Volume XIII, Issue 1
Winter 2014
Sustainable
Development
Law & Policy
Exploring How Today’s Development Affects Future Generations Around the Globe
In This Issue: IPAT in Practice
2
|
Editor's Note by Veronica Kennedy
4
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As the World Welcomes its Seven Billionth Human: Reflections and Population, Law, and the
Environment by Robert Hardaway
16
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How Environmental Review Can Generate Car-Induced Pollution: A Case Study by Michael Lewyn
23
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Laplace Rising: The Story of How a Tiny Community in Southern Louisiana Will Save the Largest
Delta in North America by J. Robert Hudson
35
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Indonesia's Role in Realizing the Goals of ASEAN's Agreement in Transboundary Haze Pollution
by David B. Jerger, Jr.
47
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U.S. Food Aid Reform through Alternative Dispute Resolution by Delilah J. Griswold
http://www.wcl.american.edu/org/sustainabledevelopment
Editor's Note
I
n the 1970s, Barry Commoner, Paul Ehrlich, and John
Holdren­—preeminent scientists who helped spur the modern environmental movement—created a simple equation
to determine human environmental impact: impact (I) is equal
to the product of population (P), affluence (A), and technology
(T).1 More specifically, the population of an area multiplied by
its consumption per capita and the resource requirements of creating, transporting, and disposing of the goods and services that
make up the population’s consumption equals that population’s
environmental impact. As such, to merely maintain the rate of
our impact on the environment as population grows, our consumption must decrease and/or we must create, use, and dispose
of technology more efficiently.
The IPAT equation has justifiably been criticized as overly
simplistic because population, affluence, and technology are
not mutually exclusive factors. For example, if a technology,
like a cell phone, is created using half the natural resources, the
environmental impact is not necessarily reduced by half if that
increase in efficiency also reduces the price of the cell phone
spurring increased consumption by the population. Population,
affluence, and technology are nonetheless important factors
to consider when molding environmental policies and law to
improve sustainable development across the globe. Although
imperfect, this equation still provides significant insight into the
basic roots of current environmental problems.
In this latest issue of Sustainable Development Law and
Policy, our article authors highlight the influence of the IPAT factors on law and policy and the influence of law and policy on these
factors. Professor Hardaway’s article, As the World Welcomes its
Seven Billionth Human: Reflections and Population, Law, and
the Environment, is the focal point of this issue, highlighting
each factor of the IPAT formula and the overwhelming impact
population has on the environment.
Two articles, U.S. Food Aid Reform through Alternative
Dispute Resolution by Ms. Griswold and Indonesia’s Role in
Realizing the Goals of ASEAN’s Agreement on Transboundary
Haze Pollution by Mr. Jerger, take an international look at
policies that can be used today to reduce environmental impacts
created by problematic consumption that is dependent on population and technology, respectively.
Case-study specific articles, How Environmental Review
Can Generate Car-Induced Pollution: A Case Study and Laplace
Features:
15 |Oversight and Accountability of
Water Privatization Contracts:
A Proposed Legislative Policy
by Mary Strayhorne
34 |Genetically Modified Food:
A Golden Opportunity?
by Susan Johnson
46 |Article XX: Protector of Public Health,
the Environment, and the New Provisions
of European Union's Fuel Quality Directive
by Joy Marie Virga
Rising: The Story of How a Tiny Community in Southern
Louisiana Will Save the Largest Delta in North America
by Professor Lewyn and Mr. Hudson, respectively, have a
domestic U.S. focus. Professor Lewyn’s article analyzes how a
well-intentioned statute has triggered increased consumption
worsening New York State’s impact on the environment, while
Mr. Hudson’s article highlights how poor implementation policies related to improved technology wreaked havoc on a small
town in Louisiana.
As each attempts to analyze an IPAT variable, these articles
illustrate just how complex the human impact on the environment is and how challenging it can be to create, follow, and correct the laws and policies we adopt to reduce that impact.
I would like to thank our authors for contributing intriguing work to the study of sustainable development law and
policy. Their scholarship is an inspiration to us all as we search
to understand how to improve our livelihoods and maintain a
healthy planet. Lastly, I owe a debt of gratitude to my staff who
works tirelessly to make this publication thrive.
Veronica Kennedy
1 See Marian R. Chertow, The IPAT Equation and Its Variants: Changing
Views of Technology and Environmental Impact, 4 J. Indus. Ecology 13, 15-18
(2001).
2
Sustainable Development Law & Policy
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Editor-in-Chief
Veronica Kennedy
Senior Editorial Board
Managing Editor Jacqueline Niba
Executive Editor Upasana Khatri
Associate Executive Editor Maggie Coulter
Features Editor Joshua Axelrod
Symposium Editor Jessi Patton
International Editor Jocelyn Rivera
Digital Editor Adam Poe
Senior Editors Danielle Edwards, Susan Johnson,
Elana Mendelson, Adam Poe, Siobhan Siaca
Staff
Rafay Azim, Caitlin Buchanan, Blythe Brauer,
Louisa Cruickshank-Mills, Stephanie Kurose,
Kristine Mbadugha, Patrick Parsons, Victoria Peters,
Mary Strayhorne, Lisa Tomlinson, Joy Marie Virga
Advisors
Daniel Bradlow, David Hunter, Kenneth Markowitz,
William Snape, William L. Thomas, Perry Wallace,
Glenn Wiser, Durwood Zaelke
Green Inks
Winter 2014
3
As the World Welcomes its Seven Billionth
Human: Reflections and Population, Law,
and the Environment
By Robert Hardaway*
I
Holdren’s Equation
n the 1970s John Holdren, Barry Commoner, and Paul
Ehrlich developed an equation for measuring the human
ecological footprint: I=PAT, where environmental impact (I)
is equal to the product of population (P), affluence in the form of
per capita consumption (A), and technology, or impact per unit
of consumption (T).1 The case can be made that the significance
of this equation in the realm of environmental policy, directly
linking population to the impact on the environment, can be
compared to the significance in the realm of physics to Albert
Einstein’s E=MC2.
While the link between the numbers of people on earth making demands on the earth’s resources to the environmental health
of the planet may seem obvious, it is not currently reflected in
environmental policy, nor is it widely recognized or acknowledged by entities in the private environmental movement.
Even less recognized, and even flatly denied, is any linkage of
population—and thus of the environment—to laws relating to
abortion, women’s rights, contraception, immigration, family
planning, or policies of economic growth. Very occasionally,
an influential and authoritative entity in our society, such as the
Supreme Court, lets slip an acknowledgement of such links, as
in the case of Roe v. Wade in which the majority opinion stated
that “population growth . . . [and] pollution . . . tend to complicate the [abortion] problem.”2 But by and large, politicians
and mainstream environmental organizations tend to avoid any
reference to politically charged areas. In consequence, environmental policy has narrowly focused on a narrow, and ultimately
self-defeating focus on reducing human consumption (A) and
limiting the emissions of individual units or of production (T).
It is not surprising that calls for limiting human consumption
is a hard sell in developing nations where millions live on the
edge of poverty and starvation. In the United States, it has been
noted that the United States has already tried limiting human
consumption (albeit involuntarily during the Great Depression),
and most people did not think much of it or even tolerate it.
Likewise, limiting the emissions of individual automobiles has
little overall impact on the global environment where the number
of cars expands exponentially.
Population in Historical Perspective
It has been estimated that our fragile planet makes room to
accommodate one net additional human being every one third of
a second, a speed which approximates that at which a machine
4
gun fires its bullets.3 To provide each of these new humans with a
minimum living standard requires the annual release of 3.2 tons
of carbon into the atmosphere,4 the consumption of 2,000 square
meters of fresh water5, and 207 gigajoules of energy. 6 Each will
require a share of forest resources, contributing to the destruction of 1.5 acres of rainforest per second.7 Her waste products
will include her share of 355,000 metric tons of phosphorus
dumped annually into the world’s oceans,8 270,000 metric tons
of methane,9 30,000 tons of sulfur,10 and 80,000 tons of carbon
monoxide11 released into the atmosphere. To provide living
space for each new addition to the human population, one entire
living species is sacrificed every day, including the extinction
of one vertebrate species every nine months.12 Americans alone
dispose of 4.6 pounds of trash per person, per day.13 A single
waste dump visible from the Statue of Liberty is fast reaching
the height of the Great Pyramid of Giza.14
Every 18 days, the human population increases by a number
equal to the entire human population of the world in 5,000 b.c.15
Every five months, it increases by a number equal to the population in the 1500s;16 every decade by the population in 1776,17
and every two and a half decades by a number equal to the population of the earth in 1950.18 In 1987, the earth welcomed its
five billionth human, and in 2013, it has over 7 billion people.19
Indeed, it has been estimated that 40% of all humans who ever
lived on the planet earth are alive today.20
*Professor of Law at the University of Denver Sturm College of Law. The author
has borrowed liberally from his book, Population, Law, and the Environment
(Praeger publishers, 1994) in the writing of this article, including extracting pages, paragraphs, sentences and phrases in the author’s words verbatim,
including the author’s original citations to sources relied upon in the book.
Where these extracted passages from the author’s book constitute the author’s
original language, they are not identified with quotation marks. The author has
also relied upon ideas he previously developed in Robert M. Hardaway, Carbon Markets in Context: Into Which Component of Holdren’s Equation Do they
Fit?, 85 Denv. U. L. Rev. 983, 983 (2008); Robert M. Hardaway, Environmental
Malthusianism: Integrating Population and Environmental Policy, 27 Envtl. L.
1209 (1997); Richard D. Lamm & Robert Hardaway, Prop. 187 Opposition has
Origins in Racism, Los Angeles Daily News, Nov. 22, 1995, at 13; Robert M.
Hardaway & Karen D. Dacres, Tropical Forest Conservation Legislation and
Policy: A Global Perspective, 4 Int’l J. Env’t & Pollution 1 (1994); Robert M.
Hardaway & Karen D. Dacres, Tropical Forest Conservation Legislation and
Policy: Focus on South-East Asia, 11 Envtl. & Planning L. J. 419 (1994); Robert
M. Hardaway, Immigration Aids the Rich, Chicago Sun-Times, Sept. 18, 1993, at
18; Robert M. Hardaway, ‘Fetus as Human Life’ has Major Legal Consequences,
Kansas City Star, Sept. 22, 1991, at K4. The author wishes to acknowledge the
research assistance of Alison Ruggiero, Brandi Joffrion, and Chad Eimers, J.D.
Candidates, University of Denver Sturm College of Law, 2012.
Sustainable Development Law & Policy
More recently, the Center for Sustainable Systems has
released even more alarming data showing the carbon footprint
resulting from consumption in the United States alone.21
The Circle Game
With few exceptions, the population pressures on the environment have been largely ignored in favor of largely ineffective public and private “environmental” initiatives.22 As former
EPA Director Thomas has noted, most “pollution cleanup” does
not result in any benefit to the environment, because all such
programs do is transfer pollution “among the environmental
media—from air to water, from surface water to groundwater,
from water to soil, and so on. . . . This circle game has to stop. .
. . At best it is misleading—we think we are solving a problem
and we aren’t. At worst, it is perverse—it may increase rather
than reduce pollution risks.”23
This circle game has been played in the form of geographical
context as well. Much of the government funds used to support
“environmentalism” have been used to transfer pollution from
communities with wealth and political power to poor communities with little political power. When a hazardous-waste incineration company in the impoverished Arkansas town of El Dorado
was found to be importing garbage and waste from 48 states and
foreign countries, the Environmental Congress of Arkansas was
“successful” in preventing the location of the dump near its community. As a result of its efforts, the landfill was relocated in the
Ouachita River Basin where, according to one observer, “one
flood will spread garbage and God-knows-what downstream for
60 or 100 miles.”24
When a chemical company near Jacksonville, Arkansas,
attempted to dispose of 28,300 barrels of toxic waste accumulating over 30 years, several environmental groups took action forcing the company into bankruptcy and to later relocate. 25 Nations
described the groups’ efforts as “an environmental success
story.”26 However in 1992, after both sides spent “vast sums”
of money, the EPA granted to the Jacksonville site a license to
incinerate the toxins into the air. Although this complies with the
Clean Air Act, these toxins are nonetheless released into the air
“where they don’t know what it will do.”27 While many lauded
the work of the environmental groups as an “environmental success,” the pollutants were transferred from the soil to the air.28
One example of such self-defeating government policy is
the regulations promulgated by California in the 1960s requiring
installation of exhaust control devices. At the cost of billions to
consumers, hydrocarbon levels were reduced by a modest 12%,
but only at the expense of increasing nitrogen oxide emissions
by 28%.29 A major study of federal and state laws regulating automobile emissions has concluded that such regulations
have resulted only in “one pollution problem [being] traded for
another.”30
Even more damaging to the environmental movement has
been the quest for “alternative energy sources.” As early as 1978,
the government spent over $100 million in a quest to build a
dam which could harvest carbon-free “clean water power” to
serve the energy needs of the poor, only to have environmental
Winter 2014
groups sue to shut down the dam on grounds that it would harm
a sub-species of snail darter. In Tennessee Valley Authority v. Hill
(“TVA”), the Supreme Court ordered the halting of the all but
completed dam on grounds that it would violate the Endangered
Species Act.31 The Court noted that “It may seem curious to
some that the survival of . . . [a] three-inch fish among all the
countless millions of species extant would require the permanent
halting of a virtually completed dam for which Congress has
expended more than $100 million,”—and then did exactly that.32
An exasperated minority of the court could only remark that “the
only precondition . . . to thus destroying the usefulness of even
the most important federal project in our country would be a
finding by the Secretary of the Interior that a continuation of the
project would threaten the survival . . . of a newly discovered
species of water spider or amoeba.”33
In 1983, California built 17,000 100-foot wind turbines,
producing an impressive 1% of its energy needs, only to be
confronted with outrage by the state’s environmentalists who
claimed that windmill fields were worse than the ravages of
strip mining, creating a landscape worse than “Salvador Dali’s
worst nightmare.”34 Environmentalist Paul Thayer proclaimed
that “these huge wind turbines are virtual cusinarts for birds.”
Another concerned spokesman for the environmental movement
expressed equal outrage: “wind energy is great, but we can’t go
around killing the environment.”35 The fact that even clean wind
power has incited the wrath of environmentalists raises doubts
as to whether “alternative energy sources” can ever provide a
permanent solution, much less a panacea, to relieve the planet
from the pressures of population expansion.
In short, governmental environmental policy has ignored
the fundamental principle of ecological law that “everything is
connected to everything.” The environment is like a three-legged
table: reduce hydrocarbons, and you increase nitrous oxides or
other contaminants;36 reduce the burning of dirty coal, and you
end up placing greater reliance on nuclear power and dealing
with radioactive waste;37 build windmills and face environmental lawsuits; build solar panels only to face NIMBY38 lawsuits
amidst realization that panels would need to cover 90% of the
globe to produce energy equal to that created by burning coal.39
An editorial cartoon in the Las Vegas Review-Journal makes
this point humorously by showing an electric car hooked up by a
long cord to a nuclear power plant.40
The Institutionalized
Environmental Movement
Private environmental initiatives have proved equally illusory. As environmentalist Tom Wolf has observed, “environmental organizations courted disaster when they ‘succeeded’
American style. When they got too big, too rich and too remote
from the environmental effects of their actions. . . . Like our
competitors in organized religion, especially the televangelists,
we enviros lost our credibility when we bought into the junk
mail business.”41 As a result, the environmental movement has
degenerated and splintered into over “10,000 hopelessly decentralized groups competing for funds,”42 ranging from societies
5
dedicated to promoting snails and slugs (the Xerces Society) to
groups against Radiation Exposed Food.
Wolf ’s disillusionment went to the heart of what environmentalism was supposed to be about: “Our culture of narcissism spread its sickly, sweet smell through environmental board
rooms in the 80[]s, as former radicals changed overnight into
yuppies, as small organizations became huge and unwieldy.
Poverty, chastity and obedience wilted before the prospect of
empire and power, ‘careers’ in the institutionalized environmental movement.”43
Meanwhile, environmental fantasies have come to abound,
many fostered by environmental groups trying to raise money.
Commercial products tout their “biodegradable” characteristics
in order to take advantage of public ignorance. A Professor of
Archeology at the University of Arizona recently dug up a typical municipal dump to examine its contents, and found the single
greatest part of the landfill’s bulk to be newspapers, many of
which were over a quarter century old.44 Other types of refuse
such as plastic came in a distant third. 45 Although many environmentalists have condemned the use of disposable diapers,
they rarely consider that cloth diapers also cause environmental
damage since they require approximately 12,000 gallons of water
a year per child—not to mention the phosphates that leach into
the water supply.46 William Booth has described the activities
of a typical family that “recycles their cans and bans six-pack
plastic rings in their house, but drives itself to a shopping mall
two blocks away, and drenches their lawn with chemical fertilizers leaching into the same waterways as the six-pack rings.”47
The Narrow Focus of Current
Environmental Policy
As noted in the previous discussion, public and private
environmental policy has focused almost exclusively on the “T”
component of the equation, much of it too little or no avail but
inevitably at very high cost to society—recall the TVA $100
million clean water power project which was shut down to save
a sub-species of snail darter. But even when environmental programs result in a modest reduction in
emissions per unit of consumption
(as with the regulations requiring
installation of catalytic converters
in automobiles), the explosion in
the number of units means that for
every step forward taken in the cause
of reducing environmental impact,
three or more are taken backward.
Thus while catalytic converters in
American cars might reduce hydrocarbons per automobile unit,48 the
introduction of millions of new
$3,000 automobiles in India (not to
mention China49) means that reduction in emissions of individual units is overwhelmed by the vast
expansion in the number of units around the world. In the United
States, for each additional human added to the population, two
and a half carbon-spewing, climate-warming, motor vehicles are
added to the environmental impact.50 In South Korea alone, the
number of cars increased from 935,271 in 1990 to 2.2 million in
1999.51
Nor have environmental policies seriously addressed the
“P” factor in Holdren’s equation. True, when a car company
in India announced production of a cheap $3,000 car for the
masses, the New York Times decried the environmental impact
of making cars available to so many millions of poor people
who theretofore could not afford cars.52 Al Gore in his muchproclaimed book, Earth in the Balance, suggested that people
around the world cut their consumption as a means of reducing
environmental impact.53 The need to consume, Gore asserted, is
the mark of a “dysfunctional civilization,” and that the environmental crisis is an inner crisis that is, for lack of a better word, “a
spiritual crisis.”54 According to Gore, if the “wealthy” could only
be induced to reduce their consumption, and the poor convinced
to give up the dream of a higher standard of living for themselves
and their children, the world’s environmental problems could be
solved.55 (Apparently this solution does not apply to him; he has
justified his carbon-spewing private jets and extravagant energyconsuming homes by claiming he has “purchased” his right to
pollute through the carbon market.)56
For those who cannot afford to buy pollution rights on the
carbon markets, however, such solutions have so far fallen on
deaf ears of those seeking to enhance, rather than reduce their
standard of living, particularly those who live in wretched conditions of poverty in undeveloped countries. 57 In the United
States, the consumption-reduction solution was actually tried
during the Great Depression (albeit involuntarily),58 and most
people did not like it.59 While Romanian dictator Ceausescu
could simply mandate that the power and city lights be turned off
to conserve energy,60 such policies have proved to be impractical
in democracies.61
P. Harrison has studied the question of what the consumption-reduction solution to the environmental problem would
require, and noted that the more people there are the lower mankind’s per capita pollution “rations”
would have to be.62 For example,
he noted that the Intergovernmental
Panel on Climate Change has set a
ceiling of 2.8 billion tons of carbon
in the atmosphere, beyond which the
atmosphere would not be stabilized.
At such levels, a person would be
allocated .53 tons of carbon per
year,63 or about the same level as
Mozambique, the 12th poorest country in the world.64
While technological environmental advances might increase these
per capita rations for a time, Harrison
has observed that the planet’s capacity to absorb pollution
emitted by an expanding population is limited, since the wastecarrying capacity of air and water is “fixed and absolute.”65
Environmental
Impact is equal to the
population multiplied
by their affluence
multiplied by their
technology outputs.
6
Sustainable Development Law & Policy
Expanding Focus on the “P” Component
In light of the ineffectiveness of environmental policies
addressing the “T” component of Holdren’s equation and the
impracticality if not impossibility of addressing the “A” component by reducing all of mankind to the consumption level of
Mozambique, there is left only the final and third component of
the equation: the “P” factor.
With the population component left as the only component
of Holdren’s equation that can realistically be addressed by
environmental policy, one would think that the environmental
movement and its advocates would enthusiastically embrace
addressing this component. In fact, however, most environmental groups tread lightly on the issue of population if they address
it at all. By way of example, Al Gore devoted only 27 of the 407
pages of his book, Earth in the Balance, to population almost as
an afterthought toward the end of the book.66
At the much-acclaimed World Environmental Conference
in Rio de Janeiro in 1992, population issues were never even
addressed.67 Indeed, anti-family planning advocates worked
urgently not only to ensure that population issues were not on
the agenda but also to ensure the exclusion of family planning
groups.68
In 1972, at a time when Congress was funding the Tellico
Dam,69 it was also cutting off funding to all family planning
groups counseling abortion,70 which meant that many women
were denied the means to plan their families. The result was
hundreds of thousands of unplanned pregnancies, the offspring
of which no doubt would demand power from future Tellico
dams.71 Further, in 1989, the Bush Administration resisted funding the United Nations Funds for Population on grounds that it
encouraged abortions.72
The reasons for right wing hostility to family planning and
population issues will be addressed in some detail in later sections of this article. The reason for left wing environmental group
hostility toward, or at least indifference to, population issues is
more difficult to document inasmuch as they rarely express their
views on population issues directly.73 However, the reasons for it
are not difficult to surmise.
A clean environment is like Mom and apple pie—everyone
is in favor of it. As long as voters and financial supporters can
be persuaded that environmental action is being taken (even if
it is only the circle game being played), large public allocations
can be promoted and generous private contributions inspired.
But environmentalists who address issues of birth control,
family planning, abortions, and population control often find
themselves vulnerable to emotional arguments that mire them
in issues they consider not sufficiently related to environment
to justify the expense, time, diversion, and political costs of
addressing them.
Anti-Malthusianism
Although Thomas Malthus is less widely-known as being
the world’s first professional economist, his essay on population
declared, “The power of population is indefinitely greater than
the power in the earth to provide subsistence for man.”74
Winter 2014
This essay set forth an economic hypothesis of the relationship between population and the earth’s capacity to provide for
that population.75 Carried to its logical conclusion, it predicted
that mankind was doomed to expand until the limits of food
production checked its expansion through either starvation or
starvation-induced man-made calamities.76 Not surprisingly, this
pessimistic thesis induced outrage that continues to this day.77
Critics have called his essay a “libel against the Almighty himself,”78 and induced others to label the emerging discipline of
economics as the “dismal science.”79
Had Malthus limited his thesis to the obvious truism that
mankind can not survive if it expands beyond its capacity to
produce food, the criticisms of his essay might have been limited
to the manner of criticism heaped upon him by the likes of Karl
Marx, who described Malthus as a “plagiarist” and “sycophant
of the ruling classes.”80 Unfortunately, however, Malthus went
on to draw unpopular political conclusions, including that
welfare and poor laws were counterproductive because they
fomented the expansion of the poor population and thus accelerated mankind’s march toward widespread poverty, starvation,
and economic doom.81
Anti-Malthusians today point to such advancements in food
production as the “Green Revolution” begun in 1944, which
resulted in an exponential increase in food production, permitting a country like Mexico to transform itself from a country that
imported half of its wheat to one that was almost entirely selfsufficient in wheat.82 Exaggerations of imminent doom by Paul
Ehrlich in his 1968 book The Population Bomb,83 and Donella
Meadows (who among other predictions in her 1972 book The
Limits to Growth declared that oil would run out by 1992 and
gold would run out in 1981),84 have given the anti-Malthusians
the opening to claim that modern day Malthusians are alarmists
and have “cried wolf ” once too often.
On a more positive note, anti-Malthusians have made the
case that population expansion is essential to economic growth,
the inspiration for incentives for technological innovation, and
the creation of opportunities for economies of scale.85
Kuznets, the Russian-American economist, has pointed
out that “More populations mean more creators and producers,
both of goods along established production patterns, and of new
knowledge and inventions. Why should not the larger numbers
achieve what the small numbers accomplished in the modern
past—raising total output to provide not only for a current population increase but also for a rapidly rising supply per capita?”86
Along these lines, Schumpeter, the Austrian-American
economist and political scientist, has observed: “With rare exceptions, [nation-states] were enthusiastic about ‘populousness’
and rapid increases in numbers. . . . A numerous and increasing
population was the most important symptom of wealth; it was
the chief cause of wealth; it was wealth itself—the greatest asset
for a nation to have.”87
In Nazi Germany, Hitler instituted a state policy of encouraging German women to have more children, both to man his
armies and to spread the “Aryan” race around the globe.88 In
7
Stalinist Russia, women were awarded medals for giving birth to
more than eight children. 89
According to this theory, when mankind runs out of something (like ivory for billiard balls), technological advances in
chemistry and plastics will always find a substitute; 90 they make
their point by citing Ansley Coale, a demographer at Princeton
University, who mused that a Malthusian living in 1890 might
have said “there’s no way the United States can support two hundred and fifty million people. Where are they going to pasture all
their horses?”91
But substitute cars for horses and billions of people for millions of people; at some point a limit must be acknowledged.
Defending the Pope’s ban on birth control, bishops have
asserted that the earth could theoretically feed 40 billion
people. This assertion could make the seven billion humans
now inhabiting the planet feel quite selfish about not welcoming an additional 33 billion people, until it is revealed upon
closer examination that this assertion is based on the following
assumptions: all available cropland is deforested without soil
erosion, no cash crops (such as cotton or coffee) are grown, and
no livestock is raised, which implies that all humans agree to live
on vegan diets.92
Not mentioned at the gathering was whether mankind should
ever recognize any limits to the expansion, even after the human
race reaches a theoretically supportable 40 billion people.
At some point, even the most ardent promoter of unlimited
expansion of the human race must concede that there are absolute physical limits and that the human race cannot continue to
double as it did from 1960 to 1998.93 (This can be confirmed by
a simple exercise: take an ordinary sheet of paper and double
its thickness by folding it over and repeating the folding 42
times. The thickness would reach from the earth to the moon.)94
Presumably sometime before mankind expands to an equivalent
number, expanding outward from the earth at the speed of light,
the human race will cease expanding.
Despite anti-Malthusians assertion that the Malthusians are
“crying wolf,” it should be recalled that there were two morals
to the story of the boy who cried wolf. The first was that those
who alarm prematurely or with exaggeration will be ignored; but
the second is that when the crisis does come, it may be too late.
To those who claim that Malthus cried wolf, it should be
noted that in many parts of the world, Malthusian effects are
already upon us. Nine hundred forty million human beings live
in squalor,95 almost 1 billion people are starving,96 and 18,000
children starve to death every day.97 Meanwhile, the world must
produce food for an additional 90 million new people each year
and do so with 26 billion less tons of topsoil and ever decreasing
supplies of fresh water.98 While it may be true that the percentage of living humans who starve to death has decreased since the
time of Malthus, it is also true that in absolute terms, the number
of people who starve to death has increased geometrically.99
Even in face of such evidence, however, the anti-Malthusians continue to make their case. An article by Jonathan Last
in the August 4, 2011 issue of the Wall Street Journal expressed
horrified alarm at United Nations demographic projections of
8
a modest reduction in fertility in the developed nations, particularly in Japan, Italy, and Poland.100 “As populations age and
shrink,” Last notes, “the labor force contracts and the tax base
dwindles while the cost of support for pensioners increases.
Then economic dynamism sputters as the demand for everything
(except health care) decreases. Low fertility is modernity’s great
trap.”101
While no one doubts that as a country’s economy and
standard of living rises and women have more access to education, they will tend to have fewer children; in underdeveloped
countries children are considered an economic asset who can be
counted on to rummage through garbage dumps to support their
parents in old age—and therefore, the more children the better.
It is also true that the demographics of an aging population in
a developed country can wreak havoc on the balance of contributions and entitlements in pension funds and public safety
nets like social security and Medicare. But, this hardly supports
the conclusion that a globally expanding population is somehow good for the environment. Indeed, a child in a developed
country will place a far greater ecological footprint than a child
in an undeveloped country.102 Going back to Holdren’s I=PAT
formula, this means that the A (affluence or per capita consumption) and the T (technology or impact per unit of consumption)
would necessarily be larger for the portion of P (the population)
that resides in wealthy countries. It is therefore in the industrialized nation that over-population presents the greatest threat to
the environment.
Environmental Malthusianism
The premises of environmental Malthusianism are as
follows:
First, that an expanding world population, combined with
the quest for higher living standards, currently places unsustainable pressure on the global environment.103
Second, that the “P” component of Holdren’s equation offers
mankind its best opportunity for addressing mankind’s pressures on the environment in a manner compatible with human
dignity.104 (Addressing the “A” component by reducing human
living and consumption standards, particularly those of the
desperately poor in developing nations, is neither humane nor
politically feasible;105 addressing the “T” component by playing
the circle game or making marginal reductions in emissions per
unit of consumption is ultimately self-defeating as the number of
units expands exponentially with an expanding global population seeking higher living standards).106
Third, policies addressing the “P” component must take into
account politically sensitive areas of public policy not commonly
associated with either population or the environment, including
family planning, women’s rights, abortion law, and immigration
policy.
Family Planning
Historically, cultural, socio-economic, and religious factors
have inhibited family planning and continue to do so to this day.
As a result, less than half the women in developing nations “have
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access to family planning.”107 Many women worldwide would
limit their family size if given access to contraceptive methods
and devices now denied to them.108 Until relatively recently, the
United States was on the forefront of government policies denying women the right to plan their families. In 1872, Anthony
Comstock introduced a bill in the U.S. Congress which labeled
any contraceptive device as “obscene, lewd, lascivious, indecent,
filthy or vile . . .” and made it a crime to “sell, lend or give away
any article whatever for the prevention of conception.”109 The
statute’s description of contraceptive devices as “filthy and vile”
was not deleted until the 1970s.110
As U.S. Postal Inspector, Comstock had spent much of
his energies entrapping doctors who associated with family
planners. For example, “he had two women associates write
to a Midwestern physician, claiming that their husbands were
insane and that they feared that any
children might inherit their insanity.
When the doctor wrote them some
simple advice, Comstock had him
arrested and sent to seven years of
hard labor.”111
In response to such policies,
Margaret Sanger rose to become the
founder of the American birth control movement. Sanger first came to
prominence in the aftermath of the
“Sadie Sachs Affair.” After Sachs
was informed that a pregnancy would
threaten her life, her doctor scolded
her by saying “you want to have your
cake and eat it too. Well, it can’t be
done,” and cruelly advised her that
her only option was for her husband to “sleep on the roof.”112
When Sachs died an agonizing death after her husband apparently declined to sleep on the roof, Sanger adopted the phrase as
the movement’s slogan.113
In 1930, Congress passed the Tariff Act of 1930, which prohibited the import of contraceptive devices along with any writing urging “treason [or] murder.”114 That contraceptive devices
were grouped with treason and murder was suggestive of the
public mood regarding contraceptives.
In 1936, New York passed a law making it a crime to “sell,
give away, or advertise . . . any articles for the prevention of
conception.”115 As recently as 1965, a draconian Connecticut
statute made it a felony punishable by twenty years at hard
labor to use any “medicinal article or instrument for the purpose
of preventing conception.”116 It was only in that year that the
Supreme Court, in a sharply divided opinion, finally held such
laws unconstitutional as violating the right to privacy.117 Finally,
in the 1972 case of Eisenstadt v. Baird, the Supreme Court overturned a conviction in the Massachusetts’ courts of a man who
had given away a contraceptive device, a crime that carried a
five-year prison term.118
Even as criminal laws against the use of contraceptives fell
away, cultural and religious factors continued to pressure women
not to use any form of contraception. In 1930, Pope Pius XI, in
Casti Connubii, declared that even married couples could engage
in intercourse only for the specific purpose of generating children.119 The Catholic Church declared that having intercourse
for the purpose of pleasure was a sin and that “intercourse is
unlawful and wicked where the conception of the offspring is
prevented.”120
Even prominent members of the medical and scientific
community supported denying women the right to plan their
families. Dr. John Billings, an eminent Australian neurologist,
argued vigorously for the prohibition of all forms of “artificial”
birth control and opposed international birth control programs
because they discriminate against the poor.121 In the United
States, Ryan Bomberger has asserted that birth control is a form
of “genocide” against black people.122
Respected academics such as
Jacqueline Kasun, an eminent professor of economics, have associated
family planning organizations with
Nazi-type “eugenics.”123 In her book,
The War against Population, she condemned Margaret Sanger as the most
“enthusiastic eugenicis[t]” of her
time.124 She also mentions Edward
Pohlman’s “confession” that “some
Indians regard this foreign control of
their population as a form of ‘genocide.’”125 (Interestingly, Kasun does
not note that Nazi Germany had the
most draconian laws against abortion
and gave awards for womanly feats
of reproduction.)126
Kasun condemns the “slick, professional booklets of
the likes of Planned Parenthood and the Gutmacher Institute
[which] are profusely illustrated with pictures of pot-bellied,
dusky women surrounded by hordes of children living in slums
here and abroad. To explore the rationale of the eugenics movement—scientific racism—would fill another volume.”127
Kasun joins Simon, Miller, Billings, and other respected
academics in maintaining that “[e]ight times, and perhaps as
much as 22 times, the world’s present population could support
itself at the present standard of living,”128 and notes that “there
would be standing room for the entire population of the world
within one quarter of the area of Jacksonville Florida.”129
Ehrlich has referred to this latter illustration as an example
of the “Netherlands Fallacy: The Netherlands can support 1[,]031
people per square mile only because the rest of the world does
not. In 1984-1986, the Netherlands imported almost 4 million
tons of cereals, 130,000 tons of oils, and 480,000 tons of pulses
(peas, beans, lentils).”130 Not addressed by Kasun was what her
position would be once the world’s population did expand to 22
times its present number. Would she then concede that some
kind of environmental limit had been reached and agree to the
family planning she despises?
“Even prominent
members of the
medical and
scientific community
supported denying
women the right to
plan their families.”
Winter 2014
9
Much of the anti-family planning literature has been
directed towards the coercive policies of such countries as China.
Such coercive measures are neither desirable nor as effective as
voluntary measures based on providing access to the one half
of the world’s women who are currently denied access to family planning services. But much of the anti-family planning
literature is directed against the whole idea of family planning.
As a result, the cultural, socio-economic, and religious coalition against family planning, while weaker than 100 years ago,
remains largely successful in denying women around the world
the right to plan their families and leaving the “P” component of
Holdren’s equation deliberately unaddressed.
Abortion
That abortion may be an important factor in formulating
environmental policy was recognized by the Supreme Court as
early as 1973 in Roe v. Wade when the Court announced in dicta
that “population growth . . . [and] pollution . . . tend to complicate the [abortion] problem.”131
Unfortunately, abortion issues are so charged both politically and religiously in many countries that most environmental
groups assiduously avoid the issue. This is unfortunate, as it
means that an important component of environmental policy is
ignored by policy-makers and even unrecognized by many.
In countries where family planning services are either not
available or denied to women, abortion is often used as birth
control.132 In countries where women have no legal right to abortion, this means that hundreds of thousands of women around
the world die from illegal abortions. The number of women
dying from illegal abortions is documented by the World Health
Organization as exceeding over 68,000 a year.133
In Kenya (which bans abortion), 35% of maternal deaths
are caused by unsafe abortions; more than 2,500 women die and
21,000 women are hospitalized every year due to improper abortions.134 One abortion scholar has noted that “The tale of death
that illegal abortions caused is well known; the personal tragedies that tale recounts [are] widespread, and evident in every
social stratum. Paradoxically, the tale has been so often told that
many listeners have become anesthetized to the human pain it
reflects.”135
Unfortunately, in many countries the callous response to
such tragic deaths has been to impose or call for even greater
legal restrictions on abortions, apparently on the theory that strict
enforcement can reduce the number of abortions.136 Tragically,
however, this theory has proved to be spurious.137 There are far
more abortions in countries with rigid enforcement of abortion
laws than in countries in which abortion is legal.138
For example, no countries were more oppressive in enforcement of abortion laws than Nazi Germany, which imposed the
death penalty for abortion, and Romania under the dictator
Ceausescu.139 According to a report in Newsweek, in Romania
“women under the age of 45 were rounded up at their workplaces every one to three months and taken to clinics, where they
were examined for signs of pregnancy, often in the presence of a
government agent dubbed the ‘menstrual police.’ . . . A woman
10
who failed to produce a baby at the proper time would expect to
be summoned for questioning.”140
Not surprisingly as a result of such brutal policies, combined
with laws against use of contraceptive devices, 60% of pregnancies ended in illegal abortion.141 By contrast, in the Netherlands,
where contraceptive services are freely available and abortion is
legal, the abortion rate is much lower.142
Religious restrictions and inhibitions regarding abortion
also turn out to be based on a misunderstanding of religious
doctrine and history. As early as medieval times, the eminent
Catholic theologian Thomas Aquinas had adopted the doctrine
that life began only when a fetus was “ensouled,” and ensoulment took place only after “quickening.”143 As Aquinas stated
in his Politicorum, “seed and what is not seed is determined by
sensation and movement.”144
Historian Noonan has noted that Martin Azplicueta, the
leading Catholic canonist of the 16th Century and consultant to
the Sacred Penitentiary held that “the rule of the Penitentiary was
to treat a fetus over forty days as ensouled. Hence therapeutic
abortion was accepted in the case of a fetus under this age.”145
It was not until October 29, 1588, that Pope Sixtus V decided
to reverse a millennium of church doctrine by issuing the bull
Effraentam declaring abortion to be a homicide regardless of
the age of the fetus—apparently part of a campaign to punish
prostitutes by forcing them to have unwanted children. 146
Fortunately this bull, issued in the heat of the anti-prostitute
campaign, did not last long. Only two years after its issuance, the
new Pope Gregory XVI, noting that the “hoped for fruit had not
resulted,” repealed “all the penalties except those applying to a
fetus which has been ensouled.”147
Ironically, the theological notion of quickening as being the
point at which a fetus is ensouled is remarkably close to Roe v.
Wade’s recognition of the constitutional right to abortion prior to
the end of the first trimester of pregnancy.148
It was not until almost 300 years after Pope Gregory’s reestablishment of quickening as the point of ensoulment, when
God revealed to Pope Pius XI in 1869 that all the Catholic theologians over the past millennium had been all wrong, and that
abortion of a fetus, regardless of quickening, was a sin worthy of
the punishment of ex-communication.149
U.S. laws prohibiting abortion were also promulgated
relatively late in the nation’s history. Prior to 1800, there was
not a single jurisdiction in the United States that banned abortion before quickening.150 Indeed, the common law as set forth
in Coke’s legal commentaries in the first part of the seventeenth
century was quite clear that abortion before quickening was
not a crime. As Cyril Means’ study of the common law states,
“[a]n abortion before quickening, with the woman’s consent . . .
was not, at common law, an indictable offense, either in her or in
her abortionist. It was not a crime at all.”151
It was only around the year 1860, when resistance to abortions began to appear—not from religious groups but from the
medical profession which soon began a campaign to “protect
their turn” from midwives by lobbying for the criminalization
of abortion even before quickening. By the year 1880, this
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campaign by the doctors was largely effective in persuading
legislatures in over 40 states to pass laws criminalizing abortion
even before quickening.152 By 1900, the campaign was complete: Abortion, without regard to quickening, was forbidden in
every state.153
It was not until 70 years later that states began to revert
to the traditional canon and common law by legalizing early
stage abortion and not until 1973 that the Supreme Court of the
United States upheld a woman’s right to an abortion in the first
trimester.154
Relationship of Abortion to Population
and the Environment
Few women would ever choose abortion as the preferred
method of family planning, but policy makers who oppose abortion also opposed contraception.
Sixtus VI’s notion that bringing an unwanted child into the
world is just punishment for the mother has little place in today’s
world where 45,000 children die each day from neglect and
starvation.
Although the connection between abortion policies, population, and the environment did not become apparent until the
Supreme Court recognized the connection in Roe v. Wade, it now
behooves environmental groups to follow up on that connection
and lobby for policies that ensure that the rights of women to
plan their families are important, not only in forestalling the
cruel Malthusian consequences of 45,000 daily deaths of starving children, but in protecting the environment as well.
Relationship of Immigration Policy to
Population and the Environment
Another contributor to the “P” component of Holdren’s
equation, the critical relationship between immigration policies
and the environment, has not often been recognized by environmental groups. It is sometimes asserted that since immigration
involves only the movement of people from Point A to Point B,
but does not itself increase total global population, immigration
does not increase global population pressures on the environment. However, this view fails to take into account the political and cultural pressures in a country faced with a population
expanding at a rate that exceeds the ability of that country to care
for their people’s basic human needs.
Such a country has several options in addressing a population expanding beyond its ability to care for them. If religious
and cultural factors inhibit family planning, birth control, and
a woman’s right to choose, that country can instead take the
course of least resistance—that is, instead of taking on domestic
political, religious, or cultural resistance to the promulgation
of women’s rights, it can simply export their excess humans to
neighboring countries and thereby relieve both the economic and
environmental pressures that the expanding population exerts on
their society.
Were such a course not available to that country, it would be
forced to address such resistance directly by promulgating laws
Winter 2014
that give every woman access to family planning and the right
to choose.
On the other hand, if a more developed neighboring country
becomes complicit in a less developed neighboring country’s
policy of exporting its excess humans—either through greed,
incompetence, or a desire to exploit the cheap labor of those
humans being exported from the less developed country—it
undermines the entire global environmental movement and provides incentives for unsustainable population expansion.
Perhaps the most cynical example of such complicity arose
in 1980, when Cuba, taking advantage of a hypocritical U.S.
refugee policy begging to be exploited,155 decided to rid itself
of its 125,000 prisoners and inmates of mental institutions, by
putting them into boats and sending them to the United States
in what has since been called the “Mariel Boatlift.” The Mariel
Entrant Tracking System later estimated that up to 80,000 of
these people were convicted criminals.156 Psychological profiles
of the first wave of Mariels revealed that “only fifty were considered normal [or] sane.” 157 Shortly after the boatlift, arrests
of Cubans in New York City skyrocketed to between 2,000 and
3,000 a year, compared to 214 the year before the boatlift.158
Less egregiously, but more commonly, other human-exporting countries have preferred to rely on emigration to relieve their
population pressures rather than tackling the politically daunting
task of internal reform. But such reliance on emigration as an
escape valve for Malthusian population pressures in the humanexporting countries would not be possible but for the complicity
of the human-importing countries eager to exploit the opportunities for cheap labor. Such complicity, when it occurs, is especially heartbreaking when one realizes that global population
could begin to be stabilized if all the human-exporting countries
were to make family planning services freely available to its citizens and provide basic human rights to its women.159 One can
only imagine what reforms a country such as Ireland would have
had to consider if it did not have the option in the mid-1800s of
exporting a quarter of its population that it could not support.
Would it have had to consider providing its people with family
planning and contraception services or even reforming its laws
denying women the right to choose?
In the United States, environmental groups such as the
Sierra Club have hesitated to consider the environmental impact
of immigration for “fear of being labeled racists or xenophobes”160 and therefore lose the support of left wing groups
and liberals. As Thomas Wolf has noted, it is far easier to raise
money by sending out colorful brochures showing baby seals
being clubbed than by entering the politically charged minefield
of the immigration debate.
Nevertheless, by 1993, even the Sierra Club was
conducting internal discussions of immigration, and the
head of the Club’s population committee conceded that
“short of wars or plague, reducing immigration and fertility
levels are the only ways of meeting the goal of ‘stabilizing or
reducing the population.’”161
In some ways the reluctance of environmental groups
to acknowledge immigration as an environmental factor is
11
understandable, for it would mean taking on the powerful corporate interests whose interest in profits is based on the exploitation
of foreign labor, particularly that of the human-exporting countries. Indeed, those interests have
been dominant since the American
Civil War, in the aftermath of which
millions of African Americans were
released on to the free labor market.
The racist inclinations of the titans
of industry were not disposed to hire
African Americans, who preferred to
import cheap (white) foreign labor.
It was to a gathered group of
these giants of industry that on
September 18, 1895 Booker T.
Washington was invited to speak at
the Atlanta International Exposition.
That an African American had been
invited at all to speak to such an
august gathering of industrialists was
itself remarkable for the time. But
despite considerable opposition to an
African American being given such
a platform, the board of directors of
the Exposition prevailed and voted to
invite Washington to speak on opening day.
The result was one of the greatest speeches in American history,
known in the history books today as
the “cast down your bucket where
you are” speech. Washington told the
story of a sea captain of a distressed
vessel which sent a signal to a neighboring vessel pleading for water, to
which the reply was “cast down your bucket where you are,” for
the vessel in distress was near the fresh sparkling water of the
Amazon River.
And so Washington pleaded with the titans of industry: “To
those of my race who depend on bettering their condition in a
foreign land, I would say ‘cast down your bucket where you are.”
To those who but did so, Washington promised “we shall stand
by you with a devotion that no foreigner can approach, ready
to interlac[e] our industrial, commercial, civil and religious life
with yours.”162
Unfortunately, the industrialists rebuffed Washington and
continue to do so to this day, preferring instead to encourage
importation of cheap foreign (generally white) labor. The results
have been catastrophic for the African American community.
For example, in the 1970s most large office buildings in Los
Angeles hired black union workers as janitors, paying a then
generous wage of $9 an hour plus full benefits. Then the building
managers learned that they could do what the robber barons did
after the civil war—import cheap foreign labor to replace them.
They hired independent contractors, who in turn hired illegal
immigrants for minimum wage and no benefits. Thousands of
African Americans lost their jobs and livelihood, and wages
remained depressed.
In 1987, at a time when the
black teenager unemployment rate
approached 80%, “garment workers
in Los Angeles were pleading with
the Immigration and Naturalization
Service to allow them to import foreign workers on grounds that there
was a ‘labor shortage’ of unskilled
workers.”163
The replacement of domestic
workers by illegal immigrants has
often been justified on grounds that
illegal workers will take jobs no
American will take. In fact, however,
it is not the dirty work that deters
Americans from taking such jobs,
but the low wages of such jobs,
which in turn is caused by the influx
of foreign workers willing to work
for slave wages.164 For example,
there is probably no dirtier work than
garbage collection, yet these jobs are
greatly sought after when wages and
benefits are sufficient to support a
family—despite the filthy nature of
the work.
A Chicago Tribune survey of
employers who had hired illegal
immigrants revealed the following
reasons why employers preferred
illegal immigrants to hiring African
Americans: “The blacks are unreliable . . . whereas the illegal immigrants are reliable.”165 In light of
such blatant expressions of racial prejudice, one might ask what
these employers might do if the government declined to continue
encouraging illegal immigration? Would the employers just go
out of business, or would they get down to offering African
Americans work-training programs and other opportunities?
In their quest for profits, the modern day industrialists have
joined forces with pro-illegal immigration groups to convey
the impression that replacing African Americans with illegal
immigrants is supported by Hispanics and African Americans
alike, and somehow compassionate or moral. In fact, a Harris
Poll revealed that 73% of African Americans fully realize that
their employers are replacing them with illegal immigrants.166
An Immigration and Naturalization Poll revealed that only 11%
of Hispanics wanted to see more visas granted to people from
Mexico—not surprising since Hispanics are among those most
likely to suffer from the influx of cheap and exploited foreign
labor. Chinese Americans have also suffered. In New York City,
an influx of thousands of illegal Chinese immigrants caused the
fancy restaurant prices to fall. Wages of dishwaters fell by 40%
“In some ways
the reluctance of
environmental groups
to acknowledge
immigration as an
environmental factor
is understandable,
for it would mean
taking on the
powerful corporate
interests whose
interest in profits
is based on the
exploitation of
foreign labor . . .”
12
Sustainable Development Law & Policy
after the influx, bringing legal and illegal immigrants alike to the
brink of poverty and desperation.
A 1992 study by the Center for Immigration Studies
concluded:
When blacks ask why their economic plight has not
improved since the Civil Rights Act took effect in
1965, the answer is that the Immigration Act passed
the same year. Since then, the importation of millions of foreign workers into the [United States]
has done two things: it has provided an alternative
supply of labor so that urban employers have not
had to hire available black jobseekers, and the foreign workers have oversupplied labor to low-skill
markets. . . . Whether intended or not, the present
immigration policy is a revived instrument of institutionalized racism.167
Supporters of illegal immigration often argue that luring
illegal foreign workers to the United States helps Americans by
lowering the cost of products consumed by Americans. They
point to the “brain drain” of how America can lure away doctors
from impoverished native lands. Business Week has gloated that
the United States “is reaping a bonanza of educated foreign workers.”168 Of all the reasons for supporting illegal immigration, the
notion of stealing away educated doctors from the impoverished
countries which spend their scarce treasure to educate them so
that Americans could save a few pennies on their doctors’ bills
seems the most immoral of them all.
As a study by Gary Imhoff revealed:
[I]f an influx of illegal professionals could lower
the wages of the overpaid, of doctors and lawyers,
rather than the wages of the poor, there might be
some economic benefit to their coming to this country. . . . Instead, it is the low-wage labor markets, the
wages at the bottom that are being depressed.169
The study concluded that illegal immigration: “Widens the differences between classes in the United States; it keeps down the
price of hiring a maid or a gardener for the rich while it makes
things worse for the poor.”170
Meanwhile, by refusing to enforce America’s immigration
laws, and luring illegal immigrants to their deaths in the desert
with promises of free education, free medical care, and calls for
amnesty, business and government in the United States become
complicit in fostering human exportation as the path of least
resistance rather than taking on the entrenched religious and
cultural interests, promulgating access to family planning, and
promoting the rights of women around the globe.
Population and the Climate Change Debate
The current debate over global carbon emissions and climate
change has obscured a fact that should not be debatable—namely
that the environment is degraded by the human footprint.171 As
global population continues its inexorable expansion, that footprint upon our fragile earth becomes ever bigger and deeper.
Winter 2014
Unfortunately, global policy makers, like most environmental groups, have chosen largely to ignore the population factor
(“P” component), and instead have focused almost exclusively
on one relatively minor element of the human footprint—namely
carbon emissions (“T” component).172 The most widely promoted schemes for addressing this one element have been
the “Cap and Trade”173 schemes, of which the U.S. Acid Rain
Program174 and the European Emissions Trading Scheme175 are
currently being implemented. Voluntary cap and trade schemes
include the Chicago Climate Exchange Program,176 the Kyoto
Protocol Clean Development Mechanism, 177 the Regional
Greenhouse Gas Initiative,178 the California Global Warming
Solution Act,179 and the Climate Stewardship Act of 2007.180
The premise behind such schemes is that markets can be
created in which the right to pollute and emit carbon into the
earth’s atmosphere can be bought and sold. Governments can set
overall limits, and those industries that wish to exceed those limits must buy them from industries or countries whose emissions
fall below the set limits.181
An alternative method of coercing industries to emit less
carbon is to tax industries that emit higher than an established
minimum or to discourage carbon emissions by imposing financial penalties on those who do.182
Research has established that the economic benefits to taxing carbon emissions could equal that of charging for a permit
price in a cap and trade system, where both result in the same
level of reduction in consumption.183 Given that the effect of cap
and trade schemes and carbon taxes are the same, the question
arises as to why politicians, particularly in the United States,
have opted to promote tax and trade schemes rather than direct
excise taxes on carbon emissions.
