ELI at the UN Institute advances rule of law, peacebuilding, and ocean conservation at key international conferences last summer

Fifty years after the United Nations’ first global Conference on the Human Environment, world leaders convened in Sweden this past June to take stock of environmental governance achievements and work toward the next era of sustainable development. At this year’s Stockholm+50 conference, ELI played a key role in two official side events and engaged in several other panels to promote environmental peacebuilding and environmental rule of law.

On June 2, ELI partnered with the Environmental Peacebuilding Association, Geneva Peacebuilding Platform, and PeaceNexus to convene an official side event on Improving Sustainable Development by Integrating Peace. The panel was moderated by ELI Senior Attorney Carl Bruch and featured Research Associate Shehla Chowdhury. Speaking to a full house, panelists discussed the connections among peacebuilding, sustainable development, and conservation by highlighting illustrative case studies and initiatives.

On the same day, ELI also co-sponsored an official side event on Judges, the Environmental Rule of Law, and a Healthy Planet Since the 1972 Stockholm Declaration. Participating judges included several long-time partners of ELI, including Justice Antonio Benjamin of Brazil, head of the Global Judicial Institute on the Environment, Justice Brian Preston of New South Wales, Australia, Justice Mansoor Ali-Shah of Pakistan, and Justice Michael Wilson of Hawaii—all leading champions of climate action.

Prior to the official Stockholm+50 conference, the Institute also co-sponsored a two-day Symposium on Judges and the Environment: The Impact of the Stockholm Declaration in Shaping Global Environmental Law and Jurisprudence. At the event, President Emeritus and International Envoy Scott Fulton presented ELI’s Climate Judiciary Project. The program is the only one in the world working to equip judges with the basic climate science education needed to administer justice in climate-related cases. Fulton shared that the project is now looking to pivot internationally, with the goal of sharing the same knowledge base with justices around the world.

Later in the summer, ELI Oceans Program Director Xiao Recio-Blanco and Visiting Attorney Patience Whitten joined the UN Ocean Conference in Lisbon, Portugal, from June 27 to July 1. As part of the summit’s events, ELI hosted the Future of Food Is Blue panel, in partnership with the Environmental Defense Fund, World Wildlife Fund, Rare, the Government of Iceland, and others. The event formally launched the Aquatic Blue Food Coalition, which promotes fish, shellfish, plants, and other aquatic foods to address food security and climate.

Recio-Blanco spoke at a reception immediately following to share ELI’s research on sustainable fisheries, highlighting the Law and Governance Toolkit for Sustainable Small-Scale Fisheries, published in 2020. The toolkit helps legal drafters develop effective policy mechanisms to sustainably manage small-scale fisheries.

Advancing migration with dignity through innovative research

Climate change, war, economic insecurity, and a myriad of other global issues have accelerated internal displacement and global migration. Yet migrants typically suffer many indignities during their transition to a new place, and existing institutions often fail to recognize their basic human rights. In response to this challenge, ELI and its partners have undertaken groundbreaking work on Migration With Dignity, a framework that offers legal and policy options for governments, policymakers, and nonprofits to uphold the dignity of migrants. The concept builds upon the policies of former President of Kiribati Anote Tong, who asserted the need for the people of Kiribati to maintain their autonomy and standard of living throughout the migration experience.

A recent special issue of the Journal of Disaster Research reflects a collaboration between ELI and the Dignity Rights Initiative, the Delaware Law School, the UN International Organization for Migration, and the Ocean Policy Research Institute. ELI Senior Attorney Carl Bruch co-authored two articles, Migration With Dignity: A Legal and Policy Framework, and The Methodology and Application of a Migration With Dignity Framework, along with Shanna N. McClain, NASA disasters program manager and former ELI visiting scientist.

Migration With Dignity: A Legal and Policy Framework considers a variety of migration contexts and identifies policies that work and gaps that exist for considering the dignity of migrants. Meanwhile, The Methodology and Application of a Migration With Dignity Framework provides a methodology for considering the social and legal dimensions of the Migration With Dignity framework. The issue also discusses the intergenerationality of immigrants in adapting or assimilating into their new environment, and how mass media affects perceptions of migrants in host countries.

ELI is continuing its work on Migration With Dignity through a new grant from the United Institute of Peace, which explores the potential of the framework to prevent and mitigate conflicts. Through research, dialogue, technical assistance, and capacity-building, the Institute seeks to strengthen legal protections for people displaced across national borders through its Environmental Displacement and Migration program.

