering 40 percent of Niue’s Exclusive Economic Zone to conserve the unique marine diversity in national waters. The MPA will include the waters of the remote Beveridge Reef, a place of rich marine biodiversity.

ELI is helping the Niue government identify and conduct legal reforms to put this MPA into effect. After preliminary analysis by ELI, Ocean Program Director Xiao Recio-Blanco conducted a research trip to Niue to gather information on how to effectively enact the MPA within the nation’s legal framework, with a special focus on fisheries management. With the creation of the MPA, Niue hopes to promote itself as a prime global marine ecotourism destination.

In August, the Institute co-organized a global symposium on The Judiciary and the Environment: Adjudicating Our Future. The conference took place at the Organization of American States, which co-organized the event along with the Global Judicial Institute on the Environment, and the World Commission on Environmental Law of the International Union for the Conservation of Nature.

Over two days, presidents of supreme courts and judges from around the world, as well as renowned experts, convened to discuss the challenges facing the judiciary in implementation and enforcement of environmental law.

ELI President Scott Fulton, who served on the symposium organizing committee, was present to provide welcoming remarks on behalf of the Institute. ELI Vice President of Programs and Publications John Pendergrass co-chaired a session on emerging principles and trends in environmental rule of law. ELI board member Nicholas Robinson and ELI Leadership Council Member Michael Gerrard were also present at the symposium as session co-chairs.

In devising new approaches for the management of materials and the diversion of wastes under the Resource Conservation and Recovery Act, federal regulators can draw on their years of experience working with particular sectors and materials. In the retail sector, managing discarded and returned consumer aerosol cans can often require their management as hazardous waste. This waste stream also accounts for nearly half of the RCRA-regulated material in the retail sector, driving the status of stores as large-quantity generators.

On the other hand, these same cans, when disposed of by consumers in their homes, are treated as household waste and can be managed or recycled in other ways, including ways that involve substantial steel and aluminum recovery from municipal waste management. ELI released a research report exploring this incongruity. RCRA and Retail: Considering the Fate of Consumer Aerosol Cans examines the regulation of the retail sector, the fate and recovery of materials from aerosol cans, and opportunities for further action.

Showcasing ELI’s coast-to-coast reach, the Institute collaborated with Hunton Andrews Kurth’s San Francisco office to hold a summer series featuring key representatives from the region’s environmental regulatory agencies. The series of seminars provided attendees with the opportunity to interact with environmental regulators and professionals in the field on the latest issues and challenges.

ELI trains Indonesian judges on forest preservation.

ELI Report
Laura Frederick - Environmental Law Institute
Environmental Law Institute
Current Issue

Now in their 29th year, ELI’s National Wetland Awards are presented to individuals who have excelled in wetlands protection, restoration, and education.

“These men and women are on the forefront of protecting wetland resources in the face of development and climate impacts,” said ELI President Scott Fulton. “Through their dedication and achievements, they inspire wetlands protection across the country and worldwide.”

The ceremony kicked off with a keynote speech from Leah Krider, senior counsel, environment, health, and safety, at the Boeing Company, who described its expansion and mitigation efforts in South Carolina.

“Conservation and economic growth are not mutually exclusive. Conservation is not only good for the environment, for the communities. It makes good economic sense,” Krider said.

Awardees were recognized for their individual achievements in six categories:

Landowner Stewardship: For 28 years, William and Jeanette Gibbons and their family have devoted their time and financial resources to restoring degraded land and water on their property at Cedar Breaks Ranch in Brookings, South Dakota. They developed their property into a showcase of how various conservation practices can be seamlessly and profitably integrated into a working farm. They also use their land to further research and education on natural resource management approaches.

Science Research: Kerstin Wasson is the research coordinator at the Elkhorn Slough National Estuarine Research Reserve in Watsonville, California. She engages citizen scientists in collecting water quality data and counting migratory shorebirds. She launched an ecosystem-based management initiative that brought together stakeholders to develop a shared vision for restoration of the estuary’s wetlands. Kerstin has led collaborative projects across the network of National Estuarine Reserves.

Education and Outreach: Mark D. Sees has served as the manager of Florida’s Orlando Wetlands Park for over 20 years. In addition to managing the wetland treatment system, he has evolved the park into a center of public recreation and wetlands education and research. He initiated the annual Orlando Wetlands Festival to provide 5,000 local children and adults an opportunity to tour the wetlands to understand their ecological importance.