One answer may be that tax and trade schemes are less transparent. Consumers and voters are apt to understand clearly what
the consequences of a “gasoline tax” will be on the price they
pay at the pump but less likely to understand that consequences
of a carbon tax imposed on a “big corporation” may be the same
as a gasoline tax because the cost of an input in the production
of a product is ultimately reflected in the price of the product. 184
However, schemes that rely on consumer ignorance or lack
of understanding of economic principles are unlikely to prevail
once consumers realize they have been duped. For this reason,
policy makers should be honest about the costs and benefits of
carbon emission reductions.185 An NBC poll indicated that while
only 27% of Americans would support a gasoline tax to discourage driving and 51% think that jobs in the Northwest are more
important than the spotted owl, 51% of Americans said they
would drive less safe cars to help the environment.186
Only when such programs as cap and trade are made transparent can the public support be achieved which is necessary
to long-term programs to save the environment. Even more
important, both policy makers and environmental leaders must
work to educate the global public to the inconvenient truth that
population, not consumption or circle-game politics, is the key
to reversing the trend toward environmental degradation.
13
Conclusion
Two familiar similes help explain the environmental dangers now facing mankind:
The first is that of rearranging the deck chair on the Titanic.
While policy makers rearrange the deck chairs by playing the
circle game (the “T” component of Holdren’s equation) or urging passengers not to use them (the “A” component), the ship
that is planet Earth is sinking under the weight of an inexorably
expanding number of passengers.
The second is that of the human body. As one type of cell
(the cancer cell) expands exponentially at the expense of all the
other human cells needed for life, the whole living organism that
is a man or woman dies a slow inexorable death.
In the 1992 Presidential election, campaign workers posted
reminders that “It’s the economy, stupid.” Today, all those interested in saving the environment must put up posters reading,
“It’s the population, stupid.”
Endnotes: As the World Welcomes its Seven Billionth Human:
Reflections and Population, Law, and the Environment
1
See Jan J. Boersema, Environmental Sciences, Sustainability, and Quality, in Principles of Environmental Sciences 9-10 (J. J. Boersema & Lucas
Reijnders eds., 2009).
2
Roe v. Wade, 410 U.S. 113, 116 (1973).
3 International Programs – World Vital Events Per Unit: 2013, U.S. Census
Bureau (Nov. 3, 2013, 8:32 PM), http://www.census.gov/population/international/data/idb/worldvitalevents.php (data indicates population increase of 2.5
persons per second); Nafis Sadik, The State of World Population: Choices
for the New Century 7 (1990) [hereinafter The State of World Population]
(as cited in Robert M. Hardaway, Population, Law, and the Environment 17
(1994) [hereinafter Population, Law, And the Environment]); see also Nafis
Sadik, Three People Born Every Second–250,000 Daily, L.A. Times, Feb. 22,
1990, at 10 (as cited in Population, Law, And the Environment, supra, at 17).
4 The State of World Population, supra note 3, at 11.
5 World Resources Institute, World Resources: a Guide to the Global
Environment 316, Table 22.1 (1992) (as cited in Population, Law, And the
Environment, supra note 3, at 17); see also Sandra Postal & Brian Richter,
Rivers for Life: Managing Water for People and Nature 7 (2003) (2,000
cubic kilometers of fresh water consumed per year by global economy).
6
World Resources Institute, supra note 5, at 316, Table 21.2.
7 Call of the Wild: More Environmental Facts, Univ. Minn. (Summer 2004),
http://cla.umn.edu/news/clatoday/summer2004/facts.php (last visited Nov. 3,
2013) (“1.5 acres of rainforest are destroyed every second”).
8 World Resources Institute, supra note 5, at 348, Table 24.2.
9 World Resources Institute, supra note 5, at 351, Table 24.5.
10 World Resources Institute, supra note 5, at 351, Table 24.6.
11 World Resources Institute, supra note 5, at 351, Table 23.2.
12 Lester R. Brown Et Al., Vital Signs: The Environmental Trends That
Are Shaping Our Future 124 (1996); Daniel Chiras, Environmental Science:
Action for a Sustainable Future 5 (1991) (as cited in Population, Law, And
the Environment, supra note 3, at 17).
13 Dan Kulpinski, Human Footprint: Where Does All the Stuff Go?, Nat’l
Geographic, http://channel.nationalgeographic.com/channel/human-footprint/
trash-talk.html (last visited Nov. 3, 2013) (“Americans generated 251 million
tons of trash in 2006, the most recent year for which the Environmental Protection Agency (EPA) has data. Our per capita trash disposal rate was 4.6 pounds
per person, per day.”).
14 Michael Luke, Fresh Kills, NYC Garbage Project, http://newyorkgarbage.
wordpress.com/fresh-kills/ (last visited Nov. 3, 2013).
15 Ralph Hamil, The Arrival of the 5-Billionth Human, Futurist, July/August
1987, at 36 (as cited in Population, Law, and the Environment, supra note 3, at
17).
16 Id.
17 Id; U.S. Population Growth, Surveysez.com, http://web.archive.org/
web/20110828004310/http://surveysez.com/joomla/index.php/us-populationgrowth.html (last visited Nov. 17, 2013) (noting that U.S. population growth
increases annually by the amount of people in the United States in 1776).
18 Hamil, supra note 15.
19 Currently, there are 7,122,017,290 people on earth. See U.S. &
World Population Clocks, U.S. Census Bureau (Nov. 3, 2013, 8:58 PM), http://
www.census.gov/main/www/popclock.html.
14
20
Actual estimates of the number of humans living today as a percentage
of the total number of humans who ever lived varies from 9% as reported by
the New York Times in 9 Percent of Everyone Who Ever Lived is Alive Now, to
75% as referenced in Carl Haub’s article How Many People have Ever Lived on
Earth. John No & Ble Wilford, 9 Percent of Everyone Who Ever Lived is Alive
Now, N.Y. Times, Oct. 6, 1981, http://www.nytimes.com/1981/10/06/science/9percent-of-everyone-who-ever-lived-is-alive-now.html; Carl Haub, How Many
People have Ever Lived on Earth?, Population Reference Bureau (Feb. 1995),
http://www.prb.org/Articles/2002/HowManyPeopleHaveEverLivedonEarth.aspx
(last visited Nov. 3, 2013)(“. . . at some time back in the 1970s, a now-forgotten
writer made the statement that 75[%] of the people who had ever been born
were alive at that moment.”).
21 “On average, U.S. household food consumption adds 8.1 metric tons of
[carbon dioxide equivalent] each year. The production of food accounts for
83% of emissions while its transportation accounts for 11%. . . . In the [United
States], for each kilowatt hour generated an average of 1.3 pounds of [carbon
dioxide] is released at the power plant. Coal releases 2.1 pounds, petroleum
releases 2.0 pounds, and natural gas releases 1.3 pounds. . . . U.S. fuel economy
decreased 4% from 1988 to 2009, down to 21.1 miles per gallon, while annual
per capita miles driven have increased 9% since 1996, to 10,045 miles. Cars
and light trucks emitted nearly 1.2 billion metric tons of [carbon dioxide], or
17% of the U.S. total.” Center for Sustainable Systems, Univ. Mich., Carbon
Footprint Factsheet (2013), available at http://css.snre.umich.edu/css_doc/
CSS09-05.pdf.
22 Stephen Stec, Ecological Rights Advancing the Rule of Law in Eastern
Europe, 13 J. Envtl. L. & Litig. 275, 334 (1998).
23 Lee M. Thomas, Adm’r, U.S. Envtl. Prot. Agency, Address at the National
Press Club: The Next Four Years: An Agenda for Environmental Results 6-7
(Apr. 3, 1985).
24 Donovan Webster, Sweet Home Arkansas, Utne Reader, July/Aug. 1992,
at 116 (as cited in Population, Law, And the Environment, supra note 3, at
63-64).
25 Id. at 112, 116.
26 Id.
27 Id. at 113.
28 Id.
29 George Tyler Miller, Living in the Environment: Concepts, problems,
and Alternatives 318 (1975) (as cited in Population, Law, And the Environment, supra note 3, at 162).
30 Id.
31 Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) (as cited in Population, Law, And the Environment, supra note 3, at 54).
32 Id. at 172.
33 Id. at 203-204 (Powell, J., dissenting).
34 Maria Goodavage, Battling Safe Windmills: Bird Deaths in Turbines Spur
Outcry, USA Today, May 27, 1993, at 3A (as cited in Population, Law, And
the Environment, supra note 3, at 37).
35 Id.
continued on page 59
Sustainable Development Law & Policy
Oversight and Accountability of Water
Privatization Contracts: A Proposed
Legislative Policy
By Mary Strayhorne*
S
afe drinking water is essential to human survival and is
the center of an international debate over the privatization
of public access to this vital, but increasingly scarce, natural resource.1 This problem has even arisen in the United States,
where potable water remains widely available but has become
increasingly scarce in many cities.2 A key issue entrenched
within this debate is whether local governments should allow
private companies to control, maintain, and service municipal
water infrastructure and service systems.3 Sustainability scholars and conservationists are concerned that current privatization allows private companies to generate profits at the expense
of municipal water source communities.4 Despite these concerns, many municipalities are entering privatization contracts
with private water companies to reduce the financial burden to
upgrade, maintain, and operate water infrastructure and shift the
cost-induced rate increases away from political responsibility.5
This feature article proposes a federal or state legislative policy
that would promote local community stewardship by conditioning certain appropriations on municipal grants of privatization
contracts. The primary goals of this stewardship would address
accountability and oversight concerns over private control of
municipal water and sanitation.6 This article proposes a policy
for granting privatization contracts to private water companies,
requiring a municipality to show the private company (1) is a
domestically owned, operated, and incorporated company, (2)
with a business purpose that involves a direct benefit to the target
local community’s market, and (3) employs a certain percentage
of municipal residents as a prerequisite to granting privatization
contracts.7
Water privatization gained momentum in the United States
during the 1980s and into the 1990s, with an increased need to
update or replace municipal water infrastructure, reduce water
consumption rates, and comply with federal drinking water
quality standards.8 As of 2007, approximately 600 U.S. cities
within forty-three states had entered into municipal water privatization contracts.9 Faced with limited revenue, many of these
municipalities saw privatization as the only practical solution for
providing water to the community but often failed to preserve
“ecological integrity and sustainability” of the community that
provided the water source.10 For example, the City of Atlanta,
Georgia entered into a twenty-year contract with United Water,
a U.S. subsidiary of Suez Environment, a French-owned water
company that provides water services to approximately 115 million people in 130 countries.11 After only four years, the city terminated the contract due to Suez’ inability to address systemic
Winter 2014
failures in water system infrastructure repair and maintenance
that caused severe service interruptions, water waste, and threats
to public health.12
In the Atlanta-Suez water contract debacle, privatization
failed to adequately serve a beneficial function, and it cost the
city valuable natural and financial resources that exacerbated
an already developing water shortage.13 The problems Atlanta
faced following the privatization of its municipal water system,
combined with its increasing sprawl, left the city with a higher
demand for water from its primary supply at Lake Lanier.14 This
increased demand has further strained a water supply source
feeding areas in Florida and Alabama.15
From a stewardship standpoint, the private water companies servicing many U.S. cities and municipalities are often
far-removed from the communities they serve, making them
less accountable to these communities.16 Some argue that this
distance leads to a lack of community and environmental stewardship and has bolstered bottled water sales by undermining
the public confidence in public water service.17 Other challenges
presented by water privatization manifest in poor long-term
management planning and a primary focus on cost reduction.
These management priorities both lead to subpar construction
and maintenance of water infrastructures and potential negative
environmental impacts.18 Private companies providing water
services to locations beyond their bases of operation have no
significant incentive to build or maintain public water systems
for long-term community financial or environmental benefits
beyond the expiration or termination of their operating contracts.19 Indeed, the evolution of environmental law in the United
States demonstrates that environmental considerations tend to
take a back seat to fiscal objectives in private enterprise strategies.20 With this in mind, the accountability of private water
service providers and state legislatures is necessary to ensure the
protection of local water resource availability, quality, and cost.
A proposed legislative policy that conditions federal or state
funding on municipal promotion of private water company stewardship would address many problems faced by underfunded
municipalities. By conditioning state funding on promoting
public service stewardship, states would be incentivized to
implement the policy. A typical state policy would require the
private public service provider to be a domestically owned, operated, and incorporated company within the state itself, allowing
continued on page 62
* LL.M. Candidate 2014, American University Washington College of Law
15
How Environmental Review Can Generate
Car-Induced Pollution: A Case Study
By Michael Lewyn*
T
I. Introduction
(“NEPA”)1
he National Environmental Policy Act
requires federal officials to draft an environmental
impact statement (“EIS”) describing the environmental
impact of proposed federal actions that significantly affect the
environment, as well as analyze the environmental impacts of
alternatives to the proposed action.2 Almost two dozen states
have adopted “little NEPA” statutes imposing similar requirements upon state and/or local governments.3
This article focuses on one of the strictest little NEPA
statutes: New York’s State Environmental Quality Review Act
(“SEQRA”).4 While most little NEPA statutes cover only government projects,5 SEQRA also covers private sector projects
requiring municipal permits.6 Furthermore, SEQRA requires the
government to consider both environmental and social impacts
of its actions,7 unlike NEPA8 and about half of the existing little
NEPA statutes.9
This article contends that the stringencies of SEQRA occasionally have harmful environmental consequences because
SEQRA can easily be used to delay “infill development”—that
is, development in already-developed areas such as cities and
older suburbs. When this occurs, development may shift from
older areas to “greenfields,” newer suburbs that tend to be more
dependent on automobiles and thus to produce more pollution.
Part II of this article introduces readers to SEQRA. Part
III shows how SEQRA discourages infill development. Part IV
explains that because greenfield sites tend to be in areas with
little public transit, generating more automobile traffic than infill
sites, SEQRA’s bias towards greenfield development is environmentally harmful. Part V suggests possible reforms to SEQRA,
including borrowing from California’s little NEPA law.
II. A Brief Guide to SEQRA
The federal government enacted NEPA in 197010 to
ensure that federal agencies considered the potential environmental impact of their actions.11 The White House Council on
Environmental Quality (“CEQ”) has promulgated regulations
that implement NEPA’s provisions.12 Under these regulations,
the agency proposing and/or permitting the action, known as
the “lead agency,”13 will typically14 begin the environmental
review process by preparing an Environmental Assessment
(“EA”), a document which “[b]riefly provide[s] sufficient
evidence and analysis for determining whether to prepare an
environmental impact statement.”15 If after drafting the EA the
lead agency decides that its actions will not create a significant
16
environmental impact, it will issue a “Finding of No Significant
Impact” (“FONSI”) instead of an EIS.16
On the other hand, if the lead agency decides that its actions
might create a significant impact,17 it requests comments from
the public and other government agencies asking what issues it
should study in the EIS.18 After reviewing these comments, the
agency prepares a draft EIS19 and—after soliciting additional
public comment—a final EIS.20 The EIS must address not only
the environmental impacts of the proposed action but also any
possible alternatives to the proposal.21
New York state’s little NEPA statute, SEQRA, is almost
as old as NEPA; it was enacted in 1975 and became effective
the following year.22 Just as NEPA is designed to make federal
action more environmentally sensitive, SEQRA is designed to
make state government more environmentally sensitive.23 Unlike
NEPA, however, SEQRA applies not only to state government
action but also to actions by local governments,24 including
rezonings25 and other land use-related permits.26
Like NEPA, SEQRA creates a multi-step environmental
review process. The lead agency begins the process by drafting
an environmental assessment form (“EAF”) to determine how its
proposed action will affect the environment.27 If the lead agency
concludes that environmental impacts from its action are unlikely
to be significant, it drafts a “negative declaration” which, like a
FONSI, declares that “implementation of the action as proposed
will not result in any significant environmental impacts.”28
But if the environmental assessment identifies potentially
significant environmental impacts, the agency issues a “positive
declaration” announcing that the impacts require an EIS.29 The
state agency then begins the “scoping process”30 designed to
produce an EIS. This process begins when the agency prepares a
draft EIS and solicits public comments on that document.31
After receiving public comments on the draft EIS, the
agency issues a final EIS.32 If circumstances change or if the
agency alters the project, the agency may also issue a supplemental EIS.33 The final EIS must address the adverse impacts of
the proposed action, including but not limited to: growth-inducing impacts, impacts upon energy use and conservation, and
impacts on solid waste management; any reasonable alternatives
to the proposed action; and any commitments of environmental
resources, such as land or construction materials34 associated
*Associate Professor, Touro Law Center. Wesleyan University, B.A.; University
of Pennsylvania, J.D.; University of Toronto, L.L.M. The author would like to
thank Albert Monroe, Leon Lazer, Gregory Alvarez, and Peter Appel for their
helpful comments. The author also notes that a shorter article on this topic is
published at 27 Mun. Lawyer 16 (2013).
Sustainable Development Law & Policy
with the proposed action.35 In addition, a final EIS must address
all comments on the draft EIS, as well as any project changes,
new information, and changes in circumstances since the issuance of the draft EIS.36 Before proceeding with the proposed
action the agency must certify that the action minimizes adverse
environmental impacts to the maximum extent practicable and
that the agency will use any mitigating measures identified as
practicable in the EIS.37 Citizens may challenge an agency decision, including either an EIS or a decision not to issue an EIS,
under SEQRA.38
New York’s Department of Environmental Conservation
(“DEC”) has enacted regulations to guide state and local governments in deciding whether to issue an EIS.39 These regulations
provide that for “Type I”40 government projects, a rebuttable presumption exists that the project creates environmental impacts
significant enough to require the preparation of a full EIS.41 For
example, Type I actions include all zoning changes affecting
twenty-five or more acres.42
On the other hand, the regulations categorically exclude
thirty-seven types of actions, known as “Type II” actions, from
SEQRA scrutiny.43 For example, zoning decisions affecting just
one house are usually Type II actions.44 Government actions
that are neither Type I nor Type II are labeled by the regulations
as “unlisted actions”45 and may require an EIS if they create a
significant impact.46 The overwhelming majority of government
actions subject to SEQRA are unlisted.47
In addition to creating the Type I/Type II/unlisted hierarchy, SEQRA differs from NEPA in another major48 respect.
NEPA is limited to actions affecting “the quality of the human
environment”49—a phrase that courts have limited to “effects
on the natural or physical environment.”50 By contrast, SEQRA
defines the relevant “environment” not just as “the physical conditions which will be affected by a proposed action [such as]
land, air, water, minerals, flora [and] fauna”51 but also “objects of
historic or aesthetic significance, existing patterns of population
concentration, distribution or growth, and existing community
or neighborhood character.”52 For example, the New York courts
have interpreted this language to mean that any government
action that induces a significant change in population patterns
requires an environmental impact statement.53
This does not mean, however, that agencies may never
engage in environmentally harmful actions. Instead, agencies
must disclose the environmental impact of their actions in the
EIS,54 and must “minimize adverse environmental effects to the
maximum extent practicable.”55 In determining what is “practicable,” agencies may balance environmental concerns against
other public policies.56
On review, courts may not “weigh the desirability of any
action or choose among alternatives”57 but must ascertain
whether the EIS and the agency’s decision were arbitrary, capricious, or otherwise infected by errors of law or procedure.58 As
a practical matter, this means courts generally uphold agency
decisions, especially after an EIS has been filed.59
Winter 2014
III. SEQRA and Infill Development
Infill development is development that occurs in alreadydeveloped neighborhoods, often in cities or older suburbs.60
Greenfield development, by contrast, occurs on “pristine,
undeveloped land typically located in low density suburban
areas.”61 Both types of development sometimes require rezoning or similar legal changes62 and may be subject to SEQRA.63
But SEQRA’s broad definition of “environmental impact” means
that urban infill projects will often require an EIS, even if they
create no impact upon the physical environment.64 Although the
statute does not expressly favor greenfield development, greenfield projects may nevertheless be less likely to attract the kind
of public controversy that forces agencies to draft an EIS.65
A. The Environmental Impacts of Infill
As noted above, SEQRA defines the term “environment” to
include “existing patterns of population concentration, distribution or growth, and existing community or neighborhood character.”66 SEQRA’s broad definition of the term “environment”
suggests that any infill development that adds a significant number of residences or businesses to an existing neighborhood will
usually require an EIS, since such development affects “existing
patterns of population” and “neighborhood character.”67
The New York Court of Appeals addressed this issue in the
1986 decision of Chinese Staff and Workers Association v. City
of New York (“Chinese Staff I”).68 In that case, a developer proposed to build a high-rise condominium on a vacant lot in New
York’s Chinatown neighborhood.69 The city declined to draft
an EIS on the ground that the project would have no significant
environmental impact.70 Members of the Chinatown community
filed suit, alleging that the city’s decision was erroneous because
the city failed to consider “whether the introduction of luxury
housing into the Chinatown community would accelerate the
displacement of local low-income residents and businesses or
alter the character of the community.”71 In response, the city
argued that this risk was “outside the scope of the [SEQRA]
definition of environment.”72
The court disagreed, writing that because SEQRA’s
definition of “environment” encompasses “existing patterns
of population concentration, distribution or growth, and existing community or neighborhood character,”73 any effect that a
project might cause on “population patterns or existing community character . . . is a relevant concern in an environmental
analysis.”74
The court admitted that because the proposed construction
was on a vacant lot, it displaced no residents or businesses.75 But
the court nevertheless found that SEQRA required the city to
consider the risk of “long-term secondary displacement of residents and businesses in determining whether a proposed project
may have a significant effect on the environment.”76 Although
the court did not define the term “secondary displacement,”
other commentators use the term to describe the possibility that
new construction might make a neighborhood more desirable
and thus increase rents, which in turn might force some current
residents to move.77 Thus, the court suggested that the proposed
17
new construction (combined with likely construction on other
nearby sites)78 might lead to such secondary displacement, and
that this possibility could require an EIS.
At a minimum, Chinese Staff I suggests that whenever new
development might make a neighborhood more valuable, thus
creating a risk of increased rents, the lead agency must consider
this fact in deciding whether to draft an EIS. More broadly,
Chinese Staff I implies that any change in existing “population patterns” is an environmental impact under SEQRA and
thus if significant, requires an EIS. It logically follows that any
development that significantly increases neighborhood population requires an EIS because new housing by definition affects
population patterns.
More recent New York appellate cases support this interpretation of Chinese Staff I. For example, in Fisher v. Giuliani,79
the city allowed landowners within the city’s Theater District
to transfer development rights from
land containing several historic theaters to nearby parcels, thus allowing the landowners to build taller
buildings on the latter parcels.80 The
lead agency refused to draft an EIS,
reasoning that the zoning change
would merely “accommodate the
projected demand for [office] space
[but] would not change the overall
demand,”81 and would not affect the
neighborhood’s traffic patterns or
social composition.82
The court agreed, 83 writing that the opponents of the city’s
new rules “failed to provide any meaningful evidence that the
[change] . . . would be significant enough to spur development
beyond that which would in any event take place.”84 This language suggests that an EIS was unnecessary precisely because
the rezoning was unlikely to spur development. It logically follows that if the city’s policies had increased development, the
court would have required an EIS.
In Chinese Staff I and Workers Association v. Burden
(“Chinese Staff II”),85 the New York courts also refused to
require an EIS, but emphasized that the rezoning at issue would
not increase population. In that case, the city of New York
rezoned a Brooklyn neighborhood and declined to draft an
EIS.86 A citizen group argued that the rezoning required an EIS
because the city “underestimate[d] the opportunities for marketrate development . . . [and] the new types of businesses [caused
by rezoning].”87 The city disagreed, claiming that the rezoning
would lead to a net increase of only 75 housing units and thus
created no significant impact.88
The court held that the city’s finding of no significant impact
was rational for two reasons. First, the rezoning “was decreasing, rather than increasing, the potential for development by
imposing building height limits.”89 Second, because “the [city]
projected an increase of only 75 units, it was [reasonable] to
conclude that the rezoning would not have any adverse socioeconomic impacts.”90
The Chinese Staff II court’s emphasis on the small number of added housing units and on the decreased potential for
development implies that any zoning decision that does add a
significant number of new businesses or housing units to a
neighborhood is likely to create significant impact and thus to
require an EIS under SEQRA—a rule consistent with Chinese
Staff I and Fisher.
B. Does Greenfield Development Usually Require an
EIS?
Because significant infill development by definition
increases the number of housing units and businesses in a
neighborhood, it is likely to require an EIS under SEQRA. By
contrast, greenfield development is further removed from existing residential neighborhoods. Although the law is not clear on
this point,91 it could be argued that such development is less
likely to affect population patterns or
neighborhood character. Therefore,
greenfield development might be
less likely to require an EIS than
infill development.
Even if this is not the case, in
practice SEQRA may burden infill
development more than greenfield
development. Infill development
by definition occurs in places with
many neighbors. And where there
are neighbors, there is often “Not in
My Back Yard” (“NIMBY”)92 resistance to development. 93 NIMBY
resistance occurs because residents of an existing neighborhood
may suffer any perceived costs from new development (e.g.,
increased traffic, changes in neighborhood look and feel) while
the benefits of new development, such as an increased supply
of housing, are citywide or regionwide.94 Dissatisfied neighborhood activists thus have a strong motive to use SEQRA to delay
new development.95
Of course, residents of rural and suburban areas may share
such motives with urbanites. However, development in lowdensity areas by definition occurs in places with fewer neighbors
than infill development. For example, if 1,000 people live within
a mile of Rural Development X and 20,000 people live within
a mile of Urban Development Y, the former development has
fewer neighbors—and where there are few neighbors, there are
few potential NIMBY issues.96 And where there are few potential NIMBY issues, there are fewer people who are likely to file
suit if the government refuses to file an EIS or complain that an
existing EIS is inadequate. Thus, even if the law treats infill and
greenfield development equally, SEQRA makes infill development more difficult because, all other factors being equal, neighborhood activists are more likely to generate SEQRA-related
litigation for infill sites.
“. . . in practice
SEQRA may burden
infill development
more than greenfield
development.”
18
Sustainable Development Law & Policy
IV. Why SEQRA’s Bias Is
Environmentally Harmful
It could be argued that SEQRA’s bias against infill has little
relevance to public policy, either because (1) SEQRA rarely prevents development that a city wants to approve or (2) infill development is no more environmentally beneficial than greenfield
development. Neither argument justifies the status quo because
(1) SEQRA adds costs even to development that government
ultimately approves and (2) infill development produces less
driving and thus less pollution than greenfield development.
A. How SEQRA Makes Infill More Difficult
Admittedly, SEQRA does not prevent a municipality from
permitting development with significant environmental impact.
Because SEQRA allows government agencies to balance environmental impacts against other social considerations, litigants
are rarely able to persuade courts to stop a project completely, as
opposed to delaying the project by requiring an EIS.97
Nevertheless, SEQRA imposes a significant burden upon
developers. For a developer, “time is money”98 because a developer will often be paying interest on a construction loan while
its project is being debated but will be unable to receive money
from buyers or renters until the project is actually built.99 Thus, a
developer suffers financially by waiting for government officials
to review environmental impact statements and similar documents, some of which include hundreds of pages of analysis.100
Both the EIS process and related litigation may take years
to complete.101 For example, in one recent case, a landowner
requested a zoning change in August 2008; the municipality
did not adopt a final EIS until November 2010; an opponent
of the project challenged the EIS a month later; and the case
was not decided until March 2012.102 In another more difficult
case, the environmental review
process began in late 2007, about
a year and a half before the final
EIS in 2009, and more than three
years before the final decision in
2011.103
In truly large-scale developments, the EIS project may take
more than five years. In 2005, a
New York City agency prepared an
environmental assessment form for
the Atlantic Yards project, which
plans to develop a 22-acre parcel
near downtown Brooklyn. 104
The final environmental impact
statement was issued in 2006.105 But after years of litigation, a
New York appellate court ordered the government to prepare a
supplemental EIS in 2012—seven years after the environmental
review process began.106
In sum, even an environmental review process that ultimately allows a project makes development more time-consuming and thus more costly. And if, as noted above, SEQRA may
disproportionately affect infill development, SEQRA may make
infill especially costly.
B. Why Making Infill More Difficult Is
Environmentally Harmful
Given that all legislation has disproportionate impacts
upon someone, should we care whether SEQRA penalizes infill
development? Or to ask the question more precisely: is there any
environmental cost to penalizing infill as opposed to greenfield
development?
Already-developed areas, especially in urban cores, tend
to have more mass transit riders and fewer drivers than greenfield areas.107 This is because as a neighborhood becomes more
developed, it becomes more compact; that is, more people live
within walking distance of shops, jobs, public transit, and other
neighborhood destinations.108 By contrast, in areas with lower
density, very few people will live within a short walk of a bus or
train stop, making transit ridership low,109 which in turn disinclines transit agencies to serve such areas.110
It follows that more greenfield development means more
driving—and more driving means more pollution, since onethird of U.S. greenhouse gas emissions come from automobiles.111 In addition, automobiles introduce a wide variety of
other dangerous pollutants, such as carbon monoxide, ozone,
and particulate matter.112 Public transit pollutes less than cars
because each additional rider on a bus or train adds no pollution,
while each additional driver adds some.113 It follows that because
infill development requires less driving, more infill development
means less pollution.
It could be argued that the positive effects of infill-induced
density are outweighed by the environmental harm caused by
increased traffic congestion. According to this argument, higher
density packs more people, and
thus more cars, into smaller spaces
making a city’s roads more congested and polluted. 114
But as American cities and
suburbs have become less dense,
no corresponding reduction in
congestion has occurred. Between
1982 and 1997, population density in U.S. metropolitan areas
decreased by 15.7%.115 Out of
281 metropolitan areas116 only 16
became more densely populated
during this period.117 Nevertheless,
the average metropolitan area lost
more than twice as many hours per person to congestion in 1997
than in 1982 (33.8 hours, up from 14.4 in 1982).118
Some studies support the view that on balance, compact
development reduces pollution. A recent study sponsored by
the U.S. Department of Energy suggests that compact, transitoriented development reduces greenhouse gas emissions by
reducing driving. 119 In particular, the study found that:
“But as American
cities and suburbs have
become less dense,
no corresponding
reduction in congestion
has occurred.”
Winter 2014
19
1. Doubling residential density, without more,
reduces household vehicle miles traveled by
five to twelve percent.120 If increased density
was accompanied by other pro-transit land use
policies and by improved public transit, driving
miles could be reduced by as much as twenty-five
percent.121
2. These reductions in driving would, in turn, reduce
greenhouse gas emissions. If increased density and improved public
transit caused Americans
to drive twenty-five percent fewer miles, U.S.
greenhouse gas emissions could be reduced
by eight to eleven percent by 2050.122
V. Solutions
Of course, SEQRA is basically pro-environmental legislation and is sometimes used to delay projects with truly harmful
environmental consequences.132 On the other hand, SEQRA may
actually discourage environmentally friendly infill development.
Can New York eliminate SEQRA’s
negative consequences without
eliminating SEQRA’s desirable
limits on development?
SEQRA can be made less
burdensome either through reforms
directly focused on the most environmentally friendly types of infill
development or through reforms
addressing SEQRA as a whole.
Each avenue of reform will be
addressed in turn.
“On the other
hand, SEQRA may
actually discourage
environmentally
friendly infill
development.”
Similarly, Harvard economist Edward Glaeser and UCLA
economist Matthew Kahn recently conducted a study which
found that low-density, automobile-oriented places emitted more
greenhouse gases from transportation than more pedestrian
and transit-oriented places.123 For example, New York City, the
region with the highest use of public transit,124 emitted only
19,524 pounds of carbon dioxide (“CO2”), a major greenhouse
gas,125 per household from automobiles and transit users combined126—the lowest amount among ten metropolitan areas
studied. By contrast, several auto-oriented, lower-density regions
emitted over 25,000 pounds of transportation-related CO2 per
household.127
Moreover, suburbs, which tend to be less compact and more
automobile-oriented,128 have significantly higher per-household
CO2 emissions from transportation. For example, New York’s
suburban households emitted over 3,800 more pounds of transportation-related CO2 per household than did city residents.129
Thus, the alleged congestion-related benefits of low-density
greenfield development are apparently offset by the environmental harm caused by increased driving and resulting increases in
greenhouse gas emissions.
If, as suggested above, infill development reduces driving
and thus reduces pollution, and SEQRA discourages infill development, it seems that SEQRA actually increases driving and the
resulting pollution.
Even under SEQRA’s broad definition of the “environment,”
SEQRA is not environmentally friendly. In Chinese Staff I,
the court held that environmental impact includes “secondary
displacement”—displacement of a neighborhood’s existing
residents by higher rents.130 The court’s language suggests that
higher rents themselves are a harmful environmental impact.
But to the extent SEQRA discourages new residential development, it reduces housing supply. And according to the law of
supply and demand, the less of something that is built, the higher
20
its price will be.131 Thus, SEQRA may actually increase rents
and other housing prices, thus creating environmental damage
by its own criteria.
A. Infill Exceptions: Learning from California
In 2008,133 California amended its little NEPA statute,134
the California Environmental Quality Act (“CEQA”)135 to
streamline CEQA review for transit-oriented projects.136 The
state later issued regulations to implement these amendments.137
CEQA defines a “transit priority project” as one that is predominantly residential, provides a minimum density of at least
twenty dwelling units per acre, and is within a half mile of major
transit service, such as a bus or train with service intervals of no
more than fifteen minutes during peak hours.138 Such a project
is completely exempt from CEQA if it meets an extensive set
of requirements. In particular, the project must: (1) be no larger
than eight acres or two hundred dwelling units; (2) be served by
existing utilities; (3) have buildings fifteen percent more energyefficient than required under current law; (4) achieve twenty-five
percent less water use than the average household in its region;
and (5) provide one of the following: (a) five acres of open
space, or (b) a significant amount of low or moderate-income
housing, defined as providing 20% of its units to moderateincome housing, 10% to low-income housing, or 5% to very
low-income housing.139 This exception to CEQA is so strict that
it is unlikely to be used significantly.140 In particular, the requirements of low-income housing reduce developer profitability, and
are thus unlikely to be used frequently by private developers.141
Moreover, the requirement of five acres of open space would
not be feasible in many urban locations, since buildings in cities
such as New York City are often surrounded by other buildings
rather than by open space.142
Transit priority projects that do not meet the requirements
for a complete exception143 still benefit from CEQA—government must review such projects under a “sustainable communities environmental assessment” (“SCEA”),144 which is less
onerous than traditional SEQRA review.145 Under a SCEA, a
Sustainable Development Law & Policy
developer need not address potential growth-inducing impacts
of a project, nor need it address possible car and truck traffic
induced by the project.146 In addition, the developer need not
discuss the pros and cons of a lower-density alternative to the
project.147
But, the SCEA exception is highly limited; it only applies
if the project includes mitigation measures already incorporated in prior environmental impact statements, such as an EIS
related to the comprehensive plan of the community allowing
the project.148 Given the limitations that CEQA imposes upon
regulatory streamlining, New York would not make SEQRA less
burdensome merely by borrowing California law word-for-word.
However, New York could borrow parts of CEQA. In particular, I propose that New York: (a) borrow CEQA’s definition
of transit priority projects, and (b) borrow CEQA’s provision
that developers of such projects need not address environmental
impacts related to growth, such as increased population or traffic. Thus, SEQRA as amended would, in transit-oriented areas,
overrule the language of Chinese Staff I and Fisher that urban
growth justifies an EIS, on the ground that growth of areas wellserved by public transit is environmentally helpful rather than
environmentally harmful.
Byron Toma, an environmental and transit lawyer, criticizes
CEQA’s streamlining for transit priority projects on the ground
that “[b]uilding high-density housing without adequate transit
capacity and quality is a serious planning blunder.”149 Toma suggests that if transit agencies do not increase service as a mitigation measure, transit systems may become overloaded.150 This
argument should not prevent reform for two reasons. First, any
area with sufficient transit service to be eligible for a transit priority project by definition has a fairly significant level of transit
service. Second, if improved transit must come before density,
neither the transit nor the density may ever get built. In an area
where density is low and transit ridership is therefore already
low,151 transit opponents will argue that the density is not present
to support transit, and that transit should accordingly never be
expanded, even if it already exists.152 And where there is weak
transit service as a result of low density, compact development
will be even more unpopular: Opponents to development could
argue that, in the absence of transit, more density will only lead
to more congestion.153
In sum, limiting SEQRA review of transit-friendly development to truly environmental concerns as opposed to concerns
related to population growth would be an environmentally
friendly policy, because it would contribute to steering growth to
infill sites served by public transit, thus increasing transit ridership and reducing auto-related pollution.
B. More Aggressive Reforms
Stewart Sterk, a land-use law professor, proposes to reduce
the burden of SEQRA upon the housing market through two
reforms. First, Sterk proposes to make SEQRA less burdensome
by exempting local zoning decisions from SEQRA.154 The public
benefit of this proposal is that neighborhood activists would no
longer be able to delay new homes and businesses on essentially
Winter 2014
nonenvironmental grounds, and the burden of SEQRA paperwork and SEQRA-related litigation would thus be lifted from
the shoulders of local governments and developers.155 And
because, as explained above in Part III,156 SEQRA is probably
more burdensome for urban developers than for rural and suburban landowners, this proposal probably would increase infill
and thus decrease pollution. On the other hand, this proposal
might prevent the public from discovering a few truly significant
environmental impacts that are uncovered through the SEQRA
process. Thus, it is unclear whether this proposal’s environmental benefits outweigh its costs.
Second, Sterk proposes157 amending SEQRA to exclude
socio-economic impacts from the statute’s definition of “environment,” thus eliminating review of the social effects of
projects.158 Sterk reasons that disputes among socio-economic
impacts are political rather than technical, and that environmental review of such issues therefore adds nothing to the decisionmaking process.159 If this proposal were adopted, SEQRA, like
NEPA, would only address a project’s effects upon the physical
environment.160
Like Sterk’s other proposal, this reform would make
SEQRA less burdensome and thus facilitate development generally. And like the California statute discussed above, it would
focus regulatory scrutiny on traditionally environmental impacts.
But unlike the California statute, Sterk’s proposal would not
be targeted towards transit-oriented development or even infill
development generally. Thus, the merits of Sterk’s proposal
may depend on the state’s priorities: does the state only value
transit-oriented development, or does it value regulatory relief
for all landowners? From a purely environmental perspective,
something resembling California law might be more desirable;
however, a broader reform might make housing more affordable
by facilitating both infill and greenfield development, which is
also a desirable goal.
VI. Conclusion
The purpose of SEQRA is to protect the environment by
requiring the government to consider the harmful environmental
impacts of its actions. But SEQRA in fact creates its own harmful environmental impacts. Thanks to SEQRA, someone who
wants to build houses or apartments in an already-developed city
or inner suburb must sometimes spend years going through the
EIS process.
As noted above, greenfield development in low-density rural
areas and outer suburbs has fewer neighbors, and thus fewer possible opponents to development. It therefore appears that in relation to infill development, greenfield development may be less
likely to require an EIS or lead to litigation over the adequacy
of an EIS. Thus, SEQRA discourages infill development in New
York and encourages developers to either build on greenfield
sites or move to other states. Because greenfield development
typically leads to more driving and thus more pollution, SEQRA
may actually increase rather than decrease pollution.
SEQRA can be made more environmentally friendly in two
ways. At a minimum, the New York state legislature could target
21
the most environmentally friendly projects for SEQRA relief by
limiting environmental review for compact developments near
public transit. More radical options would include encouraging
all development by exempting all zoning permits from SEQRA,
or by limiting SEQRA review to a project’s impacts upon the
physical environment.
Endnotes: How Environmental Review Can Generate Car-Induced Pollution:
A Case Study
1
See 42 U.S.C. §§ 4321-4370h.
See 42 U.S.C. § 4332(C).
3 See Elena Bryant, Innovation or Degradation? An Analysis of Hawaii’s
Cultural Impact Assessment Process as a Vehicle for Environmental Justice for
Kanaka Maoli, 13 Asian-Pac. L. & Pol’y J. 230, 265, 265 n. 209 (2011) (listing
states in footnote).
4 N.Y. Envtl. Conserv. Law. § 8-0101 (McKinney 2013).
5 See William Fulton & Paul Shigley, Guide to California Planning 156 (3rd
ed. 2005) (“[M]ost state [little NEPA] laws . . . apply only to public development projects.”).
6 See Stewart E. Sterk, Environmental Review in the Land Use Process: New
York’s Experience with SEQRA, 13 Cardozo L. Rev. 2041, 2042-43 (1992)
(explaining that unlike other states New York and California “require impact
statements not only for government-sponsored projects, but also for projects
that require government permits, and extend the EIS requirement beyond state
actions to actions taken by municipalities”); Daniel P. Selmi, Themes in the
Evolution of the State Environmental Policy Acts, 38 Urb. Law. 949, 956-57
(2006) (contrasting New York approach with that of other states). NEPA may
also require an EIS for private sector projects requiring government permits.
See Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1121 (9th Cir. 2005).
But NEPA is far less relevant to most private sector projects because zoning is
primarily a local issue rather than a federal issue. See San Remo Hotel v. City
& Cnty. of S.F., 545 U.S. 323, 347 (2005) (noting that state courts have more
experience than federal courts in dealing with zoning issues).
7 See Chinese Staff & Workers Ass’n v. N.Y.C., 502 N.E.2d 176, 180, (1986)
[hereinafter Chinese Staff I] (holding that SEQRA requires consideration of
“social or economic” factors as well as “physical environment”).
8 Id. at 180 n.7 (explaining that the scope of NEPA is limited to “natural or
physical environment”).
9 See John Watts, Reconciling Environmental Protection With the Need for
Certainty: Significance Thresholds for CEQA, 22 Ecology L.Q. 213, 241 n.170
(1995) (“About half the states … require consideration of [socio-economic]
impacts.”); Sterk, supra note 6, at 2043 (Some “states define the environment to
embrace only natural and historical resources.”).
10 See Anne L. Hanson, Offshore Drilling in the United States and Norway:
A Comparison of Prescriptive and Performance Approaches to Safety and Environmental Regulation, 23 Geo. Int’l Envtl. L. Rev. 555, 559 (2011).
11 Id.
12 See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004).
13 See Emily M. Slaten, Note, “We Don’t Fish in Their Oil Wells, and They
Shouldn’t Drill In Our Rivers:” Considering Public Opposition Under NEPA
and the Highly Controversial Regulatory Factor, 43 Ind. L. Rev. 1319, 1324
(2010) (citing 40 C.F.R. § 1508.16).
14 Another alternative is to decide the action is covered by a “categorical
exclusion.” Id. at 1325. Categorically excluded actions are “routine agency
actions with traditionally non-significant environmental impacts that are
altogether exempted from the NEPA process.” Id. An individual federal agency
may designate types of agency action as categorically excluded. See 40 C.F.R.
§ 1508.4 (“Categorical Exclusion means a category of actions which do not
individually or cumulatively have a significant effect on the human environment
and which have been found to have no such effect in procedures adopted by a
federal agency.”).
15 40 C.F.R. § 1508.9(a)(1).
16 See 40 C.F.R. § 1501.4(e).
17 The Ninth Circuit requires an EIS even if federal action “may” degrade the
environment. Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d
1105, 1119 (9th Cir. 2000). However, the majority of courts require an EIS only
if a project will significantly affect the environment. See, e.g., Heartwood v. U.S.
2
Forest Serv., 380 F.3d 428, 430 (8th Cir. 2004); Greater Yellowstone Coal. v.
Flowers, 359 F.3d 1257, 1274 (10th Cir. 2004).
18 See 40 C.F.R. § 1501.7.
19 See 40 C.F.R. § 1502.9(a).
20 See 40 C.F.R. § 1502.9(b) (noting that in final EISs agencies “shall respond
to comments” and “discuss . . . any reasonable opposing view which was not
adequately discussed in the draft statement and shall indicate the agency’s
response to the issues raised”). See also id. at § 1503.4(a) (stating that a lead
agency “shall assess and consider comments . . . and shall respond by one or
more of the means listed below, stating its response in the final statement”).
21 42 U.S.C. § 4332(2). In addition, the EIS shall address any possible relationship between the action’s environmental impacts and long-term productivity,
and any irreversible commitment of resources the action may cause. Id.
22 See Vill. of Chestnut Ridge v. Town of Ramapo, 841 N.Y.S.2d 321, 332
(App. Div. 2007).
23 See Town of Amsterdam v. Amsterdam Ind. Dev. Agency, 945 N.Y.S.2d 434,
440 (App. Div. 2012) (explaining that the “primary purpose” of SEQRA is “to
ensure that the agency gives appropriate respect and due consideration to the
environment in deciding whether a proposed project should proceed”).
24 See Mark A. Chertok & Ashley S. Miller, Environmental Law: Developments in the Law of SEQRA, 2009, 60 Syracuse L. Rev. 925, 925-26 (2010)
(clarifying that the statute “applies to discretionary actions by the State of New
York, its subdivisions or local agencies” including “direct agency actions, funding determinations, promulgation of regulations, zoning amendments, and the
granting of permits and similar approvals”).
25 Id. (SEQRA governs “zoning amendments”); Matter of Neville v. Koch, 79
N.Y.2d 416, 426, (1992) (“[R]ezoning is an ‘action’ subject to SEQRA.”).
26 See Paul D. Selver, The Public Review Process: Land Use Due Diligence
and Comments on Structuring the Deal to Shift Land Use and Environmental
Risks, in 12 Commercial Real Estate Institute 903, 906-10 (2010) (noting that
subdivision approval, variances, and numerous other land use procedures are
subject to SEQRA).
27 See Edna Sussman et. al., Climate Change Adaptation: Fostering Progress
Through Law and Regulation, 18 N.Y.U. Envtl. L. J. 55, 79 (2010); Sterk,
supra note 6, at 2045. Although the lead agency is technically responsible for
drafting the EAF, EIS, and similar documents, as a practical matter a developer
often drafts such documents, which in turn are used by the lead agency. See
Carolyn A. Zenk, New York State Environmental Quality Review Act, http://
www.carolynzenk.com/new-york-state-environmental-quality-review-act.html
(last visited Aug. 20, 2012).
28 Citizens Against Retail Sprawl v. Giza, 722 N.Y.S.2d 645, 648 (App. Div.
2001) (emphasis deleted) (quoting N.Y. Comp. Codes R. & Regs. 6, § 617.2(y)).
29 See N.Y. Comp. Codes R. & Regs. 6, § 617.2(a)-(c). See also Chinese Staff
I, 502 N.E.2d at 364 (“[W]hether an EIS is required … depends on whether
an action may or will not have a significant effect on the environment.”). If
the agency foresees significant environmental impacts but has an enforceable
commitment to mitigate those impacts, it may avoid an EIS by creating a “conditioned negative declaration.” N.Y. Comp. Codes R. & Regs. 6, § 617.2(h). See
also Chertok & Miller, supra note 24, at 926.
30 Chertok & Miller, supra note 24, at 927.
31 Chertok & Miller, supra note 24, at 927. See also Jackson v. N.Y. State
Urban Dev. Corp., 67 N.Y.2d 400, 415, 494 N.E.2d 429, 435 (1986) (describing
the draft EIS process in more detail).
32 See Selver, supra note 26, at 904.
33 See Sterk, supra note 6, at 2045-46.
34 Sterk, supra note 6, at 2078 (providing examples of such “commitments”
which include “the use of construction materials or the occupation of land
area”).
continued on page 64
22
Sustainable Development Law & Policy
Laplace Rising: The Story of How a Tiny
Community in Southern Louisiana Will Save
the Largest Delta in North America
By J. Robert Hudson*
L
I. Introduction
aissez les bon temps rouler, they said. It was supposed to
be an easy one: Category 2, at worst.1 Before Hurricane
Isaac made landfall at the mouth of the Mississippi River
on August 29, 2012, the people of Laplace, Louisiana, made
preparations as they always have: duct-taped windows, filled
sand bags, stocked up on bottled water and whiskey. The forecast looked decent; nothing compared to the menace of Katrina,
Rita, or Gustav.2 The generations-old tradition of hurricane parties commenced without question. It then could only come as a
shock when the streets of this city of thirty thousand people were
suddenly deluged in water levels higher than those ever experienced before: higher than Hurricane Katrina.3 In the days leading up to Hurricane Isaac’s landfall, the citizens of Laplace had
little, if any, warning of the devastation that would ensue.4 There
was no precedent—just brown lines left across dining room
walls after Lake Pontchartrain receded.
Following the horror and multi-billion dollar onslaught
of the 2005 hurricane season, the United States Army Corps
of Engineers (“Corps” or “USACE”) was drowning under the
weight of its failed levee system in New Orleans.5 Scenes of
degenerates raiding electronics stores and refugees sleeping on
highway overpasses were staples of every major news broadcast
from New York to Shanghai.6 Some looters even saw the crimes
as “an opportunity to get back at society.”7 Many citizens, as
Oliver Houck writes, just wanted the government to “get them
off their fucking roofs!”8
How had a governmental body failed so tremendously to
protect a city as important as New Orleans? How had a levee
system designed by the greatest engineers in the country simply
failed? The answer was simple: in addition to its shoddy construction and negligible maintenance, the system was designed to
withstand a maximum Category 3 hurricane, but circumstances
had changed.9 The natural wetland barriers of the Breton Sound
and the Barataria Basin that the city once enjoyed have degenerated at an alarming pace.10 In their absence, massive hurricanes
like Katrina are able to maintain their strength and their storm
surges all the way to the doorsteps of the French Quarter.11
In response, the Corps spent $15 billion to upgrade and
reinforce the levee and water control systems of New Orleans.12
Bigger walls were built around the sinking bowl. The amount
spent on the projects paled in comparison to the $120 billion
in damage that Rita and Katrina had inflicted primarily upon
America’s most unique city.13 Politicians, citizens, and governors
Winter 2014
all vowed never again.14 Accordingly, when Hurricane Isaac
passed over the city like a creeping monster in late August of
2012, New Orleans remained dry.15 Thirty miles west, the citizens of Laplace bundled possessions and pets into small boats as
Isaac’s waves devoured their homes.