Report on mining in Amazon identifies major corruption risks

In July, ELI and its partners contributed to Corruption in Artisanal and Small-Scale Mining in the Peruvian Amazon, a study prepared for USAID as part of the agency’s Prevenir Amazonías project. The Prevenir project aims to prevent and reduce the three greatest threats to the Peruvian Amazon: wildlife trafficking, illegal logging, and illegal mining. According to USAID, the project “works with the Government of Peru and civil society to improve the enabling conditions to prevent and combat environmental crimes.”

The guide represents the third in a series of reports developed by ELI for the project. The first, published in 2021, discussed the incorporation of wildlife trafficking into Peru’s organized crime law. Another, released in 2022, detailed best practices for prosecuting and sanctioning wildlife trafficking crimes.

The new report identifies corruption risks in the value chain of the gold derived from artisanal and small-scale mining in the Peruvian Amazon. In doing so, the report addresses the complex reality of mining in an analytical and evidence-based manner. Collaborating with local experts and professors, ELI analyzed interviews and conducted surveys of stakeholders involved in the gold mining value chain, including government officials, specialized prosecutors in environmental matters, and the chiefs of Amazonian Natural Reserves in which illegal mining often takes place.

The report then proposes regulations and governance mechanisms to mitigate these risks.

Sandra Nichols Thiam, ELI associate vice president of research and policy, served as project manager, and Elissa Torres-Soto, staff attorney, served as principal researcher and writer. Research Associate Georgia Ray, Staff Attorney Kristine Perry, and Visiting Attorney Vera Morveli also contributed to the research.

Geared toward policymakers, the study pinpoints the incidents where corruption is more likely to occur, and the factors that make corruption more likely. The Prevenir project is now focused on conducting outreach to spur dialogue and action on the report’s recommendations, especially to members of the Peruvian Congress who are beginning to address these issues.

ELI’s work on the Prevenir project situates within the Institute’s longstanding Inter-American Program. Since 1989, the program has worked in more than 20 countries in the region, with an extensive network of local partners to promote strategies of sustainable development and the conservation of natural resources.

In coming years, ELI plans to release another report under the Prevenir project on the use of amicus curiae in environmental crime cases in Peru, aimed at law students and members of NGOs.

ELI in Action Dialogue on the right to a healthy environment

In July, ELI partnered with Delaware Law’s Global Environmental Rights Institute, Barry University’s Center for Earth Jurisprudence, the American Bar Association Section of Environment, Energy, and Resources, the ABA Section of Civil Rights and Social Justice, and the ABA Center for Human Rights to produce a series of webinars about the right to a healthy environment.

Last year, the United Nations Human Rights Council in Geneva formally recognized the right to a “clean, healthy and sustainable environment” and recommended that the UN General Assembly do the same. In the first webinar of the series, a panel of international leaders from the United Nations and the Sabin Center for Climate Change Law at Columbia University discussed what it might mean for the UN General Assembly to adopt such a resolution. In the second installment, human rights practitioners reviewed the United States’ position on the issue, which continues to evolve. And finally, the third webinar, featuring experts in environmental rights and justice, examined the extent to which states in the United States have recognized or might recognize a right to a healthy environment.

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ELI’s Food Waste Initiative is publishing a series of research briefs to present takeaways from the Initiative’s research, spanning a range of topics important to food waste prevention, recovery, and recycling. In May, the Initiative released Social Science Literature Review on Value of Measuring and Reporting Food Waste, authored by Research Associate Margaret Badding and Senior Attorney Linda Breggin. The brief provides an overview of relevant social science literature on the behavioral implications of measuring waste or emissions. Research indicates that simply measuring these components can motivate behavior change, due to increased awareness as well as reputational and financial concerns of measuring entities.

In June, the Initiative also published An Overview of Multilingual Outreach, Translation, and Language Justice Resources. Implementing environmental initiatives requires clear communication with affected communities—including those that speak languages other than English. Written by Research Associate Jordan Perry and Senior Attorney Linda Breggin, the brief highlights best practices for effective and inclusive multilingual outreach and document translation. To be most helpful to organizations with limited time and funds, these best practices are pulled from ready-to-use resources such as checklists and toolkits.