State, Tribal, and Local Program Development: Maryann M. McGraw, wetland program coordinator for the New Mexico Environment Department, initiated the state’s wetlands program and continues to provide vision and guidance to ensure the program reflects the importance of wetlands and riparian areas in the arid west. She developed rapid assessment methods for montane and lowland riverine wetlands, confined valleys, and playas of the Southern High Plains, which provides data needed to underscore state wetlands water quality standards and anti-degradation policies.

Conservation and Restoration: Latimore M. Smith is a retired restoration ecologist with The Nature Conservancy in Covington, Louisiana. A botanist and plant community ecologist, he spent over 15 years with the Louisiana Natural Heritage Program, documenting the ecology of habitats across the state. He was the first to formally describe a variety of previously undocumented natural wetland communities, including rare longleaf pine flatwood wetlands.

Wetlands Business Leader: Roy R. “Robin” Lewis III of Salt Springs, Florida, was the winner of this new award. For more than four decades, Lewis has been at the vanguard of wetland restoration and creation, designing or assisting in the design of over 200 projects around the world. He founded two environmental consulting companies and is president of Coastal Resource Group, Inc., a nonprofit educational and scientific organization. He also works with the Association of State Wetland Managers to provide education opportunities and resources.

Ramsar Convention event presages 13th conference of parties

Before the 29th Annual National Wetlands Awards ceremony — see facing page — ELI hosted a panel discussion on the Ramsar Convention on Wetlands of International Importance.

The treaty calls attention to the rate at which wetland habitats are disappearing, in part due to a lack of understanding of their importance. The convention provides an international framework for action and cooperation to promote “the conservation and wise use of all wetlands through local and national actions and international cooperation.”

The United States became a party to the convention in 1986 and has since designated 38 sites covering 4.5 million acres nationwide.

Attendees of the program, An Introduction to the Ramsar Convention, learned about efforts at the local, national, and international level to implement the accord.

Panelists included Cade London, Fish and Wildlife Service; Maryann M. McGraw, New Mexico Environment Department; and Barbara De Rosa-Joynt of the State Department.

After receiving an overview of the evolution of the convention and insight into the international community, the audience heard about the primary goals of Ramsar at the domestic level.

The convention covers a broad range of ecosystems considered as natural and man-made. The final presentation focused on one Ramsar site in New Mexico. The Roswell Artesian Wetlands is a desert ecosystem made up of a complex of springs, lakes, sinkholes and saline wetlands situated along the Pecos River. These wetlands support over 360 species of waterfowl as well as other animals and plants, including a number of rare, endemic, and endangered species.

As panelist De Rosa-Joynt explained, wetlands knowledge and science is consistently evolving and informing the future goals of the convention.

The 13th conference of the parties will be held this fall in Dubai. Themed “Wetlands for a Sustainable Urban Future,” the conference is expected to draw over 1,200 representatives from the parties. On the agenda are climate change; agriculture; so-called “blue carbon”; and polar wetlands.

Aiding China in coming to grips with country’s excessive pollution

In March, ELI, with the assistance of the Pillsbury law firm, prepared a report, Managing Environmental Protection and Economic Considerations Under Select U.S. Environmental Laws and Permitting Systems, for China’s Ministry of Environmental Protection. The study explains how the United States has balanced economic considerations and environmental protection through the Clean Air Act, Clean Water Act, the Resource Conservation and Recovery Act, and the Endangered Species Act.

ELI and the China Environmental Protection Foundation then held capacity building workshops at the Tianjin University Law School on environmental public interest litigation. While the focus was on participation of Chinese NGOs, other entities involved included Supreme People’s Court judges and prosecutors from the Supreme People’s Procuratorate.

Reforms to China’s Environmental Protection Law establish authorities for the government and the public alike, with the added ability of authorized civil society groups to file citizen suits. However, the success of these improved systems relies on a multifaceted system of accountability, with both the government and civil society playing roles. ELI is providing technical assistance, capacity building, and legal training to NGOs that have been approved by the civil authorities to engage in civil environmental litigation.

ELI staff attorney Zhuoshi Liu has been a leader in this public interest environmental litigation capacity building work, and in developing and hosting the workshops. A China native, Liu brings a wealth of knowledge to ELI’s China Program and the Institute as a whole.

Participants also benefitted from the expertise of ELI faculty from the Institute’s extended community.