For hundreds of years, the Mississippi River and the wetlands have, economically speaking, been a figurative printing
press for Louisiana and the United States as a whole. However,
in the past 25 years, Louisiana’s coast has lost an average of
roughly seventeen square miles of land per year, or the equivalent of a football field of land every hour.16 More important than
the substantial economic benefits that the wetlands bestow upon
Louisiana (e.g., seafood, energy, recreation, shipping and tourism) is the vast physical barrier that they once played between
ferocious Atlantic hurricanes and coastal communities.17 The
wetlands reduce hurricane surge waters by one foot for every
mile.18 With the wetlands diminishing at incredible rates and
global climate change instigating more powerful storms and
higher sea levels, communities like Laplace, Louisiana, are facing unprecedented devastation.19
During Hurricane Isaac, characterized as Category 1 by the
National Oceanic and Atmospheric Administration (“NOAA”),
Laplace was victim to flood waters higher than it had ever experienced before—higher than even those brought on by Hurricane
Katrina.20 The difference in the seven years between Isaac and
Katrina were 120 square miles of lost wetland barriers and a $15
billion Corps effort to revamp and improve the water control
structures of New Orleans just miles away.21 Essentially, Laplace
fell victim to the decimation of its natural protective basins and
floodwaters diverted from New Orleans as a result of the city’s
post-Katrina flood control improvements. These two avoidable
disasters were the cause of the worst flooding in the recorded
history of the city of Laplace.22
Accordingly, this article proposes separate class action
lawsuits and a litigation strategy for the affected members of
the Laplace community (“Class”) against the Corps and the
*J.D. Candidate 2014, George Washington University Law School. Mr. Hudson
is immensely thankful for the mentorship of Dr. William Platt and the majesty of
Southern Louisiana. Justice Holmes once stated, “[I]t is required of a man that
he should share the passion and action of his time at peril of being judged not
to have lived.” Oliver Wendell Holmes, Memorial Day (May 30, 1884), in The
Occasional Speeches of Justice Oliver Wendell Holmes 4, 6-7 (Mark DeWolfe
Howe ed., 1962). The words of this article are not only the author’s but also the
passion and thoughts of an entire people.
23
Figure 1. Wetland Loss in Southern Louisiana. Source: U.S. Geological Survey, Depicting Coastal Louisiana Land Loss 2 (2005),
available at http://www.nwrc.usgs.gov/factshts/2005-3101.pdf (areas colored in yellow are projected land losses by the year 2050).
Louisiana Department of Natural Resources (“LDNR”). A
judicial mandate that the State, the LDNR, and the Corps take
immediate action to restore and protect the wetland barriers of
Southern Louisiana could effectuate the crucial action necessary
to prevent the disasters of Katrina and Isaac from occurring once
more. The Class will first assert a public-trust doctrine claim
against the LDNR for: (1) failing to protect the natural resources
of the Louisiana wetlands from decimation by diverting their
fresh water sources and not using available Mississippi River
diversionary structures; and (2) failing to meaningfully regulate
the canalization of coastal Louisiana.
Furthermore, a second suit should be brought against the
USACE: (1) contributing to the mass flooding in Laplace,
Louisiana, during Hurricane Isaac, as the flood protection mechanisms surrounding the New Orleans area diverted water in to
the communities of the southwest banks of Lake Pontchartrain,
in violation of the Federal Tort Claims Act, and (2) failing to
maintain the integrity of the Louisiana wetlands (described
above) as required by federal public-trust doctrine. Had these
issues been addressed prior to Hurricane Isaac, the flooding
experienced in Laplace would not have occurred. Finally, the Louisiana public-trust doctrine should be
permanently amended to include the State’s wetlands. The success of the suit will force the Louisiana Department of Natural
Resources and the Corps to revive coastal wetlands, and amend
the water control structures of New Orleans so they do not
flood the outlying communities of Lake Pontchartrain during
hurricanes.
In advancing this proposal, Part II will provide information
pertinent to understanding the geographic and social history of
24
the Louisiana delta region by reviewing the impetus behind the
Corps’s involvement in the region’s current environmental situation and the dire need for immediate action, as well as modern
efforts at coastal restoration. Part III will describe the Class’s
reliance upon the history of the public-trust doctrine to further
its claims; namely, the State and Corps’s failure to maintain the
wetlands under the obligations encompassed in the public-trust
doctrine, as well as those claims to be brought under the Federal
Tort Claims Act against the Corps. Part IV concludes this article.
II. Where We Are, How We Got Here,
and Why It Matters
A. Bienvenue en Louisiane
It was May of 2008 when I first crossed the I-10 bridges
over lukewarm expanses of Lake Pontchartrain, en-route to a
hazy cobalt sketch of New Orleans clambering towards the sky
out of what seemed like endless ocean. I was on the phone with
my sister in Dallas.
“So what does it look like?”
“Dead Swamp Cypress in every direction. It’s like a
graveyard for Earth.”
As I would later learn, the massive Bald Cypress forests
around New Orleans were once part of the greater deltaic
wetlands that had protected the city for hundreds of years.23
However, saltwater intrusion caused by urban development,
dredging, and the creation of navigation channels has increased
the salinity of the Pontchartrain lakeshore past the habitable
zone of the iconic trees.24 The effect: miles of stone-grey trunks
standing in contrast to the vibrancy of the city that killed them.25
Sustainable Development Law & Policy
Contrary to its swift demise, the Louisiana delta region
was built over a several-million-year period and is now the
seventh largest delta on the planet.26 As with any deltaic region,
ceaseless streams of sediment from continental North America
bumble down the swift waters of the
Mississippi River and are deposited
where the mouth meets the Gulf
of Mexico or, colloquially, “the
Bathtub.”27 Essentially, after millions of years and unfathomable tons
of sediment, the region known as
Southern Louisiana was built from
the compaction of these deposits.28
Although the loss of land in
Louisiana is a “spanking new phenomenon” in geologic terms, it can
hardly be considered news by any
stretch of the human conscience.29
Coastal erosion in the state has
been documented from at least the
1930s.30 The question then arises:
how could a state so inherently
dependent upon its wetlands not act
to prevent the environmental train
wreck that Louisiana faces today? As
Oliver Houck suggests, Louisiana’s relationship with its wetland
resource “is similar to that of any organism with too much of
a resource to bother about.”31 Simply put, most people never
thought the wetlands would actually disappear.
Notably, the region is home to 37% of the nation’s estuarine
habitats and accounts for the largest commercial fishing economy in the continental United States. 32 Prior to the 2005 hurricane season, Louisiana was the source of one third of the United
States’ seafood, and 20% of all U.S. energy passed through the
ports of New Orleans and Baton Rouge.33 It is only obvious that
the economy of Louisiana is inexorably and vitally linked to the
health of the Mississippi River and its wetlands. However, to
truly understand the positive impact that Louisiana’s waterways
have had on its cultural and economic development, one must
know the tempestuous, untamable nature of the Mississippi
River.
width of 70 miles and covered an area of land equal to the size
of Massachusetts, Connecticut, New Hampshire and Vermont
combined.36 In today’s terms, a flood equal to that of the Great
Flood would come with an economic damage bill of over $160
billion—besting even Hurricane
Katrina.37
When confronted with these
numbers, it can come as no surprise
that there was a significant and fundamental change to the way in which
Americans viewed the Mississippi
River, in addition to an equally significant shift in the political climate.38
Indeed, the event was so scarring
and impactful that the passage of the
Flood Control Act of 1928 became
of the utmost national importance,
and the successful handling of flood
relief efforts by Herbert Hoover all
but guaranteed him the office of the
thirty-first president.39
Given the economic necessity
of the river and its use as a waterway
for shipping, the Flood Control Act
of 1928 took a very human-centered
perspective on co-existence with nature by placing the planning
and containment of the Mississippi River within the hands of
the federal government.40 USACE was tasked with controlling
and mitigating the flow of the fourth-longest river in the entire
world.41 Little, if any, respect to the natural flow of the river was
granted after this point. Like a prized stallion, the Mississippi
had to be broken.
“Contrary to its
swift demise, the
Louisiana delta
region was built over
a several-millionyear period and is
now the seventhlargest delta on the
planet.”
1. The Great Flood of 1927
In the spring of 1927, the residents of Arkansas, Illinois,
Kentucky, Mississippi, Missouri, Tennessee, and Louisiana
saw between six and eleven inches of rain poured upon the
Mississippi River, and its banks swelled to unimaginable widths,
creating unprecedented and catastrophic flood damage across
incredible swaths of the country.34
Estimates of the Great Flood of 1927 (“Great Flood”)
suggest that twenty-seven thousand square miles of land were
inundated, “ruining crops, damaging or destroying 137,000
buildings, causing 700,000 people to be displaced from their
homes, and killing 250 individuals across the seven impacted
states.”35 By July 1st, the Mississippi River had swelled to a
Winter 2014
2. USACE and the Disappearing State
Under the new authority of the Flood Control Act of
1928,42 the Corps set out immediately to design and construct
an extensive network of dams, levees and water control structures in order to prevent another flood on the scale of the Great
Flood. In furtherance of its divine destiny to control the mighty
Mississippi, the Corps constructed an enormous 2,203 miles of
levees43 running like twin ribbons along the banks of the river.44
Over thousands of years, rivers naturally change their course,
swinging back and forth across a landscape, giving them an
aerial visage of a snake. However, as one might guess, the construction of levees prevents this most basic function by blocking
any natural movement in the river.45
Each major basin of the Louisiana delta was once the mouth
of the Mississippi River.46 Indeed, over millions of years the river
shifted back and forth between these massive wetlands, depositing the silt and sediment that eventually built the area known as
Southern Louisiana.47 Since 2600 b.c.e., the Mississippi River
has altered its major course four times.48 At the founding of
New Orleans in 1718 by the French settlers Pierre Le Moyne
d’Iberville and Jean-Baptiste Le Moyne de Bienville, the mouth
of the Mississippi was located near the fated city, and its major
25
distributary49 flowed in to the Atchafalaya Basin.50 However,
nearly 300 years later, the river has, inevitably, shown a desire
to shift primarily down this distributary, the Atchafalaya River,
into the Atchafalaya Basin.51 The consequences of this shift
away from New Orleans were not lost upon the politicians who
controlled the purse strings of the Corps.52 Understanding the
strategic economic importance of deep water for the Port of New
Orleans, the Corps ensured that the Mississippi River would forever flow directly to the city via this network of levees.
In addition to the levees, the Corps constructed a series
of dams along the length of the river that reduced the overall
output of sediment from over 1.5 million tons a day in 1951 to
a little less than 500,000 tons per day.53 The damming of the
Missouri River alone reduced contributions to the Mississippi
River by 70-80%.54 The multitudinous dams on the river essentially blocked the transport of vital sediment to the Louisiana
wetlands. Without these sediments, the wetlands began to shrink
and simply disappeared.
3. Canalization of Coastal Louisiana
Dr. William Platt and I were sitting in his office staring stoically upon the bands of a swirling giant in the Gulf. It was August
30, 2008 in Baton Rouge, and mere hours before Hurricane
Gustav was to make landfall. I got up to pace the room because
it is unnerving to stare at a bullet you cannot stop.
“Dr. Bill, this roadmap on the wall, where is this?”
“That’s not a roadmap. That’s the bayou, kiddo.”
Here in the swamps of Louisiana, they’ve experienced death
by a thousand cuts.55 Any aerial image of the Louisiana wetlands
will provide a shocking example of the many-thousand canals
that have been dredged primarily to facilitate transportation for
oil and gas sites.56 The canals intersect and weave mindlessly
like the streets of an old European capital, like the ravines of a
brain without any of the functioning. Today, these cuts disrupt
hydrological flow and have the effect of eliminating all biological cohesiveness in a very delicately balanced environment.57
The direct impacts of canal cutting are an immediate loss of
land to dredging, tidal circulation disruption, and bank erosion
as a result of the constant wake from boats that use the canals.58
However, it is the indirect effects that are far more sinister.
Research now shows that the cutting of a canal allows for saltwater intrusion into the heart of the bayou.59 As saltwater intrudes
upon the open canals, the salinity of the surrounding brackish
water increases to an uninhabitable point; grasses die and the
entire process is aggravated.60
4. Case Study: “Mr. (No) Go”
A disastrous example of canalization in coastal Louisiana
was the development of the Mississippi River Gulf Outlet
(“MRGO”), or “Mr. Go.” Constructed by the Corps and opened
in 1968, MRGO was a massive canal capable of streamlining
freight shipments into the Port of New Orleans, rather than
through the winding Mississippi River.61 The intent of the canal
was the expedited movement of all shipping traffic through a
straight-shot canal connecting the Gulf of Mexico and the inner
harbor of New Orleans.62 Unfortunately, the Corps had not
anticipated the intrusion of saltwater into their newest crowning achievement.63 Although MRGO was originally dredged at
approximately 600 feet, the introduction of salt water into the
Figure 2. Canals in Southern Louisiana. Source: J.M. Allen, Louisiana’s Lost Wetlands (May 2011),
http://www.atlantisbolivia.org/canalslouisiana1.htm.
26
Sustainable Development Law & Policy
brackish water canal eroded the vegetation that held the canal
together.64 As a result, MRGO widened to nearly 2,000 feet and
became shallower, necessitating hugely expensive re-dredging
efforts at the cost of about $20,000 per passing ship.65 If the
expense of maintaining MRGO was not enough, the fiasco of
Hurricane Katrina truly sealed its fate. As Hurricane Katrina
approached New Orleans, MRGO acted as a direct pipeline for
surge and floodwaters to funnel leisurely into the inner harbor of
the city.66 After the tremendous disaster of Katrina, MRGO was
officially closed by the Corps, citing a $130 million price tag for
its repair.67
With disastrous projects such
as MRGO surviving until the mid2000s—even against the opposition
of thousands screaming like banshees over its negative environmental
impact68—one would assume that
Louisianans have chosen instant
gratification from commerce over
long-term sustainability in the
region. However, the efforts to restore
coastal Louisiana are massing, albeit
at a slow pace.
5. Modern Efforts at
Coastal Restoration
in Louisiana
The story of diversionary structures built along the
Mississippi River in Southern Louisiana includes a lot of gilded
lip service deep-fried in some ivory tower nonsense about
restoring and saving over a million acres of precious wetlands.74
Much to everyone’s shock, I am sure, these lofty ideals and restoration promises have been about as effective as an Alcoholics
Anonymous© (“AA”) meeting on Bourbon Street. And, frankly,
in the case of the Caernarvon Diversion Structure, the AA group
leader was found blackout-wasted in
Pat O’Brien’s® at two o’clock on a
Tuesday afternoon.
The old dogs of the diversionary
structures are the Bonnet Carré and
the Morganza spillways.75 Opened
in 1931 as a response to the Great
Flood of 1927, the Bonnet Carré is
a 350-bay spillway that allows for
significant diversions of Mississippi
River water into Lake Pontchartrain
and the surrounding wetland basin
during times of exceptionally high
water.76 As a reminder, the wetlands
of the Pontchartrain Basin are integral defenses against storm surges
for the communities (e.g., Laplace)
outside of the high-walled Crescent
City.
In its riveting eighty-decade
existence, the Bonnet Carré spillway
has been opened a grand total of ten
times at an average 87% capacity.77
In addition to the infrequent openings of the spillway which “ha[ve]
an immediate, short-term, freshening
effect,” the Corps proudly boasts that the spillway’s structure
unintentionally leaks around 10,000 cubic feet of water per
second once or twice per year,78 compared to the 250,000 cubic
feet capability of an opening.79 Ignoring the blatant fact that the
Bonnet Carré is only opened when New Orleans is threatened
by river flooding and not for the express purpose of wetland
restoration, as evidenced by the historical record,80 the Corps is
essentially tossing a pirogue at the Titanic and calling it a rescue
mission. Numbers do not lie, and since 1900 the wetlands of the
Pontchartrain Basin have been reduced by 50% due to the lack
of sediment deposits from freshwater—a monstrous issue that
could have been solved via the Bonnet Carré spillway.81
The narrative of the Morganza Spillway, which feeds freshwater to the wetlands of the vitally important Atchafalaya Basin,
is even more lackluster than the Bonnet Carré. Opened in 1954,
the Morganza spillway has been utilized exactly two times: once
in 1973, opening 42 of 125 bays,82 and again in 2011 when a
mere 17 were opened.83 However, due to the existence of the
Atchafalaya River and the small amounts of sediment that are
“Numbers do not
lie, and since 1900
the wetlands of the
Pontchartrain Basin
have been reduced by
50% due to the lack
of sediment deposits
from freshwater—a
monstrous issue that
could have been
solved via the Bonnet
Carré spillway.”
I once spent a steaming summer weekend at the south end of
Bayou Petit Caillou, near Cocodrie,
Louisiana. It was the kind of hot that
Southern writers hate to describe. Up
to my shins in swamp mud, shoving
plugs of marsh grass into the roiling
puddles. Two years later, as I drove
through the back half of Hurricane
Isaac on my way from Houston to
Baton Rouge, the wind slapped sprigs of a familiar grass against
my windshield wipers. I could not help but think, “Did I plant
you?”
In the 1990s, several Louisiana commissions and offices of
the state released a cooperative plan gloriously labeled “Coast
2050.”69 The massive report, hailed as a beacon of light for the
blighted state, was a highly generalized report on how the state
of Louisiana, hilariously, needed saving.70 The report echoed
what scientists and researchers had been postulating and publishing for years. Plus, the bureaucratic structure of the Coast
2050 plan led to inherent issues regarding effectiveness and
response time.71 Although the plan was established almost 20
years ago, the efforts have proven to do very little to save coastal
Louisiana from ultimate destruction.72 The lack of effectiveness with regard to the Coast 2050 plan can be overwhelmingly
attributed to the intentional underutilization of the Mississippi
River diversion structures at Caernarvon, Davis Pond, Bonnet
Carré and Morganza.73
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6. Biting the Feeding Hand: The Diversions and
Their Basins
27
consistently fed to the basin naturally, the Atchafalaya Basin
maintains the distinct honor of being the only moderately stable
wetland basin in the entire state.84
Differing from the original flood control intent of the
Bonnet Carré and Morganza, the Caernarvon and Davis Pond
diversion structures were constructed for the express purpose of
restoring wetlands and regulating salinity in the Breton Sound
and Barataria Basins, respectively.85 At a cost of $26 million, the
Caernarvon began operating in 1991 and was expected to restore
sixteen thousand acres of coastal wetlands.86 Someone must
have enjoyed one too many Hand Grenades®87 while devising
this plan, because not only has there been significant continued
wetland loss in the Breton Sound Basin following the opening
of the Caernarvon, data shows that the losses are increasing.88
Even in the areas close to the Caernarvon Diversion, where the
impact of sediment deposition would be the greatest, the vegetation level is lower than when the diversion opened in 1991.89
Finally, the Davis Pond diversion structure was completed
in 2001 at a cost of $120 million with the expectation of restoring thirty-three thousand acres and benefitting seven hundred
seventy-seven thousand acres of wetlands in the Barataria
Basin.90 With a potential freshwater outflow of 10,650 cubic feet
per second, the diversion structure has been underutilized at an
average of less than half that capacity.91 At this rate of usage,
the influx of freshwater is capable of merely maintaining the
dwindling wetlands that are present in the Barataria Basin, but
in its 12 years of operation, the restoration and wetland creation
aspects have not come to fruition.92 One then might ask, where
are the 33,000 acres of restored wetlands? USACE is currently
discussing and formulating a plan to further open the Davis Pond
structure in order to facilitate wetland growth.93 Unfortunately,
the initial report, due in November 2013 upon the signature of
the Chief of Engineers, has not released.94 After this momentous
signing, the plan then has the distinct pleasure of going before
Congress for approval.95
However, recent successes with freshwater diversion include
wetlands restored near Venice, Louisiana, at West Bay and, albeit
unintentionally, in the Pontchartrain Basin as a result of the
Bonnet Carré opening that occurred during the 2011 flooding.96
Despite the success of the West Bay restoration, where ten acres
were restored in 2011 alone, navigation industry lobbyists were
able to secure an order to close the diversion in 2008 in order
to facilitate anchorage in the area.97 Fortunately, after a lengthy
legal battle, proponents of the West Bay project won a reversal
and a 10-year extension of operation in October of 2012.98
Although the economic, cultural, and environmental importance of the Louisiana wetlands has now been recognized, this
understanding is something of a recent phenomenon.99 For hundreds of years, the wetlands and bayous of the state were looked
upon as nothing more than a cesspool for disease and dangerous
animals.100 In fact, during the era of slavery, owners rarely, if
ever, followed a runaway slave into the swamp, as they were
likely to die anyway. In Twelve Years a Slave, Solomon Northrup
recorded this reality when he escaped capture from his Louisiana
master by fleeing into the Great Pacoudrie Swamp, evading water
28
moccasins and alligators.101 Moreover, the swamps of Southern
Louisiana have been drained and reclaimed since the early 1700s
by French settlers in an effort to increase their land holds and
reduce mosquito breeding grounds.102 Recognizing the historical
love-hate relationship between Louisianans and their swamps, it
can only be expected that the protection of a malaria-infested,
alligator breeding ground would take decades of evolution and
a judicial cognizance of its function, which could only come at
a glacial pace.
B. The Public-Trust Doctrine
This section will discuss how the wetlands of Southern
Louisiana eventually came under the protection of the Louisiana
public-trust doctrine and, further, how the federal public-trust
doctrine emerged as an interpretation of ancient Roman law. As
a matter of course, the Laplace community will be required to
prove that the aforementioned wetland basins are lands protected
under the public trusts of the State of Louisiana and the United
States. In establishing this fact, the Class must first emphasize
the history of the public-trust doctrine and how modern jurisprudence has included the Louisiana coastal wetlands within its
bounds.
The first Western record of the public trust comes from the
laws of Emperor Justinian of the Roman Empire, who ordered
that the seas, rivers, air and seashores were the property of the
people, could be owned by no single entity, and were held in
the public trust.103 Later records of the public trust have also
been found in Las Siete Partidas, Spanish laws from the time of
Alfonso the Wise.104 The overarching intent of the public trust
evolved under English common law to ensure the protection of
the citizens’ natural resources by the government so that present
and future generations might also reap their benefits.105
Borrowing from the English common law, the United
States effectuated its own federal public-trust doctrine, which is
mandated over each of the 50 states under the authority of the
Supremacy Clause.106 However, many states have expounded
upon the original federal public-trust doctrine and tailored specific legislation to protect those geographic features particular to
their borders.107 Judicial interpretation of the public-trust doctrine more or less begins with the landmark case Illinois Central
Railroad Company v. State of Illinois.108
1. Federal and State Interpretation of the Doctrine
In 1851, the City of Chicago granted the Illinois Central
Railroad the rights to construct a north-south railroad along 3
million acres of Lake Michigan shoreline and, later, 1,000 acres
of land submerged under Lake Michigan via the Lake Front
Act of 1869 in exchange for the construction of a breakwater
to protect the harbor of Chicago from siltation.109 Siltation is
the pollution of water by fine particulate terrestrial material,
which can eventually make a harbor shallow and unusable.110
Following public opposition and an extensive legal battle, the
Supreme Court of the United States ultimately invalidated the
agreement finding that the right to lands held in the public trust
cannot be sold, bought, or relinquished in any way.111 The Court
held that each state has an inalienable right and ownership of all
Sustainable Development Law & Policy
lands submerged below water and designated as navigable water
within their state, noting a departure from the English “ebb and
tide” rule.112
The public-trust doctrine was interpreted again in 1988
by the Supreme Court in Phillips Petroleum Company v.
Mississippi,113 where the Petitioner brought a claim of ownership against the State for 42 acres of land underlying a bayou
and several streams. Although the doctrine had historically been
interpreted to apply only to those navigable waters of the United
States, the Court departed from this tradition in finding that
“States have interests in lands beneath tidal waters which have
nothing to do with navigation,” and, as such, wetlands, bayous,
and streams incident to the Mississippi River fall within the
public trust.114
In 1983, the National Audubon Society sued the Los
Angeles Department of Water and Power to enjoin it from further
draining and degrading Mono Lake, which the plaintiffs argued
fell under the protection of the state public-trust doctrine.115
In finding that Mono Lake did fall under the protection of the
public-trust doctrine, the Supreme Court of California held that:
The lake’s recession obviously diminishes its value
as an economic, recreational, and scenic resource.
. . . The declining shrimp hatch depresses a local
shrimping industry. . . . Mono Lake has long been
treasured as a unique scenic, recreational and scientific resource, but continued diversions threaten to
turn it into a desert wasteland like the dry bed of
Owens Lake.116
The decision in National Audubon Society was immensely
important because the Court imposed a duty upon the State to
place substantial consideration upon the economic vitality, natural health, and scenic importance of the lake before allocating
water from its reserves.117 Similarly, in Citizens for Responsible
Wildlife Management v. State, where 12 organizations sued the
state of Washington challenging bans on certain trapping mechanisms for wildlife, the Court found that the legislation enacted
was necessary under Washington’s obligation to protect the
natural resources of the people, i.e., wildlife.118 The lack of such
legislation could effectuate neglect on the part of the State with
regard to their directives under the public-trust doctrine.119
2. Louisiana Interpretation of the
Public-Trust Doctrine
Although the Louisiana public-trust doctrine has long
included those waterways that are navigable by nature (e.g.,
rivers, lakes, inland bays), the inclusion of the State’s wetlands
within the doctrine was, at best, murky until some clarity was
provided from the 2004 decision in Avenal v. Louisiana.120 Prior
to that ruling, in 1984, environmental protection of the coastal
wetlands garnered a slight victory in Save Ourselves, Inc. v.
Louisiana Environmental Control Commission,121 when the
Court found that the “Constitution imposes a duty of environmental protection on all state agencies and officials, establishes
a standard of environmental protection, and mandates the legislature to enact laws to implement fully this policy.”122 However,
Winter 2014
many scholars felt that the holding did not reach far enough in
guaranteeing the protection of coastal wetlands, as the clever
litigant could still maneuver the Court’s balancing test in favor
of environmentally harmful actions.123
3. Game Changer: Avenal v. Louisiana
In 1994, affected class members, including oyster fishermen
and lease holders in the Breton Sound Basin, brought suit against
the LDNR to recover for alleged unconstitutional takings of their
fishing grounds and leaseholds.124 As previously described in
this article, the Caernarvon Diversion Structure was constructed
in 1991 and activated for the purpose of introducing freshwater and sediment into the Breton Sound as a coastal restoration
project.125 However, the influx of freshwater altered the salinity
of the oyster beds in small areas of the Breton Sound, negatively
affecting the various businesses of the class members.126 In its
monumental holding, the Court found that the implementation
of the Caernarvon Diversion structure for purposes of coastal
restoration fit entirely within the scope of the State’s duties under
the public-trust doctrine and, thus, did not amount to an unconstitutional taking.127 The Court found that the natural resource
at issue was Louisiana’s rapidly receding coastal wetlands and
that the “risks involved are not just environmental, but involve
the health, safety, and welfare” of southern Louisiana, which is
threatened by hurricanes and a shrinking coastal barrier.128
The problem before the people of Louisiana is clearer now
than ever before. Our state is disappearing at a pace unrivaled by
any period of American history and with it goes an entire way
of life. Small, respectable efforts at restoration have been successful to an extent, but they have merely placed fingers in the
cracks of a faltering dam. Fundamental and robust action must
be taken by the only entities capable of protecting the citizens
of Louisiana: the state legislature and USACE. Unfortunately,
it has become exceedingly apparent that the state and USACE
do not have the time for scholarly insight or scientific recommendation regarding climate change and the rapidly shrinking
wetlands. Thus, the only remaining avenue of recourse for the
people of Louisiana has become the court.
III. Laplace’s Claims Under the Public-Trust
Doctrine and the Federal Tort Claims Act
This section will begin by describing the Class, its central
intent of the litigation and the common interests that it shares,
as well as the various courts in which the suits will be filed.
Additionally, as the argument of the Class will be entirely similar in both cases with regard to the public-trust doctrine claims,
this section will combine the legal analysis instead of addressing
them at both the federal and state levels. Finally, the claims to be
brought under the Federal Tort Claims Act against the Corps will
be discussed and further elucidated.
A. Contours of the Class
The central intent and common interest of the separate
Laplace class action suits against the state of LDNR (Office
of Coastal Management) and the Corps (“Defendants”) will
be wholly the same: to effectuate the forced restoration and
29
reclamation of the wetland barriers in the Barataria, Breton
Sound, Pontchartrain, and Atchafalaya Basins, so as to mitigate
or prevent future flood disasters similar to those experienced in
Hurricanes Katrina and Isaac.
In compliance with the requirements of Federal Rule of Civil
Procedure 23(c)(1)(B) and Louisiana Code of Civil Procedure
Article 591 (“Article 591”),129 in order to bring a class action
suit, it must be shown that: (1) the class is so numerous that
joinder of all members is impracticable; (2) there are questions
of law or fact common to the class; (3) the claims or defenses of
the representative parties are typical of the claims or defenses
of the class; and (4) the representative parties will fairly and
adequately protect the interests of the class.130
In the present case, the joinder of thousands of affected individuals from the Laplace community would be the definition of
impracticable, and therefore, the description of those eligible for
the “Class” will be defined as the following: Any member of the
Laplace, Louisiana, community who suffered physical harm to
their persons or property as a direct result of the flooding or high
water during Hurricane Isaac. The Class will assert that they
have common interest in the maintenance of the State’s natural
wetlands for physical protection of their, inter alia, businesses,
homes, and families against the ancient threat of hurricanes from
the Gulf of Mexico and sea-level rise. Furthermore, the Class
will assert that it has common claims against the Defendants;
specifically, that the State of Louisiana and USACE negligently
failed to maintain the integrity and vitality of the wetlands as
required by their obligations set forth within the Louisiana and
federal public-trust doctrines. As such, the health, safety, and
economic interests of the citizens of Louisiana and the Class
have been placed in continued, serious danger.
In the first action, the affected members of the Laplace
community (“Class”) should file suit in the 40th Judicial District
Court for St. John the Baptist Parish located in Edgard, Louisiana
pursuant to Article 591. The Class should seek a judicial mandate that the State of Louisiana and the Department of Natural
Resources (Office of Coastal Management): (1) substantially
lobby the Corps for utilization of the available, and construction
of additional, diversionary structures, in accordance with the
State’s obligation set forth by the Louisiana public-trust doctrine;
(2) mitigate future wetland loss by restoring and reclaiming inactive industrial canals; and (3) permanently amend the Louisiana
public-trust doctrine to include wetlands within its language.131
In the second suit, the Class should file suit pursuant to
Federal Rule of Civil Procedure 23,132 in the United States
District Court for the Eastern District of Louisiana, located
in New Orleans, seeking a judicial mandate that the USACE:
(1) substantially utilize the available diversionary structures
at Davis Pond, Morganza, Bonnet Carré and Caernarvon in
accordance with the Corps’ obligation set forth by the federal
public-trust doctrine; and (2) devise and construct flood control
mechanisms to deter future flooding in the outer lying communities of New Orleans.
30
B. The Attack
The fundamental legal basis for the Class’s claims will be
based upon federal jurisprudence in the area of the public-trust
doctrine, as well as Article IX of the Louisiana Constitution,
which states in pertinent part:
The natural resources of the state, including air
and water, and the healthful, scenic, historic,
and esthetic quality of the environment shall be
protected, conserved, and replenished insofar as
possible and consistent with the health, safety, and
welfare of the people. The legislature shall enact
laws to implement this policy.
...
The legislature shall neither alienate nor authorize
the alienation of the bed of a navigable water body,
except for purposes of reclamation by the riparian
owner to recover land lost through erosion. This
Section shall not prevent the leasing of state lands or
water bottoms for mineral or other purposes. Except
as provided in this Section, the bed of a navigable
water body may be reclaimed only for public use.133
Louisiana and the Corps have long maintained the capability of effectuating wetland restoration but have negligently
failed to implement the reasonable measures at their disposal.134
In fact, the very regulations prescribing USACE’s policies and
procedures in carrying out water control management activities
compel the Corps:
. . . to insure that all water impounding structures
are operated for the safety of users of the facilities
and the general public. Care will be exercised in
the development of reservoir regulation schedules
to assure that controlled releases minimize project
impacts and do not jeopardize the safety of persons
engaged in activities downstream of the facility.
Water control plans will include provisions for
issuing adequate warnings or otherwise alerting all
affected interests to possible hazards from project
regulation activities.135
This state and federal negligence has left the people of
Southern Louisiana in exponentially increasing danger as the
natural barriers between their homes, businesses, families and
cultural heritage have eroded due to three factors: (1) the inaction of the State and LDNR by not issuing a firm recommendation to the Corps to open extensively the diversion structures to
facilitate wetland growth; (2) the systematic blocking of every
major conduit and distributary of the Mississippi River, via
levees and diversion structures; and (3) the failure to meaningfully regulate canalization and mitigate its destructive effects.
As such, the Defendants have substantially impaired sediment
deposition within the wetlands in order to maintain the Port of
New Orleans, thereby placing the interests of commerce and
industry over the sanctity and value of human life.
Sustainable Development Law & Policy
The Defendants will undoubtedly argue that the release of
freshwater necessary to rehabilitate and reclaim lost wetlands
through the diversionary structures would completely occupy
the leaseholds of hundreds of fishermen and businessmen who
currently do business within the aforementioned basins, thereby
committing an unconstitutional taking under Article I, § 4 of the
Lousiana Constitution136 and the Fifth Amendment to the U.S.
Constitution.137 In its defense, the Defendants will rely upon the
October 2012 Supreme Court ruling in Arkansas Game and Fish
Commission v. United States, which held:
We rule today, simply and only, that government
induced flooding temporary in duration gains no
automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property,
our decisions recognize, time is indeed a factor in
determining the existence vel non of a compensable
taking.138
However, the case sub judice is markedly different from
that of Arkansas Game and Fish Commission, where the Corps
flooded a swath of forest that “damaged or destroyed more
than 18 million board feet of timber and disrupted the ordinary
use and enjoyment of the Commission’s property.”139 Unlike
the Corps’ flood control intent in Arkansas Game and Fish
Commission, the Corps will be mandated to release freshwater
upon those leaseholds and property interests in the basins for the
purpose of wetlands restoration, an imperative mandated in its
duty under the Federal and Louisiana public-trust doctrines.140
Additionally, in anticipation of this argument, the Class will
refer to the Louisiana Supreme Court’s decision in Avenal and
Article IX of the Lousiana Constitution, each stating that the
basins are the sole property of the State and, thus, immune from
unconstitutional takings claims.141
Relying upon the Louisiana public-trust doctrine and its
jurisprudential interpretation, the Class can successfully secure
a mandate from the Court for the substantial opening of the
diversion structures at Davis Pond, Caernarvon, Bonnet Carré
and Morganza. Indeed, the basins clearly fall within the scope of
those protected lands, as they secure substantial economic benefits and protect the “health, safety, and welfare of our people,
as coastal erosion removes an important barrier between large
populations and ever-threatening hurricanes.”142
C. Claims Under the Federal Tort Claims Act against
the USACE
The Class will pursue a second claim against the United
States (i.e., USACE) under the Federal Tort Claims Act
(“FTCA”)143 for an unconstitutional taking and destruction of
their property when the flood control measures built around New
Orleans diverted floodwaters from Hurricane Isaac into the community of Laplace, Louisiana.
In furtherance of the claim, the Class will distinguish
the present case from that of In re Katrina Canal Breaches
Litigation,144 where multiple citizens who lost homes or experienced severe property damage filed a class action suit against
Winter 2014
the Corps for negligently maintaining MRGO and failing to
construct adequate levees.145 In that case, the plaintiffs claimed
that MRGO acted as a flood conduit during Hurricane Katrina
and that water was essentially funneled into their homes in
St. Bernard Parish, the Lower Ninth Ward, and Chalmette.146
However, the Court of Appeals for the Fifth Circuit found that
the Corps was immune from litigation under the discretionary
function exception of the FTCA.147 The Court further held that
the government could not be held liable for damage caused by the
faulty levees because they were constructed as a discretionary
decision to protect the citizens of New Orleans.148 Essentially,
the Court concludes that the government cannot be held liable
for trying its best to protect citizens from disaster.
In the present case, the United States will likely assert that it
has this same immunity under the pertinent FTCA section, stating that the design of the improvements around New Orleans
were made in the interest of the general public and that the
designs were not scientifically faulty.149 However, the Laplace
litigation is far different from that of In re Katrina, because the
improvements that diverted water into the Laplace community
were designated and designed primarily for the City of New
Orleans, not the citizens of Laplace. Unlike In re Katrina, there
were no discretionary decisions made by the Corps regarding
the flood protections of Laplace other than not to protect the city
at all.
If the State and the Corps had done sufficient analysis
of potential hurricanes, they would have discovered that the
improvements made upon the levee and flood control systems
of the city would divert large amounts of water to those communities outside its protection, as well as further degenerate those
natural barriers that the outer lying cities do possess. Therefore,
these water control structures are at least contributorily responsible for the flooding that occurred in Laplace during Hurricane
Isaac in August of 2012.
D. A Challenge to Succeeding and How the Class
will Prevail
In November of 2012, the Corps released a report labeled
Hurricane Isaac With and Without 2012 100-Year Evaluation.
The report states:
[T]here were only a few places that the old system
would have been overtopped during Hurricane
Isaac; thus the old system would have displaced
about the same amount of water as the new system and the HSDRRS [Hurricane & Storm Risk
Reduction System] could not have significantly
influenced inundation at communities external to
the system.150
However, if the report is correct and the improvements did
not increase or create flooding by directing additional water into
the Laplace community, this does not preclude two additional
scenarios that the Class will pursue in court: (1) that the water
control structures in existence prior to the improvements were
already directing flooding waters into the Laplace community;
and (2) that the water control structures are damaging the natural
31
Figure 3. Hurricane Isaac High Water Marks. Source: Dan Swenson & Mark Schleifstein, Blame Hurricane
Isaac, Not Post-Katrina Levee System, for high sure, Corps says, Times-Picayune, Nov. 12, 2012,
http://media.nola.com/environment/photo/map-isaacsurge-111212jpg-af6a43422c34fce8.jpg.
barriers around the
Laplace community,
thereby indirectly inducing flooding.151 In fact,
the data released by the
Corps only compares
the flood level estimates at various points
in the New Orleans
Metropolitan area in
pre- and post-improvement terms.152 There remains the possibility that the original water control structures (those existent in
2005) were already funneling floodwater into the surrounding
region. Additionally, the Corps has a rather famous track record
of dodging blame with regard to disastrous projects along the
Mississippi River in Louisiana.153 In fact, in August of 2012, the
commanding general of the Corps in post-Katrina New Orleans
“The time to act in order
to save Louisiana’s dwindling
coastal wetlands was
30 years ago.”
32
admitted in a TimesPicayune interview
that when he publicly
blamed the flooding on
city officials in 2006,
he was relying entirely
upon things he had
heard and not on any
scientif ic or reliable
evidence.154
IV. A Tired Story and a New Hope
I’m sitting in Zotz, a coffee shop straddling the Uptown and
Leonidas neighborhoods of New Orleans, when she asks me,
“So what was the most difficult part about writing your article?”
I look away and stare at the words floating stoically on my computer screen, “I cannot help but feel as if I’m writing a eulogy for
my home. For my people.”
Sustainable Development Law & Policy
With every letter that I press into the recesses of this keyboard there is a sinking that echoes the loss of Louisiana—60,000
characters remind me why this isn’t a simple cause célèbre. This
is not another Kony155 sensation splashed across every corner of
the Internet for a burning moment. As Southern Louisiana sinks
into the Gulf, so does a culture unlike any other in this world.
I realize that my finger was holding down the shift key when
she asks me if there is any hope for this place. As I remove my
finger, I feel the rise below. I look up at her and nod, “Yes.”
***
The time to act in order to save Louisiana’s dwindling
coastal wetlands was 30 years ago. The gut-wrenching truth is
that scholars, such as Oliver Houck, have been recommending,
then heavily suggesting, then screaming, and now are groveling
for action by the State of Louisiana and the U.S. Army Corps
of Engineers. Although the efforts to save the State have begun
to trickle in, gains are slow, and many are disillusioned or convinced that the point of no return happened sometime around
Katrina.
However, Harriet Beecher Stowe once wrote, “Never give
up then, for that’s just the place and time that the tide’ll turn.”156
The citizens of Laplace, Louisiana, have the distinct opportunity
to hold off the oppressive tide of the Gulf of Mexico. Through
organizing and filing a class action suit against the State of
Louisiana, the Department of Natural Resources, and the U.S.
Army Corps of Engineers based upon the public-trust doctrine
and the Federal Tort Claims Act, a tiny town of Louisianans
might incite change that will alter the face of a continent.
Endnotes: Laplace Rising: The Story of How a Tiny Community in Southern
Louisiana Will Save the Largest Delta in North America
1
Weather Underground, Tropical Depression Isaac: Tracking Map (Aug. 30, 2012), http://www.wunderground.com/
hurricane/at201209.asp; Eric Burger, Don’t Look Now, but
Forecast Models Continue to Trend West With Isaac, Houston
Chronicle (Aug. 26, 2012), http://blog.chron.com/sciguy/2012/08/
dont-look-now-but-forecast-models-continue-to-trend-west-with-isaac/.
2 Hurricane Katrina, Nat’l Climatic Data Ctr. (Dec. 29, 2005), http://
www.ncdc.noaa.gov/special-reports/katrina.html; Hurricane Rita, Nat’l
Climatic Data Ctr. (Sep. 22, 2005), http://www.ncdc.noaa.gov/special-reports/
rita.html; John Beven & Todd Kimberlain, Tropical Cyclone Report: Hurricane
Gustav, Nat’l Hurricane Ctr. (Sep. 15, 2009), http://www.nhc.noaa.gov/pdf/
TCR-AL072008_Gustav.pdf.
3 See Cain Burdeau, Hurricane Isaac 2012 Floods Regions Around
New Orleans, Huffington Post, Aug. 30, 2012 http://www.huffingtonpost.
com/2012/08/30/hurricane-isaac-2012-flood-new-orleans_n_1843172.html;
Tina Susman, Rancor Rises With the Water: Isaac Swamps Parishes While New
Orleans Protected, L. A. Times, Aug. 31, 2012, http://articles.latimes.com/2012/
aug/31/nation/la-na-Isaac-LaPlace-20120831.
4 Hurricane Isaac Tracking Advisory, Nat’l Hurricane Ctr., http://www.
nhc.noaa.gov/archive/2012/graphics/al09/loop_5W.shtml (last visited Nov. 4,
2013).
5
Michael Kunzelman, Hurricane Katrina Floodwall Case Heads to Trial
in New Orleans, Huffington Post, Sept. 11, 2012, http://www.huffingtonpost.
com/2012/09/11/hurricane-katrina-floodwall-case_n_1874239.html.
6 Looters Take Advantage of New Orleans Mess, NBC News, Aug. 30, 2005,
http://www.msnbc.msn.com/id/9131493/ns/us_news-katrina_the_long_road_
back/t/looters-take-advantage-new-orleans-mess/#.UPRraKFU4XQ.
7 Id.
8
Oliver Houck, Can We Save New Orleans?, 19 Tul. Envtl. L.J. 1, 21
(2006).
9
Oliver Houck, Retaking the Exam: How Environmental Law Failed New
Orleans and the Gulf Coast South and How it Might Yet Succeed, 81 Tul. L.
Rev. 1059, 1060 (2007) (“It was the work of humans that drowned us, not the
work of nature.”).
10 Doug J. Meffert & Bill Good, Case Study of the Ecosystem Management
Development in the Breton Sound Estuary, Louisiana, La. Dep’t Natural Res.,
http://images.library.wisc.edu/EcoNatRes/EFacs/Wetlands/Wetlands23/reference/econatres.wetlands23.i0008.pdf (last visited Nov. 4, 2013).
11 Houck, supra note 9, at 1060.
12 Dan Swenson, New Orleans Area Hurricane Protection, Times Picayune, http://media.nola.com/hurricane_impact/other/hurricane-protectiongraphic-2012.pdf (last visited Nov. 4, 2013).
13 Eric Blake, The Deadliest, Costliest, and Most Intense United States Tropical Cyclones from 1851 to 2010 (And Other Frequently Requested Hurricane
Winter 2014
Facts), Nat’l Hurricane Ctr. (Aug. 2011), http://www.nhc.noaa.gov/pdf/nwsnhc-6.pdf.
14 See President Barack Obama, Remarks at Xavier University in New
Orleans, Louisiana (Aug. 29, 2010), in 2010 Daily Comp. Pres. Doc. at 4,
available at http://www.gpo.gov/fdsys/pkg/DCPD-201000706/pdf/DCPD201000706.pdf.
15 Ellen Wulfhorst & Scott Malone, New Orleans Withstands Isaac’s Wrath,
For Now, Reuters, Aug. 29, 2012, http://www.reuters.com/article/2012/08/29/
us-storm-isaac-idUSBRE87L0PH20120829.
16 Mark Schleifstein, Louisiana is Losing a Football Field of Wetlands an
Hour, New U.S. Geological Survey Says, Nola.com (June 2, 2011), http://www.
nola.com/environment/index.ssf/2011/06/louisiana_is_losing_a_football.html.
17 David Batker, et. al, Gaining Ground: Wetlands, Hurricanes, and the
Economy: The Value of Restoring the Mississippi River Delta, Envt’l Law Inst.
(Nov. 2010), available at http://www.eli.org/pdf/NA_40-11/40.11106.pdf.
18 Gulf Restoration Network, Wetland Importance, http://healthygulf.org/
our-work/wetlands/wetland-importance (last visited Nov. 4, 2013).
19 U.S. Geological Survey, Depicting Coastal Louisiana Land Loss 1 (July
2005), available at http://www.nwrc.usgs.gov/factshts/2005-3101.pdf.
20 Lateef Mungin, Communities Focus on Cleanup As Isaac Weakens, CNN
(Aug. 31, 2012), http://www.cnn.com/2012/08/30/us/weather-isaac/index.html.
21 EQECAT: An ABS Co., Technical Report: The Hurricane and Storm
Damage Risk Reduction System in New Orleans, Louisiana 8, 16, 19 (2009),
available at http://www.eqecat.com/pdfs/hurricane-storm-damage-riskreduction-system-new-orleans-louisiana-2012-08-28.pdf; see generally, Christopher Helman, Billions in New Defenses Mean Isaac Will Not Rival Hurricane
Katrina In Damage, Forbes (Aug. 27, 2012), http://www.forbes.com/sites/
christopherhelman/2012/08/27/billions-in-new-defenses-mean-isaac-will-notrival-hurricane-katrina-in-damage/.
22 Ron Thibodeaux, Hurricane Isaac Floodwaters Take Slidell and Laplace
by Surprise, Times-Picayune, Aug. 31, 2012, http://www.nola.com/hurricane/
index.ssf/2012/08/hurricane_isaac_floodwaters_ta.html.
23 Brian Merchant, New Orleans Wetlands Now the Fastest-Disappearing
Land Mass on Earth, Tree Hugger (Sept. 18, 2009), http://www.treehugger.
com/corporate-responsibility/new-orleans-wetlands-now-the-fastest-disappearing-land-mass-on-earth.html.
24 Jeff Williams, U.S. Geological Survey, The Lake Pontchartrain Basin:
Louisiana’s Troubled Urban Estuary (1995), available at http://marine.usgs.
gov/fact-sheets/Pontchartrain/.
25 Id.
26 Brady Couvillion, et al., U.S. Geological Survey, Land Area Change in
Coastal Louisiana from 1932 to 2010 at 1 (2011).
continued on page 67
33
Genetically Modified Food:
A Golden Opportunity?
By Susan Johnson*
G
enetically modified organisms (“GMOs”) entered the
commercial marketplace in the early 1990s with the
introduction of the infamous yet ill-fated Flavr Savr
tomato.1 Since then, scientists, scholars, journalists, and consumers have debated GMO safety and sustainability. On one
side of the argument are those who maintain that extensive scientific research and regulatory endorsement from entities such
as the National Academy of Sciences and the U.S. Food and
Drug Administration has established the safety and integrity of
GMOs.2 On the other side are those who cite lingering scientific
uncertainty, environmental burdens, and mistrust of the biotech
industry generally.3 These opponents to GMOs point to the multitude of concepts and products once thought safe and scientifically sound that ultimately proved anything but, such as tobacco
and DDT.4 Still, despite this persistent debate over the virtue of
genetically engineered food sources, their prevalence in the U.S.
food system continues to increase.5 It is therefore crucial that
thorough analysis of GMO safety and sustainability continues
until more questions are answered.
Genetic modification (“GM”) is the alteration of an organism’s DNA through the synthetic introduction of new traits that
allow manufacturers increased control over genetic structures,
purportedly strengthening the final product’s viability and
appeal.6 In turn, GMO seeds appeal to farmers for their promise
of economically beneficial higher crop yields.7 Consumers may
similarly benefit, as engineered fruits and vegetables are created
to have longer shelf lives and smaller price tags than their unaltered counterparts.8 Given the fact that U.S. biotech companies
produce approximately half of the world’s GMO crop seeds,9
generating billions of dollars in annual revenue,10 the biotech
industry has much to gain from scientific confirmation and public acceptance of these purported “benefits.”
Despite persistent skepticism, GMOs dominate the domestic market, largely due to powerful initiatives that insulate the
industry.11 Independent scientists who publish studies showing
negative or abnormal phenomena implicating GM products have
frequently endured criticism and backlash from scientific peers
working to preserve GMO-friendly public policies.12 In this climate of debate, members of the biotech field aggressively defend
industry practices and relentlessly contest any perceived opposition or legal violation. Industry giant Monsanto, for example,
has sued more than 410 farmers in twenty-seven states,13 in some
instances destroying multi-generational farms in the process.14
By contrast, anti-GMO activists have comparatively fewer and
less powerful legal mechanisms at their disposal, limiting the
ubiquity of their critical message.15
Recently, the decades-old GMO debate has flared again with
the introduction of “Golden Rice,” a genetically modified strain
of rice intended to combat worldwide hunger and disease.16
Articles in The New York Times, Forbes, and Slate (among others) have featured the controversial product, prompting supporters and opponents to reassert their positions on GMOs in a new
context.17 Golden Rice is fortified with the Vitamin A precursor
beta-carotene, and its creators assert that it will save countless
lives and combat malnutrition and disease on an unprecedented
global scale.18 Beta-carotene is a powerful nutrient found in fruits
and vegetables such as carrots, sweet potatoes, and spinach that
strengthens the immune system, protects and improves vision
and dental health, and delivers cancer-fighting antioxidants.19
Vitamin A deficiency significantly compromises the immune
system and causes blindness in up to half a million children
each year.20 Alarmingly, millions of people in Africa and Asia
who lack this nutrient die annually from diseases to which they
would not otherwise be susceptible.21 Golden Rice skeptics view
it as a wolf in sheep’s clothing—a way for biotech companies
to further infiltrate the global agricultural marketplace under an
altruistic guise with little regard for broader human health and
environmental impacts.22 Activists urge that the real purpose
of Golden Rice is to gain widespread public support for GMO
crops, ultimately producing a windfall for biotech corporations
to the detriment of farmers and consumers.23 They bolster this
assertion by questioning Golden Rice’s viability,24 emphasizing
that target African consumers do not traditionally eat rice25 and
that many of the countries that purportedly stand to benefit have
stringent anti-GMO policies.26
Further criticism is aimed at the unsustainability of GMO
crops.27 For farmers to maintain optimal production they must
apply powerful pesticides, which are genetically modified to
resist the chemicals.28 This unnatural cycle has the potential to
create “super pests” and “super weeds” that may threaten traditional crop varieties and alter the soil’s chemical composition.29
Though it is difficult to ascertain how extensive or lasting the
damage from these cycles will be, many argue that this uncertainty alone is reason enough to proceed with caution (if at all).30
With the spread of GMO-sourced crops into the human food
chain, a growing number of consumers and activists who oppose
GMO proliferation are using every legal, regulatory, and grassroots tool at their disposal to slow the trend.31 In August 2013,
farmers and environmental activists destroyed an experimental
plot of Golden Rice in the Philippines in protest.32 Domestically,
continued on page 69
* J.D. Candidate 2014, American University Washington College of Law
34
Sustainable Development Law & Policy
Indonesia’s Role in Realizing the Goals of
ASEAN’s Agreement on Transboundary Haze
Pollution
By David B. Jerger, Jr.*
D
I. Introduction
uring monsoon season, from May to September, the
Southeast Asian mainland and Borneo face the prospect of haze arriving from the Indonesian archipelago.1
This haze primarily consists of the dissipated smoke from fires
on the Indonesian island of Sumatra.2 Human activity creates the
haze when individuals and companies cut down trees and burn
peatlands3 to clear the land for small-scale agricultural purposes
or for industrial purposes, such as palm oil plantations and logging.4 Because of monsoon wind patterns and Sumatra’s geographical proximity to peninsular Malaysia and Singapore, these
two countries are especially susceptible to haze.