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Under the Clean Water Act, states, territories, and tribes restore water quality in part by implementing Total Maximum Daily Loads (TMDLs), which set a maximum level of a pollutant allowed in a given body of water. Evaluating the effectiveness of TMDLs is challenging, yet vital for revealing whether a TMDL and implementation actions are working or should be revised.

In June, ELI published Evaluating the Water Quality Effects of TMDL Implementation: How States Have Done It and the Lessons Learned, a report highlighting the diversity of approaches to evaluating the water quality effects of TMDL implementation. The document explains some of those methods and conveys lessons learned. It also details terminology challenges and identifies relevant resource materials. By facilitating communication among water quality programs, the document aims to generate new ideas and ensure that future TMDL restoration efforts are more effective and efficient.

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This past year, ELI hosted a workshop series on Communicating Complex Science: The Challenge of Sea-Level Rise. Funded by the National Science Foundation’s Paleoclimate Program and co-hosted with George Washington University Law School, these discussions brought together scientists, lawyers, and policy professionals to examine opportunities in communicating the science of sea-level rise.

The initial session, focused on explaining the science and attributing the impacts of sea-level rise, was held in November. The panel featured presentations by scientists Andrea Dutton from the University of Wisconsin-Madison and Ben Strauss from Climate Central. Robin Craig from the University of Southern California Gould School of Law facilitated a conversation to set the stage for subsequent sessions on the implications for law and policy.

In May, a follow-up session focused on the legal and policy landscape of sea-level rise included presentations from Astrid Caldas from the Union of Concerned Scientists, Jeffrey Peterson, author of A New Coast, Thomas Ruppert from Florida Sea Grant, and Robin Craig.

Wetland Woes: Institute publishes a series of guides on improving the restoration of vital aquatic ecosystems in the U.S.

Wetlands perform irreplaceable ecosystem services, from improving water quality, preventing shoreline erosion, to providing habitat for threatened and endangered species. Since 1990, the Clean Water Act’s Section 404 program has aimed to achieve a “no net loss” of aquatic ecosystems in the United States. Any project that will result in fill or disturbance to a wetland or stream—for example, constructing a neighborhood or a store, or building a road or bridge—must obtain a permit from the U.S. Army Corps of Engineers. To issue that permit, the Corps must first determine that any potential impacts have been avoided or minimized as much as possible. And for the unavoidable impacts that remain, developers must then offset them through restoration activities.

This practice of offsetting the remaining impacts is called compensatory mitigation. Permittees restore any lost acres and functions by conducting projects to restore, rehabilitate, establish, or enhance wetlands, streams, and other aquatic resources. Permittees can either implement these activities on their own, or pay a mitigation bank or in-lieu fee (ILF) program to offset impacts on their behalf—an option called third-party compensatory mitigation.

Many are surprised to learn that compensatory mitigation is a multi-billion dollar market. Under these programs, tens of thousands of wetlands and streams are restored each year. ELI has been studying the compensatory mitigation program for decades, producing numerous resources designed to improve the implementation of the program.

In August 2021, the Institute released a series of comprehensive guides in partnership with the Institute for Biodiversity Law and Policy at Stetson University College of Law on improving implementation of ILF programs—one of two third-party compensatory mitigation options. The guides cover some of the most challenging components of ILF program implementation identified through extensive research and interviews with ILF programs and other stakeholders. They help address a number of perennial problems by identifying specific challenges, providing detailed recommendations on ways to meet these challenges, and highlighting case studies to illustrate effective approaches.

Each of the four guides explores a regulatory requirement that programs need to fulfill. One is “full-cost accounting”—regulations stipulate that ILF providers must set fees in a way that proactively anticipates and accounts for all costs associated with mitigation. Many programs face challenges in determining these costs, due in part to a lack of information on what costs to include and how to estimate them.

Another guide addresses common delays in project approval processes, which are required for third-party mitigation options like ILF programs. A third guide covers long-term management, a practice in which ILF programs are required to sustain mitigation projects in perpetuity once completed. The report covers strategies for the effective planning and implementation that these long-term sites require.

Finally, a fourth guide provides information on what to expect from programmatic audits, which help provide confidence to regulators, purchasers, and the public that a given ILF program is meeting its requirements and successfully offsetting permitted impacts. The report includes guidance on what information programs should include in their program instruments, model language for audit provisions, and how programs can prepare for such audits.