Jeff Gracer of Sive, Paget & Riesel P.C., a member of ELI’s Leadership Council, traveled to China for January’s conference. The conferences included presentations from Leadership Council members Robert (Buzz) Hines of Farella Braun + Martel LLP, and former ELI President Leslie Carothers as well as longtime member Dan Guttman of New York University Shanghai.

Field Notes: ELI on the scene in flooded Ohio, polluted Gulf

In summer 2017, ELI Senior Science and Policy Analyst, Rebecca Kihslinger, and ELI’s partners at the University of North Carolina’s Institute for the Environment, traveled to Ottawa, Ohio, where state and village officials and residents and business owners came together to brainstorm on uses for flood buyout properties during the Making the Most of Ottawa’s Floodplain Buyouts Workshop.

Ottawa had purchased 55 floodplain properties since 2008, totaling 25 acres, using funding from government grants, Hazard Mitigation Grants, and Hazard Mitigation Assistance grants. Recently, the Federal Emergency Management Agency approved the first of three major projects planned to utilize these buyout properties by the Greenspace Development Committee. A once vacant lot will become Rex Center Park.

In continuation of ELI’s work in the Gulf of Mexico since the BP oil spill eight years ago, ELI traveled to Gulfport, Mississippi, to encourage public engagement efforts. To help members of the public better understand how to get involved, ELI, along with Environmental Management Services, Mississippi Commercial Fisheries United, and Public Lab, co-sponsored an event on Engaging in the Gulf Restoration Processes: How the Public Can Help Shape Restoration. The goal of this event was to provide participants with tools and information that they can use to more effectively take part in and understand the restoration and recovery efforts.

On April 16, ELI and co-sponsors convened a panel of environmental justice leaders, including keynote speaker Rep. Raul Ruiz, co-author of the proposed Environmental Justice Act of 2017.

Continuing discussions from a panel held last November, speakers explored climate justice, siting issues, ramifications of extreme weather events on marginalized communities, and ways in which practitioners can empower and support environmental justice communities through their own work.

A networking reception followed to further conversation and discussion of key topics at the forefront of environmental justice. On display was the newly released book from ELI Press Environmental Justice: Legal Theory and Practice, 4th Edition.

After announcing his $1.5 trillion infrastructure plan, President Trump has sought to streamline and expedite the environmental review and permitting process for projects under multiple environmental laws, ranging from the National Environmental Policy Act, Endangered Species Act, and Migratory Bird Treaty Act to the Clean Air and Clean Water acts.

Trump submitted to Congress an ambitious legislative “roadmap,” which proposes a number of far-reaching changes to the environmental review framework with a goal of shortening the process for approving projects to two years or less.

To examine these developments ELI and Arnold & Porter cohosted a conference entitled Infrastructure Review and Permitting: Is Change in the Wind? High-level government officials, practitioners representing industry and environmental NGOs, and congressional representatives were present to address the wide range of environmental permitting and review challenges across sectors, including transportation, energy, transmission, renewables, and more.

Panelists discussed the role of policy and litigation in shaping these developments over the next years and beyond.

Latest flock of National Wetlands Awards winners.

Should California Develop the State's Large Petroleum Resources?
Robert N. Stavins - Harvard Kennedy School
Harvard Kennedy School
Current Issue
Robert N. Stavins

California is among the most aggressive jurisdictions in the world in its pursuit of public policies to reduce emissions of greenhouse gases. While the Trump administration in Washington is reversing the Obama administration’s climate policy achievements, California and other subnational entities are taking the lead in the development and implementation of meaningful domestic policies to mitigate the impact of human activity on the climate system.

However, California is a producer of crude oil. Is this inconsistent, or even counterproductive? Advocates have criticized Governor Jerry Brown, and proposed a ban on crude oil production within the state in furtherance of California’s climate policies. The thinking goes, crude oil production leads to environmental impacts, so how can it be allowed? The logic is flawed, and the prohibition — if adopted — would impose tremendous costs on the state with little or no environmental benefit.

As California has developed its climate policies, the need to balance the benefits of these policies with their economic and human consequences has always been a challenging issue. Achieving aggressive climate goals will not be cheap, so designing sensible, effective policies is critical. Simply adopting any and all restrictions that might achieve some emission reductions would unnecessarily raise the human cost of limiting GHG emissions.