Haze can hang over Malaysia and Singapore for weeks
and even months.5 The inhabitants and governments normally
have no recourse but to wait for storms that may shift the haze
elsewhere.6 It is difficult to predict where and when the haze
will arrive, how long it will remain, and how thick it will be.7
These variables depend on the number of “hotspots”––burning
activities resulting in haze––each year. 8 Moreover, air pollution
is complex and therefore hard to regulate effectively. Even when
pollution originates from domestic sources providing governments with jurisdiction over regulation, creating a regulatory
regime is still problematic.9 Regulation becomes even more
problematic when the pollution source lies beyond the affected
country’s borders. The main reasons transboundary pollution10
is so difficult to regulate are threefold: (1) there is generally no
political will to impose costs domestically when the effects of
pollution are felt abroad; (2) the polluted country faces jurisdictional hurdles when bringing a suit against the polluter country;
and (3) judgments can often be difficult to enforce.11
The Association of Southeast Asian Nations’ (“ASEAN”)
Agreement on Transboundary Haze Pollution (“Agreement”),
which entered into force in 2003, attempts to create a framework
that will allow parties to reduce transboundary pollution and
the associated harm.12 However, Indonesia, the region’s greatest
source of transboundary air pollution, has not ratified the treaty.13
Indonesia has repeatedly promised to ratify the Agreement, but
its legislature has refused to act without guarantees from other
ASEAN states that they will not buy timber illegally imported
from Indonesia.14
This article argues that Indonesia should ratify the
Agreement because it creates an effective framework for reducing transboundary haze pollution without placing new burdens on Indonesia. As a framework treaty, the purpose of the
Winter 2014
Agreement is to gather information on the causes of transboundary haze pollution and the actions member-states are taking to
mitigate it. This information will lead to a more complete understanding of what actions parties should take to reduce pollution
and how those actions affect pollution. As a result, parties will
adjust their behavior over time, leading to greater mitigation. The
Agreement makes this information compiling and sharing possible by omitting sanctions or binding adversarial proceedings
from its provisions, which incentivizes a collaborative approach
toward addressing the pollution and gives member-states less of
a reason to report false or inaccurate data.
This article begins by discussing the origin of transboundary haze pollution in Southeast Asia, moves to the background
to and structure of the ASEAN Agreement on Transboundary
Haze Pollution, and finally argues that Indonesia should ratify
the Agreement.
II. Causes of Transboundary Air Pollution
in Southeast Asia
Haze describes the amount of particulate matter in the air
and its effect on visibility.15 Particulate matter usually enters the
air as a result of smoke from fires and gathers when humidity is
low.16 Air is considered “hazy” when ground level visibility is
between 1000 and 2000 meters.17 In windless conditions haze
tends to remain in one location, creating adverse health effects
including reduced lung capacity in the young, cardiovascular
problems, and reduced life expectancy.18 People living in areas
affected by haze may deal with it for weeks or months at a time,
breathing in smoke particulates until a storm system powerful
enough to move or dissipate the dense, “hazy” air passes through
the affected area.
Because storms and wind patterns affect the haze’s location,
haze from one source can travel great distances, even across
national borders, when strong wind patterns prevail.19 Haze
pollution becomes transboundary pollution when it travels from
the state in which it originated (“source state”) across national
borders to the “affected state.”20 Transboundary pollution is an
especially challenging issue in international environmental law
because it is difficult to figure out how transboundary pollution works and because the benefit of the activity causing the
*Executive Managing Editor, Emory International Law Review; J.D. Candidate Emory University School of Law (2014). The author can be reached at
[email protected].
35
pollution in the source state outweighs the cost of the pollution
there. 21
Transboundary pollution is complicated because it is often
difficult to understand what factors are causing the problem
and how these factors affect each other.22 Scientists and policymakers must determine where pollutants originate and how
the pollutants interact with large systems such as global air-flow
patterns, which is a highly technical endeavor.23 The science that
deals with these problems is also often being examined for the
first time.24 This introduces a degree of uncertainty to explanations of how the pollution occurs and predictions about where it
will occur next.25
Although transboundary pollution primarily harms affected
states, source states often experience some harm as well.26 But
source states also enjoy the benefits of the activities that cause
the transboundary pollution. The existence of such pollution
suggests that the source state has determined the benefits of the
polluting activity outweigh the cost of regulating the pollution.27
This imbalance makes it unlikely a source state would agree to
a treaty that penalizes the creation of transboundary pollution.
However, the categories of source state and affected state are not
mutually exclusive; in fact, it is common that a state is both a
source state and an affected state.28 In the case of air pollution, a
state can change from a source state to an affected state as easily
as the wind changes direction.29
A. Indonesian Fires
Fires in Indonesia are widely considered the largest contributing factor to Southeast Asia’s regional haze.30 The haze that
originates in Indonesia is so massive that it has reached beyond
peninsular Malaysia to Thailand, Cambodia, and Laos on the
Asian mainland, and Brunei and the Malaysian states on the
island of Borneo.31 This haze results from fires in Indonesia and
the Indonesian government’s inability to prevent or control them.32
Indonesia’s fires are largely a
result of its agricultural industry.
Indonesia has ideal growing conditions for palm trees which produce
palm oil, a major cash crop,33 and
is also home to valuable tropical
timber.34 About sixty percent of
Indonesia’s territory is forest land35
and twenty-two million hectares—half the size of Sweden—are
peatlands.36 In recent years, many
peatlands have been drained to make
palm oil and forest plantations.37
Drained peatlands are more likely
to catch fire, and these fires can
continue burning underground even
after they have been extinguished on
the surface.38 Although some fires occur as a result of “lightning strikes on parched, peat-rich lands,” 39 there is widespread
agreement that the bulk of Indonesia’s fires are the result of the
slash-and-burn agriculture employed by the palm oil plantations
and logging industries.40
Slash-and-burn agriculture, which relies on fire to clear otherwise seemingly indestructible vegetation, is a traditional practice for clearing land in Southeast Asia, especially in Indonesia.41
Plantation owners and farmers alike prefer the slash-and-burn
technique because it is cheap, easy, and effective—just light
a match and control the burn.42 The indiscriminate use of this
method, however, destroys the vegetation that covers peatlands,
leaving them exposed and vulnerable to fire.43
Although small-scale farmers do cause fires, their impact
is minimal compared to the impact of logging companies and
plantations.44 Plantation owners use slash-and-burn to convert
logged areas into plantations for palm oil and other cash crops
and for timber and pulp production areas.45 The large-scale
nature of plantations and logging means that these two activities
contribute the most to creating the conditions that lead to widespread and uncontrollable fires.46 The plantations and timber
industry have been able to perform slash-and-burn agriculture
on such a large scale in part because they have been effective in
influencing Indonesian land-use and forest policies to maximize
their own short-term gains.47
The Indonesian government did ban using fire to clear land
in 1995, but this ban has not been effectively enforced due to
Indonesia’s relative poverty and the fact that slash-and-burn
agriculture is a traditional land-clearing technique believed to
create more fertile land.48 The end result is that haze from fires
in Indonesia travels across national borders to Malaysia and
Singapore, creating an international issue.
B. Indonesia’s Failure to Control Fires
In addition to political influence, Indonesia’s size and geography make it difficult for the government to adequately prevent
these fires.49 Indonesia is the largest
archipelagic state in the world, consisting of 17,508 islands, 6,000 of
which are inhabited.50 Roughly three
times as large as Texas, its territory
straddles the Equator and stretches
from the Indian to the Pacific
Ocean.51 Indonesia’s geography as
a sprawling archipelago coupled
with its lack of infrastructure leads
to delays in governmental response
time to fires.52
Peninsular Malaysia and
Singapore are most affected by
Indonesian haze because of their
geographical proximity to the larger
islands of the Indonesian archipelago
and prevailing wind patterns.53 In the
summer of 2012, Malaysia measured
“unhealthy” air quality throughout the country from Kuala
Lumpur, the capital and largest city, to Port Klang, Malaysia’s
largest port.54 During this time, the Malaysian Meteorological
“Drained peatlands
are more likely to
catch fire, and these
fires can continue
burning underground
even after they have
been extinguished on
the surface.”
36
Sustainable Development Law & Policy
Department also released reports on air quality and sources of
haze, including satellite-identified sources across the Indonesian
archipelago where “uncontrolled daily burning in Sabah,
Sarawak, and Kalimantan” was taking place.55
III. Regulating Transboundary Air Pollution
Given the interstate nature of transboundary air pollution,
it is regulated, if at all, by international environmental law.
International environmental law is a field that has developed
in the twentieth century through adjudications, soft law declarations, and multilateral agreements. General principles of
international law that have emerged include state sovereignty
over natural resources,56 good neighborliness and international
cooperation,57 sustainable development,58 the precautionary
principle,59 the polluter pays principle,60 and common but differentiated responsibility.61 The advantage of these principles
is their clear explanation of a state’s rights and responsibilities
with respect to another state’s environment. Their disadvantage
is that they place a large burden on source states because they
require the source state to act against its self-interest by modifying activities from which it largely benefits simply because they
harm another state. This burden makes it unlikely that source
states would agree to treaties that rigidly adhere to these principles or to recognize the jurisdiction of an international court or
arbitration panel that would apply these principles.62
Recognizing these problems, an effective treaty for regulating transboundary pollution should not pit parties against one
another, but rather create a framework that allows them to work
toward a common goal.63 Such a treaty acknowledges that: (1)
states can work collaboratively to regulate transboundary pollution, even in the absence of coercive measures such as sanctions
or arbitration; (2) international agreements evolve over time, as
do the national implementing measures, so state cooperation
in refining the treaty outweighs state compliance at any single
time;64 and (3) while states are the primary actors, other actors
including intergovernmental, nongovernmental, and private
industrial and commercial organizations, also play an important
role. 65
A. Problems of Regulating Transboundary Pollution
Transboundary pollution has proven especially difficult
to regulate by way of international treaty for several reasons.66
First, it is difficult to gain consent from source states over an
issue with asymmetrical costs and benefits. 67 This is true
whether that consent takes the form of agreeing to adjudicative
measures or ratifying a treaty. Second, even when source states
have consented, affected states rarely invoke litigation under
those principles.68 Consequently, affected states settle for multilateral environmental agreements (“MEAs”) that only weakly
bind parties.69
Source states may be reluctant to agree to an arrangement
that will upset the status quo because the source state receives
most or all of the economic benefits of the economic activity
that creates the pollution.70 The state has presumably decided
that the cost associated with the pollution that stays within its
borders is an acceptable tradeoff.71 Moreover, if the pollution
Winter 2014
results from a disaster, rather than economic activity, the source
state would rather spend resources on disaster response than pay
damages to another party. At the same time, the affected state
obtains no benefit from the economic activities occurring in the
source state.72 Rather, the affected state is forced to bear the cost
of mitigating the transboundary pollution.73
Logically, the source state should bear the cost of its pollution, as is consistent with the polluter pays principle. The source
state, however, is unlikely to consent to an arrangement that
would evaluate its behavior based on these principles74 precisely
because its behavior directly conflicts with them.75 Although the
affected state will argue that it is fair to make the source state
bear the costs of its pollution, it is difficult in practice to compel
a source state to agree because of this imbalance of interests.76
Some scholars have suggested that measures such as litigation, arbitration, or sanctions are the most effective way to stop
transboundary pollution.77 This argument is appealing because it
relies on procedures that result in binding judgments for deterring certain activities and enforcing domestic environmental
regulation.78 But despite clear legal principles governing responsibility for transboundary pollution and existing forums to pursue such claims, affected states rarely invoke coercive measures
in international disputes.79 For instance, the Trail Smelter case,80
an arbitration that established the polluter pays principle in the
international context, is arguably as famous for that legal principle81 as it is for being an exception to the rule that adjudicatory
measures are not invoked to resolve international environmental
issues.82 Even the Chernobyl disaster did not result in litigation,
despite radiation travelling to over twenty downwind states and
millions of dollars of monetary losses.83
In order for coercive measures––the threat of sanctions or
a binding judgment––to affect behavior, parties must closely
monitor one another’s behavior and be willing to report and
punish noncompliance. This is especially problematic in the
environmental context because environmental problems involve
complex systems, verifying compliance would require developing expensive monitoring methods and systems, and scientific
uncertainty makes parties reluctant to agree on concrete targets
for emissions or technology standards.84
Moreover, sanctions would not likely stop transboundary
pollution and its causes.85 First, if it is important to the source
state to continue activities that create the transboundary pollution, it will likely be willing to accept economic sanctions.86 The
source state can divert resources to work around sanctions that
it could have used to reduce transboundary pollution, as the polluting activity continues unabated. Second, if the sanctions do
change the source state’s behavior, it may also require a long
period of time before the effects are significant enough to benefit
the affected states.87
Further, sanctions impose costs on affected states: the
affected states must expend resources to administer the sanctions regime and must assemble and maintain a broad consensus
among parties with respect to the necessity and legitimacy of
those sanctions.88 Because of these costs, states do not enforce
sanctions regularly or effectively.89 The irregular enforcement
37
that does occur may be more for domestic political reasons than
an interest in reliable enforcement.90 Such enforcement then
erodes the legitimacy of the sanctioning body because of the
inconsistent enforcement outcomes.91
In the absence of litigation that results in coercive measures, international environmental law has turned to multilateral
environmental agreements (“MEAs”) to regulate international
environmental issues. Despite the ineffectiveness of existing
coercive measures, MEAs have been criticized for both lacking
such coercive measures and for consequently having low compliance and weak targets.92 Some have even argued that MEAs
are not meaningful law because they have no mechanism that
will change a party’s behavior.93 Instead, these MEAs require a
meeting of the parties for the purpose of “developing procedures
for implementation and noncompliance within the framework of
the agreement.”94
B. Using a Managerial Model to Regulate
Transboundary Haze Pollution
Despite their seeming ineffectiveness, due at least in part to
the lack of coercive measures,95 MEAs are not failures. Rather,
they are aspirational96 and use a “managerial model” framework
that allows compliance to increase over time.97 While they
are not contracts that commit parties to take action to solve a
problem,98 the managerial model allows the MEA to respond to
changes in technology, scientific understanding, and politics.99
These treaties no longer memorialize political settlements and
arrangements; rather they provide a framework for countries to
use to address complex and ongoing problems, like transboundary pollution.100 In fact, MEAs that only weakly bind parties to
meet loosely defined obligations and have weak or nonexistent
penalties for failing to meet these obligations are an effective
way to mitigate transboundary air pollution.101
1. Coercive Measures Do Not
Lead to Greater Compliance
2. The Managerial Model Allows Compliance to
Increase over Time
When MEAs are thought of as frameworks, there is less
emphasis on satisfying specific terms in the MEA at any single
point in time.106 The emphasis shifts to the parties periodically
reevaluating “the interpretation, elaboration, application, and,
ultimately, enforcement of international rules” as new information about the nature of transboundary pollution and state
behavior becomes available.107 The managerial model uses
certain techniques to make this more discursive approach work:
increased transparency, coordination among the parties, data
collection, and reliance on non-state actors.108 This approach
especially makes sense for transboundary pollution where parties view the issue as “a problem to be solved, rather than a claim
to be settled or a wrong to be adjudicated.”109
Unlike the traditional model with its coercive measures, the
managerial model fosters cooperation between parties.110 This
cooperation allows parties to periodically review actions taken
by parties to the agreement and non-parties.111 The managerial
model relies on transparency, coordination, reporting, verification, and monitoring to ensure that cooperation between the parties leads to more effective solutions.112
To create transparency, an MEA
must ensure parties have access to
information on the activities each
party is undertaking and that policies
governing their activities exists.113
After parties have evaluated the
information, they can better determine what objectives to focus on.
They can then decide what actions
each party should take to meet
those objectives, while taking into
account what actions each party
can take. This information lets parties know whether other parties are
following the MEA’s norms, rules,
and procedures, and thus making a
good faith effort to comply with the
MEA, which can also lead to greater
effectiveness.114
Transparency may also serve as a deterrent for parties that
are considering noncompliance.115 If all parties are complying
with their obligations under the MEA, it may motivate a wavering
“[Parties] can then
decide what actions
each party should
take to meet those
objectives, while
taking into account
what actions each
party can take.”
It is impractical and undesirable for an MEA to rely primarily
on a coercive system to regulate
transboundary pollution. Coercive
systems alienate source states, which
adversely impacts affected states
because they have a compelling
interest in keeping the source state at
the table. If the transboundary pollution is problematic when the source
state is party to the MEA, how much
worse might it be if the source state
was not?102 The answer to this question reveals the paradox of regulating
transboundary pollution: in some
ways, the source state has greater
bargaining power. Absent its participation, the MEA would
almost certainly be ineffective in regulating the transboundary pollution.103 In most cases, the source state is best able to
monitor the pollution at its creation and early stages, and to take
38
action to prevent it from becoming transboundary pollution. The
source state is also the only state with authority to regulate the
activities taking place within its borders and to sit in judgment
when actors violate its laws.104
This is not to say that coercive measures have no place in
MEAs. Coercive measures can set targets that have an actionforcing effect even if parties never invoke them.105 However,
coercive measures will have no effect if the source state is not
already a party to the MEA. In fact, such provisions may persuade some source states to remain outside of the MEA.
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party to make an effort to comply in order to avoid being an outlier. In addition, this information can be used to mold the MEA’s
norms, rules, and procedures if parties are unable to comply, or
compliance has not lead to greater effectiveness in mitigating
transboundary pollution.116 In the managerial model, rather than
blaming parties for noncompliance or ineffective action, the parties modify the MEA to more effectively address the problem.
The managerial model also relies on parties coordinating
with one another to mitigate transboundary pollution and otherwise meet the MEA’s goals.117 These coordination efforts can
take the form of notifying a party about pollution, setting up
information exchanges, or simply requiring parties to take “all
appropriate measures” in preventing and mitigating transboundary pollution.118 In some cases, these measures are all that is
needed to mitigate transboundary pollution.119 Coordination is
especially important for addressing problems too complex for
one party to solve on its own,120 and for reducing higher costs of
coordinating on an ad hoc basis.121
One example of an MEA successfully addressing transboundary air pollution through coordination is the Convention
on Long Range Transboundary Air Pollution (“LRTAP”).122
LRTAP entered into force in 1983123 and now binds forty-three
states in Europe, Asia, and North America. 124 LRTAP was
initially conceived to combat air transport of sulphur dioxide
(“SO2”),125 which leads to acid rain, although the treaty’s provisions were written broadly enough to encompass other pollutants that can be conveyed through the air.126 In fact, it has been
amended several times since entering into force to include other
pollutants and has led to substantial reductions in the level of
covered pollutants present in the atmosphere.127
LRTAP came about because Scandinavian states believed
increased SO2 emissions were acidifying lakes in the region.128
Under LRTAP’s first incarnation, parties were required only
to report their SO2 emissions.129 Scientists at the European
Monitoring and Evaluation Program (“EMEP”) then analyzed
these reports, which resulted in the standardization of data collection and reporting procedures across countries.130 After doing
so, they were able to compare the emissions data to the rate of
acidification of lakes and forests while taking into account wind
patterns and concluded that acid rain was damaging forests
and lakes, as the Scandinavians had suspected.131 The national
reporting that LRTAP mandated and the EMEP data standardization led to the coordination of national scientific efforts, which
in turn led to the overall success of LRTAP.132
As the LRTAP example shows, cooperation can reduce
transaction costs by creating standard reporting formats and
uncertainties by generating information.133 LRTAP requires parties to report, but the reports are not reviewed by any formal
body; they are simply published with gaps and showings of
noncompliance.134 Importantly, LRTAP did set targets on emissions,135 but the reports are not used to single out violators.136
They are instead used to “generate pressure for cooperative
action to improve overall regime effectiveness.”137 As the success of LRTAP shows, the importance of coordination cannot
Winter 2014
be exaggerated when trying to mitigate a problem as complex as
transboundary air pollution.
Reporting and data collection often begin by member states
self-reporting.138 This avoids the problems of infringing on state
sovereignty and coercion.139 However, “the level of reporting
[depends] on a variety of factors, most prominently the importance of the subject matter, the effectiveness of the secretariat or
other central [MEA] institutions, and the capacity and resources
of the reporting state.”140
Most MEAs rely on parties self-reporting.141 Secretariats
often are required to verify the information, but many do not
expend the resources or have the capacity to do so systematically.142 Verification of monitoring results is used to determine
how effectively the problem is being dealt with, rather than to
search for violators to punish.143 Once the center that records
the data standardizes it, the data becomes easier to verify.144
For example, the EMEP serves this function for LRTAP.145
Assessment allows parties to learn how to improve performance
by individual parties and the regime as a whole.146
It is very important that MEAs achieve high-quality reports
because these reports provide information on a party’s compliance and the effectiveness of the MEA. The nature and scope
of the reporting requirements directly impact the quality of
response.147 Reporting provisions can require that parties report
on a number of topics, for example: measures taken to implement
the MEA,148 success in meeting MEA obligations,149 proposed
future policies and programs relevant to the MEA’s objectives,150
and advance notification of activities that may cause transboundary haze pollution.151 In this way, reporting can detect compliance problems or the potential for compliance problems early
on.152 Because environmental agreements often require highly
scientific or technical reports, reporting can be particularly difficult for developing countries, which have greater constraints
on their resources.153 One way to reduce the burden of reporting
on developing countries is to provide a fund to help them buy
monitoring equipment and train people to use it.154
Also embodied in the managerial model is the notion that
effective regulation can result from cooperation not only between
parties, but between an array of institutions, including private
businesses and nongovernmental organizations (“NGOs”).155
This concept recognizes that legal systems do not operate as
machines, but rather as “a kind of regulatory commons, where
effective action is dependent upon alliances of groups overcoming collective action barriers and pressuring administrators
to respond.”156 Because NGOs have the ability to affect state
behavior, they play a role in addressing the enforceability concerns some have about MEAs.157
NGOs can assist in creating effective MEAs158 by collaborating with governments to improve implementation of MEA
obligations159 and raising awareness of activity that impacts the
environment.160 They can provide independent information and
data or verify data reported by the parties.161 NGOs can also
bring pressure on noncompliant states in ways that a party to
the MEA, which may have broader concerns about maintaining
international relations, could not.162
39
The managerial model enhances cooperation between parties by focusing their attention on common goals to be achieved.
This is in contrast to the traditional approach, with its focus on
setting targets and then punishing parties when they do not reach
those targets. This model in turn provides states with an effective
framework for mitigating international environmental problems
such as transboundary air pollution.
IV. ASEAN Agreement on Transboundary
Haze Pollution
The ASEAN Agreement on Transboundary Haze Pollution
follows the managerial model and thus illustrates how MEAs
that follow the managerial model can: (1) bring together parties that are skeptical of binding agreements; and (2) enhance
cooperation among parties in mitigating transboundary pollution. ASEAN adopted the Agreement on Transboundary Haze
Pollution (“Agreement”) in June 2002.163 The Agreement
entered into force on November 25, 2003, after ratification by
six countries164 and places binding obligations on the parties to
take steps to “prevent and monitor transboundary haze pollution,
which should be mitigated” in a way consistent with sustainable development.165 The current parties to the Agreement are
Singapore, Malaysia, Myanmar, Brunei, Vietnam, Thailand,
the Philippines, and the Lao People’s Democratic Republic.166
Indonesia has signed but not ratified the Agreement.167
The origins of the Agreement trace back to the regional
haze crisis of 1997.168 In that year, Southeast Asia faced an
environmental catastrophe that led to “unprecedented health and
financial damages” throughout the region.169 Fires in Indonesia
from logging and palm plantations, especially on Sumatra and
Kalimantan, raged, in part because of severe drought caused by
El Niño conditions.170 When wind patterns shifted, the haze from
the fires traveled from Indonesia to Malaysia, Brunei, Singapore,
Thailand, and the Philippines.171
Throughout the crisis, the U.S. National Oceanic and
Atmospheric Administration monitored the affected areas.172
Schools and offices shut down, planes crashed, and people died
from acute respiratory failure.173 By the time the fires were
brought under control, the region had suffered widespread
forest destruction, losing nearly ten million hectares.174 The
fires destroyed portions of seventeen protected forest areas in
Indonesia and land that could have otherwise been used for
agriculture.175
The effects were not limited to the natural environment:
millions of people in the region were exposed to the haze for
weeks.176 The haze and its attendant harm were concentrated
most heavily among Indonesians living on Sumatra and
Kalimantan, the islands where the fires began.177 While the ultimate cost of the fires and their haze is incalculable, estimates
run into the billions, from US$ 4.5 billion to US$ 9.3 billion.178
These figures include the destruction of farmland, both smallscale and industrial timberland and the haze’s impact on “tourism, foreign investment and additional health care costs.”179 In
addition, the haze impacted long-term human health, biological
40
diversity, farmland productivity, and atmospheric levels of
greenhouse gases.180
A. ASEAN Norms
ASEAN has reinforced the principles of non-interference
and national sovereignty in the region, a concept referred to as
the “ASEAN way.”181 Because ASEAN member-states prefer to
address issues in a “non-legal, consensual” manner,182 it is notable that every ASEAN member-state has signed the Agreement
and, with the exception of Indonesia, ratified it.183
ASEAN was founded in 1967 by Indonesia, Malaysia,
Thailand, the Philippines, and Singapore through the Bangkok
Declaration.184 Created to counteract the destabilizing effects
of the Vietnam War on the region and restive separatist populations around border areas,185 ASEAN established goals to
“promote active collaboration and mutual assistance on matters
of common interest,” provide “training and research assistance,”
“collaborate more effectively . . . , raise the living standard of
their peoples,” and “maintain close and beneficial cooperation
with existing regional and international organizations” in light
of the recognition that the world is becoming “increasingly
interdependent.”186
While the Bangkok Declaration’s emphasis on cooperation
and working together might suggest member-states would cede
authority to a central governing body, this has not been the case.187
The region has seen relative stability during ASEAN’s forty-six
year existence, and ASEAN member-states have successfully
worked together to overcome external threats, while adhering to the ASEAN norms. In keeping with the “ASEAN way,”
ASEAN’s first response to the 1997 fire crisis was to develop
the nonbinding Regional Haze Action Plan.188 The ASEAN
Ministerial Meeting on Haze endorsed the Plan in 1997,189 and in
2002 the Plan was superseded by the Agreement.190
Building on ASEAN’s past environmental treaties,191 the
Agreement places binding obligations on the parties to take
steps to “prevent and monitor transboundary haze pollution,
which should be mitigated” in a way consistent with sustainable
development.192 However, despite being referred to as “binding,” the provisions are written in a way that gives parties broad
discretion over the extent and types of activities they will engage
in to mitigate the transboundary pollution, consistent with the
managerial model’s de-emphasis on specific, binding targets
that parties must meet.193 Also in keeping with the managerial
model,194 the Agreement expects parties to settle disputes about
compliance through consultation or negotiation.195
In these respects, the Agreement is similar to LRTAP:
they both impose few concrete obligations on the parties and
are drafted to allow for interpretation. For instance, parties to
the LRTAP were bound to “endeavor to limit and, as far as
possible, gradually reduce and prevent air pollution including
long-range transboundary air pollution.”196 Nearly every word
in this provision gives parties power to interpret the obligations
they are taking on—“endeavor,” “as far as possible,” and “gradually reduce” are all qualifiers typical of the managerial model’s
focus on collaboration rather than coercion. These provisions
Sustainable Development Law & Policy
seem to impose few substantive requirements on parties, but
that LRTAP has still managed to achieve substantial reductions
in transboundary air pollution, suggests that the Agreement can
also be successful and lead to the mitigation of transboundary
haze pollution in Southeast Asia.197
The Agreement does place some
binding obligations on parties, but
most obligations are defined in general, conditional terms. In all cases,
parties must take “legislative, administrative and/or other measures to
implement their obligations.”198 But
rather than meet quantitative targets,
parties must “undertake measures”
to prevent and control activities that
may lead to transboundary pollution.199 This conditional language
does not concern itself with whether
parties are complying with the Agreement at any point in time.
Rather, it uses the managerial model, which recognizes that
an MEA’s goals and paths to those goals will change as new
information about the causes of transboundary pollution and the
effects of parties’ mitigating actions come to light.200
According to the agreement, parties must: (1) “promote [a]
zero burning policy . . . [e]nsuring that legislative, administrative
and/or other relevant measures are taken to control open burning
and to prevent land clearing using fire;” 201 (2) “[p]romot[e] and
utiliz[e] indigenous knowledge and practices in fire prevention
and management;” 202 (3) “strengthen local fire management
and firefighting capability and co-ordination;”203 (4) “promot[e]
public education and awareness-building campaigns and
strengthen community participation in fire management;” 204
(5) take appropriate measures to monitor all fire prone areas,
all land and/or forest fires, environmental conditions conducive
to such land and/or forest fires, and haze pollution arising from
such land and/or forest fires;205 and (6) “promote and support
scientific and technical research programmes related to the root
causes and consequences of transboundary haze pollution.”206
The parties’ more concrete obligations include: (1) “[i]dentifying and monitoring areas prone to the occurrence of land and/or
forest fires;”207 (2) designating a National Monitoring Centre;208
(3) initiating immediate action to control or put out fires;209
(4) designating Competent Authorities and a Focal Point,
which will oversee the administration of the provisions of the
Agreement;210 (5) preparing standard operating procedures for
national action;211 and (6) being able to mobilize the resources
needed to respond to and mitigate haze pollution.212
As is apparent from the Agreement’s language, many of
the specific activities parties are required to undertake are conditional. This choice reflects the fact that parties have limited
resources to devote to the activities, and that because there are
still gaps in information, it is not clear exactly what steps need
to be taken. These gaps allow parties to experiment with different approaches to the obligations and report their successes and
failures.
B. Managerial Model Components of the Agreement
The Agreement relies on several structures to facilitate
coordination and information reporting and sharing among parties, each of which is consistent with the managerial model of
MEAs.213 These structures are: (1) the ASEAN Coordinating
Centre for Transboundary Haze
Pollution Control, (2) the Secretariat,
and (3) the Transboundary Haze
Pollution Control Fund.214
The ASEAN Coordinating
Centre for Transboundary Haze
Pollution Control (“Centre”) promotes transparency and coordination by gathering data, and then
standardizing and releasing that data
to parties much like the EMEP.215
The Centre’s functions are an
extension of ASEAN’s Specialised
Meteorological Centre (“ASMC”), which was established in
1993 to enhance collaboration between member-states’ national
meteorological services.216 Since 2003, ASMC has worked in
conjunction with the Centre by monitoring the ASEAN region
for land and forest fires and transboundary haze.217 By performing these functions, the Centre and the ASMC are both collecting
and generating information that will give parties more advance
notice of conditions in which transboundary haze pollution may
affect them.
The Centre also receives data compiled by parties’ national
monitoring centres.218 Like the EMEP, the Centre “consolidate[s]
and analyze[s] the data” so that it can assess environmental and
human health risks each party faces from fires and consequential
transboundary haze pollution.219 Having a centralized database
allows for more efficient communication and thus decreases the
time parties need to spend searching for this data. Rather than
soliciting the other parties one by one when a party believes they
have data suggesting transboundary haze is imminent, parties
can obtain that data from the Centre.220 In addition to quicker
access to the data, parties are able to understand the data better
because the Centre standardizes reporting formats. This means
parties will not have to spend time and resources trying to make
sense of data that is reported. As the Centre becomes more
sophisticated, it could even play a more proactive role by analyzing the data and reporting it to parties.
Parties must also inform the Centre and other parties of the
measures they have in place to implement the Agreement.221 By
reporting on these steps, all parties are reassured that each is
making a good faith effort to comply with the Agreement, which
will reinforce the parties’ confidence in one another and lead to
greater coordination.222 Moreover, reporting allows the Centre
to analyze the relative effectiveness of each party’s measures and
determine why some succeed and some do not. This role is particularly important in the case of “zero burning” policies because
Agreement parties currently have little experience enforcing and
explaining the benefits of these policies to communities where
they remain the primary method of clearing land.223
“These provisions
seem to impose
few substantive
requirements on
parties . . .”
Winter 2014
41
The ASEAN Secretariat plays an important role in implementing the Agreement by facilitating coordination among the
parties.224 To facilitate coordination, the Secretariat arranges
meetings and disseminates information to parties.225 Above all,
the Secretariat must arrange the Conference of the Parties to
provide the parties an instance to evaluate the progress toward
the Agreement’s goal of mitigating transboundary haze and the
effectiveness of the methods used to reach that goal.226 Based on
this evaluation, parties can decide to revise parties’ obligations
or impose more concrete obligations in light of evolving scientific understanding and the relative effectiveness of implementation measures.227
To assist parties in implementing the Agreement, the
Agreement established the Transboundary Haze Pollution
Control Fund (“Fund”).228 The Secretariat administers the Fund,
which parties and other sources contribute to on a voluntary
basis.229 For developing countries, a fund is essential for the success of an environmental agreement, as some countries will not
have the resources to set up monitoring stations and train personnel.230 Unfortunately, the parties have only contributed US$
240,329 to the Fund to date, 231 while the annual cost of dealing
with transboundary haze may be as high as US$ 60 million.232
However, the Agreement is silent on how to allocate the money
in the Fund giving the Secretariat discretion to redirect spending
to more effectively implement the Agreement in response to new
information. 233
C. Other Coordination Provisions
The Agreement also contains two unique coordination provisions. Parties must: (1) “[p]romote the development of markets for the utilization of biomass and appropriate methods for
disposal of agricultural wastes;”234 and (2) “[f]acilitate mobilisation of appropriate resources within and outside the parties.”235
The “biomass” provision recognizes that peatlands, as
biomass, are a large cause of the fires that create transboundary haze.236 By developing markets for biomass, the Agreement
incentivizes the harvest and controlled burning of peat by turning it into a product rather than a byproduct.237 The market also
creates an incentive to manage peatlands more effectively so
that the peat is not wasted. This provision, with its emphasis on
reducing the chances of peatlands catching fire, is akin to the
“zero burning” policies in that both protect peatlands vulnerable
to fire.238
The “mobilisation of appropriate resources” provision is
a feature of the Agreement that at first seems to conflict with
ASEAN’s emphasis on sovereignty and noninterference. Under
this provision, parties can request assistance from other states,
including non-parties, and international organizations to help
mitigate haze pollution within their territory.239 However, parties
have almost total control over the requested assistance when it
is in their territory. When a party declares an emergency, it can
request that the Centre solicit assistance from other parties.240
Parties then decide whether they will provide assistance and if
so, what kind of assistance they will provide.241 If parties do
provide assistance, the receiving party will facilitate entry to,
42
departure from, and transit within its territory, and exempt the
assisting party from taxes, and any other charges that would normally be assessed.242 In addition, the party receiving assistance
will control all aspects of the assistance when it is in their territory.243 Thus, states still retain their sovereignty and enjoy the
benefit of greater resources.
With its conditional language, its establishment of structures that facilitate information gathering, and overarching
goal of coordination between the parties, the Agreement is consistent with the managerial model. Despite these features, the
Agreement’s ultimate success depends on Indonesian ratification.
V. Indonesian Ratification: A Step Toward
Mitigating Transboundary Haze Pollution
Although the Agreement provides an effective framework
for mitigating transboundary haze pollution, Indonesia has not
ratified it.244 The ASEAN community and Indonesia’s president
favor ratification, but Indonesia’s domestic politics have created
a barrier to ratification.245 Even so, Indonesia has effectively
been complying with the Agreement through its actions.246
These actions have generated information and contributed to
implementing the Agreement’s provisions, but they have taken
place on an ad hoc basis that is inadequate to mitigate the transboundary haze.247 Both the ASEAN community and Indonesia
would benefit by Indonesia’s ratification of the Agreement.
A. Barriers to Ratification
Domestic politics can be a barrier to ratification, especially
when a state is concerned that ratification will create expensive
obligations.248 Once ratified, the state will likely be the primary
enforcer of the MEA and the primary decision-maker on how
to implement it to achieve compliance.249 However, because
the Agreement follows the managerial model, Indonesia would
have latitude in deciding what its terms mean and how to comply
with the standards created.250 Despite international consensus
that Indonesia should ratify the Agreement, its failure to do so
reflects the difficulty of “navigat[ing] between what is achievable internationally while constantly negotiating and using what
is acceptable domestically.”251 At a recent meeting in Bangkok,
the other ASEAN environmental members “urged Indonesia to
ratify the [Agreement] as soon as possible.”252 While Indonesia
has publicly stated it is prioritizing ratifying the Agreement,253
ratification has been stalled by the legislature since 2008 when
the legislature voted against ratification because it felt ASEAN
was not doing enough to reduce the trade in timber illegally
logged and exported from Indonesia.254
B. Advantages of Indonesian Ratification
Indonesian ratification would allow ASEAN to more effectively deal with transboundary pollution. Indonesia is already
taking action to mitigate transboundary haze, but Indonesia’s
current ad hoc approach is not sufficient to address such a
complex problem. The Agreement creates a framework that will
allow Indonesia to perform the activities it is already engaged in
more systematically. These activities bring Indonesia effectively
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into compliance with the Agreement, and would form the basis
for future efforts within the Agreement.
1. Indonesia’s Current Actions
Indonesia is also already taking action to mitigate transboundary haze. Although not a party to it, Indonesia is effectively complying with the Agreement. For instance, Indonesia
recognizes the damage that fires from plantations and logging
operations cause domestically and has taken steps to prevent
this damage by passing a zero-burning policy and creating a
fire brigade, each of which is an action required to comply with
the Agreement.255 Further, Indonesia has committed to international efforts through the Sub-Regional Ministerial Steering
Committee on Transboundary Haze Pollution (“MSC”) and
Indonesia’s Plan of Action, as well as efforts by an NGO, the
Roundtable for Sustainable Palm Oil.
Indonesia is a member of the Sub-Regional Ministerial
Steering Committee on Transboundary Haze Pollution formed
in November 2006.256 Many of the MSC’s activities are similar
or identical to the activities parties are required to take under the
Agreement. For instance, the MSC has discussed sharing concession maps that show where burning is taking place and holding those who are doing the burning responsible.257 Recently, the
MSC agreed to share concession maps between governments.258
The MSC has also agreed to establish a Technical Task Force
whose role would be to monitor fires for MSC members.259
The MSC also discussed implementing the Strategic
Review of MSC Programmes and Activities in 2012.260 The
Strategic Review includes bringing on early warning systems,
refining the Fire Danger Rating System, introducing training
courses offered by the Regional Haze Training Network, and
organizing an MSC Forum.261 Moreover, because the actions
required under the MSC are similar to actions the parties to the
Agreement take, the MSC is creating inefficiency by requiring
parties to the Agreement to perform duplicate work. Indonesia,
on the other hand, is already sharing information, monitoring
fires, and evaluating programs it has in place, but none of this
information is submitted to the Centre.262 Having this data in
separate locations delays the standardization of the information,
and by extension, coordination.
Indonesia also has a Plan of Action in Dealing with
Transboundary Haze Pollution that creates obligations similar to
the Agreement’s.263 This Plan involves educating people about
zero burning techniques and developing and maintaining a
firefighting force.264 The Plan is designed to educate local communities about methods to prevent and mitigate forest and land
fires.265 As part of the Plan, Indonesia has identified “[thirtyfive] fire-prone districts in [eight] provinces” that need special
attention.266 The Plan has also invited ASEAN member states,
all of whom are parties to the Agreement, to cooperate with one
area in particular to build its capacity to deal with land and forest
fires.267
As a part of the Plan, Indonesia has also cooperated bilaterally with Singapore to mitigate transboundary haze pollution268
by reducing fires in the Jambi Province.269 The Jambi province is
Winter 2014
located on Southern Sumatra 270 and has 92 thousand hectares of
palm oil plantations and 59 thousand hectares of rubber plantations.271 Part of the region has peatland areas between fifty and
eight hundred centimeters deep which are prone to catching fire
due to the plantations’ use of slash-and-burn agriculture.272 As
part of this coordination effort, Singapore set up air monitoring
systems, trained Indonesians how to use them, and donated them
to the Jambi province.273 While this coordination is a positive
development and may improve conditions there, it could be more
effective at mitigating transboundary haze overall if it took place
within the Agreement because this effort could be more easily
duplicated and improved upon if all parties were exposed to its
development.
Some ASEAN members believe that sustainable palm
oil production is one avenue to reducing regional haze as
well as a way to increase palm oil farmers’ salaries. 274
Marketing a sustainably farmed product has become possible
because consumers are becoming aware of the environmental effects of industrial agricultural practices taking place
in Indonesia.275 The Roundtable for Sustainable Palm Oil
(“Roundtable”), established by the World Wildlife Fund in 2001,
has created a designation for palm oil products produced sustainably.276 The Roundtable’s work thus creates an incentive for
Indonesia to ratify the Agreement so that the country can take
advantage of this label.
Taken together, these actions show that Indonesia is
effectively complying with the conditional language of the
Agreement. But because these actions are occurring through
various unconnected arrangements, the lessons learned are not
being exploited to their full potential.
2. Ratification Would Bring the Benefits of the
Managerial Model to the Agreement
Indonesia’s efforts to mitigate transboundary haze are
important in their own right. But if it were to take these actions
as a party to the Agreement, both Indonesia and other parties would benefit from the consolidation of information and
enhanced coordination. Indonesia itself would benefit from ratifying the Agreement through: (1) more systematic and sustained
coordination, (2) access to the Fund, and (3) the ability to shape
the content of the Agreement.
By ratifying the Agreement, Indonesia would benefit from
greater coordination from the greater aggregation of information, the standardization of that information, and greater assistance from parties who are reassured by Indonesian ratification.
Indonesia’s coordination with Singapore in addressing haze in
Jambi province has provided information on how to mitigate
transboundary haze pollution. The value of this information
is limited if it is not shared with other parties. Moreover, if
Indonesia’s coordination efforts are restricted to ad hoc arrangements, it is more likely that the improvements in mitigating
transboundary haze and the lessons learned from efforts such as
the Jambi province effort will remain limited only to the goals of
those arrangements. By reporting this information to the Centre
as a party, however, the information is no longer standing alone;
43
it is now one piece used to solve the larger puzzle. Indonesia
would also get the benefit of learning from other parties’ experiences in implementing “zero burning” policies.
In addition, Indonesia would benefit from the Centre’s work
on standardizing data. For each ad hoc arrangement to which
Indonesia is a party, the resultant data could be communicated
in a different format. Working within the Agreement, the Centre
would standardize this information so that it is more meaningful
for the country. Indonesian ratification would also lead to greater
coordination because it will reassure parties that Indonesia takes
the transboundary haze pollution seriously.277 As a result of this
act, which is largely symbolic given Indonesia’s ongoing efforts,
parties may be more willing to devote resources to the Fund.
Further, because the Secretariat’s only guidelines are to
use the Fund to “implement” the Agreement, the entire Fund
could very well be spent on implementation measures within
Indonesia.278 Because the transboundary pollution is almost
totally unidirectional,279 it would make sense for resources in the
Fund to be spent on problems relating to the monitoring and prevention of fires, problems which are largely in Indonesia.280 In
this way the Fund could reduce the asymmetry of the costs and
benefits that often accompany transboundary pollution, making
ratification more attractive to Indonesia.281
Using the Fund to prevent and monitor fires (as opposed
to haze) also has the advantage of
reducing the amount of pollution that
becomes transboundary pollution
most effectively by addressing the
pollution at its source.282 Admittedly,
given the disparity between the Fund
and the estimated cost of mitigating
transboundary haze, a promise to
allocate the Fund in this way may not
create large benefits for Indonesia,
at least initially. However, the Fund
may grow if Indonesia ratifies the
Agreement. Indonesian ratification
would allow the Fund to be spent
more efficiently. As the biggest
source state, and thus the biggest
contributor of transboundary haze
pollution, it is most efficient to spend
Fund resources in Indonesia.
Indonesia should also ratify the
Agreement to be able to take a more
active role in shaping the goals and
implementation measures of the
Agreement. If a state has an interest in a framework MEA’s goals and
the MEA is based on the managerial
model, it may be in the state’s interest to ratify the treaty. As a party to
the MEA, that state has a role in reevaluating the MEA as new
information on compliance, effectiveness, and the understanding of the causes and effects of transboundary haze emerge.283
Ultimately, discussions between the parties shape the MEA’s
framework.284 Moreover, because of the importance of keeping
source states in the MEA, affected states may be more willing to
compromise, which gives Indonesia an advantage if it is at the
table.285
If the Indonesian legislature is still concerned with the illegal timber trade and its role in contributing to fires in Indonesia,
it makes more sense to ratify the Agreement and then push for
changes to protect Indonesian forests rather than to make protection a precondition for ratification. By becoming a member
party, Indonesia would not only have more opportunities to share
information and coordinate with other parties, it would also
have a framework within which it could advocate for changes
it thinks best mitigate transboundary haze pollution. The
Agreement obligates parties to study the “root causes” of the
haze, so Indonesia could begin compiling data on the effects that
deforestation from illegal logging has on haze creation.286 This
information could lead to an expansion of parties’ obligations
under the Agreement’s “biomass” provision, which focuses on
protecting degraded peatlands from catching fire but is silent
on preventing the peatland degradation that leaves the peatlands
vulnerable to fire in the first place.287 If Indonesia can persuade
the other parties that the illegal timber trade results in a greater
likelihood of peat fires, it may also be able to persuade other
parties that an emphasis on legally
sourced timber is one measure that
can prevent peat fires. This could be
accomplished through a variety of
ways (e.g. strengthening domestic
laws or devising a way to identify
legally or sustainably sourced timber). But as the parties better understand the issue and experiment with
implementation measures to address
it, they will become more effective at
achieving this goal.
“While the
Agreement may
not eliminate the
transboundary
haze pollution
immediately, it
can bring all the
stakeholders together
to facilitate a more
lasting solution than
they would otherwise
be able to reach on
their own.”
44
3. Benefits for ASEAN
ASEAN will also benefit from
Indonesian ratification. Greater information sharing by Indonesia will
correct the data imbalance between
source states and affected states,
and Indonesia’s efforts to manage
peatlands may prove useful to other
countries as they industrialize.
Absent systematic sharing by
Indonesia, the major source state,
only affected states are submitting
information to the Centre. This
means the Centre is compiling and
analyzing information about monitoring and preventing haze, which affects the source states, but
not about fires, which occur in Indonesia, the major source
state. One important exchange of information is the sharing of
Sustainable Development Law & Policy
concession maps,288 and data Indonesia has that cross-references
hotspot289 locations to identify companies burning in those
areas.290 By sharing these maps with the precise locations of
plantations, affected states can perform more targeted monitoring because they will better understand where the fires originate.
This monitoring can then lead to a more complete understanding
of how the haze pollution travels, allowing the Centre to develop
information about preventing and managing fires.
While Indonesia may be the only source state at present,
other states may become source states. ASEAN member-states
are industrializing, and the region has thirty-five million hectares of peatland.291 As pressure on the natural resources of other
states increases, the likelihood of transboundary haze originating
in these states also increases. Just as other states may become
source states, Indonesia may become an affected state. Parties
will be able to deal more effectively with these shifts in roles if
there is information about monitoring and preventing haze and
fires for them to draw on.
VI. Conclusion
The benefits of ratification to Indonesia and ASEAN should
be enough to overcome the domestic hurdles to ratification.
These benefits include greater coordination among the parties
in addressing the transboundary haze originating in Indonesia by
facilitating the spread of information and by allowing Indonesia
to shape the Agreement based on its experiences as the only
major source state in the region. These benefits are not limited
to the current problem; they will also apply in the future when
other states become source states.
Indonesia should ratify the Agreement because it creates an
effective framework for mitigating transboundary haze pollution.
By following the managerial model, the Agreement recognizes
that complex problems like transboundary haze pollution are
best addressed through systematic and sustained coordination
between parties. While the Agreement may not eliminate the
transboundary haze pollution immediately, it can bring all the
stakeholders together to facilitate a more lasting solution than
they would otherwise be able to reach on their own.
Endnotes: Indonesia’s Role in Realizing the Goals of ASEAN’s Agreement on
Transboundary Haze Pollution
1 See Indonesia Blamed as Haze Returns to Malaysia, Jakarta Globe, June
16, 2012, http://www.thejakartaglobe.com/home/indonesia-blamed-as-hazereturns-to-malaysia/524654/ (noting that haze has become an annual problem
causing air quality to deteriorate in the summer months).
2 See id. (explaining that while the practice of using fire to clear land has
been banned by Indonesia’s government, weak enforcement of the law has
maintained the haze issue).
3
Peatlands are formed by dead plant material decomposing into a thick
layer of soil under conditions with permanent water saturation. See Iwan Tri
Cahyo Wibisono et al., Peatlands in Indonesia’s National REDD+Strategy
1, 8 (2011), available at http://www.wetlands.org/LinkClick.aspx?fileticket=9
Nesl6BCI1U%3D&tabid=56 (discussing the state of Indonesia’s peat swamp
forests). For a map of peatlands in Southeast Asia, see Peatlands in Southeast
Asia, ASEAN Peatland Forests Project, http://www.aseanpeat.net/aeimages/
File/Publications/peatmap_FA_OL.pdf (last visited Nov. 12, 2013) (showing
estimated peatland area per ASEAN country).
4 See Liz Gooch, Malaysia Haze Points to a Regional Problem, N.Y. Times,
June 23, 2012, available at http://www.nytimes.com/2012/06/24/world/asia/
smoky-haze-over-malaysia-signals-a-regional-problem.html (noting fires set on
palm oil and rubber plantations to remove old trees and clear land are a major
source of haze pollution).
5
Dennis Wong, Residents Blame Plantations for Haze, New Straits Times,
Oct. 11, 2012, http://www.nst.com.my/nation/general/residents-blame-plantations-for-haze-1.155458 (explaining that citizens of the affected countries cope
with haze by ignoring it, despite its continuing presence).
6 See id. (referencing a thunderstorm that was the first downpour in more
than two months.)
7 See infra Part II.A.
8 See infra Part II.A.
9
Air pollution is not a new problem for governments either. As far back as
1285, Londoners complained of poor air quality caused by coal fumes. See Jean
Gimpel, The Medieval Machine: The Industrial Revolution of the Middle
Ages 82–84 (1976). This led to King Edward issuing a proclamation in 1306
banning coal in open furnaces in London and punishing third-time offenders
with death. See Cees Flinterman et al., Transboundary Air Pollution:
International Legal Aspects of the Co-operation of the States, at vii (Cees
Flinterman et al. eds., 1986).