ILF programs account for close to 20 percent of the nation’s compensatory mitigation. Together with other third-party options, ILF programs oversee some of the nation’s largest, most ecologically valuable sites. ELI continues to work closely with compensatory mitigation practitioners and regulators to research best practices and strengthen the protection of U.S. wetlands, streams, and aquatic ecosystems.

Report on high-seas regulations provides input to UN treaty

The vast majority of the world’s oceans, including the high seas and deep seabed, are areas beyond national jurisdiction—meaning no one nation holds sole authority. As advances in technology open up possibilities for commercial activities in the high seas, concern is growing that these areas will experience rapid industrialization. One way to ensure that development is conducted in an environmentally sustainable manner is to establish regulatory procedures for ocean industries.

The United Nations draft agreement for the protection of marine biodiversity in areas beyond national jurisdiction, or the UN BBNJ treaty, aims to do just that. The treaty proposes to, among other things, implement requirements for developers to conduct environmental impact assessments (EIA) on proposed industrial facilities in the high seas so that the significant biodiversity of these areas will be protected. But as the treaty itself moves beyond initial development to implementation of EIA and other protections, practitioners around the world remain wondering: “How can we ensure that EIA is done effectively once the BBNJ language is signed into international law?”

In December 2021, ELI published Implementation of EIA in Areas Beyond National Jurisdiction Under the UN BBNJ Agreement: Next Steps in EIA Guidelines, a report to help illuminate the practitioner’s perspective to the UN BBNJ process. The report synthesizes the discussions of a working group convened by ELI, composed of more than 25 senior officials with expertise in international law and ocean policy, environmental management, and EIA.

The document, authored by ELI Visiting Scholar Patience Whitten as part of the Institute’s Blue Growth Law and Governance Initiative, identifies key challenges to the successful implementation of an EIA regime as proposed under the UN draft agreement, and provides input to further the goals of the treaty.

ELI is developing this work as part of a multi-year research and collaboration effort to ensure a meaningful implementation of EIA principles in the high seas.

Clearinghouse connects communities with pro bono legal services

In February, ELI launched its Pro Bono Clearinghouse, an initiative that connects communities experiencing environmental injustices with attorneys who can provide pro bono legal services. ELI’s Pro Bono Clearinghouse is a venue for sharing opportunities and identifying expertise to support communities with pressing environmental problems. The Clearinghouse works to ensure that communities with viable environmental legal matters get the representation they need—whether in a courtroom, in front of an agency, or in a more facilitative or consultative fashion.

Environmental clinics are forced to turn down countless cases each year due to a lack of resources. At the Clearinghouse, clinics, partner NGOs, or ELI staff post a community’s request for a pro bono attorney with the right qualifications and notify environmental lawyers about ongoing pro bono opportunities. Law clinics can also create postings to find local counsel or legal support on specialized issues to expand internal capacity. Attorneys can in turn search for opportunities that match with their time availability, legal expertise, and jurisdiction of practice.

All attorneys who are ELI members can opt in to access the Clearinghouse and posted matters. Each attorney is required to review the available courses from the ELI Continuing Legal Education on Community Lawyering for Environmental Justice program, an ongoing series of training sessions provided in conjunction with the Clearinghouse. The classes enable attorneys opting into the platform to gain skills in community lawyering, a key practice in meaningful EJ-oriented pro bono work. Community lawyering centers on prioritizing the needs of communities and collaborating with individuals and groups as facilitative partners.

Law firms with ELI membership can opt in to the Clearinghouse, and non-lawyers and students are encouraged to contribute research, writing, scientific expertise, and other skills in conjunction with pro bono attorneys. All clinics and communities that post matters can also access the Clearinghouse to reach thousands of environmental practitioners within ELI’s network and collaborating partners.

The Clearinghouse partners with groups including the American Bar Association’s Section of Environment, Energy, and Resources, the American College of Environmental Lawyers, the Environmental Protection Network, and the Chesapeake Legal Alliance. The Clearinghouse also partners with two world-class, community-focused nonprofits: the Anthropocene Alliance, the country’s largest coalition of communities on the frontline of environmental justice, and the Thriving Earth Exchange, which connects communities with pro bono scientists.

Law clinics in the United States and around the world are welcome to join. Lawyers, law students, environmental experts, and advocates may connect with the Clearinghouse at probono@eli.org and at eli.org/probono.