At its heart, the climate problem arises because of carbon dioxide emissions associated with the use of energy and related services. We heat our homes in the winter and cool them in the summer using electricity and natural gas. We use gasoline to get to work and take vacations. As each country or state — including California — tries to reduce its GHG emissions, the policies and regulations adopted to achieve this end nearly always target the activities that lead to emissions: the generation of electricity, the use of transportation, and the conditioning of our living and working spaces.

The proposed ban on crude oil extraction would flip this on its head, focusing instead on the supply of a fossil fuel. But the simple reality is that the sources of fossil fuel supply are so ubiquitous that crude oil from other regions of the world will replace supplies from California, if California chose not to supply its own on-going needs. Oil and gas used to heat homes and to power vehicles comes not only from California, but from most every region of the globe. Many of these regions have expanding supplies of crude oil due to technological improvements, including the Bakken shale of North Dakota, and vast supplies available with relatively little effort, such as in the Middle East.

Advocates claim that reduction of California crude oil production would reduce global consumption of crude — a claim of questionable validity. But that is not even the right question. There are many things that can be done to reduce GHG emissions, and a sensible, affordable, and sustainable policy will be one that achieves reductions at the lowest cost. Even if restricting California’s oil production might reduce global crude consumption, California would certainly bear all of the economic consequences of this policy, as the state would then rely solely on crude oil imports.

In fact, a restriction on California’s crude production is unlikely to reduce GHG emissions within the state. California’s total GHG emissions are limited by the cap of its GHG cap-and-trade system. The most a restriction on California’s crude production can do is to increase costs, while achieving little or no incremental improvement in the emissions that cause climate change.

Moreover, supply-side restrictions can limit technological progress that can have very positive economic and environmental consequences. The same advocates oppose fracking, but the innovative combination of hydraulic fracturing in shale and horizontal drilling has led both to tremendous economic benefits by expanding supplies of low-cost domestic energy and reducing energy imports, and to environmental benefits by allowing lower-carbon natural gas to displace higher-carbon coal in the generation of electricity across the United States.

By focusing on policies aimed at achieving the appropriate policy goal of reducing GHG emissions — rather than trying to choose winners and losers among technologies and energy sources used to achieve those goals — California can achieve its climate policy goals in ways that are environmentally effective, economically sensible, and ultimately sustainable. In my view, Governor Brown merits compliments rather than criticism for Sacramento’s progressive environmental and energy policies.

Should California develop the state's large petroleum resources?

On Being a Trigger for Peace
Ken Conca - American University
Geoff Dabelko - Ohio University
American University
Ohio University
Current Issue
On Being a Trigger for Peace

Ken Conca

Environmental change can be a trigger for conflict. It heightens our sense of group difference. It can make us think about hunkering down rather than reaching out. It tempts us to visualize a world of scarcity and of constraint rather than a world of opportunity and transformation. People assume scarcity begets grievances and grievances beget violence. Our work challenges that determinism.

I would never deny the potential for violence around environmental change. According to Ban Ki-Moon, the former secretary general of the United Nations, climate change “not only exacerbates threats to international peace and security, it is a threat to international peace and security. . . . Mega-crises may well become the new normal.” The human rights organization Global Witness has built a database on the assassinations of environmental activists in the last 10 years or more. The number is large.

What we risk losing if these narratives are only about security and conflict is the possibility that we can instead cooperate around them. They can bring people together, even people who may not be comfortable working together. They can lead us down a path of peace.

The Earth Summit in Rio de Janeiro in 1992 was the high-water mark for international environmental cooperation. By the late 1990s, when the international community was planning a 10th-anniversary summit meeting in Johannesburg, the bloom was off the rose of international environmental cooperation. The idea of welfare gains and sustainable development was not strong enough to get governments to live up to the commitments they had made in Rio. Many environmental policymakers and activists started casting around for another framework that might give governments that sense of urgency. Environmental security as a concept was born in that quest for agenda setting.

The Cold War was over. It was a time when people who thought about conflict and security were open to new ideas. There was a perception, which today seems quaint, that we would realize a peace dividend, that those massive resources that went into the preparation for war could be redeployed for a more affirmative social purpose.

It was the combination of the quest for urgency and the fluidity in the security space that produced this idea of environmental security. In the run-up to Rio+10, there were governments and activists who wanted environmental security to be the dominant framework for the dialogue and for policy initiatives. In my experience, when the North finds a security incidence in the South, the South would be well advised to duck. They fought too hard to throw off colonialism and have sovereignty over their natural resources to see it be framed simply as someone else’s security agenda.