10
Thomas Merrill defines transboundary pollution as “a physical externality
or spillover that crosses state lines. More precisely, transboundary pollution
occurs when a potentially harmful environmental agent is released in one
political jurisdiction (the source state) and physically migrates through a natural
medium such as air, water, or soil to another political jurisdiction (the affected
state).” Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 Duke
L.J. 931, 968-69 (1997) (noting and comparing the differences between pollution of the commons and transboundary air pollution).
11 See id. at 932 (crediting the transboundary pollution phenomenon with the
centralization of environmental law).
12 ASEAN Agreement on Transboundary Haze Pollution, art. 12, June 10,
2002, available at http://haze.asean.org/?wpfb_dl=32 [hereinafter Agreement]
(affirming the parties’ “willingness to further strengthen international cooperation to develop national policies for preventing and monitoring transboundary
haze pollution”).
13 See Gooch, supra note 4. During publication of this article, Indonesia
announced at a meeting of the regional environmental ministers that it pledges
to ratify the Agreement in early 2014. Abhrajit Gangopadhyay & Ben Otto,
Indonesia Plans to Ratify Haze Pact, July 17, 2013 12:53PM, http://online.wsj.
com/news/articles/SB10001424127887324448104578611241859487394.
14 See Ahmad Pathoni, Indonesia Lawmakers Set to Reject ASEAN Haze Pact,
Reuters, Mar. 14, 2008, http://www.enn.com/top_stories/article/32966/print
(citing Indonesian lawmakers’ concerns that neighboring countries are turning a
blind eye to the link between illegal timber received in their countries and haze
pollution); Adianto P. Simamora, Govt Wants Haze Agreement Ratified, The
Jakarta Post, Jan. 22, 2011, http://www.thejakartapost.com/news/2011/01/22/
govt-wants-haze-agreement-ratified.html (noting Indonesian lawmakers’ desire
to include an effort to reduce the export of illicit wood from illegal logging
practices into the agreement); Adianto P. Simamora, ASEAN haze deal still
faces complications, The Jakarta Post, Feb. 16, 2011, http://www.thejakartapost.com/news/2011/02/16/asean-haze-deal-still-faces-complications.html
(explaining that ratification would create burdens for Indonesia because of the
difficulty involved in controlling traditional land clearing practices by local
citizens).
15 See Asmala Ahmad et al., The Use of Remote Sensing and GIS to Estimate
Air Quality Index (AQI) over Peninsular Malaysia, GISDevelopment.net,
http://www.gisdevelopment.net/application/environment/air/mm038pf.htm,
continued on page 70
Winter 2014
45
Article XX: Protector of Public Health,
the Environment, and the New Provisions of
European Union’s Fuel Quality Directive
By Joy Marie Virga*
A
fter some controversy in the 1990s, the World Trade
Organization (“WTO”)1 adopted a provision in the General Agreement on Tariffs and Trade (“GATT”) that created exceptions to the GATT’s free trade rules.2 These exceptions,
codified at Article XX, allow nations to impose trade restrictions
relating to, inter alia, the conservation of the environment, the promotion of human health, and the protection of national treasures.3
Since then, various countries have adopted regulations aimed at
protecting the environment with challenges to those regulations
moving through the WTO Dispute Settlement Body (“DSB”).4
Recently, controversy has erupted following the European
Union’s (“EU”) announcement of new implementing provisions in the EU Fuel Quality Directive (“FQD”).5 The Canadian
Government6 and U.S. oil producers have expressed their strong
objections to the provisions.7 Their concern specifically regards a
provision that may be adopted in the near future8 requiring EU
member states to reduce life cycle greenhouse gas (“GHG”) emissions of fuels used in “road-vehicles and non-road machinery”
by 6% by 2020.9 The provision assigns a default value to various
sources of crude oil, including crude oil derived from tar sands.10
In May 2013, Karen Harbert of the U.S. Chamber of Commerce,
alongside U.S. oil executives, wrote a letter to the DirectorateGeneral for Climate Action of the European Commission expressing their discontent with the FQD.11 In this letter, the oil executives
state that if the provisions are adopted, they will request that the
U.S. government seek resolution of the matter at the WTO.12 They
believe the new provisions are a clear violation of core WTO principles of free and open trade and equal treatment among nations.13
However, Article XX of the GATT likely protects the new
provision. If the EU formally adopts the provision and Canada and
the United States seek to challenge it at the WTO, Canada and the
United States must show that tar sands oil is a “like product”14
and that it is being treated “less favorably” than other “like products.”15 Moreover, if the United States and Canada can prove tar
sands oil is a “like product” (to other crude oil feedstocks) being
treated “less favorably” (than those feedstocks), they still have to
prove that the Article XX exception does not apply. Previous DSB
decisions, along with the language of Article XX, suggest that any
resolution on this matter will likely uphold the EU’s adoption of
the FQD implementing provisions.
Article XX allows for trade restrictions “relating to the conservation of exhaustible natural resources if such measures are made
effective in conjunction with restrictions on domestic production
or consumption.”16 In 2009, the Environmental Protection Agency
found that GHG emissions present a risk to public health.17 This
46
finding lends support to the view that the EU provision easily falls
into this exception. The provision is essentially a regulation to
prevent an increase in GHG emissions. It safeguards clean air and
a climate fit for human habitation, both of which are “exhaustible
natural resources.”18 Further, a reduction in GHG emissions will
promote human health and environmental conservation.19
The DSB has already ruled that clean air constitutes an
exhaustible natural resource.20 In 1996, Brazil and Venezuela filed
a complaint against the United States for imposing air quality standards on gasoline imports.21 The purpose of these standards was to
achieve cleaner air.22 The DSB ruled that because these standards
were intended to preserve clean air, they could be “appropriately
regarded as ‘primarily aimed at’ the conservation of natural
resources for the purposes of Article XX(g).”23 However, under
the U.S. fuel quality standards as promulgated, stricter standards
were placed on foreign producers compared to domestic producers.24 The DSB concluded that the United States had the power
to impose standards to achieve environmental objectives, but that
such standards must be consistently applied to both domestic and
foreign producers.25
Additionally, the new provisions must not violate the “chapeau” of Article XX.26 When determining if a trade regulation violates the chapeau, the DSB considers whether the regulation would
arbitrarily treat WTO member nations differently27 and if there
was a good-faith effort to negotiate an international agreement.28
The DSB will likely find that the provisions do not violate the chapeau, as the provision does not create an “arbitrary discrimination”
based on national origin. 29 Moreover, the EU actively engaged
with WTO member nations to mitigate disputes for several years.30
If enacted, the DSB will likely uphold the EU’s new FQD
implementing provisions. The purpose of the provision is “to
achieve levels of air quality that do not give rise to significant negative impacts on, or risks to, human health and the environment.”31
These objectives fall directly under the exceptions of Article XX32
and by reducing GHGs, the EU will be able to achieve these objectives. Nations have the right to protect the environment and the
health of their people. This right is protected under the GATT’s
Article XX exceptions. Thus, the WTO has no power, nor will it
likely attempt, to overturn the potential new implementing provision of the EU FQD.
continued on page 75
* J.D. Candidate 2016, American University Washington College of Law
Sustainable Development Law & Policy
U.S. Food Aid Reform through Alternative
Dispute Resolution
By Delilah J. Griswold*
I. Introduction
T
“Don’t worry about what I feed my family. You just
give me some money and I will take care of it. You
don’t have to assume that I don’t know what to feed
my family. The problem is that I happen to be poor
and if you can’t do anything about that then get out
of here. Don’t waste my time.” ~ Female Farmer,
Bangladesh, 1980s1
he opening sentence of Amartya Sen’s Poverty and Famines states succinctly, “[s]tarvation is the characteristic
of some people not having enough food to eat. It is not
the characteristic of there being not enough food to eat.”2 The
idea and the details of its substantiation caused a paradigm shift
in academic and political discourse concerning famine and hunger.3 Those concerned with the plagues of malnutrition and starvation began to conceptualize their causes in intricate relation to
economics and markets as opposed to considering them solely in
relation to the supply of food.4
In addition to positing the notion of entitlements and access
as the foundation of food security, Sen also highlighted the significant role government plays in stabilizing and ensuring the
necessary entitlements and access, thus quelling the potential
or severity of hunger and famine.5 Consequently, hunger is no
longer perceived solely as an inevitable consequence of natural
systems, but instead as a malevolent event, largely preventable
and ameliorable through appropriate governmental intervention.6 Although impacted by controllable policy, Sen was quick
to add that the cause of malnourishment is complex and very
often a result of sudden, uncontrollable natural events or prolonged developments which gradually erode food security.7 The
theory thus followed that flexible and locally-aware food aid and
famine-prevention efforts, which are unrestricted by rigid controls, provide the best potential for effective relief.
Despite Sen’s foundational theories and the expanse of
academic acumen that his insights spurred, both malnourishment and hunger persist while a bulk of food aid policy remains
unchanged and outdated. Based on modest calculations,8 recent
estimates find that there are 36 million annual hunger-related
deaths.9 Moreover, the recent trend is one of disquieting growth:
Reports from the United Nations (“UN”) state that between 1992
and 2007, the number of undernourished people in the world
increased by 80 million.10 Furthermore, the global food-price
spike in 2007 meant that, by 2008, another 40 million individuals had inadequate access to food, bringing the total number of
those undernourished to 936 million–1 in every 6 people.11
Winter 2014
The persistence of outdated food aid policy, despite an
improved understanding of causal mechanisms and prevention
tactics for reducing both hunger and famine, highlights a main
thesis of this article:12 Policy is rarely empirical and frequently
imperfect, and although academic expertise offers significant
insight, it is not always easily converted into appropriate law
and policy. As the largest single source of international food aid,
lamentably with some of the most outdated food aid policies,
the structure and controversy surrounding U.S. food assistance
serve as important case studies to this argument. The failure to
improve U.S. food aid helps to illustrate how and why public
policy often lags behind academic and empirical understanding
on key issues. The legislative process, which dictates the formation of U.S. policy, is often over-burdened with competing
interests and divergent stakeholders that aggravate both strategic
and institutional barriers to the cooperation and negotiation necessary for effective decision-making.13
In the case of U.S. food aid, conflicting stakeholder interests
have been a key impediment to reform.14 Furthermore, efforts
for reform have largely ignored the importance and power of the
key oppositional groups, failing entirely to include them in conversations about how food aid policy might be improved.15 The
lack of facilitated and inclusive negotiation preceding reform
attempts has continually worked against change, in part by
assuring fervent opposition from the powerful excluded parties
and further minimizing the limited voice of those most impacted
by the controversial policies.
To this end, this article proposes that improving legislative
negotiations through two specific alternative dispute resolution
(“ADR”) tactics—private, multiparty negotiation and mediation
by a politician—could have improved the success of various food
aid reform efforts in the past by working to balance stakeholder
power and quell detrimental opposition tactics. The field of ADR
has tremendous potential to aid the legislative process in both
the specific area of food aid reform as well as more generally by
improving cooperative action toward the beneficial resolution of
disputes. Negotiations between diverse stakeholders with divergent interests are often contentious, yet are also the foundation of
developing current policy and legislation. Consequently, a focus
on improving the level of cooperative action within negotiations
is invaluable to forging effective governance through appropriate
policy.
* Masters in Environmental Law & Policy Candidate 2013, Vermont Law School.
Ms. Griswold earned a B.A. magna cum laude in Anthropology from Wheaton
College. She wishes to thank Professor Laurie Beyranevand for her invaluable
insight and guidance in the production of this article.
47
To contextualize the contemporary controversy over U.S.
food aid reform, Part II of this article begins with a brief history and description of the practical and political elements of
international food aid policy, thus elucidating the roots of the
current controversy. This Part finishes by analyzing the specific
institutional components of U.S. food aid, providing an overview
of the Food for Peace Act (“P.L. 480”),16 the specific legislation
to be reformed, and the associated statutes impacting the implementation of the Act. Part III introduces the key stakeholders in
the food aid reform debate, highlighting their interests, goals,
and influence in the contemporary food aid controversy. Part IV
introduces the concept of ADR and the theoretical underpinnings
that make it a valuable tool for improving the potential outcome
for food aid reform efforts. Through an implementation of ADR
theory, Part IV examines the recent attempts to achieve food aid
reform, highlighting the key tactical failings and concluding that
the usage of multi-stakeholder negotiations mediated by a key
facilitative mediator could have improved the likely success of
food aid reform.
II. International Food Aid in Practice and
Politics: From the Roots of the Present
Controversy to the Structure
of Contemporary Aid
For the past six decades, the United States has played a
principal role in international food aid, spending roughly $2 billion annually since the mid-1950s,17 and contributing 55% of
all global donations since 2000.18 Despite its unquestionably
large scale, U.S. food aid policy has been both historically and
contemporarily questioned for its efficiency and appropriateness.19 From the 1950s to the 1970s, critics lamented U.S. food
aid policy “as a classic example of donor self-interest.”20 They
protested that food aid programs were structured primarily to
benefit domestic agricultural and foreign policy interests of the
donor state.21 Specifically, aid programs served U.S. and other
donor countries’22 economic interests by creating outlets for
surplus agricultural commodities, and as leverage to influence
political and economic policies of recipient states—an important
diplomatic strategy for gaining political power during the Cold
War.23
Removed from the primary aim of serving those in need,
donor-centric food aid strategies often had unfortunate consequences,24 which spurred rising criticism in the 1970s and
1980s.25 This criticism prompted an effort by the United States
and other donor states to amend aspects of the donor-oriented
policies in international food aid, and by the 1980s and 1990s
public opinion saw these efforts as a success.26 As a result,
global public and political interest in evaluating international
food aid policy waned.27
Key academic publications in the early part of the twentyfirst century, coupled with the 2007-2008 global food crisis,
reawakened both public and political interest in the contemporary policies of food aid, specifically focusing attention on U.S.
policies.28 Although the intensity of twenty-first century food
aid discussions matched previous levels, the context and content
48
of the controversy was markedly changed, as aid had become
increasingly linked to a mix of international and domestic
institutions with various agendas. The expanded complexity of
interests involved in food aid policy increased the number of key
stakeholders involved and complicated the dialogue concerning
reform.29
Instead of focusing on the geopolitical and commodity
surplus motivations of donor-states, contemporary concerns
emphasized the mechanisms of food aid distribution and their
problematic character.30 Specifically, the dilemma of whether
food aid should be in-kind and tied to the donor country became
central to an animated debate among various governmental and
nongovernmental institutions.31 Previously, the tying of aid was
seen as a given and an intrinsic component of the aid programs
of grain-surplus producing countries such as the United States,
Canada, and Australia.32 As agricultural commodity surpluses
declined and disappeared due to a restructuring of agricultural
policies among donor states, the mechanisms of tying food aid
changed, with donor countries sourcing food from the commercial market instead of governmentally controlled domestic
surplus stores.33 This requirement for commercial sourcing
and the concomitant fiscal strains, combined with growing
academic, public, and political disapproval towards tied aid,
prompted many donor countries to abandon the practice.34 Most
notably, the European Union (“EU”) began to untie its aid beginning in 1996, with Australia and Canada following suit within
the decade. “The United States, however, as the world’s largest
donor of food aid, continued with a nearly 100[%] tied food aid
policy.”35 Consequently, twenty-first century food aid critique is
directed specifically at the United States.
The unique entrenchment of a controversial tied-aid policy
within U.S. aid programs highlights the powerful economic
interests of key stakeholders who assert influential authority
over the direction of aid policy.36 The key stakeholders include
the agricultural industry, nongovernmental food aid organizations reliant upon monetization of in-kind donations for program
funding, and the shipping and maritime industry that benefit
from the transport contracts for tied food aid.37 These powerful
and entrenched interests reduce the potential for cooperation or
compromise in efforts for reform. Understanding the specific
nature of U.S. food aid policy, and the associated interests built
by that structure is essential to illuminating potential areas for
improved cooperation toward reform.
A. U.S. International Food Aid in Institution & Policy
The Marshall Plan,38 launched in 1949, was the first U.S.
institutionalized food aid program, laying the foundation for the
United States’ primacy in the amount of international food assistance provided.39 The United States has since become the largest
single donor of international food aid in the world.40
The United States Farm Bill,41 generally renewed on a
five-year basis, is the primary legislation addressing a variety
of agricultural programs, including international food aid.42
Fundamentally, the Farm Bill delineates the specific tonnage of
aid to be donated through the United States’ food aid programs
Sustainable Development Law & Policy
and outlines the portions allotted to either emergency or nonemergency aid, while additionally proposing program funding
levels—although the final funding levels are ultimately approved
through the federal budget process.43 Thus, funding for most food
aid programs is discretionary—determined through the annual
Agricultural Appropriations Bill—and requires Congressional
approval.44
Of the numerous U.S. food aid programs, the Food for
Peace program45 is the largest.46 Both the U.S. Department
of Agriculture (“USDA”) and U.S. Agency for International
Development (“USAID”) administer the program, which
accounts for 50 to 90% of the total food aid budget,47 a total
contribution of nearly 75% of all U.S. international food assistance.48 In recent times, Title II under P.L. 480 has received
the largest amount of funding, averaging $1.8 billion in annual
appropriations since 2008, with a current authorized maximum
level of $2.5 billion per annum.49
At the height of the Cold War, the U.S. Congress passed
P.L. 480, the “Agricultural Trade and Development Act,” which
authorized the Food for Peace program to “increase the consumption of United States agricultural commodities in foreign
countries, [and] to improve the foreign relations of the United
States.”50 While signing P.L. 480 into law on July 10, 1954, then
President Dwight D. Eisenhower echoed this objective, noting
that the purpose of the legislation was to “lay the basis for a
permanent expansion of [U.S.] exports of agricultural products
with lasting benefits to [the United States] and the peoples of
other lands.”51 President Eisenhower’s statement makes plain
the dual intentions of P.L. 480: expand markets for U.S. agricultural export with the added benefit of providing international
food assistance. P.L. 480 allowed for the provision of surplus
agricultural products to developing nations either through emergency aid or on concessionary terms.52 In the decade following
the law’s passage, 27% of all agricultural exports ($12.3 billion
worth) were shipped through P.L. 480.53
P.L. 480 is composed of four parts, each listed under a
separate title with distinct objectives. Each title works to meet
one of several overarching goals, “including combating world
hunger and malnutrition and [its] causes; promoting sustainable
development; and preventing conflicts.”54 The most utilized and
significant section, Title II, Emergency and Private Assistance,
is specifically directed “to minimize hunger in the world . . . to
ensure that one day no one needs food aid” and is currently the
largest single program source of U.S. food aid.55 Between P.L.
480’s inception and 2004, the Title II program provided 106
million metric tons of food assistance.56 From 2002 to 2011
the program accounted for between 50 and 90% of total annual
international food aid spending.57 Unsurprisingly, a tenfold
rise in the annual dollar value of U.S. agricultural exports since
1954 has accompanied the passage of P.L. 480.58 Furthermore,
the value of annual Title II programs has increased more than
threefold since P.L. 480’s inception.59
Title II of P.L. 480 functions through partnerships with nongovernmental and private voluntary organizations (“NGOs” and
“PVOs”) that assist with distribution.60 The U.N. World Food
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Program (“WFP”) is the largest partner, and the Title II program
is the largest donor among all 82 WFP partner programs. The
celebrated successes of Title II include the development of
“self-sufficiency,” or net-food export, in previously aid-receiving
countries such as France, Germany, Belgium, Austria, Italy,
the United Kingdom, Spain, Greece, Portugal, Cyprus, Turkey,
Poland, and former Czechoslovakia.61
Despite these accomplishments, Title II is the target of
major critiques of U.S. international food aid policy. Distilling
the essence of these critiques, Seventh Circuit Judge Frank
Easterbrook has sardonically stated that “[Public Law] 480 has
three beneficiaries: the starving, American Farmers, and the
Owners of American Ships.”62 The most contentious components include U.S. commodity preferences, which are directly
authorized under the P.L. 480 program and U.S.-flagged cargo
preferences; and monetization, authorized under the Cargo
Preference Act63 and both the Food Security Act of 1985 and
Title III of P.L. 480.
B. Tying Aid: Title II’s Domestic Commodity
Mandates64
As highlighted by President Eisenhower’s statement,65 Title
II’s original goal was twofold: (1) to expand U.S. agricultural
export markets, and (2) to provide assistance for international
populations in need of aid.66 Consequently, the primary form of
Title II aid to receiving organizations has always been domestically sourced and in-kind, tied aid. By law, 100% of the food aid
must be sourced from U.S. agricultural producers.67 At the outset, aid covered under Title II was sourced from surplus agricultural commodities purchased directly from U.S. farmers by the
former Commodity Credit Corporation.68 Because the United
States has ceased to maintain significant stockpiles of agricultural commodity surplus, the food aid provided under Title II is
now produced explicitly for the purpose of the program.69
Currently, USDA’s Kansas City Commodity Office
(“KCCO”) purchases the food required for the Title II program.
The purchases occur through a sealed-bid, fixed-price process:
“USAID formulates a request for a specific commodity and
tonnage based on their needs and the domestic preferencing
requirements, and the KCCO creates an invitation for bids.”70
Invitations to bid are sent only to contractors who fulfill the
qualification requirements established by the KCCO.71
The dual objectives of benefiting U.S. agricultural producers and the hungry, and the aid structure their mutual fulfillment
requires is at the root of organizational, political, and public
critique of the program. Contemporary concern stems primarily
from the reality that meeting the first objective, prioritizing and
benefiting U.S. agricultural producers, fundamentally impedes
the program’s efficacy in meeting its second objective of hunger
and famine relief.72
C. Transporting Aid: The Cargo Preference Act
In addition to 100% U.S. commodity procurement requirements for Title II food aid, 75% of the total tonnage of all aid
distributed under the program must be transported via U.S.flag vessels.73 The Cargo Preference Act (P.L 83-644) governs
49
this transportation mandate for all U.S. government generated
shipments.74 Congress passed the Act in 1954, amending the
Merchant Marine Act of 1936 by adding “a new section 901(b),
to ensure U.S.-flag vessel participation in the carriage of U.S.
government sponsored cargos.”75 An additional mandate, entitled
the Great Lakes Set-Aside, “requires that up to 25[%] of Title
II bagged food aid tonnage be allocated to Great Lakes ports
each month.”76 These legislative requirements were primarily
intended to ensure the security and stability of the U.S. merchant
maritime fleet.77
A 2011 report from the U.S. Government Accountability
Office (“GAO”) noted that “[t]hese legal requirements limit
competition and potentially reduce food aid shipping capacity, leading to higher freight rates.”78 For monetized food aid
alone, ocean shipping between 2008 and 2010 cost $235 million, roughly one-third of the total aid costs.79 Furthermore, for
certain commodities the cost of U.S.-flag ocean transport is frequently higher than the initial commodity purchase cost: “[f]or
example, while it cost[s] $3.9 million to purchase the shipment
of 10,000 metric tons of wheat to be sent to Malawi in 2008
for monetization, it cost[s] $4.5 million in ocean shipping.”80
Overall, the cost to ship aid commodities is roughly $25 per ton
less on foreign flagged vessels than for U.S.-flag vessels.81
Further aggravating the cost disadvantage of U.S.-flag transport is the requirement that foreign built vessels wait three years
after reflagging into the U.S. registry to transport food aid.82
Like the general cargo preference requirements, this additional
requirement sought to secure U.S. shipyard employment and
the general security and stability of the U.S. merchant maritime
fleet.83 Alternatively, this restriction works to further reduce
competition for U.S. government-generated cargo, consequently
increasing overall freight rates for U.S. international food aid
shipments.84 Specifically, this limiting of competition “contributes to fewer ships winning the majority of the food aid shipping
contracts” and thus gives more leverage to the existing fleets to
demand higher freight costs.85
D. Monetizing Aid: The Food Security Act of 1985
The selling of food aid commodities in local or regional
markets in order to fund nonemergency food assistance programs in those areas, referred to as monetization, is arguably
one of the most contentious components of current food aid
policy and its proposed reform.86 Monetization was originally
authorized by the Food Security Act of 1985,87 allowing “implementing partners that received nonemergency food aid under
USAID’s Food for Peace program and USDA’s Food for Progress
program to monetize some of the food in recipient countries and
use the proceeds to cover associated shipping costs.”88 Funds
generated through monetization are typically used for development projects such as those that “[provide] assistance to improve
agricultural production, provide health and nutrition activities,
and support education and humanitarian needs.”89
Of the $2.5 billion spent to provide 2.5 million metric tons
of food aid commodities in 2010, the United States shipped a
total of 540,000 metric tons specifically for monetization; the
50
procurement and transport of this monetized freight cost more
than $300 million.90 In the same year, 63% of the total food aid
tonnage under the Food for Peace program, more than 313,000
metric tons, was destined for monetization.91
Monetization is carried out by food aid partner organizations, primarily NGOs, who have received grants from either
USAID or the USDA “to monetize agreed upon commodities
in certain countries.”92 When submitting a grant application,
the implementing partner must have secured a buyer in the
recipient country; if the organization has met this requirement,
the agency “approves or disapproves the request, which is then
routed to KCCO. KCCO purchases the requested commodities
from U.S. producers in the United States and ships them to the
implementing partner in the recipient country.”93 This shipment
must comply with the cargo preference requirements, which the
U.S. Department of Transportation (“USDOT”) aids KCCO in
meeting.94 Ultimately, the process of monetization consists of at
least seven major steps, with as many as 50 sub-steps, “including
steps to complete the application, conduct market assessments,
coordinate requests and shipment, identify bidders and obtain
bids, deliver commodities, and collect payment.”95
Like domestic procurement mandates for food aid, monetization originated in part from surpluses in U.S. agricultural
commodities—a phenomenon largely resulting from U.S.
government farm subsidies.96 Those critical of monetization
frequently note that “the U.S. government no longer has surplus
agricultural commodities[;]”97 consequently, the current maintenance of the program depends on U.S. government purchases of
agricultural commodities from the commercial market.
While proponents of monetization laud its facilitation of
necessary development programs for the food insecure, critics
deride the program as inefficient and potentially detrimental
to the stability of markets in recipient countries.98 Although
the programs funded through monetization provide essential
services, 2007 and 2011 reports from the GAO make it clear
that monetization is inefficient:99 “The inefficiencies stem from
the process of using U.S. government funds to procure food aid
commodities in the United States which are then shipped to the
recipient country and sold.”100
Moreover, following a 2002 Farm Bill amendment to the
Food for Peace Act, neither USAID in its administration of the
Food for Peace programs, nor USDA in its administration of
Food for Progress is obligated to achieve a specific level of cost
recovery: instead each agency is simply required to achieve “reasonable market price,” a standard left undefined by the statute.101
Thus, the only steadfast condition on monetization is that the
sale be “an amount not less than 15% of the aggregate amounts
of all commodities distributed under Title II nonemergency programs for each fiscal year,”102 a condition which is continually
met at rates above the minimum requirement.103
Taken together, these policies compose the structure of tied
U.S. food aid—aid that mandates spending in the donor country
as opposed to providing direct monetary assistance to recipient
nations. Despite widespread opposition to tied aid, shifts away
from tied aid among other donor countries, and multiple pushes
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for the reform of U.S. aid, the United States has yet to transition
away from a “nearly 100[%] tied food aid policy.”104
The United States’ ostensible inability to modernize its food
aid policies is directly linked to the strong economic interests of
powerful stakeholders pulling in the opposite direction. It is telling that a significant portion of the U.S. food aid budget is spent
domestically: “[I]n 2004, for example, it was estimated that some
90[%] of the aid budget was spent inside the country.”105 The
primary beneficiaries of this spending include domestic agricultural and maritime industries, as well as food aid NGOs.106 Each
of these groups has formed large and influential lobbies, tasked
with quelling any effort to alter the structure of food aid in a way
that would limit the direct support these organizations receive
under the current order. Consequently, as will be highlighted in
Part III, the asserted efforts of these institutions have been the
primary obstacle to food aid reform in the United States.
The argument of this article, taken up in Part V, is that this
is not an inevitable fate for food aid reform but a precedent that
is largely ameliorable through the use of specific alternative dispute resolution tactics. Before making this argument, it is first
important to clearly understand the interests and influences of
the stakeholders involved.
III. Food Aid Reform & Divergent
Stakeholder Interests
A. Reform-Supporting Stakeholders
Sen’s 1981 analysis of famines made clear that “[f]amine
was not caused by a slump in the overall availability of food, but
by the loss of entitlements to that food.107 Thus, social scientists
adopted a focus on “demand failure” as opposed to “supply failure” as the appropriate means to evaluate the cause of famines.108
Focusing on demand failure resituated famines as “predictable
consequences of normal market processes given that markets
respond to purchasing power rather than to need.”109 This shift
to a focus on entitlements has also altered the way relief and aid
are academically conceptualized: “[A]consensus has emerged
from famine ethnographies that famines are preventable and that
relief initiatives must focus on restoring lost entitlements and not
simply “throw grain at famines.”110
The United States’ Title II hunger and famine aid policy,
which functions by effectively prohibiting any other tactic than
the “throwing of grain”—specifically U.S.-produced grain—has
been the focus of numerous public and political critiques. These
critiques have come from a variety of individuals, institutions,
and organizations, representing both sides of the U.S. political
party divide. Notably, appeals for Title II reform have created
such uncharacteristic bedfellows as The Heritage Foundation111
and Oxfam America.112 These unexpected partnerships are most
clearly explained by two theoretical categories of critique, which
underpin most arguments against the current food aid policies.
Specifically, there are those concerned with fiscal efficiency and
those that focus on humanitarian efficiency. Unsurprisingly, the
supporting stakeholders motivated by fiscal concerns include the
conservative organizations such as The Heritage Foundation and
Republican legislators.
Winter 2014
On the other hand, reform supporting aid organizations,
federal agencies, and agency administrators, most notably
Andrew Natsios, Administrator of USAID from 2001 to 2005,
are primarily motivated by humanitarian concerns. While this
divide helps contextualize the uncharacteristic partnerships, it
is not a hardline division. Overlap exists with many humanitarian organizations making appeals premised on fiscal efficiency, while food-aid reform supporting fiscal conservatives
also make humanitarian-minded arguments for policy change.
Consequently, instead of exploring the strict divisions, it is more
relevant to highlight the principal arguments motivating pushes
for reform.
The primary arguments of food aid reform supporters
include the critique that too much of the aid budget is wasted
on U.S. mandated procurement and consequent transport, which
can also delay aid, making it less effective.113 Furthermore, those
in support of reform note that domestic procurement preferences
increase costs to agencies and aid recipients and reduce the
amount available for the provision of actual aid.114 Finally, supporters critique U.S. commodity distribution and monetization
as having a detrimental effect on local markets in the areas in
need of aid, consequently exacerbating future need, and failing
to meet the program’s goal of increasing food security.115
Concerted efforts to reform U.S. food aid did not emerge
on the political scene until the start of the 21st century, when a
number of key publications awakened public and political consciousness to the issues of U.S. food assistance policy.116 In a
2005 statement supporting a move away from domestic procurement requirements and other tied aid measures, Andrew Natsios,
then USAID Administrator, commented: “The primary purpose
of the Title II program is to save lives and having more flexibility
in our programs to use cash to buy food locally will save lives;”
adding that “[t]he fact that United States farmers and shippers
are able to benefit from the Food for Peace program is an important, but secondary benefit.”117
Natsios’ comments convey the typical humanitarian appeal
for food aid reform. These ethical arguments are frequently
coupled with economic arguments concerning efficiency, as
those supporting food aid reform are quick to highlight the
inefficiencies of domestic commodity and U.S.-flagged cargo
preferencing.118 Most argue that by allowing for local procurement119—as opposed to the current laws that require domestic
food purchases—U.S. food aid funding could provide more
food at lower cost and a faster pace.120 Furthermore, supporters of reform also critique the practice of monetization both for
the efficiency issues addressed above and because the practice
hampers the development and long-term resilience of local agricultural markets in aid-receiving regions.121
Despite bipartisan, multi-institutional and academic support, reform efforts have been largely unsuccessful primarily
because of the influence of key oppositional groups motivated
by strong economic interests in maintaining the food aid status
quo. These groups—the agricultural lobby, the shipping lobby,
and food aid NGOs—have exerted powerful pressure within the
51
U.S. Congress, successfully swaying the most important institutional body in food aid policy.
B. Opposing-Stakeholders
Often swayed by the aggressive lobbying efforts of reformopposing groups, many lawmakers voice skepticism about
the lauded efficacy of cash aid versus in-kind—or tied—food
aid.122 Most note the potential loss of important U.S. industry
and jobs if the proposed reforms to food aid are implemented.
Furthermore, many lawmakers are simply not impressed by
the predictions of savings in the realm of “$500 million over a
decade,” a comparatively small sum, “when stacked against the
vocal complaints about the potential loss of jobs and markets for
U.S.-grown food.”123
Furthermore, there are cynical concerns about the ability of
international food aid to maintain its robust funding if it loses
the support of powerful agricultural lobbyists. Critics note that
“allowing non-U.S. commodities to be purchased with U.S. funds
would result in undermining the coalition of commodity groups,
PVOs, and shippers that support the program, and in reductions
in U.S. food aid.”124 Further fueling opposition are concerns
regarding the ability of the United States to receive public credit
for aid purchased locally in the area of need as opposed to being
U.S. sourced and shipped. American Farm Bureau economist
Veronica Night has stated “[e]xports via food aid are a small
drop in the market. . . . Our concern is less about decreasing an
important revenue stream for U.S. agriculture. It’s more about
the loss of a sense of pride.”125
These general sentiments, shared by many reform-opposing
lawmakers, are an overall reflection of steadfast lobbying efforts
on the part of three key oppositional stakeholders—the agricultural industry, the shipping industry, and some food aid NGOs.
1. Agricultural Interests & Lobbies
The interest of U.S. agricultural producers, processors, and
handlers in maintaining domestic procurement mandates for
food aid is readily apparent. The depth and power of this interest
is largely galvanized by the corporatization of the agricultural
industry. The majority of the global grain trade is controlled
by just four firms—Archer Daniels Midland (“ADM”), Bunge,
Cargill, and Louis Dryfus.126 Consequently, the purchase of
U.S. aid commodities through the commercial market provides
direct and substantial benefit to the handful of private grain
companies.127 Furthermore, the domestic procurement mandates
restricting food aid commodity sourcing “mean[] that there are
a limited number of potential providers bidding on contracts.”128
Unsurprisingly, “more than half of food aid in the Food for Peace
program was purchased from just four large transnational agrifood companies and their subsidiaries: ADM, Cargill, Bunge,
and Cal Western Packaging.”129
This low level of competition has resulted in a price premium for food aid commodities.130 Estimates show that wheat
is now sourced at roughly 3.2% above market rates, while
maize procured for aid has on average a more than 70% price
premium.131 Consequently, “domestically sourced food aid
costs the U.S. government on average 11[%] more than market
52
prices.”132 Accordingly, domestic procurement mandates serve
to assure both a market and a bloated profit for the handful of
companies controlling the global grain trade.
A quote from a wheat industry lobby group, the U.S.
Wheat Associates, conveys the entrenched interests: “Losing
in-kind donations and monetization would be a difficult blow
for the U.S. wheat industry.”133 The U.S. wheat industry is the
agricultural sector most supported by food aid, as “23[%] of all
hard white wheat exports for 2001-[0]2 and 17[%] of hard red
wheat exports in 2002-[0]3 were sold to the government for food
aid programs.”134 Other key agricultural lobby groups fighting
against food aid reform include the National Association of
Wheat Growers and the North American Millers Association.135
2. Shipping Interests & Lobbies
The shipping industry’s interest in maintaining the status
quo for food aid policy is also huge: “[F]or U.S.-flag vessel
operators, their bread and butter remains in the transportation
of food aid.”136 For a number of shipping firms, this declaration is unequivocally true. For shipping lines such as Waterman
Steamship Corporation and Liberty Maritime, contracts for
food aid shipment are responsible for the vast bulk of their
income.137 Moreover, between 2003 and 2006 the U.S. food
aid programs have funneled nearly $1.3 billion in government
money toward the shipping industry in the form of food aid
contracts.138 However, support also flows in the reverse, as the
shipping industry is responsible for substantial amount of political campaign donations,139 giving the shipping lobby considerable weight in U.S. politics. Industry representatives that have
been active congressional lobbyists on the issue of food aid,
include the American Maritime Congress, American Maritime
Officers, and the Maritime Trades Department of the American
Federation of Labor and Congress of Industrial Organizations
(“AFL-CIO”). Overall, the combination of their significant stake
in maintaining the food aid status quo and their political might
makes the shipping industry a powerful player in preventing U.S.
food aid policy reform.
Like the grain industry, the U.S. shipping industry is characterized by large scale concentration—over half of the $300
million spent on the transport of food aid in 2004 went toward
contracts with just five shipping firms.140 Such mandates under
the Cargo Preference Act work to benefit a small portion of U.S.flagged shippers through stringent policies that prevent contracts
from going to newly flagged vessels.141 Consequently, “[i]n the
1990s there were only eighteen shipping companies that were
qualified to bid on food aid contracts, and by the early 2000s this
number had dropped to just thirteen.”142 Moreover, as explained
in Part II, “[t]his lack of competition at the shipping and freight
end of food aid has led to inflated prices for transportation.”143
A fundamental argument made by the shipping and maritime
industries is that U.S.-flagged aid shipments are important for
national security because they ensure that the United States “is
able to maintain vital sealift capabilities during peacetime.”144
Those making the argument note that in 1975 the United States
had over 850 U.S.-flagged ocean vessels but that by 2012 the
Sustainable Development Law & Policy
number had dropped to 109. Predictably, there has been a
concomitant drop in the percentage of U.S. commercial cargo
transported on U.S. vessels, falling from 10% in 1959 to 4% by
2012.145 These statistics evidence shippers’ appeal that cargo
preference laws mandating the transport of food aid on U.S.flag vessels provide a critical source of cargo for the dwindling
U.S. fleet and thus offer an essential assurance that the United
States “[maintains] adequate sealift capacity, both to support
[the] military and to ensure . . . the retention of . . . at least a
core of skilled merchant mariners and commercial vessels of all
types.”146 Ultimately, this appeal cautions that a loss of U.S. food
aid cargo for U.S.-flag vessels would expedite the decline of an
already diminishing fleet, making the Nation’s sealift “objectives
. . . dependent on foreign-flagged vessels operated by foreign
mariners.”147
The protection of a U.S. merchant maritime fleet is also
praised as providing essential jobs and economic stability for a
number of U.S. citizens.148 Industry representatives warn that an
exemption of food aid from cargo preferences would put U.S.
jobs on the line by compromising the economic stability of
already struggling shipping fleets.149
3. Food Aid Nongovernmental Organizations
As noted in Part III, the U.S. policy of providing in-kind
food aid, coupled with authorization for the monetization of
nonemergency aid, serves as an essential source of funds for U.S.
based food-aid NGOs. The vast majority of nonemergency Title
II aid is funneled through NGOs charged with delivery and sale
of the donated commodity, achieved primarily through monetization.150 Unsurprisingly, the practice of monetization provides
a significant funding source for these NGOs.151 For certain organizations, the total funds provided through the monetization of
in-kind aid have been more than $100 million.152
The capital generated by NGOs through monetization
works to fund non-emergency development projects that lack an
alternative source of concerted funding. Since the practice was
first authorized in 1985, the overall percentage of nonemergency
Title II aid that becomes monetized has continued to grow: In
1996, 28% of nonemergency aid was monetized, by 2001 the
share had risen to 70%, and in more recent years the portion has
been as high as 74% on average.153 Furthermore, “[f]or some
food aid operations, NGOs monetized the entire amount, as it is
a major source of their development finance.”154
Accordingly, the food aid NGOs reliant on the monetization
of in-kind aid institutionalized in U.S. food assistance policy
are markedly opposed to reform efforts that would disallow this
practice. The Alliance for Global Food Security has served as the
primary voice of NGOs lobbying against reform to U.S. international food aid.155 Importantly, the presence of food-aid NGOs
in the group opposing reform has given a “degree of legitimacy”
to the industry position, “and together they form[] a powerful
bloc fighting against food aid reform.”156 This block of powerful
stakeholders has unquestionable influence in the debate about
food aid reform.157 They have, and will undoubtedly continue
Winter 2014
to have, a significant impact on the success, failure, and overall
composition of any changes to U.S. food aid policy.
C. The Voiceless Stakeholders
Often forgotten in the midst of heated debates about food
aid reform are the people who depend on food aid for their daily
survival, the stakeholders for whom the debate and the outcomes
are the most crucial; yet, they have the smallest voice in the dispute over food aid reform. Logistically, it would be impossible to
include the opinions and perceptions of each potential recipient
in every dialog concerning reform. However, there are key representative bodies, such as the recipient country governments and
country-specific hunger relief NGOs that are acutely aware of
the potential consequences of food aid policies for the ultimate
recipients.158 Yet, these representatives are largely voiceless in
the determinant conversations over food aid issues in the United
States.
Food aid policy has significant impacts on the lives of
people in the global South. Between 1994 and 2003 food aid
served as the source of 15-20% of all food imports for the least
developed countries, a large portion of which are in sub-Saharan
Africa.159 In certain circumstances and in certain locations the
level of dependence is even more extreme—for example, from
2001 to 2003 food aid contributed 46% of Ethiopia’s total food
supply.160
The trend in modern food aid need has been one of increasing emergency aid and decreasing need for non-emergency
assistance; by 2007 more than three-quarters of aid was delivered as emergency support.161 Returning again to Sen’s work on
the appropriate mechanisms for famine and hunger reduction,
the academic understanding is that aid should be flexible and
adaptable to the specific circumstances of the area in need, especially in emergency circumstances.162 Food systems anthropologist, Johan Pottier, explains the basic rationale, noting that given
the “diversity of famine situations” and the conflicting opinions
about the best mode of assistance, “the more reasonable solution
is to examine the merits and drawbacks of either option within
highly specific situations and to ensure that potential famine victims have some choice regarding the kind of patronage system
they wish to have.”163
Pottier acknowledges the political realities that determine
the structure of food aid policy, especially for key nations such
as the United States. However, this does not dissuade him from
making the appeal that “relief and prevention work, like development aid generally, can only be truly effective if potential
recipients have the power to determine what is used and how . . .
[s]uch a dialogue must never be considered a luxury.”164
Given the numerous stakeholders involved in U.S. food aid
policy as well their disparate levels of power, voice and influence, it is important to find mechanisms that will facilitate an
equitably weighted dialogue—where parties that are the most
impacted are also given a say and those with the least to lose
but with the strongest influence are prevented from overpowering the less advantaged. This is where the use of alternative
dispute resolution mechanisms becomes important. As this
53
article argues, contemporary attempts for food aid reform have
neglected to limit this divide in influence and consequence
between the various stakeholders. In fact, the inverse has been
true, namely, that the attempts for reform have aggravated this
imbalance. The following section highlights the important
underlying theories of ADR and how they might be applied to
attempts for food aid reform. This is followed by an examination of the specific attempts for reform, with an analysis of key
barriers to cooperative action and an evaluation of the potential
for multi-stakeholder negotiations, mediated by a key meditative
figure to reconcile these barriers.
IV. The Role of Alternative Dispute Resolution
The structure of U.S. food aid under Title II of P.L. 480
creates a system of multiple, often unbalanced and conflicting
stakeholders with antagonistic interests. Consequently, ADR,
which seeks to resolve conflict between multiple parties through
cooperative action, is a useful tool for improving the outcomes
of contentious debates about reform.165 Although the theories
and tools of ADR are most commonly used to avoid litigation,
and not within the legislative process, this is not to say that
ADR has no role in legislative disputes, particularly those that
involve multiple stakeholders with varying degrees of power and
influence.166 Quite conversely, as the legislative process is often
fraught with conflict between divergent stakeholders yet procedurally flexible and quite amenable to the tools of ADR, the
limited application of ADR theories and tactics is an unfortunate
oversight.167
In the case of food aid reform, there are additional impediments to a perfect application of ADR tools. The process of ADR
seeks to ask the fundamental question: Why is it that under circumstances where there are resolutions that better serve disputants, negotiations often fail to achieve efficient resolutions?”168
In the situation of food aid reform, opposing stakeholders benefit primarily from maintaining the status quo and consequently
have limited potential for achieving tangible gains from any
cooperation for change. This is an important consideration, but
not a steadfast roadblock; the use of basic dispute resolution tactics—facilitated, private, multiparty negotiation—can decrease
the level of opposition by giving opposing stakeholders a stake
in the reform proposal, thus increasing the likelihood of less
diluted reform measures and greatly improving the balance of
stakeholder power.169
Recognizing and mediating the inherent power imbalance
within food aid reform disputes is essential to constructing
effective negotiations. Although some scholars have questioned
the efficacy of mediated negotiations to reduce imbalances in
power, three key aspects of the mediation process—the voluntary
nature, the “empowerment function,” and the “non-adversarial
approach”—explicitly work to “prevent power abuses by a more
powerful party.”170 In negotiations including all food aid reform
stakeholders, a negotiation would be refereed by a facilitative
mediator171 equipped to reduce both power imbalance and maintain focus on cooperative action toward mutual goals.
54
The process of alternative dispute resolution begins by
pinpointing the key barriers to cooperation and only then determining the appropriate use of specific ADR tools to improve
cooperative action toward a favorable outcome.172 Following this
process, the subsequent section examines key strategic barriers
that inhibit cooperation such as the aggravation of the stakeholder power imbalance through the use of both “outside strategies,”173 use of the media as a position-promoting strategy, and
the dilemma of the “principal agent barrier,” a barrier primarily of representation.174 In this context, the subsequent section
highlights how facilitated, multi-stakeholder negotiations could
work to mediate these barriers and improve the likely passage of
favorable food aid reform measures.
A. Attempts to Reform Food Aid & the Barriers to
Cooperative Action
Efforts to reform food aid since 2006 have shared both fundamental tactics and fundamental flaws that have substantially
and unnecessarily hindered actual food aid reform. Attempts at
reform, while including bipartisan and multi-institutional support, neglected to give the key oppositional parties a chance to
negotiate the mechanisms of reform prior to their congressional
introduction.175 This tactic ignored the influential weight and
substantial interests of key oppositional parties and overlooked
the necessity of inclusive negotiations for the success of controversial legislation.
These tactical oversights manifest as specific categorical
barriers to cooperative action: (1) bargaining through the mass
media or an “outside-strategy;” and (2) the “principal agent barrier,” where final decisions are filtered through representatives
that do not often share the same interests or motivations as their
constituents.176 In the case of food aid reform efforts, this outside strategy was employed not only in the political and legislative arena but also by key stakeholder interest groups (both the
pro-reform agencies and NGOs as well as the oppositional lobby
groups representing the agricultural, shipping, and food-aid
NGO interests).177 The issue with this bargaining strategy is that
it aggravates differences by diluting the arguments and interest of each side into oppositional positions.178 This ultimately
reduces the likelihood of cooperative action by decreasing the
parties’ abilities to identify mutually beneficial solutions, as
Tom Melling explains: “Conflict encourages the media to create
a story by exaggerating differences and by polarizing parties’
positions. . . . Reporters dislike tentativeness, which discourages
the flexibility that politicians need to make compromises during
long negotiations.179
While Melling’s analysis focuses specifically on the issues
an outside strategy creates for cooperation, this article argues
that in the case of food aid reform the same barriers are created
by the outside strategies of key stakeholder groups in addition to
those used by the congressional figures—consequently creating
a “stakeholder dilemma” in addition to the commonly occurring
“politicians’ dilemma.”
The issue of the principal agent barrier in food aid reform
results from the role of Congress in determining the ultimate
Sustainable Development Law & Policy
fate of food aid policy. Legislators, who arguably hold a stake in
the food aid debate as a consequence of effects on their constituents, are nevertheless primarily indirect stakeholders; while key
groups like the NGOs, food aid administering agencies, lobby
groups, and food-aid recipients make up the direct stakeholders.
While these groups face the most direct impact from the composition of food aid reform, their interests and opinions must
filter through Congress, creating the representation issue often
referred to as the “principal agent barrier.”180
To illustrate these barriers, the following three sections
provide an overview of three contemporary attempts at food aid
reform, beginning first with a series of attempts made by the
Bush administration, then moving to the 2013 attempt by the
Obama administration, and concluding with the attempt originating by two legislators, Representative Ed Royce (R-CA), and
Representative Karen Bass (D-CA).
B. Bush Administration & Food Aid Reform
In the 2002 “President’s Management Agenda,” former
President George W. Bush acknowledged the fundamental need
for food aid reform.181 The specific critiques highlighted by
the report included the common laments regarding the overly
complex administration of the programs, the associated inefficiencies and cost increases, and the wasteful and counterproductive nature of tied aid and monetization with their potential
to negatively impact the local agricultural markets of recipient
countries.182 Acting on these critiques, “[i]n early 2005, just as
the food aid issue was heating up at the WTO, President Bush
included in his 2006 budget proposal a request for authority to
allow 25[%] of the food aid budget for that year to be provided
in the form of cash for local and regional purchase.”183
Bush’s efforts at reform were supported most notably by
then-USAID Administrator Natsios, who strongly favored the
proposed reforms to food aid policy.184 Natsios specifically
championed efforts to increase the flexibility of aid, allowing
for increased cash assistance for local and regional procurement.185 Despite the robust efforts by both President Bush and
Natsios, the 2006 budgetary reforms to food aid were defeated
by Congress.186 A key factor leading to this rejection was the
vocal opposition by the agricultural, shipping, and NGO groups
who asserted robust pressure on legislators, convincing them
that the proposed reform was unnecessary and harmful to both
the United States and food-aid recipients.
Concomitantly to renewed White House efforts in the 2007
budget, efforts were made to pass a new 2007 Farm Bill in the
legislature. The new Farm Bill legislation included a request for
the allotment of 25% of P.L. 480 Title II funds toward cash assistance for the procurement of local and regionally purchased food
aid.187 This was intended to increase efficiency through a reduction in food aid delivery times and savings on transportation and
commodity costs.188 However, Congress was more amenable to
the lobbying of influential agricultural, maritime, and food aid
NGO interests, and the bill was ultimately defeated.189
Final efforts in 2008 again attempted to move a fraction
of U.S. food aid into cash allocations for local and regional
Winter 2014
purchase of aid commodities.190 President Bush’s 2008 proposals
followed largely from policy proposals drafted by The Heritage
Foundation, most notably allowing for local sourcing of food aid
by discontinuing domestic commodity mandates and exempting
food aid from cargo preferences—in other words, implementing partially untied aid.191 Furthermore, the proposal eliminated
funding for Title I of P.L. 480, which authorizes the untargeted
monetization of aid after 2001.192 However, the heavy-handed
agricultural lobby, shipping lobby, and certain NGOs reliant
upon monetization, significantly diminished reform efforts;
“[t]hese groups were [again] able to exert influence over a powerful part of the domestic institutional setting where important
decisions regarding food aid policy are made: U.S. Congress.”193
In sum, despite executive level, institutional, and bipartisan support, the Bush Administration’s attempts for reform had, at best,
limited success, as unsurprisingly, Congress’ reception of the
bill largely paralleled this initial reception by important industry
leaders.194
In total, the food aid reform efforts made between 2004 and
2008 were successfully opposed by an alliance of agricultural,
maritime, and food-aid NGO industry lobbyists asserting tremendous pressure over Congress and “shap[ing] public discourse
by posting news items and press releases on their websites and
testifying at numerous congressional hearings that touched on
food aid.”195 They also worked on the international platform,
lobbying at the Geneva Convention, targeting key trade negotiators.196 Ultimately, the reform attempts achieved no change to
the present structure of U.S. food aid policy.197
C. Obama Administration & Food Aid Reform
Relying on tactics almost indistinguishable from those
proven unsuccessful by the Bush administration, President
Obama aimed to implement even more drastic food aid reform
measures in his 2014 budget proposal. In equal fashion,
Obama’s budgetary reform to food aid, which attempted to completely replace in-kind aid with cash aid, was largely eroded by
Congress as the same strong oppositional interests fought fervently against it.