It also bothered Geoff Dabelko, as the newly minted director of the Environmental Change and Security Program at the Woodrow Wilson International Center for Scholars. Out of this strategic concern an idea occurred to us. If the environment can be a trigger for conflict, maybe environmental imperatives can be a trigger for peace.

There are three premises to our work.

The first is that because environmental issues ignore human boundaries, they demand cooperation across those boundaries, whether they are between nations, or clans, or identity groups, or neighborhoods, or the people who live upstream and upwind and those who live down. That interdependence can be used to create cooperative incentives, even among actors who are not inclined to cooperate with each other, even among actors in conflict.

The second premise is that the environment can create in people a deeply rooted sense of place. Maybe that can be used to strengthen people’s shared identities, or at least to soften some of the more divisive and conflict-oriented identities that can also take root in specific places.

And third: environmental problems are technically complex, and they challenge us to think forward into an uncertain world. Maybe that uncertainty creates opportunities for learning together. And maybe that learning can be used as a tool to build trust again among parties who might not be inclined to trust.

We never say that environmental cooperation will inevitably lead to peace. Environmental cooperation sometimes only leads to more efficient resource plundering. We instead assess whether particular types of environmental cooperation might be used strategically to make peace by creating cooperative incentives, or by enhancing trust, or by reworking conflict-laden identities.

There is now a large body of evidence that this can in fact be done. There are refugee camps where scarcities of water, or of firewood, or other resources trigger conflict, either within the camp or between the camp and the host community. But there are just as many where we see people developing creative, cooperative solutions. We know that climate change and water scarcity can cause tensions and conflicts between herders and farmers in the world’s dry grassland regions. But we also see creative adaptation under those same stresses. Farmers start to herd, herders start to farm, their children start to intermarry. Grievances are not the only factor. Much depends on our capacity to channel those grievances as productively.

A related observation is that much of what we know is not derived from the work of scholarly research. It is derived from practice.

There is a lot of rich experimentation by communities, by donors, by nongovernmental organizations, by intergovernmental organizations like UN Environment. That raises questions about selection bias. Are people only working in places where it’s easiest? It raises questions about the quality of the data, about long-term effects after the NGOs or the donors go away. It raises questions about community ownership of these processes.

A third observation is that there is not enough attention paid to the institutions that are tasked with implementing these initiatives, such as the UN Security Council. We have to study the institutions that are supposed to deliver on these programs.

Peace is not always the goal. The Palestinians we work with in the West Bank don’t want to talk about peace. They want to talk about justice, they want to talk about dignity. In Flint, Michigan, when the taps started spewing toxic water, those people weren’t interested in peace, either. People who are most directly involved in these conflicts often do not see peace as the principal challenge or the principal problem.

And on the other hand we know that violence can shred any possibility for attaining these other social goals. Peace, even in the most limited sense of forestalling violence, is a very good thing. It’s essential to the realization of other goals. But it’s often not the goal of most of the people who are involved. And we scholars or practitioners who come bearing peace strategies without an emphasis on justice will be looked at skeptically.

Geoff Dabelko

Environmental peacebuilding is often saddled with unrealistic expectations. Some observers ask, Why try environmental peacebuilding if you are not going to solve the whole conflict between India and Pakistan? Where is the evidence environmental peacebuilding works if you are not resolving a conflict? Is it not better to wait to address environmental conditions, goes the argument, until the country is rich, peaceful, and democratic? In this way of thinking, the environment is viewed as a luxury item in post-conflict settings rather than a critical input to saving lives, jump-starting agrarian livelihoods, and spurring economic activity.

Some early practitioners of environmental peacebuilding came from unexpected quarters. Fears of radioactive contamination in the Barents Sea provided an avenue for Russian, Norwegian, and American militaries to interact as the Cold War ended. The resulting Arctic Military Environment Cooperation Program included scientific assessment and safer storage of spent nuclear materials in the Russian Northwest. While radioactivity was a real concern, the collaboration between opposing militaries provided a means to interact regularly on less divisive topics. The program helped U.S. and Norwegian leaders figure out who was in charge of the former Soviet military in the uncertain transition period. Joint scientific assessment and environmental risk management were tools to help build confidence and a post-Cold War peace.