Yet again the primary opponents were the agricultural
industry, the shipping industry, and aid organizations that rely
on monetization for nonemergency program funding. These
fierce lobby groups worked quickly to gather significant support within Congress and oppositional efforts began as soon as
February 2013, when information about the budget proposal was
leaked.198 After months of fierce lobbying, “only a few lawmakers [were] prepared to publically support the effort to send cash
abroad to make distribution of aid faster and more efficient.
They [were] outnumbered by lawmakers from both parties who
[wanted] to kill the initiative or water it down substantially.”199 A
combination of major aid organizations, including the Alliance
for Global Food Security, and various commodity groups headed
the effort. Those opposed to reform used a range of tactics to
influence key lawmakers, including meetings, letters, and fueling support from constituents.200 The major catalyst for inspiring
55
opposition was a continual reference to the U.S. jobs at stake if
the reform went through.201
Some of the most notable efforts to generate congressional
opposition to the proposed reform included a letter sent directly
to President Obama with 70 signatories from various institutions
and organizations against the proposed changes to aid.202 This
letter was followed in March by a similar letter sent to nine congressional committees.203 The letters argued for the significance
of the “transparency, accountability and reliability” provided by
the current food aid system of in-kind contributions; further cautioning the potential for corruption that comes with cash-based
aid; and citing the importance of the system for domestic job
security.204 In addition to letters, there were also direct interactions between oppositional interest groups and legislators,
including a meeting in March between congressional aides and
the soybean farmers opposed to aid reform.205 These efforts
generated significant congressional opposition, and President
Obama’s original proposal—a 100% re-appropriation of funds
typically provided for in-kind aid to cash transfers and untied
flexible food aid programs—was whittled down to a redistribution of just 45%.206
D. Congress & the Food Aid Reform Act
Wary of the failure for the food aid reform proposed in
the Obama budget, Republican Representative Ed Royce,
Chairman of the House Foreign Affairs Committee, and
Democratic Representative Karen Bass; Ranking Member of the
Subcommittee on Africa, Global Health, Global Human Rights
and International Organizations; introduced bipartisan legislation to reform major components of U.S. international food aid.
The legislation introduced in the 113th Congress, and entitled
the Food Aid Reform Act207 specifically targeted the Food for
Peace Program, calling for modernization and increased efficiency in an effort to “reach more people, more quickly, at less
expense.”208
In endorsing the Food Aid Reform Act both Chairman
Royce and Ranking Member Bass explicitly referenced the
importance of food aid policy that benefits the hungry and food
insecure peoples in the most efficient and expedient way possible. Chairman Royce noted that, “[t]he system through which
the United States provides food aid [to] those facing starvation is
needlessly inefficient and ineffective. Especially given the current fiscal environment . . . .”209 Ranking Member Bass echoed
Royce’s appeal for efficiency by stating, “[t]his legislation provides commonsense reforms to our grossly inefficient system for
delivering food aid. . . [ensuring that] . . . funds aren’t wasted as
we seek to lend a helping hand to those who would otherwise
face severe consequences due to food insecurity.”210
With the underlying goal of improving the efficiency and
effectiveness of the Title II food aid program, the Food Aid
Reform Act specifically addresses U.S. commodity sourcing
requirements, U.S. cargo preferences, and food aid monetization.
The Food Aid Reform Act focuses on improving the efficiency
and effectiveness of international food aid by: (1) eliminating
U.S. procurement requirements for agricultural commodities, (2)
56
eliminating the costly and inefficient practice of “monetization”
(selling food aid commodities in recipient countries to finance
development projects), (3) aligning nonemergency food aid with
the Foreign Assistance Act of 1961, and (4) exempting U.S. food
aid provided from cargo preference requirements.211 Supporters
of the reform bill were motivated largely by what they see as an
outdated, inefficient, and often ineffective way of meeting the
primary goal of food assistance.212 Such changes would move
policy in a direction more in line with current academic understanding of appropriate hunger-relief efforts; namely, by providing cash assistance, and increasing aid flexibility, the proposed
reforms would work to stabilize and augment what Sen termed
the necessary “entitlements” for adequate food access.213 Most
concretely, the bill is estimated to save the U.S. government $500
million over ten years while also increasing the human value of
the aid administered.214
Although using a stand-alone bill is a novel tactic for reform,
the negotiations process preceding the construction of the act,
like previous attempts, neglected to include dialogue with the
expected opponents.215 Consequently, and unsurprisingly, robust
opposition from the “iron triangle” lobbing groups has severely
limited the likely passage of the act.216
E. Options for Cooperative Action: The Value of
Obama’s Budget Proposal
Despite what appears to be mutually exclusive positions
and interests on the part of each stakeholder group, a closer
look at Obama’s 2014 budget proposal reveals key options for
mutual benefit—or at least areas for concession between the
divergent groups. The budget specifically proposes to reallocate
the $1.47 billion annual appropriations for Title II of P.L. 480
to three USAID assistance accounts.217 This reallocation would
essentially cease tied aid provided under Title II, and shift funds
to USAID programs that are unrestricted by commodity preferences and subsequently unencumbered by cargo preferences.218
The specific USAID programs that would receive additional
funding under the proposal include: International Disaster
Assistance (“IDA”), Development Assistance (“DA”) for a
Community Development and Resilience Fund (“CDRF”), and a
new Emergency Food Assistance Contingency Fund (“EFAC”)—
all of which would add “gains of flexibility, timeliness, and efficiency in the provision of emergency food aid,” by expanding
the aid options available to USAID.219 Instead of restricting aid
mechanisms to “a commodity-only response,” USAID could
choose from a variety of options, including: “local or regional
procurement in countries or regions where food aid emergencies
are occurring and other forms of cash-based assistance like food
vouchers or cash transfers.”220 The increase in funding toward
more flexible aid options would ultimately result in significant
efficiency savings as well as increasing the ability of USAID
to provide more need-appropriate aid, enabling the Agency and
partnering organizations to adapt assistance methods to the local
circumstances of the recipient regions.221
Furthermore, the proposal reallocates a portion of the “efficiency savings” from the transfer of Title II funds directly toward
Sustainable Development Law & Policy
increases to the Maritime Security Program (“MSP”) equal to
$25 million and to the CDRF equal to $330 million for food
aid NGOs.222 Given the cumbersome and inefficient structure
of the indirect benefits received through both cargo preferences
and monetization, there is potential for the shipping industry
or NGOs to support reform. Despite these seemingly conciliatory fund reallocations, steadfast opponents highlight another
reason why facilitated negotiations between all parties could
benefit reform. The efficiency savings allocations in the Obama
budget make apparent that the administration is sensitive to the
concerns of reform opposition groups; consequently, they are
likely amenable to compromise. The resistance on the part of
both the shipping industry and food aid NGOs is most likely a
consequence of their lack of participation in the proposal.223 In
the case of food aid reform, failure to include key stakeholders
causes fervent opposition from powerful and influential parties,
invariably limiting the success of reform. Thus, if the key oppositional stakeholders were able to participate in the preceding
negotiations for reform proposals, thereby giving them a stake in
the proposal, opposition efforts would be significantly reduced
and reform success significantly increased.
Moreover, as the public and political discourse heats up on
global food security issues, inaction on increasing the efficacy of
food assistance will become harder to accept.224 Consequently, it
is likely that reform attempts will continue as food issues remain
in the forefront of public consciousness. Accordingly, it might
behoove the iron triangle members to participate in early negotiations in an effort to prevent future reform proposals that offer
little conciliatory measures to ameliorate their potential financial
losses. The Food Aid Reform Act foreshadowed the potential for
this as it emerged on the heels of the unsuccessful budgetary
reform efforts and offered a fervent effort to advance food aid
policy changes with far less iron triangle appeal.225 While mirroring the Obama budget in its elimination of Title II funding,
the Food Aid Reform Act lacked comparable reallocations to
either food aid NGOs or the shipping industry.226
Even if divergent parties were brought together, multi-stakeholder negotiations alone would not be enough to guarantee successful reform efforts. Given the contentious nature of U.S. food
aid policy and the power imbalances between key stakeholders,
the structure of any negotiation will be an important consideration. While an exhaustive evaluation of the necessary negotiation structure is outside the scope of this article, it is important
to recognize the fundamental need for an effective facilitator or a
facilitative mediator, to be present in any successful negotiation.
Used in concert with multi-stakeholder negotiations, facilitation
between the conflicting stakeholders by an effective mediator
would help balance the disparate power and influence of stakeholders participating in the negotiation.227
As mentioned above, three key aspects of the mediation process—its voluntary nature, the “empowerment function,” and the
“non-adversarial approach”—explicitly work to “prevent power
abuses by a more powerful party.”228 Most basically, a facilitative mediator would work to establish ground rules and a process
for the overall discussion, ensuring that all parties understood
Winter 2014
the importance of reaching a mutually acceptable settlement.229
Additionally, “by focusing on specific issues and the parties’
interests and needs, the mediator can prevent the dialectic of
adversarial opposition and encourage the parties to engage in a
common search for a mutually satisfactory, or at least bearable,
solution for both sides.”230
In sum, a fatal flaw of the recent attempts for food aid
reform was the failure to use the key ADR tool of facilitated,
multi-stakeholder negotiations preceding food aid reform proposals. While legislative negotiations followed the introduction
of each reform proposal, legislative negotiations failed in every
instance to convene all of the impacted stakeholder groups prior
to the structuring of the proposed reforms. Consequently, each
proposal was met with instant opposition from the iron triangle
groups.231 Conversely, inviting the key oppositional groups to
engage in a private dialogue or negotiation about proposals for
reform might have worked to quell the fierce opposition or helped
to construct a reform proposal that was more likely to generate
the requisite Congressional support. Furthermore, these negotiations could have included representatives of the aid recipient
countries, who were decidedly absent in the final debate about all
reform proposals. Finally, the presence of a facilitative mediator
could work to balance the convergent stakeholder interests and
power imbalances, ensuring a mutually amenable outcome.
V. Conclusion
As the pressures of population growth, increasing affluence,
and climate change strain the stability of global food supplies,
fringe populations are increasingly susceptible to hunger and
malnourishment.232 Consequently, the demand for effective food
aid and food assistance programs is likely to rise. Efforts to limit
the dissonance between food aid logic and policy must not be
disused by avoidable barriers in the legislative process. Specific
tactics of alternative dispute resolution—including facilitated,
multi-party negotiations and the use of a facilitative mediator—could beneficially advance efforts to modernize food aid by
enabling cooperative action and balanced negotiations between
divergent stakeholders.
Current reform efforts have detrimentally overlooked key
concepts and tactics of alternative dispute resolution. By incorporating basic efforts for cooperative negotiation through the
inclusion of both reform-critics and reform-supporters in the
conversations about reform proposals, the chance of passing U.S.
food aid reform legislation could be greatly increased. Efforts
on the part of both the Bush administration and the Obama
administration, although bipartisanly inclusive, were exclusive
in stakeholder representation. With such a complex and contentious issue, efforts to push through legislative change without
the full participation of all powerful stakeholders will likely fail.
As was the case in past efforts for U.S. food aid reform, failure
stems primarily from the guarantee of fervent opposition by
powerful, but excluded stakeholders. Efforts for food aid reform
have ignored this key concept and have consequently achieved
only limited success.
57
Endnotes: U.S. Food Aid Reform through Alternative Dispute Resolution
1
Edward J. Clay & Benjamin Lernard Schaffer, Room for Manoeuvre:
An Exploration of Public Policy Planning in Agriculture and Rural Development 55 (1984) (citing quotation from unpublished notes of interviews with
female household workers, Mymensingh District, Bangladesh, 1980).
2
Amartya Sen, Hunger and Famines: An Essay on Entitlement and Deprivation 1 (1981).
3
Johan Pottier, Anthropology of Food: The Social Dynamics of Food
Security 142 (1999).
4
Sen’s assertion that a lack of access , and not necessarily a lack of supply,
causes a lack of adequate food repositioned government and policy as key factors in preventing and ameliorating both hunger and famines. Sen, supra note 2,
at 142-43.
5
See generally, id.
6
Id. at 142-143.
7
See generally Sen, supra note 2.
8
Gordon Conway, One Billion Hungry: Can We Feed the World? 29-32
(2012).
9 Gan Ziegler, United Nations Comm’n on Human Rights, The Right to
Food: Report by the Special Rapporteur on the Right to Food 5 (2001), available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/f45ea4df67ecca98c125
6a0300340453/$FILE/G0111035.pdf.
10 Food & Agric Org. of the United Nations, The State of Food Insecurity
in the World 2008 6 (2008), available at ftp:// ftp.fao.org/docrep/fao/011/
i0291e/i0291e00.pdf.
11 Number of hungry people rises to 963 million, Food & Agric Org. of the
United Nations (Dec. 9, 2008), http://www.fao.org/news/story/en/item/8836/.
12 Pottier, supra note 3, at 165-67.
13 Tom Melling, Dispute Resolution within Legislative Institutions, 46 Stan.
L. Rev. 1677, 1689 (1994).
14 Jennifer Clapp, Hunger In The New Balance: The New Politics of International Food Aid 69 (2012).
15 Attempts to reform food aid have been the result of collaboration and conversation between only key supporters of the suggested reforms. Notable actors
include aid organizations like Oxfam America and CARE, policy think tanks
such as The Heritage Foundation, and supporting legislators.
16 7 U.S.C. § 1691.
17 The Editorial Board, Food Aid Reform, N.Y. Times, April 27, 2013, http://
www.nytimes.com/2013/04/28/opinion/sunday/food-aid-reform.html.
18 U.S. Gov’t Accountability Office, GAO-07-560, Foreign Assistance:
Various Challenges Impede The Efficiency And Effectiveness of U.S. Food
Aid 7 (2007); Stacey Rosen, A Pilot Program for U.S. Food Aid, Amber Waves
2 (Nov. 2008) http://www.ers.usda.gov/AmberWaves/November08/PDF/AW_
November08.pdf.
19 For example, in proposing the FY2014 budget, President Obama also
addressed the need for food aid reform. His proposal, after consideration by the
113th Congress, was largely rejected. His proposals are comparable to those
addressed through The Food Aid Reform Act (H.R. 1983), including monetization, local procurement, and U.S. cargo preferences. Charles E. Hanrahan,
International Food Aid Programs: Background and Issues, Cong. Research
Serv. 12 (May 20, 2013), available at http://foreignaffairs.house.gov/sites/
republicans.foreignaffairs.house.gov/files/R41072.pdf.
20 Id. at 3.
21 Mitchel B. Wallerstein, Food for War/Food for Peace: United States
Food Aid in a Global Context 47, 146-47 (1980).
22 Clapp, supra note 14, at 3 (From the 1950s to the 1970s political and public concern focused on the controversial geopolitical and agricultural surplusdumping motivations behind food aid programs of multiple donor countries,
namely the United States, Europe, and Australia).
23 Bill Winders, The Politics Of Food Supply: U.S. Agricultural Policy
in the World Economy 129 (2009). “In its early days, food aid policy was
driven largely by forces no longer relevant in the current context: sizable grain
surpluses needing to be disposed of, which determined the largest donors, and
geopolitical considerations of the Cold War, which determined the most likely
recipients. Humanitarian concerns always underlay food aid policies, but the
economic and political considerations of donor countries typically dictated the
terms.” Clapp, supra note 14, at 15. See also Harriet Friedmann, The Political
Economy of Food, 197 New Left Review 29, 29-57 (1993); Theodore Cohn,
The International Politics of Agricultural Trade: Canadian-American
58
Relations in a Global Agricultural Context 91-108 (1990); John Cathie,
The Political Economy of Food Aid 2, 11, 22 (1982).
24 Winders, supra note 23, at 95 (citing Harriet Friedmann, The Political
Economy of Food: The Rise and Fall of the Postwar International Food Order,
88 Am. J. Soc. 248 (1982) (Specifically, donor-oriented aid was blamed for turning previously self-sufficient countries into aid-dependent nations while serving
the capitalist expansion of major agribusiness interests overseas and for distorting farmer incentives in recipient countries, reducing local food production and
security).
25 See Wallerstein, supra note 21, at 47 (Most notably the 1970s food crisis
increased awareness for the importance of effective food aid policies).
26 Clapp, supra note 14, at 1.
27 The perception that aid policy had become less donor-oriented and thus
more altruistic was true in many cases; in fact, the majority of donor countries
(apart from the United States) made substantial efforts in the 1970s to reform
the practices of geopolitical and surplus oriented food donations. Clapp, supra
note 14, at 3.
28 See generally Christopher Barrett & Daniel Maxwell, Food Aid after
50 Years: Recasting Its Role (2005); U.S. Gov’t Accountability Office,
supra note 18 (2007); Edward J. Clay, Matthew Geddes & Luisa Natali,
Org. for Econ. Co-operation & Dev., Untying Aid: is it working? An Evaluation of the Implementation of the Paris Declaration and of the 2001 DAC
Recommendation of Untying ODA to the LDCs (2009); E. Holt-Gimenez &
A Shattuck, Food Crises, Food Regimes and Food Movements: Rumblings of
Reform or Tides of Transformation?, 38 J. Peasant Stud. 109, 109-10 (2011).
Like the crisis in the 1970s, this crisis generated public awareness for the
importance of effective international food assistance.
29 Clapp, supra note 14, at 2.
30 “Old debates about the use of food aid to further foreign policy goals or
dispose of grain surpluses have given way to debates over how food aid is given.
In particular, the question of whether food aid is tied to food sourced in the
donor country has generated heated exchanges between donors.” Clapp, supra
note 14, at 5.
31 Clapp, supra note 14, at 5.
32 Clapp, supra note 14, at 5.
33 Clapp, supra note 14, at 5.
34 The idea of untying food aid “gained significant momentum in international policy circles starting in the mid-1990s, after the European Union
adopted the policy in 1996. Agencies such as the Food and Agricultural Organization (“FAO”) and the Organization for Economic Co-operation and Development (“OECD”) have taken up the issue in extensive reports directed at their
membership since 2005, and from 2007 the WFP began to strongly endorse the
idea. Some donors, such as Canada and Australia, eventually followed the EU
on this idea by untying their own food aid programs.” Clapp, supra note 14,
at 46.
35 The idea of untying food aid had been championed by development experts
since the mid-1970s. The Paris Conference on International Economic Cooperation, a meeting of 27 governments representing industrialized, oil-producing,
and developing countries held in 1975-77 as part of global negotiations on
a New International Economic Order, strongly promoted the idea in its final
declaration, yet uptake was slow and uneven. Clapp, supra note 14, at 6.
36 The specific stakeholders working to maintain the US’s policy of tied aid
will be discussed more thoroughly in Part III, but include the agricultural industry, the shipping industry, and some food aid NGOs, including most notably the
Alliance for Global Food Security.
37 Clapp, supra note 14, at 6.
38 Officially called the European Recovery Program, the Marshall Plan was
the United States program that provided aid to Europe in the form of economic
support to help rebuild European economies after the end of World War II
with the purpose of preventing the spread of Soviet Communism. The specific
goals of the United States were to rebuild the war devastated region, remove
trade barriers, modernize industry, and return Europe to prosperity. Michael
J. Hogan, The Marshall Plan: America, Britain, and the reconstruction of
Western Europe, 1947-1952 (1998).
39 U.S. Agency for Int’l Dev., Celebrating Food For Peace 1954-2004:
Bringing Hope to the Hungry 7 (2004), available at http://foodaid.org/news/
wp-content/uploads/2011/01/FFP_50thAv_Brochure.pdf.
continued on page 75
Sustainable Development Law & Policy
Endnotes: As the World Welcomes its Seven Billionth Human:
and the
Environment
Reflections and Population, Law,
continued from page 14
36 Jean-Paul
Rodrigue et al., The Geography of Transport Systems: Air
Pollutants Emitted by Transport Systems (2009), available at http://people.
hofstra.edu/geotrans/eng/ch8en/appl8en/ch8a1en.html.
37 U.S. Nuclear Regulatory Comm’n, Backgrounder of Radioactive Waste
(2011) available at http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/
radwaste.html.
38 NIMBY, or “not in my backyard” refers to the “opposition to the locating
of something considered undesirable (as a prison or incinerator) in one’s neighborhood.” Definition of NIMBY, Merriam-Webster.com, http://www.merriamwebster.com/dictionary/nimby (last visited Dec. 23, 2013).
39 Gemma Aymonne Heddle, Sociopolitical Challenges to the Siting of
Facilities with Perceived Environmental Risks 2 (June 2003), available at
http://web.mit.edu/mitei/lfee/programs/archive/publications/2003-05-th.pdf.
40 Jim Day, How Electric Cars Really Work, Las Vegas Rev.-J., Aug. 24,
2009, http://www.politicalcartoons.com/cartoon/b544da69-4bd9-42e2-9be240a29cb908e0.html.
41 Tom Wolf, The Rise and Fall of the Environmental Movement, L.A. Times,
Mar. 24, 1991, at M6 (as cited in Population, Law, And the Environment,
supra note 3, at 61).
42 Dana Milbank, Despite Appeal, Saving the Earth Lacks Donors, Wall St.
J., July 11, 1990, at B1 (as cited in Population, Law, And the Environment,
supra note 3, at 67).
43 Wolf, supra note 41, at M6.
44 Misunderstood Mess: A Survey of Waste and the Environment, The
Economist, May 29, 1993 Supp., at 1-18 (as cited in Population, Law, And the
Environment, supra note 3, at 75).
45 Id.; see also Amanda Onion, The Diaper Debate: Are Disposables as Green
as Cloth?, ABC News, May 26, 2005, http://abcnews.go.com/Technology/stor
y?id=789465&page=1(“Research by Bill Rathje, a trash expert and professor
emeritus at the University of Arizona, has shown that even a head of lettuce, let
alone a plastic diaper, can persist for decades in a landfill where there is often a
lack of exposure to air and sun that would otherwise break materials down.”).
46 Bob Schildgen, Hey Mr. Green: The Great Diaper Debate, Sierra Club
Mag. (Nov. 3, 2009), http://sierraclub.typepad.com/mrgreen/2009/11/thegreat-diaper-debate.html; see also Amanda Onion, supra note 45, at 1 (“After
a three-year . . . study, the London-based Environmental Agency concluded
that disposable diapers have the same environmental impact as reusable diapers
when the effect of laundering cloth diapers is taken into account. . . . The Union
of Concerned Scientists has estimated about 18 billion diapers are thrown into
landfills every year. And a 1998 study by the Environmental Protection Agency
found that diapers made up 3.4 million tons of waste, or 2.1[%] of U.S. garbage
in landfills that year.”).
47 William Booth & D’Vera Cohn, Sharing the Environmental Burden, Wash.
Post, April 18, 1990, at 1 (as cited in Population, Law, and the Environment,
supra note 3, at 75).
48 The Catalytic Converter, Worcester Polytechnic Institute, http://www.
wpi.edu/about/history/catalytic.html (last visited Aug. 14, 2011); U.S. Envtl.
Prot. Agency Office of Mobile Sources, Automobile Emissions: An Overview
(1994), available at http://www.epa.gov/oms/consumer/05-autos.pdf.
49 The Race to Build Really Cheap Cars, BloombergBusinessweek (Apr. 23,
2007), http://www.businessweek.com/magazine/content/07_17/b4031064.htm.
50 Mark Trumbull, Poverty Now Comes with a Color TV, MSN Money, http://
web.archive.org/web/20080212091343/http://articles.moneycentral.msn.com/
Investing/Extra/PovertyNowComesWithAColorTV.aspx (last visited Nov. 17,
2013) (stating that in 2002, the wealthiest 10% of Americans had 2.4 cars per
household).
51 Taehan Min-guk, Korea, South, Encyclopedia Nations, http://www.nationsencyclopedia.com/economies/Asia-and-the-Pacific/Korea-South.html (last
visited Nov. 17, 2013).
52 Heather Timmons, In India, a $2,500 Pace Car, N.Y. Times, Oct. 11,
2007, http://www.nytimes.com/2007/10/12/business/worldbusiness/12iht12cars.7864085.html?pagewanted=2&sq=car%20company%20in%20India%20
announces%20$3000%20car&st=cse&scp=1.
53 See Al Gore, Earth in the Balance: Ecology and the Human Spirit 33334 (1992) (as cited in Population, Law, and the Environment, supra note 3, at
14).
Winter 2014
54
See generally, id. at 216-237.
Id.
56 Peter Schweizer, Gore Isn’t Quite as Green as He’s Led the World to
Believe, USA Today, Dec. 7, 2006, http://www.usatoday.com/news/opinion/
editorials/2006-08-09-gore-green_x.htm.
57 UN Secretary-General, The Millennium Development Goals Report
2009 (2009), available at http://www.unhcr.org/refworld/docid/4a534f722.html.
58 Christina D. Romer, Great Depression, http://elsa.berkeley.edu/~cromer/
great_depression.pdf (last visited Aug. 19, 2011).
59 See id.
60 Jerry Morton, Romania, Bread, Salt & Plum Brandy, http://breadsaltandplumbrandy.com/index-4.html (last visited Nov. 17, 2013); The People’s Palace:
Ceausescu’s Lasting, Loathed Legacy, Bucharest Life, http://www.bucharestlife.com/bucharest/palace-of-parliament (last visited Aug. 19, 2011).
61 See generally Kelvin Teo, Between Tolerating the Future Dictator and Perpetuating Democracy, New Asia Republic, Mar. 7, 2011, http://newasiarepublic.
com/?p=26175.
62 Miller, supra note 29, at 318.
63 Miller, supra note 29, at 318.
64 The Poorest Countries in the World, Global Finance, (Aug. 14, 2011),
http://www.gfmag.com/tools/global-database/economic-data/10502-thepoorest-countries-in-the-world.html#axzz1V2hDbxbp.
65 See Miller, supra note 29, at 304.
66 See generally Gore, supra note 53.
67 See Thomas Goltz, Earth First Meeting Reflects Gap Between Radicals,
Mainstream, Wash. Post, July 19, 1990, at A3 (as cited in Population, Law, and
the Environment, supra note 3, at 14).
68 See Laurene Conner, Sustainable Development: A Global Agenda Structured on Population Control, Illuminati Conspiracy Archive, http://www.
conspiracyarchive.com/NewAge/sustainable_development.htm (last visited
Nov. 17, 2013).
69 Public Works Appropriation Act, 1967, Pub. L. No. 89-689, 80 Stat. 1002,
1014 (1966).
70 Joy G. Dryfoos, Family Planning Clinics—A Story of Growth and Conflict,
20 Family Plan. Perspectives 282, 284 (1988).
71 Anna Clark, Why the GOP’s Plans to Cut Family Planning Will Cost Us
All, AlterNet: Personal Health (May 25, 2011), http://www.alternet.org/
health/151063/why_the_gop’s_plans_to_cut_family_planning_will_cost_us_all.
72 Ann Devroy, Bush Hints at Veto of Foreign Aid Bill; President Denounces
Provision to Fund Population-Control Agency, Wash. Post, Oct. 10, 1989,
http://www.highbeam.com/doc/1P2-1216468.html (as cited in Population, Law,
and the Environment, supra note 3, at 29).
73 Population, Law, and the Environment, supra note 3, at 80. There do
exist some environmental groups that focus on population, but they are a small
percentage of environmental groups. Groups that do address population issues
include Zero Population Growth, the Population Crisis Committee, and the
Population Institute.
74 Thomas R. Malthus, An essay on the Principle of Population, As It
Affects the Future Improvement of Society 4 (1798), available at http://www.
esp.org/books/malthus/population/malthus.pdf (as cited in Population, Law,
and the Environment, supra note 3, at 19 ).
75 Id.
76 Id. at 1-5.
77 See generally Morgan Rose, What Malthus Missed, and Attacks on Individualists, Library of Econ. & Liberty (Oct. 28, 2002), http://www.econlib.org/
library/Columns/Teachers/critiquemalthus.html.
78 Charles C. Mann, How Many Is Too Many, Atlantic Monthly, Feb. 1993,
at 50, available at http://www.theatlantic.com/past/docs/issues/93feb/mann1.
htm (as cited in Population, Law, and the Environment, supra note 3, at 20).
79 Id.
80 Id. at 49.
81 Population, Law, and the Environment, supra note 3, at 20.
82 Chiras, supra note 12, at 152 (as cited in Population, Law, and the Environment, supra note 3, at 31).
83 Paul R. Ehrlich, The Population Bomb (1968) (as cited in Population,
Law, and the Environment, supra note 3, at 1).
55
59
84
Donella H. Meadows, et al., The Limits to Growth (1972) (as cited in
Population, Law, and the Environment, supra note 3, at 2).
85 Joseph A. Schumpeter, Capitalism, Socialism, and Democracy 83 (1962)
(as cited in Population, Law, and the Environment, supra note 3, at 21).
86 Simon Kuznets, Population, Capital, and Growth 3 (1973) (as cited in
Population, Law, and the Environment, supra note 3, at 21-22).
87 Joseph A. Schumpeter, History of Economic Analysis 251 (1994 ed.)
(emphasis omitted) (as cited in Population, Law, and the Environment, supra
note 3, at 18).
88 Roderick Stackelberg, The Routledge Companion to Nazi 158 (2007).
89 Milton Jacob Rosenberg, An American Trapped in a Communist Paradise:
An Historical Autobiography 90 (2003) (“Stalin awarded women with medals
and privileges if they gave birth to five or more children. If a Soviet woman
gave birth to ten or more children, she was awarded the title of Hero of Socialist
Labor.”).
90 William L. Steffen, Global Change and the Earth System: A Planet
Under Pressure 289-91 (2d prtg. 2005).
91 Mann, supra note 78, at 47.
92 Population, Law, and the Environment, supra note 3, at 2.
93 K. Bruce Newbold, Population Geography: Tools and Issues 17 (2010)
(“Between 1960 and 1998, the world’s population doubled from three to six
billion.”).
94 George Tyler Miller, Environmental Science: Working with the Earth
5 (5th ed. 1995).
95 John Vidal, Every Third Person Will Be a Slum Dweller Within 30 Years,
UN Agency Warns, Guardian, Oct. 4, 2003, http://www.guardian.co.uk/
world/2003/oct/04/population.johnvidal (“The largest study ever made of global
urban conditions has found that 940 million people–almost one-sixth of the
world’s population–already live in squalid, unhealthy areas, mostly without
water, sanitation, public services or legal security.”).
96 Julian Borger & Juliette Jowitt, Nearly a Billion People Worldwide are
Starving, UN Agency Warns, Guardian, Oct. 4, 2003, http://www.guardian.
co.uk/world/2008/dec/10/hunger-population-un-food-environment (estimating
963 million people are starving).
97 18,000 Children Die Everyday of Hunger, UN Says, USA Today, Feb. 17,
2007, http://usatoday30.usatoday.com/news/world/2007-02-17-un-hunger_x.
htm.
98 Eliminating Non-Sustainability/Regenerating the Environment, World
Game Inst., http://www.unesco.org/education/tlsf/mods/theme_a/interact/www.
worldgame.org/wwwproject/what14.shtml (last visited Nov. 17, 2013); World
Demands Surpassing Food Supplies, Houston Chronicle, Jan. 16, 1994, at
A22.
99 David Biello, Another Inconvenient Truth: The World’s Growing Population Poses a Malthusian Dilemma, Scientific Am. (Oct. 2, 2009), http://www.
scientificamerican.com/article.cfm?id=growing-population-poses-malthusiandilemma; Borger & Jowitt, supra note 96; U.N. Dep’t Econ. & Soc. Affairs,
World Population to 2300, at 84 (2004), available at http://www.un.org/esa/
population/publications/longrange2/WorldPop2300final.pdf (Currently, 1 billion
people are starving to death while in Malthus’ time there were approximately 1
billion people on earth).
100 John V. Last, The U.N.’s Imaginary Babies, Wall St. J., Aug. 4, 2011,
http://online.wsj.com/news/articles/SB100014240531119033414045764824513
90287410.
101 Id.
102 George Carey, Waste Footprint, HEC Global Learning, http://www.globalfootprints.org/waste (last visited Nov. 17, 2013) (“A child born in a wealthy
country is likely to consume, waste, and pollute more in his lifetime that 50
children born in developing nations. Our energy-burning lifestyles are pushing
our planet to the point of no return.”).
103 See Biello, supra note 99 (“Today, at least one billion people are chronically malnourished or starving. Simply to maintain that sad state of affairs
would require the clearing (read: deforestation) of 900 million additional hectares of land, according to Pedro Sanchez, director of the Tropical Agriculture
and Rural Environment Program at The Earth Institute at Columbia University.”); Amanda Leigh Haag, Checking Earth’s Vital Signs, in NASA: Supporting
Earth System Science 44, 44-45 (Laurie J. Schmidt ed., 2005), available at
http://nasadaacs.eos.nasa.gov/articles/2005/2005_mea.html (“[The earth’s] vital
signs aren’t looking good. Of the 24 categories of ecosystem health that were
evaluated, 15 are being seriously degraded at a rate that cannot be sustained,
said Walt Reid, director of the MA [Millennium Ecosystem Assessment], an
international, multimillion dollar undertaking. ‘If we think of the planet’s ecosystem services as a bank account that could last indefinitely if managed wisely,
60
we are instead spending the principal. That does provide short-term benefits, but
the long-term costs will be significant,’ said Reid. By altering the planet, be it
through deforestation, over-fishing, or degradation of land and climate change,
‘we’re depleting a capital asset,’ he said.”); U.N. Env’t Programme, Global
Environment Outlook Geo-4: Environment for Development 12 (2007)
(“changes such as a growing population and increased consumption of energy
have had a huge impact on the environment, challenging society’s ability to
achieve sustainable development”), available at http://www.unep.org/geo/geo4/
report/GEO-4_Report_Full_en.pdf.
104 See generally Population, Law, and the Environment, supra note 3.
105 See Richard M. Mosey, 2030: The Coming Tumult 91-93 (2009); See
generally Population, Law, and the Environment, supra note 3.
106 See Mosey, supra note 105, at 91-92, 98-99; see generally Population,
Law, and the Environment, supra note 3; Robert M. Hardaway, Environmental
Malthusianism: Integrating Population and Environmental Policy, 27 Envtl. L.
1209 (1997).
107 George D. Moffett, Fertility Rates Decline in Third-World Nations,
Christ. Sci. Mo., July 8, 1992, at B16, available at http://www.csmonitor.
com/1992/0708/08101.html (as cited in Population, Law, and the Environment, supra note 3, at 100).
108 M. Peter McPherson, Address on International Family Planning, 86 Dep’t
St. Bull. 43 (Nov. 25, 1985), available at http://pdf.usaid.gov/pdf_docs/
pdaas192.pdf (as cited in Population, Law, and the Environment, supra note 3,
at 100).
109 Comstock Act, Ch. 258 § 2, 17 Stat. 598 (1873) (presently codified as
amended at 18 U.S.C. § 1461 (2011)) (as cited in Population, Law, and the
Environment, supra note 3, at 92).
110 Pub. L. No. 91-662, 84 Stat. 1973 (1971) (as cited in Population, Law, and
the Environment, supra note 3, at 92).
111 Milton Lader & Lawrence Meltzer, Margaret Sanger: Pioneer of Birth
Control 44 (1969) (as cited in Population, Law, and the Environment, supra
note 3, at 92).
112 Margaret Sanger, Margaret Sanger: An Autobiography 89-91 (Cooper
Square Press ed., 1999) (as cited in Population, Law, and the Environment,
supra note 3, at 93).
113 Id. at 89.
114 Tariff Act of 1930, ch. 497, tit. 3, § 305, 46 Stat. 688 (1930) (codified as
amended at 19 U.S.C. § 1305 (2011)) (as cited in Population, Law, and the
Environment, supra note 3, at 95).
115 N.Y. Penal Law §§ 1141-42 (McKinney Supp. 1937) (as cited in Population, Law, and the Environment, supra note 3, at 95).
116 Conn. Gen. Stat. §§53-32, 54-196 (West, 1969) (as cited in Population,
Law, and the Environment, supra note 3, at 95).
117 Griswold v. Connecticut, 381 U.S. 479 (1965).
118 Eisenstadt v. Baird, 405 U.S. 438 (1972).
119 Casti Connubii, Encyclical of Pope Pius Xi on Christian Marriage (Dec.
31, 1930), in John Cavanaugh, The Popes, the Pill, and the People; A Documentary Study (1965), available at http://www.vatican.va/holy_father/pius_xi/
encyclicals/documents/hf_p-xi_enc_31121930_casti-connubii_en.html (as cited
in Population, Law, and the Environment, supra note 3, at 87).
120 Cavanaugh, supra note 119, at 14 (citing de Convig. Aduit ii: 12) (as cited
in Population, Law, and the Environment, supra note 3, at 87).
121 Cavanaugh, supra note 119, at 109 (as cited in Population, Law, and the
Environment, supra note 3, at 87).
122 Miriam Zoila Perez, Past and Present Collide as the Black Anti-Abortion
Movement Grows, Colorlines: News for Action (Mar. 3, 2011, 9:35 AM),
http://colorlines.com/archives/2011/03/past_and_present_collide_as_the_black_
anti-abortion_movement_grows.html.
123 Jacqueline Kasun, The War Against Population: The Economics and Ideology of World Population Control 159 (1st ed.1988) (citing Karl Pearson,
Life, Letters, and labours of Francis Galton (4 vols. 1914-40)) (as cited in
Population, Law, and the Environment, supra note 3, at 88).
124 Id. at 160.
125 Id. at 86 (quoting Edward Pohlman, How to Kill Population 161 (1971)).
126 Population, Law, and the Environment, supra note 3, at 88.
127 Kasun, supra note 123, at 209.
128 Kasun , supra note 123, at 207 (as cited in Population, Law, and the Environment, supra note 3, at 89-90).
129 Kasun, supra note 123, at 38 (citing Robert L. Sassone, Handbook on
Population 99 (4th ed. 1978)) (as cited in Population, Law, and the Environment, supra note 3, at 90).
Sustainable Development Law & Policy
130
Paul R. Ehrlich & Anne H. Ehrlich, The Population Explosion 39 (1991)
(as cited in Population, Law, and the Environment, supra note 3, at 22).
131 Roe, 410 U.S. at 116.
132 Karen Breslau, Overplanned Parenthood: Ceausescu’s Cruel Law,
Newsweek, Apr. 22, 1990, at 35, available at http://www.ceausescu.org/ceausescu_texts/overplanned_parenthood.htm (as cited in Population, Law, and the
Environment, supra note 3, at 103).
133 David Grimes et al., Unsafe Abortion: the Preventable Pandemic, World
Health Org.: Sexual & Reproductive Health 4 (2006), available at http://
www.who.int/reproductivehealth/publications/general/lancet_4.pdf.
134 Lindsay Beyerstein, Illegal Abortion Kills Kenyan Women, The Focal Point
(Mar. 4, 2010, 2:08 PM), http://bigthink.com/ideas/18925 (“[A] staggering
35% of all maternal deaths in Kenya are due to unsafe abortions. At least 2,600
women die from complications of unsafe abortions every year and another
21,000 are hospitalized at great cost to Kenya’s cash-strapped health system.
Kenyan health care providers told CRR [the Center for Reproductive Rights]
the true numbers are probably much higher because so many women never seek
medical attention. When they die, the true cause is seldom recorded.”).
135 Laurence H. Tribe, Abortion: The Clash of Absolutes 35 (1990) (as cited
in Population, Law, and the Environment, supra note 3, at 112).
136 See Susan A. Cohen, Toward Making Abortion ‘Rare’: The Shifting
Battleground Over the Means to an End, 9 Guttmacher Policy Rev., 1 (2006),
available at http://www.guttmacher.org/pubs/gpr/09/1/gpr090102.html.
137 Id. at 2.
138 Id. at 3.
139 Id.; Myra Marx Ferree, Shaping Abortion Discourse: Democracy and the
Public Sphere in Germany and the United States 27 (2002).
140 Breslau, supra note 132, at 35.
141 Breslau, supra note 132, at 35.
142 The Netherlands had one of the world’s lowest abortion rates in the 1990s
but subsequently saw a rate increase due to increased abortions among poor,
minority populations “in which access to birth control [is] restricted, in which
female sexuality [is] tightly policed, in which girls who become pregnant outside marriage are disgraced[,] and in which the costs and obligations of childbearing [are] loaded almost entirely on women alone.” David Frum, Let’s Get
Real about Abortions, CNN, Oct. 29, 2012, http://www.cnn.com/2012/10/29/
opinion/frum-abortion-reality/.
143 John T. Noonan, The Morality of Abortion: Legal and Historical Perspectives, 23 (1970) (as cited in Population, Law, and the Environment, supra
note 3, at 113).
144 Id.
145 Id.
146 Effraenatam, I Codicis Juris Fontes, ed. P. Gasparri, 308 (as cited in
Noonan, supra note 143, at 27 (as cited in Population, Law, and the Environment, supra note 3, at 113).
147 Sedes Apostolica, I Codicis Juris Fontes, 330-31 (as cited in Noonan, supra
note 143, at 33 (as cited in Population, Law, and the Environment, supra note
3, at 113).
148 Roe, 410 U.S. at 132-34.
149 Laurence H. Tribe, Abortion: The Clash of Absolutes 31 (1990) (as
Population, Law, and the Environment, supra note 3, at 112).
150 James C. Mohr, Abortion in America: The Origins and Evolution of
National Policy, 1800-1900, at 3 (1978) (as cited in Population, Law, and the
Environment, supra note 3, at 115).
151 Id. at 5.
152 Reports of Persons Arrested Under the Auspices of ‘the Committee for the
Suppression of Vice’ of the Young Men’s Christian Association of New York
City, 1872-1873, MSS ledgers in the Library of Congress Entry #5 (as cited in
Mohr, supra note 150, at 197) (as cited in Population, Law, and the Environment, supra note 3, at 116).
153 Mohr, supra note 150 at 226.
154 Roe, 410 U.S. at 154.
155 See Refugee Act of 1980, 8 U.S.C.A. § 1101 (West 2011) (allowing
immigration from anywhere in the world if an immigrant claimed “fear of prosecution” based on a social group or political opinion. Such a policy virtually
invited dictatorial human-exporting countries to rid themselves of their prison
populations.).
156 Richard D. Lamm & Gary Imhoff, The Immigration Time Bomb: The
Fragmenting of America 62-63 (1985) (as cited in Population, Law, and the
Environment, supra note 3, at 133).
157 Id.
158 Id.
Winter 2014
159
See generally Population, Law, and the Environment, supra note 3, at
85-109.
160 Vlae Kershner, A Hot Issue for the 90s: California Leads in Immigration—
and Backlash, S.F. Chron., June 21, 1993, at A6 (as cited in Population, Law,
and the Environment, supra note 3, at 144).
161 Id.
162 Booker T. Washington, The Atlanta Exposition Address, in Up From Slavery: An Autobiography (1901), available at http://www.bartleby.com/1004/14.
html (as cited in Population, Law, and the Environment, supra note 3, at 138).
163 Lamm & Imhoff, supra note 156, at 138.
164 Martha R. Gore, Foreign Workers Take Jobs From Americans, Examiner,
Feb. 1, 2009, http://www.examiner.com/watchdog-politics-in-national/
foreign-workers-take-jobs-from-americans.
165 Vlae Kershner, Why Immigration Laws are so Hard to Change, S.F.
Chron., June 21, 1993, at A7 (as cited in Population, Law, and the Environment, supra note 3, at 139).
166 Michael Mandel et al., The Immigrants, BloombergBusinessweek (July 12,
1992), http://www.businessweek.com/stories/1992-07-12/the-immigrants (as
cited in Population, Law, and the Environment, supra note 3, at 140).
167 Vernon M. Briggs, Despair Behind the Riots: The Impediment of Mass
Immigration, 11 Center Immigr. Stud. 1 (1992) (as cited in Population, Law,
and the Environment, supra note 3, at 139-40).
168 Mandel, supra note 166.
169 Lamm & Imhoff, supra note 156, at 140.
170 Lamm & Imhoff, supra note 156, at 140.
171 Richard M. Mosey, supra note 105, at 98-99; Biello, supra note 99;
Haag, supra note 103, at 44-45; Global Warming Effects-Mitigate Temperature
Increase, Time for Change, http://timeforchange.org/mitigate-global-warmingeffects-temperature-simulation (last visited Aug. 29, 2011); See generally
Population, Law, and the Environment, supra note 3.
172 Carbon is only a trace element in our atmosphere (less than 2%); of this
2%, only 3% is attributable to human carbon emissions; of that 3%, only 22%
is attributable to U.S. carbon emissions; thus even if the United States reduced
its carbon emissions to zero, it world have only an infinitesimal effect on global
carbon emissions. Chip Knappenberger, Climate Impacts of Waxman-Markey
(the IPCC-based arithmetic of no gain), MasterResource (May 6, 2009), http://
www.masterresource.org/2009/05/part-i-a-climate-analysis-of-the-waxmanmarkey-climate-bill—the-impacts-of-us-actions-alone/; see also Time for
Change, supra note 171, http://timeforchange.org/CO2-emissions-by-country.
173 Nadia Zakir, Emissions Trading Initiatives: Responding to Climate Change
Through Market Forces, 16 A.B.A. Bus. L. Today 6 (2007), available at http://
apps.americanbar.org/buslaw/blt/2007-07-08/zakir.shtml.
174 Eric Shaffner, Repudiation and Regret: Is the United States Sitting Out the
Kyoto Protocol to its Economic Detriment, 37 Envtl. L. 441, 454 (2007).
175 See Council Directive 2003/87, art. 1, 2003 O.J. (L 275) 32, 36 (EC).
176 ICE OTC: Chicago Climate Exchange, available at https://www.theice.
com/ccx.jhtml.
177 Clean Development Mechanism, Intergovernmental Panel on Climate
Change, http://unfccc.int/kyoto_protocol/mechanisms/clean_development_
mechanism/items/2718.php.
178 Regional Greenhouse Gas Initiative, http://www.rggi.org/.
179 Cal. Health & Safety Code § 38500 et seq. (West 2006), available at
http://www.arb.ca.gov/cc/ab32/ab32.htm.
180 Climate Stewardship Act of 2007, S. 280, 110th Cong. (2007), available at
http://www.govtrack.us/congress/bill.xpd?bill=s110-280.
181 Dickinson, Mackaman, Tyler & Hagen, ABCs of Carbon Markets, 7
(2009), available at http://www.dickinsonlaw.com/docs/publications/280.pdf.
182 Id.
183 Ian W.H. Parry, Fiscal Interactions and the Case for Carbon Taxes over
Grandfathered Carbon Permits, 19 Oxford Rev. Econ. Pol’y 3, 385, 397
(2003).
184 The Basic Principles: Supply and Demand, Basic Economics.info, http://
www.basiceconomics.info/supply-and-demand.php (last visited Nov. 18, 2013).
185 See generally Ian W. H. Parry, Reducing Carbon Emissions: Interactions
with the Tax System Raise the Cost, 128 Resources for Future 9 (1997), available at http://www.rff.org/rff/Documents/RFF-Resources-128-co2redux.pdf.
186 Rose Gutfeld, Shades of Green, Wall St. J., Aug. 2, 1991, at A1.
61
Oversight and Accountability of Water Privatization Contracts:
A Proposed Legislative Policy
continued from page 15
local government to keep the private entity under close scrutiny
and empower states to revoke the company’s contract should the
company act against its stated purpose. The only exception may
be allowing foreign benefits corporations to pledge to provide
a public benefit to the state in which it wishes to incorporate.21
Many states have enacted statutes allowing foreign and domestic
entities to incorporate as benefits corporations, provided their
articles and bylaws state a purpose that involves a benefit to society or the environment, or both.22 To modify current policy, the
enabling statute that empowers municipalities to enter into privatization contracts would stipulate that the stated purpose of the
corporation would include a declaration to directly provide an
identifiable and enforceable benefit to the incorporating state.23
Finally, under this policy, any privatized contract for water
infrastructure, service upgrades or maintenance, funded in
whole or in part by municipal or public funds, should be subject
to resident hiring requirements.24 Case law and current trends
have tested the constitutionality and authority of state governments to require private companies working on public contracts
funded with public funds to fulfill certain requirements, such
as the employment of an established percentage of municipal
residents.25 These employment requirements would serve a
quality assurance and oversight function by putting responsible,
accountable stakeholders in control of the daily operations provided for in the privatization contract.26
In light of looming resource shortages, past mismanagement, and systemic water service failures due to a lack of effective oversight, the time has come to promote accountability on
the state level for those entities seeking to gain private control
of natural resources.27 This accountability must allow states
and municipalities to maintain some level of control over these
resources and promote the stewardship of local communities
by private public service entities. This proposed policy would
allow local control of resources but create an accountability
mechanism making state legislatures accountable to Congress,
and the people and private water companies accountable to state
legislatures. Furthermore, this accountability policy will further
protect municipal water resource availability and the integrity
of water management and maintenance infrastructures for future
generations.
Endnotes: Oversight and Accountability of Water Privatization Contracts: A
Proposed Legislative Policy
1
Sharmila L. Murthy, The Human Right(s) to Water and Sanitation: History, Meaning, and the Controversy Over-Privatization 18, 31 Berkeley J.
Int’l L. 89 (2013) (discussing the United Nations General Assembly attention
to the global crisis involving safe drinking water and noting a review of the
2010 minutes of the U.N. General Assembly vote involving human rights and
safe drinking water “suggests that the politics around privatization may have
influenced the positions of the abstaining countries.” Although the article notes
the U.N. debate is centered on human rights, there has already been debate from
an economic and social rights perspective. The author notes three themes that
highlight the “tensions between human rights and the private sector involvement
in the water and sanitation sectors” to include “financial stability, efficiency, and
dispute resolution.”); see also, Julie C. Padowski, Dissertation, The Complexity
of Urban Water Resources Management: Water Availability and Vulnerability
for Large Cities in the United States 67, Univ. of Fla. (2011) (“As such urban
areas have invested heavily in developing technology to secure the resources
needed to meet and maintain these steadily increasing levels of production,
although often to the detriment of the environment. . . . Despite constantly
growing needs, over the years urban areas have continued to successfully
exploit resources, despite their seemingly unsustainable rate of consumption. .
. . In the [United States] however, the growing uncertainty surrounding future
urban water availability has, for many water providers, become a primary
issue of concern. . .”); Julie Padowski & James Jawitz, Univ. of Fla., Water
Availability and the Vulnerability of Large United States’ Cities, Global Water
Forum (Apr. 16, 2013), http://www.globalwaterforum.org/2013/04/16/wateravailability-and-the-vulnerability-of-large-united-states-cities/ (“Water availability measurements . . . based solely on renewable water supplies indicated
that nearly half of the sampled urban population (47%) faced moderate (27%)
or severe (20%) risk of water scarcity. Of those considered “at-risk,” 14 urban
areas were identified as having availability levels below the national average
of 600 liters per capita per day (lpcd). These results suggest that these cities
62
suffer perpetual water shortages not from variability in supply, but rather from a
perennial, systematic, lack of water.”).