Environmental peacebuilding has faced numerous challenges, and early iterations demonstrated tangible shortcomings. In Johannesburg in 2002, at the World Summit on Sustainable Development, only one speaker on a well-attended environment and security panel got questions, many of them hostile. A representative from the Peace Parks Foundation fielded questions about his organization’s peace park efforts in post-Apartheid southern Africa. Signing ceremonies with Nelson Mandela and other heads of state made for good optics, but the beneficiaries of these early transboundary conservation efforts were primarily political elites and large business owners. Local people bore the cost of increased human-wildlife conflict that came with the sudden removal of border fences. They reaped few of the benefits of increased tourism. Fortunately, many early environmental peacebuilders changed their programs, learned lessons, and adapted subsequent efforts inside and outside southern Africa.

The aftermath of the 1990s Yugoslavian civil war was an important place for UN Environment and its post-conflict assessments to make concrete steps toward environmental peacebuilding. Like AMEC, the UN took advantage of the relative lack of controversy around objective scientific assessment in post-conflict settings to tackle the peace and conflict dimensions of the environment and natural resources.

UN Environment identified environmental hotspots and natural resource management steps critical to restarting economies. Their comprehensive reports, done with the permission of host governments, assigned some degree of responsibility for environmental damage and helped formulate a plan forward. The plan was a little more subversive than we realized at the time. UN Environment assessed the role natural resources may have played in starting, extending, and recovering from conflict. It helped formulate a possible foundation for peace through environmental management institutions.

Those field assessments were fairly straightforward steps compared to the politics that surround peace and conflict issues at the United Nations. UN Environment still had many battles about environmental peacebuilding at its headquarters in Nairobi and at UN headquarters in New York. Member governments routinely assert their right to sovereign control of resources as an impediment to engaging in environmental actions designed to prevent conflict in particular. They commonly maintain that environmental issues are not security issues but instead economic ones better suited to be addressed by the economic and environmental bodies at the UN.

Despite these regular objections, those UN-focused efforts have had success. However, I would flag one dilemma raised by this example. I call it “What’s in a name?” What we call environmental peacebuilding really matters to the parties on the ground. Peacebuilding as an enterprise is inherently politically sensitive. The advantage of the environmental sector is often the issues are less so as illustrated by the earlier examples. But labeling an effort as environmental peacebuilding rather than environmental management can make the goal harder to achieve. Parties assume defensive positions and the conflict is renewed rather than reconciled. If making the peacebuilding objectives explicit makes it harder to achieve, how do we do it without that label? When do you use that label explicitly and when is it a critical but unstated goal?

Some have reacted that such a labeling decision can be troubling, since they value transparency and participation among all stakeholders from the outset. It raises challenging tradeoffs for small group negotiations and less transparent approaches versus all-inclusive negotiations in public. In the age of diplomacy by press release and even tweet, this transparency can actually make it harder to achieve success.

Let me share one more case to illustrate the environmental peacebuilding work yet to be done. In this example, practitioners are asking questions of researchers and scholars that we cannot yet answer definitively. I have worked closely with the U.S. Agency for International Development and their Conflict Management and Mitigation team. Many of you have had similar experiences with many other partners in the field. How do we practice, how do we pursue, how do policymakers grapple with environmental peacebuilding within a climate change context?

Twenty-five years ago, climate change was seen as a long-term, diffuse, incremental, and future topic for environment and security scholars and practitioners. The existential threat to small island states, for example, was not yet widely perceived. Steps to address climate change and security were largely separate conversations.

Today, the script has flipped. Since 2007, climate change has become the primary entryway into the environment and security conversation, almost to the exclusion of other important environment and natural resource topics. USAID’s conflict management staff now evaluate the agency’s climate change assistance by asking two questions: Is this climate-related investment going to create new conflict or contribute to existing conflicts? and, How can it be designed to contribute to additional development or peace-supporting solutions? If this investment is in a fragile state, or a conflict-affected state, how can we do environmental peacebuilding with this climate intervention?

Indeed, both scholars and practitioners need to develop better answers to these questions even if one can easily claim climate adaptation and mitigation efforts remain limited within countries and the international community. Our argument should be for finding ways to capture co-benefits and the triple bottom line even as we experiment and develop a research base for better knowing what works. In a financial resource-constrained policy environment, let us collaborate to achieve climate, poverty alleviation, and peacebuilding goals together with coordinated responses.

These are the challenges before us. There has been promising progress. There is lots more to do. TEF


AL MOUMIN AWARD WINNERS ❧ A colloquy on how to use environmental cooperation to alleviate, end, and hopefully prevent armed conflict, by two veteran “soldiers” in the field.