2
Padowski & Jawitz, supra note 1.
3
Craig Anthony Arnold, Water Privatization Trends in the United States:
Human Rights, National Security, and Public Stewardship, 33 William & Mary
Envtl. L. & Pol’y Rev. 785 (2009); see also, Murthy, supra note 1, at 123.
4 See Arnold, supra note 3 (noting water privatization profit potential encourages: (1) commodification of water counteracting conservation and leading to
urban sprawl, (2) rate hikes to offset the cost to update water systems threatening the poorer populations access to water, and (3) private use for profit (i.e.,
water bottling operations)).
5
Murthy, supra note 1, at 18-19, 26 (citing Jennifer Davis, Private-Sector
Participation in the Water and Sanitation Sector, 30 Ann. Rev. Env’t &
Resources 145, 154 (2005) (noting also “[t]he more a state delegates its
responsibilities to fulfill to a non-state actor, the greater its duty to protect.
Accordingly, governments must confront the question of financial sustainability
and affordability. While higher tariffs may be needed to improve water and
sanitation infrastructure, long-term financing and some form of subsidy for
the poor likely will be required to ensure that no one is denied access to basic
services due to an inability to pay.”); Andrew Nickson & Claudia Vargas, The
Limitations of Water Regulation: The Failure of the Cochabamba Concession in
Bolivia, 21 Bull. Latin Am. Res. 99-120 (2002) (arguing that political motives
for privatization in communities with limited resources allows politicians to
pass responsibility for raising water rates to a private water company to save
political face).
6
Murthy, supra note 1, at 26 (citing Matthew C. R. Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective
on its Development (1995)) (arguing that more oversight and regulation are
required by political governing bodies).
Sustainable Development Law & Policy
7
Arnold, supra note 3; see also, Robin A. Johnson et al., Long-Term
Contracting for Water and Wastewater services 9, 11 (2002) (“Long-term
contracts can produce other important benefits for the community. Hiring the
existing workforce promotes continuity and helps avoid nasty, divisive labor
battles. Cities can also enhance local economic development through long-term
contracts. . . . It has often been seen that private sector companies become
good ‘corporate citizens’ and get involved in worthwhile community activities,
charities, etc. This adds additional value to long-term partnership arrangements
as companies ‘invest’ in the communities they serve. . . . Management contracts
also enable municipalities to overcome potential employee opposition to
privatization. Surveys on privatization consistently show that employee opposition is the leading obstacle to privatization of public services. A management
contract can lessen opposition by allowing employees to remain on the public
payroll. As employees become more comfortable with private management,
they may be more willing to work for the contractor in a full [operations and
management] agreement.”); White v. Mass. Council of Constr. Emplrs, 460 U.S.
204 (1983) (holding it constitutional for cities, acting as market participants, to
condition wholly or partially city-funded public projects to be performed by city
residents); see also, United Bldg. & Constr. Trades Council v. Camden, 465 U.S.
208 (1984) (citing Toomer v. Witsell, 334 U.S. 385 (1948) (“[The Privileges and
Immunities Clause] does not preclude discrimination against citizens of other
States where there is a ‘substantial reason’ for the difference in treatment. ‘[T]
he inquiry in each case must be concerned with whether such reasons do exist
and whether the degree of discrimination bears a close relation to them;’” and
further noting that States should be given “considerable leeway in analyzing
local evils and in prescribing appropriate cures . . . [t]his caution is particularly
appropriate when a government body is merely setting conditions on the expenditure of funds it controls”); see e.g., Benefit Corp Information Center, State by
State Legislative Status, http://benefitcorp.net/state-by-state-legislative-status
(last accessed Dec. 1, 2013) (listing the status of each state in passing a benefits
corporation statute); Benefit Corp, 2013 State by State Summary Chart
(2013), available at http://benefitcorp.net/storage/documents/2013_State_by_
State_Summary_Chart.pdf (providing a summary of both model statutory and
state by state statutory language).
8
Arnold, supra note 3, at 791-794 (citing Safe Drinking Water Act of 1974,
Pub. L. No. 93-523, 88 Stat. 1660 (1974) (codified at 42 U.S.C. §§ 300f- 300j26 (2006)), amended significantly by the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, Pub. L. No. 107-188, 116
Stat. 594 (2002)); Shiney Varghese, Privatizing U.S. Water, Inst. for Agric. &
Trade Policy 4 (2007), available at http://www.iatp.org/files/451_2_99838.pdf;
see also, Johnson et al., supra note 7, at 4 (“The 1997 changes were not the
first time the tax law guidelines governing partnerships were changed. Before
a 1986 tax law change, the privatization landscape included both short-term
contract-operations arrangements and long-term (20-year) private-ownership
arrangements. Under the latter, private-sector partnerships allowed for facilities
to be upgraded or expanded, and new facilities to be designed, built, financed,
operated, and owned by private partners. The 1986 tax law changes removed tax
benefits for private ownership and the market became almost entirely short-term
contract-operations arrangements. These arrangements were quite successful.
Many companies in the business enjoyed a greater than 90[%] renewal rate in
lieu of reprocurement.”).
9
Varghese, supra note 8, at 2-3; see also Murthy, supra note 1, at 126;
Arnold, supra note 3, at 791.
10 Arnold, supra note 3, at 828 (“Private control and commodification of
water threaten the integrity and sustainability of waters, water systems, and
watersheds in interconnected human and natural systems” by failing “to achieve
ecological integrity and sustainability, because water is treated as disaggregated
into discrete units of private control and consumption, instead of being considered part of interdependent human and natural communities.” (emphasis in
original)); see also Eric Freyfogle, Why Conservation is Failing and How it
Can Regain Ground (2006); Robert Glennon, Water Follies: Groundwater
Pumping and the Fate of America’s Fresh Waters (2002); Sandra Postel and
Brian Richter, Rivers for Life: Managing Water for People and Nature
(2003); Jonathan Adler, Water Marketing as an Adaptive Response to the Threat
of Climate Change, 31 Hamline L. Rev. 729 (2008).
11 Arnold, supra note 3, at 794, 799; Murthy, supra note 1, at 125-126, n. 178
(citing George R. G. Clarke, Katrina Kosec & Scott Wallsten, Has Private Participation in Water and Sewerage Improved Coverage? Empirical Evidence from
Latin America, 21 J. Int’l Dev. 327, 335 (2009) and Douglas Jehl, As Cities
Move to Privatize Water, Atlanta Steps Back, N.Y. Times, Feb. 10, 2003, http://
www.nytimes.com/2003/02/10/us/as-cities-move-to-privatize-water-atlantasteps-back.html).
Winter 2014
12
Arnold, supra note 3, at 799-800 (“Atlanta entered into the contract in
1999 due to the inefficiencies and inadequacies of its public sector water
operations, as well as high infrastructure-related costs. The parties, however,
rushed through the bidding and approval process, failed to gather sufficient
information, and did not negotiate carefully. Moreover, United [Water] ran the
Atlanta system poorly, resulting in extensive complaints and widespread public
and municipal regret over the privatization decision. It underbid the highly
competitive contract to operate, maintain, and upgrade Atlanta’s aging water
infrastructure but blamed the city for allegedly failing to fully disclose the
condition of its infrastructure. As United Water cut jobs and training to reduce
expenses, it developed backlogs of thousands of work orders and delivered poor
quality of water, often with inadequate pressure. As a result, water ran orange
to brown for many customers, tinting clothes laundered in it and hair washed
in it, and United Water had to issue numerous ‘boil water’ orders because low
pressure or insufficient water treatment made the water unsafe to drink, even
though some customers said that they did not receive notices until one to two
days after the water became unsafe. In one example, United did not address a
broken main gushing water into the street and washing away pavement during
a severe drought for ten days, even though a customer notified United repeatedly. In addition, inefficiencies led to waste, such as failure to bill customers
properly, which resulted in millions of dollars of lost revenues to the City of
Atlanta. After city officials and United Water management agreed to terminate
the contract after only four years, the city resumed operation of its water system
under a new structure, making infrastructure upgrades, hiring new staff, and
introducing new customer service processes.” (citations omitted)).
13 Peter Orszag, Atlanta’s Water War Is First in a Gathering Flood, Bloomberg (Mar. 20, 2012), http://www.bloomberg.com/news/2012-03-20/atlanta-swater-war-is-first-in-a-gathering-flood.html.
14 Id.
15 Id.
16 Varghese, supra note 8, at 6.
17 Varghese, supra note 8, at 6 (“More directly affecting the public drinking
water supply is the increased use of bottled water. Despite community opposition, corporations such as Nestle, Coke and Pepsi have been successful in
convincing the public that their bottled water is healthier than municipal water.
According to a number of studies, bottled water usage is becoming pervasive,
which in essence is participating in a new form of privatization of the drinking
water supply. In the U.S., despite very high tap water quality standards (unlike
bottled water, which is not regulated by EPA [U.S. Environmental Protection
Agency]), more and more Americans feel the need to opt out of the public water
system, and depend on bottled water. This loss of faith is less a result of underperformance of the water utility than of highly successful marketing strategies.
This loss of faith sometimes seems shared even by the EPA itself. On December
12, 2006, EPA organized a listening session on ‘Exploring Bottled Water as
an Alternative Compliance Option for Chronic Contaminants Regulated under
the Safe Drinking Water Act in Limited Situations for Non-Transient, NonCommunity Water Systems.’ In the listening session itself, citizens’ groups
argued that this initiative poses a new threat to public water systems.”).
18 Arnold, supra note 3, at 803-804; see also Johnson et al., supra note 7, at
3 (“The landscape for contract operations was radically transformed in 1997.
Long-term contracts for public utility operations were made possible when the
Internal Revenue Service [(‘IRS’)] issued Revenue Procedure 97-13 which
allows operators to enter into contracts of up to 20 years in length. Prior to
1997, contracts for water and wastewater services not only were limited by the
IRS to five years, but also needed a termination clause that allowed contract
cancellation after only three years. In other words, a contractor could only
be assured of a three-year involvement in a project. With such a narrow time
frame, operators were limited in their ability to invest in infrastructure improvement. With the need for capital improvements that the water infrastructure
requires, opportunities for building a mutually beneficial partnership over an
extended term have become an attractive solution under the rule changes. The
new federal rules also open the door to new possibilities of expanded efficiency
and cost reductions.”).
19 Arnold, supra note 3, at 799-800; see also Orszag, supra note 13.
20 Johnson et al., supra note 7.
21 The theory is that if a company wanted to incorporate anywhere in the
United States or abroad, it could, but to provide public services, state policy
would require the company to be a benefits corporation. The benefits corporation would be required to have a stated purpose to provide a public benefit to
that state and reinvest a certain portion of the profits back into the corporation
to allow it to carry on its purpose. The goal of this policy is a type of shared
accountability: the corporation to the state and the state to state citizens. See
63
generally, John Sanbrailo, Public-Private Partnerships: A Win-Win Solution,
Huffington Post (Sep. 25, 2013), http://www.huffingtonpost.com/johnsanbrailo/publicprivate-partnership_4_b_3990605.html. If the company fails to
provide a benefit to the state, the state will revoke its charter. The organizational
documents and bylaws would state a business purpose that is state-specific. If
the company acts outside of its stated state-specific purpose, it loses its charter
in that state and the contract to provide the public service. To incentivize companies to form for state-specific public service provider purposes, states would
have to allow these corporations to generate a profit, a substantial portion of
which would be reinvested in the corporation to the benefit of the community
it serves. The profit would be key to generating revenue for continued maintenance. To avoid profit generation and immediate dissolution to redistribute
profits, state policy should also consider a provision in the law regarding the
remaining revenues distribution should private-public service providers dissolve. Any profits generated should be protected much like the cy pres doctrine
Endnotes:
protects charitable gifts. See generally Benefits Corporation Information Center,
http://benefitcorp.net/ (last accessed Dec. 28, 2013).
22 See Benefit Corp, 2013 State by State Summary Chart, supra note 7 (providing a summary of both model statutory and state by state statutory language
that either follows or modifies the model statutory language).
23 For a discussion and examples, see Arnold, supra note 3, at 792-793.
24 Arnold, supra note 3, at 792-793; Varghese, supra note 8, at 2.
25 Arnold, supra note 3, at 792-793; see supra note 7 and accompanying text.
26 See generally, Johnson et al., supra note 7, at 9; Arnold, supra note 3, at
792-793.
27 Murthy, supra note 1; see also Varghese, supra note 8, at 3 (referring to
national and multinational water companies: “Tracking these national and multinational corporations is also a challenge because they are continually making
changes to their structure such as adding and dropping cities and subsidiaries,
trading divisions of their operations, and changing the name of their corporation
completely. They also frequently alter contracts.”).
How Environmental Review Can Generate Car-Induced Pollution: A Case Study
continued from page 22
35
See Chertok & Miller, supra note 24, at 927.
Chertok & Miller, supra note 24, at 927.
37 Chertok & Miller, supra note 24, at 927-28.
38 See Gregory D. Eriksen, Note, Breaking Wind: Facilitating Wind Energy
Development in New York State, 60 Syracuse L. Rev. 189, 196 (2009) (stating
that challenges to decisions of SEQRA lead agencies usually take form of a
petition under Article 78 of the New York Civil Practice Law and Rules); N.Y.
C.P.L.R. art. 78 (McKinney 2006). New York courts usually uphold agencies’
SEQRA decisions unless they are “arbitrary and capricious” or otherwise
legally erroneous. H.H. Warner, LLC v. Rochester Genesee Reg’l Transp. Auth.,
87 A.D. 3d 1388, 1390, 930 N.Y.S.2d 131, 132 (App. Div. 2011).
39 See Chertok & Miller, supra note 24, at 926 (DEC drafted relevant
regulations).
40 See N.Y. Comp. Codes R. & Regs. 6, § 617.4.
41 The lead agency can rebut this presumption if its environmental assessment
identifies “potential adverse environmental impacts, take[s] a ‘hard look’ at
them, and ‘[makes] a reasoned elaboration of the basis for its determination’
that there would be no adverse impacts.” Chinese Staff & Workers Ass’n v.
Burden, 932 N.Y.S.2d 1, 2 (App. Div. 2011) [hereinafter Chinese Staff II].
42 See Sterk, supra note 6, at 2044-45.
43 N.Y. Comp. Codes R. & Regs. 6, § 617.5(c).
44 Id. at § 617.5(c)(1) (maintenance of existing facility), (2) (replacement or
repair of structure or facility), (9) (construction of single-family, two-family or
three-family residence), (10) (construction of accessory residential structures),
(12) (granting of individual setback and lot line variances), (13) (other variances for single-family, two-family and three-family residences). Cf. Sterk,
supra note 6, at 2044 (Type II actions include “replacement of existing facilities
on the same site, granting of setback and lot size variances, construction of
minor accessory structures … and mapping of existing roads.”); Patricia Salkin,
The Historical Development of SEQRA, 65 Alb. L. Rev. 323, 340-44 (2001)
(listing numerous other exclusions).
45 N.Y. Comp. Codes R. & Regs. 6, § 617.2(ak) (defining “unlisted” actions).
46 Id. at § 617.7 (agency must determine significance of environmental
impact as to both Type I and unlisted actions).
47 See Chertok & Miller, supra note 24, at 926.
48 SEQRA’s broad definition of “environment” is not the only difference
between SEQRA and NEPA; however, it is the difference most relevant to
this article. Two other differences are important but less relevant to the issues
discussed below. First, SEQRA is a substantive statute (requiring agencies
to actually avoid adverse environmental impacts to the maximum extent
possible), while NEPA is merely a procedural statute, requiring agencies to
disclose rather than avoiding environmental impacts. See Chertok & Miller,
supra note 24, at 927-28 (SEQRA requires lead agency to certify that its action
“avoids or minimizes adverse environmental impacts to the maximum extent
practicable” through mitigation measures); Jody Freeman & Jim Rossi, Agency
Coordination in Shared Regulatory Space, 125 Harv. L. Rev. 1131, 1195 n.291
(2012) (noting that because NEPA is “procedural”, it “requires only that action
agencies disclose environmental impacts, not that they alter their plans in light
of what they learn”); Robertson v. Methow Valley Citizens Council, 490 U.S.
36
64
332, 351 (1989) (NEPA “prohibits uninformed—rather than unwise—agency
action”). Second, SEQRA requires an EIS whenever agency action “may” significantly affect the environment. N.Y. Envtl. Conserv § 8-0109(2) (McKinney
2013). By contrast, NEPA requires an EIS only for actions that “will” create
such an impact. See Robertson, 490 U.S. at 356, n.17.
49 42 USC § 4332(2)(C).
50 Chinese Staff I, 502 N.E.2d at 503.
51 N.Y. Envtl. Conserv § 8-0105(6).
52 Id.
53 Id. (“long-term effects” must be considered under SEQRA).
54 See supra notes 34-35 and accompanying text.
55 Jackson, N.E.2d at 434.
56 Id.
57 Id. at 436.
58 Id. at 435.
59 See infra note 96.
60 See George Lefcoe, Finding the Blight That’s Right for California Redevelopment Law, 52 Hastings L.J. 991, 1033 (2001) (describing “infill” as “re-use
of developed urban parcels”); Hubble Smith, Finding the Will to Infill, Las
Vegas Bus. Press, Jan. 16, 2012, at 6 (Infill development, “broadly defined [is]
new construction on vacant parcels with utility and infrastructure already in
place and surrounded by existing homes and businesses.”).
61 Anne Marie Pippin, Community Involvement in Brownfield Redevelopment
Makes Cents: A Study of Brownfield Redevelopment Initiatives in the United
States and Central and Eastern Europe, 37 Ga. J. Int’l & Comp. L. 589, 596
(2009).
62 See Bill Lurz, Don’t Give Up on Developing Land, Housing Giants (Nov.
24, 2008) at 7, http://www.nxtbook.com/nxtbooks/reed/hg_20081124/index.
php?startid=5#/6 (“[M]any of the best infill sites will require . . . rezoning.”);
Your Right to Know, Atlanta J. & Constitution, March 3, 2005, at 1 (“Usually
. . . developments require rezoning.”).
63 See Chertok & Miller, supra note 24 and accompanying text.
64 See infra Part III A.
65 See infra Part III B.
66 N.Y. Envtl. Conserv. §8-0105(6).
67 Id.
68 Chinese Staff I, 502 N.E.2d at 176.
69 Id. at 177.
70 Id. at 178 (More precisely, the city issued a “conditional negative declaration,” which means that the project would “not have any significant effect on the
environment if certain modifications were adopted by the developer.”).
71 Id.
72 Id. at 179.
73 Id. at 180.
74 Id.
75 Id. at 181.
76 Id.
77 See Diane K. Levy, Jennifer Comey & Sandra Padilla, In the Face of
Gentrification: Case Studies of Local Efforts to Mitigate Displacement, 16 J.
Sustainable Development Law & Policy
Affordable Housing & Community Dev. L. 238, 240 (Spring 2007) (describing
how “secondary displacement” occurs when gentrification leads to higher rents,
and existing residents cannot remain in neighborhood); James A. Kushner,
Affordable Housing as Infrastructure in the Era of Global Warming, 42/43 Urb.
Law. 179, 206 (2010/2011) (noting that if a neighborhood is “attractive . . . a
side effect can be secondary displacement” as rents rise); Chinese Staff I, 509
N.E.2d at 181 (using the term “secondary displacement”).
78 Chinese Staff I, 509 N.E.2d at 181 (“The fact that the actual construction on the proposed site will not cause the displacement of any residents or
businesses is not dispositive for displacement can occur in the community
surrounding a project as well as on the site of a project. Indeed, this project is
to be constructed on one of seven sites available for development in the area
and three of these sites are within one square block of the site of Henry Street
Tower.”).
79 Fisher v. Giuliani, 720 N.Y.S.2d 50 (App. Div. 2001).
80 Id. at 51-52 (describing city’s plan in detail). See also Phillip Weinberg,
Environmental Law, 52 Syracuse L. Rev. 353, 360 (2002) (describing the plan
more concisely).
81 Fisher, 720 N.Y.S.2d at 53.
82 Id.
83 However, the court did require further review of a “discretionary mechanism” allowing additional development at the city’s discretion. Id. at 52, 55
(describing discretionary mechanism and explaining reversal of city’s decision
on this point). As to this issue, the court rejected the city’s contention that
environmental review was premature. Id. at 55. Thus, the “discretionary mechanism” discussion did not reach the merits of whether SEQRA required an EIS.
84 Id. at 55.
85 Chinese Staff II, 932 N.Y.S.2d at 1.
86 Id. at 2.
87 Id.
88 Id. at 4.
89 Id.
90 Id. at 6.
91 Cf. East Coast Dev. Co. v. Kay, 667 N.Y.S.2d 182, 184 (Sup. Ct. 1996)
(stating in dicta that city could not rely on SEQRA to justify rejection of commercial building on outskirts of city, partially because project “would not alter
the physical character of any coherent cultural enclave or neighborhood”).
92 Roderick M. Hills, Jr. & David N. Schleicher, Balancing the “Zoning
Budget,” 62 Case W. Res. L. Rev. 81, 90 (2012) (using term).
93 See Greg Greenway, Getting the Green Light for Senate Bill 375: Public
Engagement for Climate-Friendly Land Use in California, 10 Pepp. Disp.
Resol. L.J. 433, 442 (2010) (noting that infill development is not as common as
professional planners would like because when one landowner proposes such
development, other neighborhood “residents frequently organize to oppose such
development”); Mary Lynne Vellinga, Activists Trumpet Growth Defeat: This
Week’s Turnout Shows Their Rising Clout, Environmentalists Say, Sacramento
Bee, Mar. 17, 2007, at B1 (quoting statement by local official that environmental community would be more politically powerful if they fought “to counteract
the NIMBY stuff [local officials] deal with all the time on good infill projects”);
Steven Anderson, Fill ‘Er In? Developers, Officials Seek To Avoid Battles Like
Crescent Rim, Idaho Bus. Rev., Sept. 26, 2005 (questioning whether “the prospect of concerted neighborhood opposition make infill projects more trouble
than they’re worth”).
94 See Hills & Schleicher, supra note 92, at 90.
95 See John W. Caffry, The Substantive Reach of SEQRA: Aesthetics, Findings
and Non-Enforcement of SEQRA’s Substantive Mandate, 65 Alb. L. Rev. 393,
414 (2002) (listing persons most likely to be dissatisfied with agency action to
include “concerned citizens who live near project sites” as well as environmental groups).
96 Cf. Sarah Townsend, Ministers to Study New Airport, Planning Resource
(Jan. 28, 2011), http://www.planningresource.co.uk/article/1051537/ministersstudy-new-airport (describing how British officials are building new London
airport on a “greenfield” site to “get around the NIMBY problem”).
97 See Sterk, supra note 6, at 2069-71 (explaining that “litigants rarely succeed when they complain that decisions made by municipalities or state agencies paid inadequate attention to date included in the EIS” and listing numerous
examples); Caffry, supra note 95, at 412 (describing how during the 1990s,
court challenges to agency SEQRA determination prevailed in 28% of the cases
where no EIS was prepared, and 10% of cases where a final EIS was prepared).
98 Sterk, supra note 6, at 2084.
Winter 2014
99
See Chad Lamer, Why Government Policies Encourage Urban Sprawl, and
the Alternatives Offered by New Urbanism, 13 Kan. J.L. & Pub. Pol’y 391, 402
(2004).
100 See Sterk, supra note 6, at 2081-82 (citing one example of a 196-page
impact statement, and another EIS that included 174 pages on traffic and transportation alone, as well as 57 pages on mitigation of such problems).
101 See Patrick Gallagher, Reviewing the Environmental Review, 47 Fairfax
County Bus. J. 19 (Sept. 26, 2011) (“[T]he review process of any development
moves ahead at [lead agencies’] discretion, sometimes taking as many as four
o[r] five years before a decision is rendered.”).
102 See Tuxedo Land Trust, Inc. v. Town of Tuxedo, 950 N.Y.S.2d 611 (Sup. Ct.
2012).
103 See Save Coney Island, Inc. v. N.Y.C., 910 N.Y.S.2d 765 (Sup. Ct. 2010).
104 Empire State Dev. Corp., SEQRA Findings Statement 5-6, http://www.
esd.ny.gov/Subsidiaries_Projects/AYP/AtlanticYards/AdditionalResources/
SEQRAFindingsStatement.pdf (last visited August 16, 2012).
105 Id. at 6.
106 See Develop Don’t Destroy v. Empire State Dev. Corp., 942 N.Y.S.2d 477
(App. Div. 2012).
107 See Thomas Merrill & David M. Schizer, Energy Policy for an Economic
Downturn: A Proposed Petroleum Fuel Price Stabilization Plan, 27 Yale J.
Reg. 1, 20 (2010) (“[A]lternative modes of transportation, such as walking,
bicycling or public transportation, are impossible or inconvenient in suburbs
and exurbs.”); Michael Lewyn, Sprawl in Canada and the United States, 44
Urb. Law. 85, 96-97 (2012) (comparing transit ridership in a variety of North
America cities and metropolitan areas, and showing that central cities consistently have more transit ridership than region as a whole; for example, 52.8% of
New York City residents use public transit to get to work, as opposed to 24.9%
of region-wide commuters).
108 Lewyn, supra note 107, at 111, 119-20.
109 See Pamela Blais, Perverse Cities 60-61 (2010) (citing numerous studies).
110 Id. at 61 (A “minimum threshold density is needed to support a rudimentary level of transit service (say, about every half hour). As densities increase,
so, too, does the economic viability of higher levels of service.”).
111 Merrill & Schizer, supra note 107, at 17.
112 Merrill & Schizer, supra note 107, at 18.
113 See infra notes 114–28 and accompanying text (discussing evidence that
transit-oriented places pollute less). It could be argued that this reality is not
relevant to infill development as a whole, because not all infill areas are equally
compact or transit-oriented. For example, an inner-ring suburb such as Long
Island’s Nassau County may be developed enough for most development to be
infill development, yet highly automobile-dependent. Yet even these suburbs
are less automobile-dependent than outer suburbs. For example, in Nassau
County seventy-seven percent of commuters drove to work—a higher percentage than in New York City, but still lower than outer-ring Suffolk County where
over eighty-seven percent did so. See U.S. Census Bureau, State & County
Quickfacts, http://quickfacts.census.gov/qfd/states/36000.html (last visited Dec.
16, 2013) (click on links for individual New York counties, then go to “Browse
Data Sets” for county, then click link for “Economic Characteristics”). And in
semi-suburban Queens, located between Manhattan and Long Island, only a
minority of commuters drove to work. Id.
114 See Oliver Gillham, The Limitless City 114 (2002) (describing the argument that density breeds congestion).
115 See Blais, supra note 109, at 65.
116 Blais, supra note 109, at 65
117 Blais, supra note 109, at 65. See also William Fulton, et.al., Who
Sprawls Most? How Growth Patterns Differ Across the U.S. 8 (2001),
available at http://www.brookings.edu/~/media/research/files/reports/2001/7/
metropolitanpolicy%20fulton/fulton.pdf.
118 See David Schrank, et.al., TTI’s 2010 Urban Mobility Report 3 (2010),
available at http://tti.tamu.edu/documents/mobility_report_2010.pdf.
119 See Transp. Research Bd., Driving And The Built Environment ix-x
(2009) [hereinafter TRB], available at http://www.nap.edu/catalog.php?record_
id=12747#toc (describing authors and sponsorship).
120 Id. at 4. See also ABT Associates, Research on Factors Relating to
Density and Climate Change 5 (2010), available at http://www.nahb.org/
fileUpload_details.aspx?contentID=139993&fromGSA=1 (noting that this view
is supported by “weight of the evidence”).
121 TRB, supra note 119, at 4. See also TRB, supra note 119, at 31-66
(describing the relationship between density and vehicle miles traveled in more
detail).
122 TRB, supra note 119, at 4.
65
123
See Edward L. Glaeser & Matthew Kahn, The Greenness of Cities 1
(2008), available at http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/
file/pdfs/centers-programs/centers/taubman/policybriefs/greencities_final.pdf
(“[L]ow-density development . . . is associated with far more carbon dioxide
emissions than higher-density construction.”). See also Sierra Club, Sprawl
Report 2001: A Summary (2001), available at http://www.sierraclub.org/
sprawl/report01/summary.asp (suggesting that most auto-oriented regions have
more smog).
124 Glaeser & Kahn, supra note 123, at 5.
125 Mass. v. EPA, 549 US 497, 504 (2007) (holding that carbon dioxide is a
major greenhouse gas).
126 Glaeser & Kahn, supra note 123, at 5.
127 Glaeser & Kahn, supra note 123, at 5.
128 See supra note 107; Brookings Inst., Where The Jobs Are: Employer
Access to Labor by Transit, New York-Northern New Jersey-Long Island
NY, NJ-PA Metro Area (2012), available at http://www.brookings.edu/
research/papers/2012/07/11-transit-jobs-tomer/~/media/Research/Files/
Papers/2012/7/transit%20labor%20tomer/pdf/New_York.pdf (presenting a table
showing that in New York City, 58.1% of residents can reach typical job in 90
minutes via public transit; only 14.4% of suburban jobs equally accessible).
129 See Glaeser & Kahn, supra note 123, at 8 (noting that suburbanites emitted 6,172 more pounds of automobile-related emissions per household than city
residents; however, this gap was partially offset by city residents’ generation
of 2,367 more pounds of public transit-related emissions per household). New
York suburbanites emitted more home heating emissions than city residents as
well; however, this was not the case in all metropolitan areas studied. Id.
130 See supra notes 75-76 and accompanying text.
131 See Edward L. Glaeser & Joseph Gyourko, The Impact of Zoning Upon
Housing Affordability 19-20 (2002), available at http://www.nber.org/papers/
w8835.pdf (noting that delayed issuance of building permits correlated with
high housing costs).
132 See, e.g., E. Coast Dev. Co., 667 N.Y.S.2d at 184-86 (holding that the
“visual impact” of proposed commercial development for users of nearby hiking trail justified city’s rejection of project).
133 See John Darakjian, SB 375: Promise, Compromise, and the New Urban
Landscape, 27 UCLA J. Envtl L. & Pol’y 371, 372 (2009) (describing amendments part of SB 375, enacted in 2008).
134 Katherine M. Baldwin, NEPA and CEQA: Effective Legal Frameworks for
Compelling Consideration of Adaptation to Climate Change, 82 S. Cal. L. Rev.
769, 771 (2009) (describing CEQA, one of the “little NEPA” statutes).
135 Cal. Pub. Res. Code § 21000 et seq. (West 2013).
136 And for some other residential development as well. See infra note 145 and
accompanying text.
137 See Byron K. Toma, The Error of Streamlining CEQA for Transit Priority
Projects: Why California Transit Agencies May Share the Same Future as Polar
Bears, 18 U. Balt. J. Envtl. L. 171, 173 (2011).
138 See Cal. Pub. Res. Code § 21155.
139 See Darakjian, supra note 133, at 393 (citing Cal. Pub. Res. Code §§
21155.1(b), (c)).
140 See Darakjian, supra note 133, at 393.
141 Darakjian, supra note 133, at 393 n.95 (citing conversation with private
developer who stated that the “low-income requirement is a big deterrent to
builders, because you’re giving these units away”).
142 This statement can be easily verified by a look at Google Street View,
http://maps.google.com (search for “New York, NY”).
143 See Darakjian, supra note 133, at 393.
144 Cal. Pub. Res. Code. § 21155.2(b).
145 See Darakjian, supra note 133, at 393 (describing SCEA as a “truncated”
form of review).
146 See Toma, supra note 137, at 191-92. In addition, a statute enacted in
2012, SB 226, creates additional protections for a wide variety of infill projects.
See State of Cal., Governor’s Office of Planning & Research, Narrative
Explanation of the Proposed Addition to the CEQA Guidelines Implementing
SB 226 at 10-11 (2012), http://opr.ca.gov/docs/Narrative_Explanation_%20of_
Guidelines_and_Performance%20Standards.pdf (listing types of infill projects
covered in Table 3). If a project’s effects have already been analyzed in a prior
environmental impact statement or document addressed in such a statement, a
government agency need not analyze those effects under SB 226. Id. at 11-12.
Even state legislators are uncertain about the long-term effect of this statute.
See Noreen Evans and Das Williams, CEQA A Fundamental Safeguard For
California, States News Service (Jan. 29, 2013), http://sd02.senate.ca.gov/
news/2013-01-29-ceqa-fundamental-safeguard-california (quoting a statement
66
by two state legislators that “until we see how well SB 226 and SB 375 succeed at streamlining the approval process for new development, we hesitate to
add additional requirements”). Cf. William Fulton, SB 226: Complicated or
Simple?, 27 Cal. Planning & Dev. Rep. , Nov. 1, 2012, at 13 (describing SB
226 as “too complex”). Thus, it seems premature to speculate about the impact
of SB 226 upon infill development.
147 See Matthew D. Francois, An Update on Climate Change Regulations and
How the California Model Might be Replicated Elsewhere, Aspatore, 2012
WL 1200516, *5 (explaining that an environmental impact statement “is not
required to reference, describe, or discuss a reduced-density alternative to
address the impacts of car and light-duty truck trips generated by the project.”).
148 See Toma, supra note 137, at 191 (Streamlining allowed only if project
“has incorporated all feasible mitigation measures, performance standards,
or criteria articulated in the prior applicable [environmental review]” such as
review “related to a General Plan.”). In addition, streamlining applies only
if a project is consistent with a “sustainable communities strategy” that will
propose a regional development pattern and will be created by a regional planning organization. See Annika E. Leerssen, Smart Growth and Green Building:
An Effective Partnership to Significantly Reduce Greenhouse Gas Emissions,
26 J. Envtl. L. & Litig. 287, 309-10 (2011); Darakjian, supra note 133, at
387-89 (describing sustainable communities strategy). It is unclear whether this
requirement will significantly affect transit priority projects.
149 Toma, supra note 137, at 175.
150 Toma, supra note 137, at 194 (expressing concern over “time delays and
commuter frustration.”).
151 See supra notes 109-10 and accompanying text.
152 See, e.g., Steve Harrison, November Ballot Spot Likely: Signatures Clear
The Way For Revote on Transit Tax, Charlotte Observer, June 1, 2007, at 1A
(noting that opponents of Charlotte light rail expansion argue that “plan to build
additional light-rail lines doesn’t make sense for a low-density city such as
Charlotte”); Jim Beamgard, Bus Line Wants to Carry Riders Farther, Faster—A
Conversation with Ray Miller, Tampa Tribune, Aug. 7, 2005, at 1 (quoting
opponents of rail in Tampa who say “we’ll never have the densities here needed
… [so] it really doesn’t take cars off the road”).
153 See, e.g., Editorial, South Fla. Sun-Sentinel, May 28, 2006, at 4H (“[H]ighdensity developments will only worsen traffic congestion if mass transit is not
available to replace the automobile for significant numbers of people.”).
154 See Sterk, supra note 6, at 2090.
155 Sterk, supra note 6, at 2089 (noting that in 1988, out of over 3,000 environmental impact statements and environmental assessment decisions, more than
80 percent filed by local government units; by contrast, federal government filed
only 430 environmental impact statements under NEPA).
156 See supra Part III.
157 In addition, Sterk also proposes two other reforms less specifically targeted
towards rezoning and other decisions related to private land use and thus less
relevant to this article. He proposes eliminating private causes of action by
barring private citizens from seeking judicial review of an EIS. See Sterk, supra
note 6, at 2086-87. This proposal would certainly make SEQRA less burdensome for landowners by reducing SEQRA-related litigation, albeit perhaps at a
heavy environmental cost (insofar as it presumably reduces citizens’ ability to
delay environmentally harmful decisions). He also proposes expanding judges’
role by requiring de novo review of decisions with significant environmental
impact, on the basis that this reform would eliminate squabbling over standing and other procedural issues. Sterk, supra note 6, at 2088. The question of
whether judges are qualified to wrestle with environmental tradeoffs is beyond
the scope of this article.
158 Sterk, supra note 6, at 2085-86.
159 Sterk, supra note 6, at 2085-86.
160 See supra notes 49-53 and accompanying text.
Sustainable Development Law & Policy
Laplace Rising: The Story of How a Tiny Community in Southern Louisiana Will Save the Largest
Delta in North America
Endnotes:
continued from page 33
27 U.S. Dep’t of Interior, Bureau of Land Mgmt, Louisiana: Reasonably
Foreseeable Development Scenario for Fluid Minerals 3 (2008), available at
http://www.blm.gov/pgdata/etc/medialib/blm/es/jackson_field_office/planning/
plannng_pdf_ar_rfds.Par.96360.File.dat/LA_RFDS_R2.pdf.
28 Id.
29 Oliver Houck, Land Loss in Coastal Louisiana: Causes, Consequences,
and Remedies, 58 Tul. L. Rev. 3, 9-13 (1983).
30 P.C. Scruton, Sediments of the Eastern Mississippi Delta, Scripps Inst. of
Oceanography, New Series No. 792, at 22, available at http://sp.sepmonline.
org/content/sepspfin/1/SEC2.body.pdf.
31 Houck, supra note 9, at 1069.
32 Houck, supra note 9, at 1069.
33 See Clark Kent Ervin, New Orleans’ Preparedness for Terrorism (and
Catastrophic Natural Disasters) 7 (Aspen Inst., 2010); William Freudenburg, et. al, Catastrophe in the Making: The Engineering of Katrina and the
Disasters of tomorrow 31 (Island Press, 2011).
34 Veronica Devore, As Mississippi Rises, Historian Discusses ‘Great Flood’
of 1927, PBS News Hour (May 9, 2011), http://www.pbs.org/newshour/
rundown/2011/05/as-mississippi-rises-flood-historian-discusses-greatflood-of-1927.html.
35 Risk Mgmt. Solutions, The 1927 Great Mississippi Flood: 80-Year
Retrospective 1-2 (2007), available at http://www.rms.com/publications/1927_
MississippiFlood.pdf; Stephen Ambrose, Great Flood, Nat’l Geographic News
(May 1, 2001), http://news.nationalgeographic.com/news/2001/05/0501_river4.
html.
36 Stephen Ambrose, Great Flood, Nat’l Geographic News (May 1, 2001),
http://news.nationalgeographic.com/news/2001/05/0501_river4.html.
37 Risk Mgmt. Solutions supra note 35, at 12.
38 Risk Mgmt. Solutions, supra note 35, at 1-2.
39 See Risk Mgmt. Solutions supra note 35, at 1-2.
40 Risk Mgmt. Solutions supra note 35, at 8.
41 Nat’l Park Service, Mississippi River Facts (Oct. 10, 2012), http://www.
nps.gov/miss/riverfacts.htm.
42 Flood Control Act of 1928, ch. 569, 45 Stat. 535 (1928).
43 Fact Sheet: What is a Levee?, Fed. Emergency Mgmt. Agency (2012),
http://www.fema.gov/library/viewRecord.do?id=4827 (defining levees as manmade earthen embankments built on both sides of a river to prevent it from
overflowing during periods of high water).
44 See Army Corps of Eng’rs, Medium Diversion at Myrtle Grove with
Dedicated Dredging (2013).
45 Micaela M. Conor, Louisiana Coastal Area Medium Diversion at Myrtle
Grove with Dedicated Dredging, La. Coastal Protection & Restoration
Auth.: Planning Div. 1 (2012), https://www.estuaries.org/pdf/2012posters/
Coner_RAE_2012_poster.pdf.
46 See Harley S. Winer, Re-Engineering the Mississippi River as a Sediment
Delivery System, J. of Coastal Res., 229, 230 (2011), available at http://www.
jcronline.org/doi/pdf/10.2112/SI59-024.1.
47 Id.
48 U.S. Army Corps of Eng’rs, Freshwater Diversion 6, http://www.mvn.
usace.army.mil/Portals/56/docs/PAO/Brochures/FreshwaterDiversion.pdf.
49 See Jonathan M. Nelson, et al., Mechanics of Flow and Sediment Transport
in Delta Distributary Channels, U.S. Geological Survey (2011), http://water.
usgs.gov/nrp/proj.bib/Publications/2011/nelson_kinzel_etal_2011.pdf.
50 Houck, supra note 29, at 18-19.
51 Winer, supra note 46, at 30.
52 Houck, supra note 29, at 19.
53 Freudenberg, supra note 33, at 34.
54 Freudenberg, supra note 33, at 34.
55 Oliver Houck, Can We Save New Orleans?, 19 Tul. Envtl. L.J. 1, 17
(2006); Oliver Houck, Retaking the Exam: How Environmental Law Failed
New Orleans and the Gulf Coast South and How it Might Yet Succeed, 81 Tul.
L. Rev. 1059, 1064-65 (2007) [hereinafter Houck, Retaking the Exam] (citing
Donald Davis, Louisiana Canals and Their Influence on Wetland Development,
122 (1973) (unpublished Ph.D. dissertation, Louisiana State University – Baton
Rouge) (on file with Hill Memorial Library, Louisiana State University) (stating
that over 600 oil rigs were built in the 1970s surrounded by a massive network
of canals)).
Winter 2014
56
Houck, supra note 29, at 25-26.
Houck, supra note 29, at 32-33.
58 Houck, supra note 29, at 33.
59 Houck, supra note 29, at 37-38.
60 Houck, supra note 29, at 37-38.
61 U.S. Army Corps of Eng’rs, Mississippi River Gulf Outlet: Deep-Draft
De-Authorization Interim Report to Congress ii (2006), http://www2.mvn.
usace.army.mil/pao/RELEASES/MRGO_Report_Congress_061214_Final.pdf.
62 Id.
63 Houck, supra note 29, at 40-41.
64 Houck, supra note 29, at 40-41.
65 Houck, Retaking the Exam, supra note 55, at 1064-65.
66 Joby Warrick & Michael Grunwald, Investigators Link Levee Failures to
Design Flaws, Wash. Post, Oct. 24, 2005, http://www.washingtonpost.com/
wp-dyn/content/article/2005/10/23/AR2005102301200.html.
67 U.S. Army Corps of Eng’rs, supra note 61.
68 See Houck, supra note 29, at 25-26.
69 La. Coastal Wetlands Conservation & Restoration Task Force & the
Wetlands Conservation & Restoration Auth., Coast 2050: Toward a Sustainable Coastal Louisiana 1 (1998), available at http://www.coast2050.gov/
report.pdf [hereinafter Coast 2050].
70 Id. at 1.
71 See generally Houck, supra note 29; Coast 2050, supra note 69, at 9.
72 See Michael Metzger, Assessing the Effectiveness of Louisiana’s
Freshwater Diversion Projects Using Remote Sensing, Univ. New Orleans
Theses & Dissertations No. 633, at 57 (2007), available at http://
scholarworks.uno.edu/cgi/viewcontent.cgi?article=1633&context=td&seiredir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26r
ct%3Dj%26q%3Dhow%2520much%2520is%2520the%2520caernarvon%2520
diversion%2520structure%2520actually%2520used%26source%3Dweb%.
73 Id.
74 See Army Corps of Eng’rs, supra note 61.
75 Jill A. Jenkins, et al., Photograhic Images Captured While Sampling for
Bald Eagles near the Davis Pond Freshwater Diversion Structure in Barataria
Bay, Louisiana (2009-10), U.S. Geological Survey 1 (2011), available at
http://pubs.usgs.gov/ds/605/downloads/DS605.pdf.
76 U.S. Army Corps of Eng’rs, Bonnet Carré Spillway 7 (2012), http://www.
mvn.usace.army.mil/Portals/56/docs/PAO/Brochures/BCspillwaybooklet.pdf.
77 Id. (noting by reference on a chart title “Spillway Openings (as of 2011)
for years 1937, 1945, 1950, 1973, 1975, 1979, 1983, 1997, 2008, 2011).
78 Id. (suggesting these leakage events usually occur in periods of high water
in the spring and early summer.).
79 Id. at 9.
80 Id. at 7.
81 Cindy Brown, et. al., All the King’s Horses and All the King’s Men: What is
the Future of the Pontchartrain Basin Wetlands?, Nature Conservancy of La.
2 (2005), http://www.csc.noaa.gov/cz/CZ05_Proceedings/pdf%20files/Brown.
pdf.
82 Roy Reeds, Engineers Open Spillway in Attempt to Save an Imperiled Mississippi Dam; Earlier Problems, N.Y. Times, April 18, 1973, at 93.
83 U.S. Army Corps of Eng’rs, Morganza Floodway, Team New Orleans,
http://www2.mvn.usace.army.mil/bcarre/morganza.asp (last updated Jan. 3,
2012).
84 Coastal Wetlands Planning, Protection and Restoration Act, The Atchafalaya Basin, http://lacoast.gov/new/about/basin_data/at/default.aspx#dynamics
(last visited November 3, 2013).
85 Metzger, supra note 72, at 13.
86 Metzger, supra note 72, at 15.
87 See Tropical Isle, http://tropicalisle.com/ (last visited Nov. 3, 2013) (suggesting the Hand Grenade as a most popular Bourbon Street adult beverage
served at Tropical Isle).
88 Metzger, supra note 72, at 62.
89 Metzger, supra note 72, at 62.
90 Metzger, supra note 72, at 14.
91 New Orleans District, U.S. Army Corps of Eng’rs, Modification of
Davis Pond Diversion 2 (May 2012), http://www2.mvn.usace.army.mil/
57
67
environmental/Mod%20of%20Davis%20Pond%20Fact%20Sheet%20May%20
2012%20PAO.pdf.
92 Id.
93 Id.
94 La. Coastal Area, Modification of Davis Pond Diversion, http://www.lca.
gov/Projects/14/Default.aspx (last visited Nov. 15, 2013).
95 Id.
96 Mark Schleifstein, West Bay Diversion Wins Reprieve from Federal-State
Coastal Restoration Task Force, Times-Picayune, Oct. 11, 2012, http://www.
nola.com/environment/index.ssf/2012/10/west_bay_diversion_wins_reprie.
html.
97 Id.
98 Id.
99 See generally Gina Schilmoeller, Invoking the Fifth Amendment to Preserve
and Restore the Nation’s Wetlands in Coastal Louisiana, 19. Tul. Envtl. L. J.
317 (2006).
100 Houck, supra note 29, at 26-27.
101 Solomon Northrup, Twelve Years A Slave 139 (1997), available at http://
docsouth.unc.edu/fpn/northup/northup.html.
102 Houck, supra note 29, at 26-27.
103 Cal. State Lands Comm’n, The Public Trust Doctrine 1 (2001), available
at http://www.slc.ca.gov/Policy_Statements/Public_Trust/Public_Trust_Doctrine.pdf (citing Institutes of Justinian 2.1.1; Las Seite Partidas 3.28.6 (S. Scott
trans. & ed. 1932)).
104 Id.
105 Id.
106 Shively v. Bowlby, 152 U.S. 1, 58 (1894) (holding that historically states
have been granted the sovereign ability to control lands and waterways subject
to the tide’s influence so long as they still conform to the obligations of the
federal public-trust doctrine.); See generally, Phillips Petroleum Co., 484 U.S.
469 (1988).
107 Id.
108 Ill. Cent. R. Co. v. Ill., 146 U.S. 387, 435-36 (1892).
109 Id.; Joseph D. Kearney & Thomas W. Merrill, The Origins of the American
Public Trust Doctrine: What Really Happened in Illinois Central, 71 U. Chi. L.
Rev. 799, 800-01 (2004).
110 See Jamie Bartram, et al., Water Quality Monitoring – A Practical Guide to
the Design and Implementation of Freshwater Quality Studies and Monitoring
Programmes, United Nations Env’t Programme & World Health Org. (1996),
available at http://www.who.int/water_sanitation_health/resourcesquality/
wqmchap13.pdf.
111 Ill. Cent. R. Co., 146 U.S. at 455-56.
112 Ill. Cent. R. Co., 146 U.S. at 435-36 (holding that the “ebb and flow of
the tide” rule for waters protected under the public trust is under-inclusive in
the case of the United States, as there are many bodies of water necessitating
protection that are not subject this phenomenon, unlike the British Isles).
113 Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988).
114 Id. at 476.
115 Nat’l Audubon Soc’y v. Superior Court, 33 Cal.3d 419, 425 (1983).
116 Id. at 431.
117 Id. at 452.
118 Responsible Wildlife Mgmt. v. State, 103 P.3d 203 (Wash. Ct. App. 2004).
119 Id. at 208 (C.J. Brintnall, concurring).
120 Sam Brandao, Louisiana’s Mono Lake: The Public Trust Doctrine and Oil
Company Liability for Louisiana’s Vanishing Wetlands, 86 Tul. L. Rev. 759,
774-75 (2012).
121 Id. at 774; Save Ourselves, Inc. v. La. Env’t Control Comm’n, 452 So.2d
1152, 1157 (La. 1984).
122 Id. at 1156.
123 Id. at 1156-57; James G. Wilkins & Michael Wascom, The Public Trust
Doctrine in Louisiana, 52 La. L. Rev. 861, 863-64 (1992).
124 Avenal v. Louisiana, 886 So.2d 1085, 1091-92 (La. 2004).
125 Id. at 1091.
126 Id.
127 Id. at 1101-02.
128 Id. at 1102.
129 Fed. R. Civ. Pro. 23(c)(1)(B) (For purposes of this article, Fed. R. Civ.
Pro. 23(g), appointment of counsel, will not be addressed); La. Code Civ. Proc.
Ann. art. 591 (2013).
130 Id.
131 LA Const. art. IX, § 1.
132 Fed. R. Civ. P. 23.
68
133
LA Const. art. IX, §§ 1,3.
See discussion of Morganza, Bonnet Carré, Davis Pond and Caernarvon
diversion structures, supra.
135 33 C.F.R. § 222.5(f)(7).
136 LA Const. art. I, §4.
137 United States v. Carmack, 329 U.S. 230, 241-42 (1946).
138 Arkansas Game & Fish Comm’n v. U.S., 33 S. Ct. 511 (2012).
139 Id. at 515.
140 See Ill. Cent. R. Co., 146 U.S. 387 (detailing the federal public-trust doctrine as it relates to the sovereign states); La. Const. art. IX §1.
141 Avenal, 886 So.2d at 1102 (citing La. Civ. Code Ann. art. 450 and Comment (b), “navigable water bodies are ‘public things that belong to the State,’
and . . . such property is ‘dedicated to public use, and held as a public trust, for
public uses.”); La. Const. art. IX §3.
142 Avenal, supra note 127, at 1101.
143 28 U.S.C.§ 1346(b).
144 Robinson v. United States (In re Katrina Canal Breaches Litig.), 696 F.3d
436 (Ct. App. 5th 2012).
145 See Id.
146 Id.
147 Id. at 127.
148 Id.
149 33 U.S.C.A. § 702(c).
150 U.S. Army Corps of Eng’rs, Hurricane Isaac With and Without 2012 100Year HSDRRS Evaluation at i (November 2012), http://www2.mvn.usace.army.
mil/pao/HurrIsaacWapp.pdf.
151 David Rogers, Jaye Cable & William Nuttle, Levees and Flood Protection 22-23 (2012), http://www.mississippiriverdelta.org/files/2012/07/Question-6.pdf.
152 See Dan Swenson & Mark Schleifstein, High Water Marks, Blame
Hurricane Isaac, Not Post-Katrina Levee System, for high sure, Corps says,
Times-Picayune, Nov. 12, 2012, http://media.nola.com/environment/photo/mapisaacsurge-111212jpg-af6a43422c34fce8.jpg.
153 Richard Rainey, Corps of Engineers Critic Repeats Accusations of Shoddy
Work, Times-Picayune, Aug. 22, 2012, http://www.nola.com/katrina/index.
ssf/2012/08/corps_of_engineers_critic_repe.html.
154 Id.
155 Anthony G. Craine, Joseph Kony, Encyclopedia Britannica (2013), available at http://www.britannica.com/EBchecked/topic/1017670/Joseph-Kony.
156 Harriet Beecher Stowe, Old Town Folks, ch. 39 (1869), available at
http://digital.library.upenn.edu/women/stowe/folks/folks.html.
134
Sustainable Development Law & Policy
Genetically Modified Food: A Golden Opportunity?
continued from page 34
opponents are demonstrating their will in the courtroom, at the
polls, and in the marketplace.33 The growing GMO labeling
movement is a major source of local and national activism. Voters
in California and Washington voted to overcome significant
resistance by corporations that fear GMO labeling, despite the
fact that those entities label their products in 64 other countries
around the world.34 Monsanto and others have spent $22 million to defeat the Washington labeling initiative, the most ever
spent to defeat a ballot initiative in the state’s history.35 In 2013,
twenty-six additional states introduced similar GMO labeling
legislation.36 It remains to be seen if the biotech industry will
overcome these efforts with its deep pockets,37 inestimable legal
resources, and political muscle.38
The resurgence of the GMO debate following the introduction of Golden Rice indicates that the argument is far from
settled. Questions remain as to the long-term safety and sustainability of genetically modified products, generally, and the ability of Golden Rice, specifically, to effectively impact the global
hunger epidemic without significant ecological consequences.
History has taught us that informed skepticism has the power
to inform society, protect consumers, and preserve the environment. Before Golden Rice is allowed unfettered access to the
global marketplace, escalating the proliferation of GM food
sources, the long-term safety and environmental sustainability
of genetic modification should be further analyzed to prevent
irreparable consequences.
Endnotes: Genetically Modified Food: A Golden Opportunity?
1
See Clive James, Global Review of the Field Testing and CommercializaTransgenic Plants: 1986 to 1995, at v (1996) available at http://www.
isaaa.org/kc/Publications/pdfs/isaaabriefs/Briefs%201.pdf.
2 See Jon Entine, No, You Shouldn’t Fear GMO Corn, Slate (Aug. 7,
2013), http://www.slate.com/articles/health_and_science/science/2013/08/
can_gmo_corn_cause_allergies_don_t_believe_elle_s_scary_story.single.html;
see also American Association for the Advancement of Science, Statement
by AAAS Board of Directors on Labeling of Genetically Modified Foods 1
(Oct. 2012), available at
http://www.isb.vt.edu/news/2013/Mar/AAASBoard.pdf.
3 See Sasha J. Wright, Why The GMO Debate Misses the Point, Popular Sci. Biohackers Blog (Oct. 29, 2013 10:32 AM), http://www.popsci.
com/blog-network/biohackers/why-gmo-debate-misses-point?dom=PSC
&loc=recent&lnk=2&con=IMG; see also Beth Hoffman, Just Because
Science Can Genetically Engineer Foods, Doesn’t Mean We Should
(Aug. 26, 2013), http://www.forbes.com/sites/bethhoffman/2013/08/26/
why-genetically-modifying-food-is-a-bad-idea/.
4
Hoffman, supra note 3.
5 See International Service for the Acquisition of Agro-Biotech Applications, ISSAA Brief 43-2011: Executive Summary, available at http://www.
isaaa.org/resources/publications/briefs/43/executivesummary/default.asp.
6 See Carl K. Winter & Lisa K. Gallegos, Univ. of Cal. Dep’t of Agric.
& Natural Res., Safety of Genetically Modified Food 1 (2006), available at
http://anrcatalog.ucdavis.edu/pdf/8180.pdf.
7
Tom Philpott, Do GMO Crops Really Have Higher Yields?, Mother Jones
(Feb. 13, 2003), http://www.motherjones.com/tom-philpott/2013/02/do-gmocrops-have-lower-yields; Robin Vinter, US Farmers May Stop Planting GMs
After Poor Global Yields, Farmer’s Weekly (Feb. 6, 2013), http://www.fwi.
co.uk/articles/06/02/2013/137518/us-farmers-may-stop-planting-gms-afterpoor-global-yields.htm.
8 See 20 Questions on Genetically Modified Foods, World Health Organization, http://www.who.int/foodsafety/publications/biotech/20questions/en/.
9 See U.S. and Monsanto Dominate Global Market for GMO Seeds, Organic
Consumers Ass’n (Aug. 7, 2013), http://www.organicconsumers.org/articles/
article_28059.cfm.
10 Monsanto Co., Monsanto 2012 Annual Report 40, available at
http://www.monsanto.com/investors/Documents/Annual%20Report/2012/
monsanto-2012-annual-report.pdf.
11 See Emily Waltz, GM Crops: Battlefield (Sept. 2, 2009), http://www.nature.
com/news/2009/090902/full/461027a.html.
12 Id.
tion of
Winter 2014
13 The Ctr. for Food Safety & Save Our Seeds, Seed Giants vs. U.S.
Farmers 6-7, available at http://www.centerforfoodsafety.org/files/seedgiants_final_04424.pdf.
14 Kristine Lofgren, Monsanto Has Sued Hundreds of Small Farmers,
Heads to the Supreme Court, Inhabit (Feb. 13 2013), http://inhabitat.com/
monsanto-has-sued-hundreds-of-small-farmers-heads-to-the-supreme-court/.
15 New Poll Finds Widespread Support for GMO Labeling As New Hampshire
House Committee Prepares to Vote on GMO Labeling Law, Food Democracy
Now! (Nov. 5, 2013), http://www.fooddemocracynow.org/blog/2013/nov/5/
new_poll_finds_90_percent_NH_voters_loveGMO_labels/.
16 Our Mission, Int’l Rice Research Inst., http://www.irri.org/about-us/ourmission [hereinafter IRRI] (last visited Dec. 6, 2013).
17 Amy Harmon, Golden Rice: Lifesaver?, N.Y. Times, Aug. 23, 2013, http://
www.nytimes.com/2013/08/25/sunday-review/golden-rice-lifesaver.html?_r=0;
Entine, supra note 2; Hoffman, supra note 3.
18 Harmon, supra note 17.
19 See Vitamins and Supplements Lifestyle Guide, WebMD, http://
www.webmd.com/vitamins-and-supplements/lifestyle-guide-11/
supplement-guide-vitamin-a.
20 Harmon, supra note 17.
21 Harmon, supra note 17.
22 See Harmon, supra note 17.
23 Caroleanne Wright, GM Golden Rice: Miracle or Menace? Top Activists Speak Out, Natural News (Sept. 19, 2013), http://www.naturalnews.
com/042124_golden_rice_gmos_activists.html. Furthermore, biotech giant
Syngenta owns the patent for Golden Rice. While it claims the seeds will be
available royalty free, legally Syngenta can change its position at any time.
Golden Rice is a project of the International Rice Research Institute (“IRRI”), a
nonprofit organization lead Dr. Gerard Barry, a twenty-year Monsanto veteran.
Both Monsanto and GMO producer Syngenta contribute funding to IRRI. IRRI,
supra note 16.
24 Beth Hoffman, Golden Rice and GMOs: The Best Solutions To World Hunger?, (Aug. 31, 2013), http://www.forbes.com/sites/bethhoffman/2013/08/31/
golden-rice-and-gmos-the-best-solution-to-world-hunger/.
25 Id.; Afr. Rice Ctr., Africa Rice Trends 5 (2007), available at http://www.
africarice.org/publications/Rice%20Trend%2023-10-07.pdf.
26 Id.; Ctr. for Food Safety, http://www.centerforfoodsafety.org/ge-map/
(last visited Dec. 6, 2013).
27 See Wright, supra note 23.
28 Jason Koebler, Herbicide Resistant “Super Weeds” Increasing Plaguing Farmers, U.S. News & World Report (Oct.
19, 2012), http://www.usnews.com/news/articles/2012/10/19/
herbicide-resistant-super-weeds-increasingly-plaguing-farmers.
69
29
Id.
Genetically Modified or Sustainable Agriculture?, Greenpeace, http://www.
greenpeace.org/eu-unit/en/campaigns/EU-farmers-ditch-GM-crops/.
31 See Stephanie Strom, Misgivings about How Weed Killer Affects the Soil,
N. Y. Times, Sept. 19, 2013, http://www.nytimes.com/2013/09/20/business/
misgivings-about-how-a-weed-killer-affects-the-soil.html.
32 See Harmon, supra note 17.
33 Strom, supra note 31.
34 New Poll Finds Widespread Support for GMO Labeling as New Hampshire
House Committee Prepares to Vote on GMO Labeling Law, Food Democracy
30
Now! (Nov. 5, 2013), http://www.fooddemocracynow.org/blog/2013/nov/5/
new_poll_finds_90_percent_NH_voters_loveGMO_labels/.
35 Id.
36 Id.
37 Tarini Parti & Jenny Hopkinson, Monsanto, DuPont Pour Millions into
GMO Fight, Politico (Sept. 11, 2013), http://www.politico.com/story/2013/09/
monsanto-dupont-pour-millions-into-gmo-fight-96643.html.
38 Lindsay Boerma, Critics Slam Obama for “Protecting” Monsanto, CBS News (Mar. 28, 2013), http://www.cbsnews.com/news/
critics-slam-obama-for-protecting-monsanto/.
Endnotes: Indonesia's Role in Realizing the Goals of ASEAN's Agreement on Transboundary
Haze Pollution
continued from page 45
(last visited Feb. 21, 2013). Haze also contributes to “greenhouse gas and haze
emissions from deforestation, land-use conflicts, loss of biodiversity, indigenous
rights violations, pollution of waterways and the disruption of eco-systems.”
Jenny Marusiak, Big Job ahead for Sustainable Palm Oil Group, Eco-Business.
Com, Oct. 31, 2012, http://www.eco-business.com/features/big-job-aheadfor-sustainable-palm-oil-group/. The U.S. Environmental Protection Agency
(“EPA”) defines regional haze as “visibility impairment that is produced by a
multitude of sources and activities which emit fine particles and their precursors
and which are located across a broad geographic area.” Regional Haze Regulations, 64 Fed. Reg. 35714, 35715 (July 1, 1999) (to be codified at 40 C.F.R. pt.
51). Haze is further distinguished by the size of the particulate matter—PM2.5
is haze with particulates up to 2.5 microns wide, and PM10 is haze with particulates up to 10 microns wide. See Ahmad et al., supra. ASEAN is concerned
with monitoring PM10. Ahmad et al., supra.
16 See Ahmad et al., supra note 15; Alan Rogers, Haze – Brown Clouds,
Borneo Post (Nov. 4, 2012), http://www.theborneopost.com/2012/11/04/hazebrown-clouds/ (explaining that low humidity means dry air which is stable and
characterized by no horizontal or vertical air movement).
17 See Ahmad et al., supra note 15; Rogers, supra note 16. On a clear day,
ground visibility can extend up to seven miles. Glossary: Visibility, Weather
Network, http://www.theweathernetwork.com/index.php?product=glossary&pa
gecontent=visibility (last visited Feb. 21, 2013).
18 See Rogers, supra note 16 (noting that the variability of air pollution
is affected by local meteorological conditions); Laura S. Henry et al., From
Smelter Fumes to Silk Road Winds: Exploring Legal Responses to Transboundary Air Pollution over South Korea, 11 Wash. U. Global Stud. L. Rev. 565,
584 n.96 (2012) (citing World Health Org., The Health Risks of Particulate
Matter from Long-Range Transboundary Air Pollution 1, 11 (2006), available at http://www.euro.who.int/__data/assets/pdf_file/0006/78657/E88189.
pdf).
19 See Regional Haze Regulations, supra note 15 (noting that visual impairment occurs because haze covers a broad geographical area); Merrill, supra
note 10, at 970 (discussing the drifting nature of transboundary pollution).
20 See Merrill, supra note 10, at 968 (defining transboundary air pollution).
21 See Tom Ginsburg & Gregory Shaffer, The Empirical Turn in International
Legal Scholarship, 106 Am. J. Int’l L. 1, 38 (2012).
22 Id. (noting the varied effects of environmental regulation on states involved
in the regulatory solution).
23 Id. For an example dealing with ozone, see Jonathan Remy Nash & Richard L. Revesz, Markets and Geography: Designing Marketable Permit Schemes
to Control Local and Regional Pollutants, 28 Ecology L.Q. 569, 599–601
(2001).
24 See Ginsburg & Shaffer, supra note 21, at 38 (explaining the growing field
of international environmental law and its extremely technical complexities).
25 Ginsburg & Shaffer, supra note 21, at 38.
26 See Merrill, supra note 10, at 970 (noting that transboundary pollution can
be partial, unidirectional, or reciprocal, but usually has an impact on both the
source and affected states).
27 Merrill, supra note 10, at 970 (noting a source state will consider the cost
of pollution incurred by its residents before adopting regulation).
28 See Merrill, supra note 10, at 971 (referencing reciprocal pollution as when
the pollution from A affects B and the pollution from B affects A).
29 See Merrill, supra note 10, at 971. These characteristics, which Merrill
refers to as “partial” and “reciprocal” transboundary pollution, are instrumental
70
in his argument that transboundary pollution disputes should be governed
by his “golden rules,” which would allow affected states to apply the source
state’s liability rules against it. Id. Though this model may be attractive if it is
restricted to norm creation in treaties, its emphasis on assigning liability may be
a fatal defect if source states have not ratified the treaty. Id.
30 The haze is an also an issue in other areas of ASEAN member states.
See, e.g., Kultida Samabuddhi, Haze Returns to the North, Bangkok Post,
Feb. 27, 2012, http://www.bangkokpost.com/learning/easier-stuff/281819/
haze-returns-to-the-north (discussing haze in Thailand’s northern provinces);
Wanwisa Ngamsangchaikit, Haze the Next Threat, TTR Weekly, Nov. 2, 2012,
http://www.ttrweekly.com/site/2012/11/haze-the-next-threat/ (discussing haze’s
impact on tourism in North Thailand). It is likely that, as the region continues
to industrialize and haze pollution increases overall, more transboundary
haze issues will arise. See, e.g., Alan Khee-Jin Tan, The ASEAN Agreement on
Transboundary Haze Pollution: Prospects for Compliance and Effectiveness
Suharto Indonesia, 13 N.Y.U. ENVTL. L.J. 647, 653–55 (2005); Gooch, supra
note 4; Ahmad et al., supra note 15; Koh Kheng-Lian, A Breakthrough in
Solving the Indonesian Haze?, in International Union for Conservation of
Nature Environmental Law and Policy Paper No. 72 at 225 (Sharelle Hart
ed., 2008) (blaming President Suharto’s Mega Rice Project which attempted to
turn one million hectares of peatland into rice paddies for potential increase in
transboundary haze pollution).
31 See Gooch, supra note 4 (“The haze, attributed mostly to fires burning
on the Indonesian island of Sumatra, has become a recurring summer blight,
engulfing parts of Malaysia, Thailand, Brunei and Singapore, and leaving a
litany of health and economic costs in its wake.”).
32 See infra Part IV.A.
33 See Khee-Jin Tan, supra note 30, at 653 (noting that Indonesia’s common
practice is to log an area and convert the land into a cash crop plantation).
34 See Khee-Jin Tan, supra note 30 at 653. (explaining that logging involves
removing the valuable tropical timber to make way for plantations).
35 See Indonesia, UN-REDD Programme (2009), http://www.un-redd.org/
CountryActions/Indonesia/tabid/987/language/en-US/Default.aspx (last visited
Nov. 12, 2013) (noting Indonesia is the third largest area of tropical rainforest in
the world). For more on the problem tropical deforestation poses from a climate
change perspective, see William Boyd, Ways of Seeing in Environmental Law,
37 Ecology L.Q. 843 (2010).
36 Peatlands are important for maintaining biological diversity and storing carbon. See Values of Peatlands in Indonesia, Sustainable Mgmt.
of Peatland Forests in Se. Asia, http://www.aseanpeat.net/index.
cfm?&menuid=128&parentid=68 (last visited Feb. 21, 2013); Fact Sheet
Norway-Indonesia Partnership REDD+, http://www.norway.or.id/PageFiles/404362/FactSheetIndonesiaPeatMay252010.pdf (last visited Feb. 21,
2013).
37 See Values of Peatlands in Indonesia, supra note 36 (noting that Indonesia
emits about five times as much carbon dioxide yearly from degraded peatlands
as it does burning fossil fuels).
38 See Andrew C. Revkin, The Fire Down Below, N.Y. Times Dot Earth
Blog, Aug. 20, 2010, 12:01 PM, http://dotearth.blogs.nytimes.com/2010/08/20/
the-fire-down-below/ (referring to this underground burn as smoldering fires,
which have been reported in boreal, temperate, and tropical forests). For
a domestic example, see Willie Drye, Vast Peat Fire may Burn for Months
in North Carolina, Nat’l Geographic News, June 13, 2008, http://news.
nationalgeographic.com/news/2008/06/080613-wildfire-peat.html. Greenpeace
Sustainable Development Law & Policy
estimates Indonesia’s peatlands have 35 million tons of carbon stored in them.
Indonesia, Greenpeace Int’l, http://www.greenpeace.org/international/en/
campaigns/forests/asia-pacific/?accept=4ec91d9249b193d19915d251e4a93f16
(last visited Nov. 2, 2013).
39 See Khee-Jin Tan, supra note 30, at 653–55.
40 See Khee-Jin Tan, supra note 30, at 653–55 (noting these slash-and-burn
fires are deliberate).
41 See Khee-Jin Tan, supra note 30, at 653–55.
42 See Khee-Jin Tan, supra note 30, at 653–55.
43 See Khee-Jin Tan, supra note 30, at 653–55.
44 See Khee-Jin Tan, supra note 30, at 653–55.
45 See Khee-Jin Tan, supra note 30, at 653–55.
46 See Khee-Jin Tan, supra note 30, at 653–55 (noting the root cause of the
haze pollution problem in Indonesia is clearly man-made).
47 See Khee-Jin Tan, supra note 30, at 671-72.
48 See Paruedee Nguitragool, Environmental Cooperation in Southeast
Asia: ASEAN’s Regime for Trans-boundary Haze Pollution 77 (2010).
49 For a discussion of the problems posed by geography, known as the
“core-periphery problem,” see for example Edith Brown Weiss, Understanding
Compliance with International Environmental Agreements: the Baker’s Dozen
Myths, 32 U. Rich. L. Rev. 1555, 1576 (1999) (“National governments enter
into international agreements with other countries, but the authority of national
governments may not reach effectively into local areas. While local communities may be essential to implementing the agreement, they may be unaware of
the international commitments or have no interest in complying with them. This
is sometimes described as a core-periphery problem, in which the core government has difficulty ensuring compliance by actors who are geographically on
the periphery.”).
50 See CIA World Factbook, East &Southeast Asia: Indonesia, https://
www.cia.gov/library/publications/the-world-factbook/geos/print/country/
countrypdf_id.pdf.
51 See id.
52 See Gooch, supra note 4 (noting fires are a recurring summer blight for the
islands of Indonesia).
53 See Gooch, supra note 4 (revealing both Malaysia and Singapore have
provided Indonesia with equipment to help fight fires and detect hot spots in an
attempt to decrease haze).
54 See Jakarta Globe, supra note 1 (explaining the Air Pollutant Index, which
measures air quality as unhealthy when registering a reading ranging from 101200, has reached 127 in the capital, Kuala Lumpur, and as high as 144 in other
Malaysian cities).
55 States that have ratified the Transboundary Haze Pollution Agreement have
access to this information, which can help “reduce the potential haze particles
drifting to an adjoining country,” but Indonesia has not ratified the Agreement
and thus may not have access to this resource. See Rogers, supra note 16.
56 See United Nations Conference on the Human Environment, Stockholm,
Sweden, June 5-16, 1972, Declaration on the Human Environment, art. II,
princ. 21, U.N. Doc. A/CONF.48 (1972) [hereinafter Stockholm Declaration].
57 The principle of good neighborliness originates in the U.N. Charter and
requires states to honor treaty obligations and to improve international relations
in general. U.N. Charter art. 74. See also Phillipe Sands, International Environmental Law: An Introductory Overview, in Greening International Law i, xii
(Phillipe Sands, ed. 1994). In the environmental context, this principle was at
issue in Hungary and Slovakia’s dispute over the construction of the Gabcikovo
Dam. See Case Concerning the Gabcikovo-Nagymaros Project (Hung. v.
Slovk.), 1997 I.C.J. 3, 63 (Sept. 25).
58 Sands sees four objectives of sustainable development as that term is used
in the Brundtland Report: (1) preserving natural resources so they will benefit
present and future generations; (2) setting standards or quotas for exploiting
natural resources; (3) requiring states take into account the needs of other states
when exploiting a resource; and (4) requiring that economic plans integrate
environmental concerns. Sands, supra note 57, at xxxiii. See also United
Nations, Report of the World Commission on Environment and Development,
U.N. Doc. A/42/427 (Dec. 11, 1987); Pacific Fur Seal Arbitration (U.S. v. Gr.
Brit.).
59 This principle holds that those responsible for pollution must bear the costs
of the harm it causes. Sands, supra note 57, at xxxiv. Sands doubts this principle
has attained the status of customary international law in part because of the
absence of relevant case law. Id.
60 See Robert V. Percival, Liability for Environmental Harm and Emerging
Global Environmental Law, 25 Md. J. Int’l L. 37, 41 (2010); Stockholm
Winter 2014
Declaration, supra note 56, at art. II. The Stockholm Declaration recognizes the
right to a healthy environment. Stockholm Declaration, supra note 56, at art. I.
61 This principle holds that all states have a common responsibility to protect
natural resources, but the degree of action states take to do so depends on
factors such as how responsible it is for creating a particular problem and the
extent to which it can eliminate, “prevent, reduce or control the problem.” See
Sands, supra note 57, at xxxiv.
62 French obstruction of the International Court of Justice’s jurisdiction in a
case about the environmental effects of France’s nuclear tests in the Pacific is
instructive. See Request for an Examination of the Situation in Accordance with
Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear
Tests (New Zealand v. France) Case (N.Z. v. Fr.), 1995 I.C.J. 288 (Sept. 22).
63 See Brown Weiss, supra note 49, at 1559 (noting all actors to the agreement interact in different ways as the agreement evolves over time).
64 See Brown Weiss, supra note 49, at 1559.
65 See Brown Weiss, supra note 49, at 1559 (explaining while the states “are
the primary actors, . . . other actors are also essential, including intergovernmental organizations, secretariats to the agreements, nongovernmental organizations, private industrial and commercial organizations, and individuals”).
66 See Merrill, supra note 10, at 967-972.
67 See Jonathan Wiener, On the Political Economy of Global Environmental
Regulation, 87 Geo. L.J. 749, 762 (1999) (noting consenting states bind themselves to regulation because they view themselves as winning parties).
68 See id. (explaining opponents block and delay agreement and negotiations,
raising the cost for would-be winners).
69 See Antonia Chayes, International Agreements: Why they Count as Law,
103 Am. Soc’y Int’l L. Proc. 158, 160 (2009); see also Brown Weiss, supra
note 49, at 1584–85.
70 For more on the problems of state consent to MEAs, see Wiener, supra
note 67; and Merrill, supra note 10, at 980–81.
71 See Wiener, supra note 67, at 774; Merrill, supra note 10, at 980–81.
72 See Wiener, supra note 67, at 774; Merrill, supra note 10, at 980–81.
73 See Wiener, supra note 67, at 774; Merrill, supra note 1100, at 980–81.
74 See Brown Weiss, supra note 49, at 1584–85 (“The coercive measures
found in international environmental agreements are of three kinds: those that
provide for trade sanctions, those that withdraw certain privileges of membership, and those that provide for publication of infractions in official publications
accessible to the public.”).
75 See Abram Chayes, Environmental Concerns: Dispute Resolution has a
Role to Play, 4 No. 3 Disp. Resol. Mag. 25, 26–27 (1998) (“Some commentators have regarded these ‘incentives’ and ‘sanctions’ as the key to the committee’s success.”). See also Merrill, supra note 10, at 980–81. An arrangement that
simply reversed the asymmetry, with the source state bearing most of the cost,
and the affected state enjoying most of the benefits, is also undesirable from a
Coasean perspective. See generally Ronald Coase, The Problem of Social Cost,
3 J.L. & Econ. 1 (1960).
76 See Wiener, supra note 67, at 749.
77 See Wiener, supra note 67, at 749 (noting these measures are a deviation
from the consent approach to the agreement).
78 See Wiener, supra note 67, at 749.
79 On the question of why states do not invoke coercive measures, see infra
Part III.A. The difficult factual problems are another limit on the use of litigation and arbitration to stop transboundary haze pollution. See generally Wiener,
supra note 67; Henry et al., supra note 18.
80 See Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1938) [hereinafter Trail Smelter I] (requiring the Canadian company operating the Trail
smelter to cease causing further damage to the State of Washington), further
proceedings 3 R.I.A.A. 1938 (1941) [hereinafter Trail Smelter II] (holding Canada responsible for the Trail smelter pollution and requiring Canada to conform
to its treaty obligations). See generally John E. Read, The Trail Smelter Dispute,
1 Can. Y.B. Int’l L. 213 (1963) (describing the Trail Smelter arbitration).
Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (Apr. 16, 1938), further proceedings 3 R.I.A.A. 1938 (Mar. 11, 1941). The Canadian Trail Smelter
was polluting U.S. waters as recently as 1994. See Austen L. Parish, Trail
Smelter Déjà vu: Extraterritoriality, International Environmental Law, and the
Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes,
85 B.U. L. Rev. 363, 371–73 (2005).
81 Due to the paucity of case law, it is debatable whether the “polluter pays”
principle has reached the status of customary international law. See Sands supra
note 57, at xxxiii.
71
82
See Percival, supra note 60, at 39; Trail Smelter Arbitration, supra note 80.
This responsibility, known as the sic utere principle, is embodied in article 2 of
the Stockholm Declaration. See Stockholm Declaration, supra note 56, at art. II.
83 See Merrill, supra note 10, at 958 (noting that despite the radioactivity
levels that harmed individuals and condemned agriculture, there was never a
suit for compensation brought against the Soviet Union).
84 See Abram Chayes & Antonia Chayes, The New Sovereignty 187 (Harvard University Press 1995); see also Brown Weiss, supra note 49, at 1573. For
an example of a reporting regime providing scientific certainty, see infra Part
III.
85 See Chayes & Chayes, supra note 84, at 2.
86 See Chayes & Chayes, supra note 84, at 2.
87 See Chayes & Chayes, supra note 84, at 2. (noting the slow process of
behavioral change is a disincentive for sanctions).
88 See Chayes & Chayes, supra note 84, at 2, 63-66 (claiming that while this
is not the most obvious cost, it is the most important cost of sanctions).
89 See Chayes & Chayes, supra note 84, at 2, 63-66.
90 See Chayes & Chayes, supra note 84, at 2 (explaining that high political
costs associated with sanctions often lead to intermittent efforts to impose sanctions where the sanctioning state is responding to political exigencies, and not
the need for enforcement).
91 See Chayes & Chayes, supra note 84, at 3.
92 When an MEA has “low compliance” it means that parties have not sufficiently changed their behavior to meet the obligations imposed by the MEA.
When there is low compliance, the MEA is not effective. When an MEA has
“weak targets” it means that although parties may be in compliance with the
terms of the agreement, compliance with these terms does not lead to the
MEA’s goal of mitigating the transboundary pollution. See Tseming Yang &
Robert Percival, The Emergence of Global Environmental Law, 36 Ecology
L.Q. 615, 655-57 (2009). For a discussion of how domestic politics can lead to
MEAs with weak targets, see Robert Putnam, Diplomacy and Domestic Politics: The Logic of Two Level Games, 42 Int’l Org. 427 (1988). See also Merrill,
supra note 10, at 961 (1997); Brown Weiss, supra note 49, at 1582–83.
93 See George Downs, et al., Is the Good News About Compliance Good News
about Cooperation?, 50 Int’l Org. 379, 379–406 (1996).
94 See Brown Weiss, supra note 49, at 1582–83.
95 Antonia Chayes, supra, note 69, at 160.
96 See Yang & Percival, supra note 92, at 655–57.
97 See Brown Weiss, supra note 49, at 1558-59.
98 See Chayes & Chayes, supra note 84, at 22-28.
99 See Chayes & Chayes, supra note 84, at 22-28.
100 See Chayes & Chayes, supra note 84, at 1.
101 See Antonia Chayes, supra note 69, at 160.
102 See Abram Chayes, supra note 75, at 25-26.
103 See Abram Chayes, supra note 75, at 27 (“It is not clear, however, which
side had the greater bargaining leverage on this score. Russian compliance
is crucial to the overall success of the ozone regime, while the [Global Environmental Facility] funding was not in any way necessary for Russia’s overall
economic program.”).
104 Some states have laws that regulate activity that takes place beyond their
borders. See e.g. Alien Tort Claims Act, 28 U.S.C. § 1350; Foreign Corrupt
Practices Act, 15 U.S.C. §§ 78dd-1-3.
105 See Brown Weiss, supra note 49, at 1586 (“The threat of coercive measures
can induce conforming behavior even though the coercion is never invoked . . .
[t]hey are particularly useful for countries whose intention to comply is weak or
who face strong domestic pressures to lapse into noncompliance.”); Chayes &
Chayes, supra note 84, at 115.
106 See Yang & Percival, supra note 92, at 654–57.
107 See Chayes & Chayes, supra note 84, at 118.
108 See Chayes & Chayes, supra note 84, at 22–25.
109 See Abram Chayes, supra note 75, at 27.
110 See Chayes & Chayes, supra note 84, at 3.
111 Periodical reevaluations allow parties to determine the effect compliance
and noncompliance (meeting the MEA’s obligations) have on overall effectiveness (the extent to which the MEA solves the problem it was intended to solve).
For more on the interaction between compliance and effectiveness, see Kal
Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 Case W. Res. J. Int’l L. 387, 391–99 (2000).
112 See Chayes & Chayes, supra note 84, at 22–25.
113 See Chayes & Chayes, supra note 84, at 135.
114 See Chayes & Chayes , supra note 84, at 135, 142–51.
115 See Chayes & Chayes, supra note 84, at 151-53.
72
116
Transparency serves other functions as well: it reassures parties that others
are making good faith efforts to comply with the MEA and may serve as a
deterrent for parties that are considering noncompliance. See Chayes & Chayes
supra note 84, at 135, 142-53.
117 See Merrill, supra note 10, at 966–67.
118 See Merrill, supra note 10, at 966–67.
119 See Chayes & Chayes, supra note 84, at 135.
120 See Chayes & Chayes, supra note 84, at 136-37.
121 See Chayes & Chayes, supra note 84, at 137.
122 See Chayes & Chayes, supra note 84, at 138-39. LRTAP is the first MEA
to regulate transboundary air pollution. See Convention on Long-Range Transboundary Air Pollution, Air Pollutant Info. Sys., http://www.apis.ac.uk/overview/regulations/overview_CLRTAP.htm (last visited Nov. 12, 2013). LRTAP
is also an exception to Merrill’s theory that transboundary pollution is easiest to
regulate when there are a small number of parties involved. See Merrill, supra
note 10, at 934-35.
123 See Status of the Convention on Long-range Transboundary Air Pollution
and its related Protocols, United Nations Econ. Comm’n for Eur. 1 (June
22, 2012), http://www.unece.org/fileadmin/DAM/env/documents/2012/air/
Status_of_the_Covention.pdf.
124 Twenty-six states have ratified LRTAP and seventeen have acceded to
LRTAP, which legally binds them to its terms. See id.
125 See Convention on Long-range Transboundary Air Pollution at pmbl., Nov.
13, 1979, 1302 U.N.T.S. 217.
126 See id. at art. 1(a) (defining air pollution and air pollutants as “substances
or energy [in] the air resulting in deleterious effects of such a nature as to
endanger human health, harm living resources and ecosystems and material
property and impair or interfere with amenities and other legitimate uses of the
environment”); id. at art. 8(a) (“Data emissions at periods of time to be agreed
upon, of agreed air pollutants, starting with sulphur dioxide.”).
127 See Convention on Long-Range Transboundary Air Pollution, supra note
122. Between 1990 and 2006, “SO2 levels have dropped by 70% within the
European Union, and by 35% in the United States;” “[nitrous oxide] levels have
dropped by 35% within the European Union, and by 23% in the United States;”
“[a]mmonia… levels have dropped by 20% in the European Union;” “nonmethane volatile organic compounds have decreased by 41% in the European
Union;” and “[haze] has declined by 28% in the European Union.” UNECE’s
Convention on Long-range Transboundary Air Pollution celebrates 30th Anniversary, United Nations Econ. Comm’n For Eur., http://www.unece.org/env/
lrtap/30anniversary.html (last visited Nov. 12, 2013).
128 See Lothar Gundling, Multilateral Co-operation of States under the ECE
Convention on Long-Range Transboundary Air Pollution, in Transboundary
Air Pollution: International Legal Aspects of the Co-operation of States 19,
19-20 (Cees Flinterman et al. eds., 1986).
129 See Chayes & Chayes, supra note 84, at 138.
130 See Chayes & Chayes, supra note 84, at 138–39.
131 See Chayes & Chayes, supra note 84, at 138–39.
132 See Chayes & Chayes, supra note 84, at 139.
133 See Chayes & Chayes, supra note 84, at 139.
134 See Chayes & Chayes, supra note 84, at 247.
135 See Merrill, supra note 10, at 963-64.
136 See Chayes & Chayes, supra note 84, at 247.
137 See Chayes & Chayes, supra note 84, at 247.
138 See Chayes & Chayes, supra note 84, at 154-55.
139 See Chayes & Chayes, supra note 84, at 155. One drawback to this
approach is that parties may fail to report, or may report inaccurate information.
See Chayes & Chayes, supra note 84, at 155.
140 See Chayes & Chayes, supra note 84, at 159.
141 See Chayes & Chayes, supra note 84, at 184.
142 See Chayes & Chayes, supra note 84, at 184.
143 See Chayes & Chayes, supra note 84, at 184.
144 See Chayes & Chayes, supra note 84, at 185.
145 See Chayes & Chayes, supra note 84, at 185. An example of a more invasive verification procedure can be found in the Antarctic Treaty, which allows
for onsite inspections. Antarctic Treaty art. VII, Dec. 1, 1959, 12 U.S.T. 794,
402 U.N.T.S. 71. For an analysis of the Antarctic Treaty, see David J. Bederman
& Soniya P. Keskar, Antarctic Environmental Liability: The Stockholm Annex
and Beyond, 19 Emory Int’l L. Rev. 1383 (2005).
146 See Chayes & Chayes, supra note 84, at 229-31.
147 See Chayes & Chayes, supra note 84, at 154.
148 See Chayes & Chayes, supra note 84, at 166.
149 See Chayes & Chayes, supra note 84, at 167.
Sustainable Development Law & Policy
150
See Chayes & Chayes, supra note 84, at 167.
See Chayes & Chayes, supra note 84, at 168. Providing advance notice is
customary international law under the Rio Declaration. United Nations Conference on Environment and Development, Rio de Janeiro, Braz., June 3-14, 1992,
Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26
(Vol. I), 31 I.L.M. 874 (1992). See also Lake Lanoux Arbitration (Fr. v. Sp.),
12 R.I.A.A. 281 (Arbitral Tribunal 1957); Abram Chayes, supra note 75, at 27
(discussing the Lake Lanoux Arbitration as an example of party cooperation).
152 See Chayes & Chayes, supra note 84, at 155.
153 See Chayes & Chayes, supra note 84, at 155.
154 See Chayes & Chayes, supra note 84, at 195-96.
155 This concept is sometimes referred to as global environmental law. See
Yang & Percival, supra note 92, at 623 (“Global environmental law’s content
is the common set of legal principles developed by national, international, and
transnational environmental regulatory systems. It includes substantive values,
principles, and procedural approaches. Among the most readily identifiable
principles and tools are the precautionary principle, ‘polluter pays,’ environmental impact assessments, and pollution permitting. One might also readily
assert that protection of public health and the integrity of ecological systems are
among the most important substantive goals in environmental law.”).
156 See Merrill, supra note 10, at 985.
157 See, e.g., Yang & Percival, supra note 92, at 633-34.
158 See Chayes & Chayes, supra note 84, at 250–270.
159 See Robert V. Percival, The Globalization of Environmental Law, 26 Pace
Envtl. L. Rev. 451, 459 (2009).
160 See Percival, supra note 60, at 49 (“Greenpeace International, for example,
was among the first global NGOs to expose toxic waste dumping in developing
countries.”); Ginsburg & Shaffer, supra note 21, at 38–39 (“Nongovernmental
actors frequently play major roles in the politics of international environmental
lawmaking, including by heightening global concern about the environment and
by framing issues to be addressed.”).
161 See Chayes & Chayes, supra note 84, at 251.
162 See Chayes & Chayes, supra note 84, at 251.
163 See Khee-Jin Tan, supra note 30, at 648.
164 See Khee-Jin Tan, supra note 30, at 648.
165 Agreement, supra note 12, at art. 2.
166 Status of Ratification, Haze Action Online (Mar. 8, 2010), http://haze.
asean.org/hazeagreement/status.
167 See Khee-Jin Tan, supra note 30, at 648.
168 See Khee-Jin Tan, supra note 30, at 648–49.
169 See Khee-Jin Tan, supra note 30, at 648–49.
170 See Khee-Jin Tan, supra note 30, at 656–57.
171 See Khee-Jin Tan, supra note 30, at 656–57.
172 See Nicholas A. Robinson, Forest Fires as a Common International
Concern: Precedents for the Progressive Development of International Environmental Law, 18 Pace Envtl. L. Rev. 459, 475 (2001).
173 See Pathoni, supra note 14; see also Moments Before Indonesian Crash,
Jet Pilot Blinded by Haze, CNN, Sept. 26, 1997, http://www.cnn.com/
WORLD/9709/26/indonesia.crash.pm.
174 See Khee-Jin Tan, supra note 30, at 656–57. A hectare is 10,000 square
meters. Hectare, Merriam-Webster, http://www.merriam-webster.com/dictionary/hectare (last visited Nov 12, 2013).
175 See Khee-Jin Tan, supra note 30, at 656–57.
176 See Khee-Jin Tan, supra note 30, at 656–57.
177 See Khee-Jin Tan, supra note 30, at 656–57.
178 See Khee-Jin Tan, supra note 30, at 656–57.
179 See Khee-Jin Tan, supra note 30, at 656–57.
180 See Khee-Jin Tan, supra note 30, at 656–57.
181 See Tom Ginsburg, The State of Sovereignty in Southeast Asia, 99 Am.
Soc’y Int’l L. Proc. 419, 420 (2005). ASEAN’s 1976 Treaty of Amity and Cooperation laid out these principles: “1) respect for state sovereignty; 2) freedom
from external interference; 3) non-interference in internal affairs; 4) peaceful
dispute settlement; 5) renunciation of the use of force; and 6) cooperation.” Id.
Relying on these principles, ASEAN has historically dealt with issues facing
the region by “non-legal, consensual decision-making.” See Khee-Jin Tan, supra
note 30 at 648–49. See also Ginsburg, supra, at 420-21 (“The ASEAN Way is
also a style of informality. The organization proceeds responsively, and institutionalization has been slow . . . . The quiet, private, and nonconfrontational style
of the meetings and their minimal institutionalization have allowed the forums
to expand.”).
182 See infra Part IV.A.
183 Khee-Jin Tan, supra note 30, at 648–49.
151
Winter 2014
184
The Association of Southeast Asian Nations Declaration (Bangkok Declaration) Aug. 8, 1967, 6 I.L.M. 1233 [hereinafter Bangkok Declaration].
185 See Ginsburg, supra note 181, at 420-21.
186 See Bangkok Declaration, supra note 184.
187 In contrast to ASEAN, which has reinforced state sovereignty, the EU has
eroded it. For a discussion of these differences see Bahar Rumelili, Constructing Regional Community and Order in Europe and Southeast Asia (2007);
Michael Leifer & Soedjati Dijiwandono, Europe and Southeast Asia, in Europe
and the Asia Pacific 198 (Hanns Maull et al. eds., 1998).
188 See Kheng-Lian, supra note 30, at 230-31.
189 See Kheng-Lian, supra note 30, at 230-31.
190 See Kheng-Lian, supra note 30, at 230-31.
191 Agreement, supra note 12, at pmbl.
192 Agreement, supra note 12, at art. 2.
193 See supra Part III.B.
194 This is also in keeping with the “ASEAN way.” See supra Part IV.A.
195 Agreement, supra note 12, at art. 27.
196 See Convention on Long-range Transboundary Air Pollution, supra note
125, at art. 2 (emphasis added). Article 3 of the Convention similarly requires
parties to “develop without undue delay policies and strategies which shall
serve as a means of combating the discharge of air pollutants.” Convention on
Long-range Transboundary Air Pollution, supra note 125, at art. 3 (emphasis
added).
197 See supra Part III.B.
198 Agreement, supra note 12, at art. 4.
199 Agreement, supra note 12, at art. 9.
200 See supra Part III.B.
201 Agreement, supra note 12, at art. 9 (emphasis added).
202 Agreement, supra note 12, at art. 9 (emphasis added).
203 Agreement, supra note 12, at art. 9 (emphasis added).
204 Agreement, supra note 12, at art. 9 (emphasis added).
205 Agreement, supra note 12, at art. 7 (emphasis added).
206 Agreement, supra note 12, at art. 17.
207 Agreement, supra note 12, at art. 9.
208 Agreement, supra note 12, at art. 7.
209 Agreement, supra note 12, at art. 7.
210 Agreement, supra note 12, at art. 6.
211 Agreement, supra note 12, at art. 10.
212 Agreement, supra note 12, at art. 11.
213 See Chayes & Chayes, supra note 84, at 3.
214 See Agreement, supra note 12, at arts. 5, 19, 20 (Article 5 establishes the
Centre, while the Secretariat and the Fund are established by articles 19 and 20,
respectively).
215 Agreement, supra note 12, at art. 11
216 See ASEAN Specialised Meteorological Centre, Sing. Nat’l Envtl.
Agency, http://www.weather.gov.sg/wip/web/ASMC/About_Us (last visited
Nov. 12, 2013). ASMC also displays hotspots at http://www.weather.gov.sg/wip/
web/ASMC/home.
217 See id.
218 Agreement, supra note 12, at art. 8.
219 Agreement, supra note 12, at art. 8.
220 Agreement, supra note 12, at art. 8.
221 Agreement, supra note 12, at art. 11.
222 Chayes & Chayes, supra note 84, at 135.
223 See supra Part II.B.
224 Agreement, supra note 12, at art. 18.
225 Agreement, supra note 12, at art. 19.
226 Agreement, supra note 12, at art. 18; see Bharat H. Desai, Multilateral
Environmental Agreements: Legal Status of the Secretariats 134-35 (2010).
227 See Desai, supra note 226, at 134-35.
228 Agreement, supra note 12, at art. 20.
229 Agreement, supra note 12, at art. 20.
230 See supra Part III.B.
231 Sok Lak, ASEAN Tackle Transboundary Haze in Region, Wonderlak,
Nov. 29, 2011, 3:17 PM, http://wonderlak.blogspot.com/2011/11/asean-tackletransboundary-haze-in.html (describing the ASEAN Haze Fund).
232 Sujadi Siswo, ASEAN Begins Voluntary Contribution Towards Fund to
Fight Haze, Channel News Asia, Nov. 11, 2006, http://www.wildsingapore.com/
news/20061112/061111-1.htm (detailing the cost of fighting haze pollution).
233 Agreement, supra note 12, at art. 20.
234 Agreement, supra note 12, at art. 16.
235 Agreement, supra note 12, at art. 16.
73
236
Agreement, supra note 12, at art. 16.
Agreement, supra note 12, at art. 16.
238 Agreement, supra note 12, at art. 9
239 Agreement, supra note 12, at art. 12.
240 Agreement, supra note 12, at art. 5.
241 Agreement, supra note 12, at art. 12.
242 Agreement, supra note 12, at art. 14–15.
243 Agreement, supra note 12, at art. 13.
244 See Gooch, supra, note 4.
245 See ASEAN Pressures Indonesia over Rise in Haze Pollution, Bangkok
Post, Sept. 24, 2011, http://www.eco-business.com/news/asean-pressuresindonesia-over-rise-in-haze-pollution/ (citing a “change of Parliament” as the
reason for the delay).
246 See infra, Part V.B.
247 See infra, Part V.B.
248 See Ginsburg & Shaffer, supra note 21, at 38 (explaining the challenges in
international environmental law).
249 See Abram Chayes, Panel III: International Law, Global Environmentalism, and the Future of American Environmental Policy, 21 Ecology L.Q. 480,
481 (1994).
250 See supra Part III.B.
251 Antonia Chayes, supra note 69, at 160.
252 Indonesia Urged to Ratify Haze Agreement Soon, Asean- korea center,
Sept. 27, 2012, 4:45 AM, http://blog.aseankorea.org/archives/14035; Residents
Blame Plantations for Haze, New Straits Times, Oct. 11, 2012, http://www.
nst.com.my/nation/general/residents-blame-plantations-for-haze-1.155458
(explaining that locals blame plantations for making the haze worse).
253 Media Release, 14th Meeting of the Sub-Regional Ministerial Steering
Committee (MSC) on Transboundary Haze Pollution, ASEAN (Oct. 31, 2012),
available at http://www.asean.org/news/asean-secretariat-news/item/mediarelease-14th-meeting-of-the-sub-regional-ministerial-steering-committee-mscon-transboundary-haze-pollution [hereinafter Media Release] (declaring that
Indonesia is committed to reducing haze pollution).
254 See Bangkok Post, supra note 245; Simamora, supra note 14 (discussing
the government’s dissatisfaction with the activities of ASEAN countries which
impacts negatively on Indonesia).
255 See supra Part IV.B.
256 Media Release, supra note 253, at para. 1; Indonesia-Singapore Collaboration to Deal with the Land and Forest Fires in Jambi Province, Haze ACTION
Online ( Feb. 21, 2013), http://haze.asean.org/?page_id=234 (noting that the
members of the MSC are Brunei, Indonesia, Malaysia, Singapore, Thailand—
the states most affected by transboundary haze).
257 Media Release, supra note 253, at para. 3.
258 See Woo Sian Boon, Haze Meeting:Govts Agree To Share Concession
Maps, Today Online, July 18, 2013, http://www.todayonline.com/singapore/
haze-meeting-govts-agree-share-concession-maps.
259 Media Release, supra note 253, at para. 3.
260 Media Release, supra note 253, at para. 6.
261 Media Release, supra note 253, at para. 6.
262 See supra Part V.B.
263 See generally Media Release, supra note 253.
264 Media Release, supra note 253, at para. 4.
265 See Indonesia-Singapore Collaboration to Deal with the Land and Forest
Fires in Jambi Province, ASEAN Haze ACTION Online, http://haze.asean.
org/?page_id=234 (last visited Nov. 12, 2013) [hereinafter Indonesia-Singapore
Collaboration].
266 Id.
267 Id.
268 Id.
269 See Media Release, supra note 253 at para. 7.
270 See Indonesia-Singapore Collaboration to Deal with the Land and Forest
Fires in Jambi Province, Sing. Nat’l Envtl. Agency at 5 (last visited Nov. 12,
2013) available at http://haze.asean.org/?wpfb_dl=137 [hereinafter Sing. Nat’l
Envtl. Agency].
271 Id. at 43-44.
272 Id. at 44-45.
273 Id. at 9, 30, 35 (noting that other steps included: (1) workshop to develop
the capacity of the Jambi officers in reading and interpretation of satellite imagery and hotspot information; (2) socialization workshop of sustainable farming
and zero-burning practices; (3) development of a land use map for Mauro
Jambi regency; (4) installation of a geographical information system to support
regional fire and haze monitoring and assessment; (5) setting up air and weather
237
74
monitoring stations and development of a Fire Danger Rating System; (6)
review of the fire prevention and suppression capability and capacity of plantation companies and relevant stakeholders in Muaro Jambi regency; and (7)
training workshop on fire prevention and suppression capabilities). Indonesia
has also signed a memorandum of understanding with the U.S. EPA to further
cooperation between the United States and Indonesia (“MOU”). Memorandum
of Understanding Between the Environmental Protection Agency of the United
States of America and the Ministry of the Environment of the Republic of Indonesia, U.S. Dep’t of State (June 27, 2011), available at http://www.state.gov/
documents/organization/177115.pdf (stating that the MOU covers “prevention
and management of greenhouse gases[,] . . . air pollution . . . environmental
degradation[,] . . . threats to human health and to ecosystems[,] . . . environmental policy and management[,] e]nvironmental education and public awareness[,
and] environmental governance[,]” and that to accomplish this, parties will
exchange technical and governance information, organize workshops and training, and participate in joint projects).
274 See Thomas Cho & Dylan Loh, Plantation Owners Responsible for Sustainable Production: Stakeholders, Channel News Asia, Oct. 31, 2012, http://
wildsingaporenews.blogspot.com/2012/11/create-virtuous-cycle-to-ensure.
html#.UnKrM5FUO5l (discussing the increasing demand for palm oil); Marusiak, supra note 15.
275 See Cho & Loh, supra note 274.
276 See Marusiak, supra note 15.
277 See Abram Chayes, supra note 75, at 26–27.
278 If the Secretariat were to pledge to allocate the Fund so that Indonesia
received the bulk of the Fund, it could reduce the Indonesian legislature’s opposition to ratification.
279 See supra Part II.A.
280 See supra Part II.A.
281 See supra Part II.A.
282 See Coase supra note 75 (recognizing that this approach is not unlike a
Coasean bargain).
283 See supra Part III.B.
284 See supra Part III.B.
285 See supra Part III.B.
286 See Kathy Marks, Illegal Logging Responsible for Loss of 10 Million Hectares in Indonesia, The Independent, Oct. 26, 2009, http://www.independent.
co.uk/news/world/asia/illegal-logging-responsible-for-loss-of-10-millionhectares-in-indonesia-1809417.html (noting that illegal logging has destroyed
half of Indonesia’s rainforests).
287 Need for New Intervention, Sustainable Mgmt. of Peatland Forests in
Se. Asia, http://www.aseanpeat.net/index.cfm?&menuid=96&parentid=92 (last
visited Nov. 1, 2013).
288 Indonesian Activists Demand Minister’s Transparency on Concession
Map, The Jakarta Post, July 28, 2013, available at http://www.asianewsnet.
net/Indonesian-activists-demand-ministers-transparency-49571.html (noting
that although concession maps show where companies’ oil palm plantations are
located, these maps are not publicly available); ASEAN To Have Haze Monitoring System, Bangkok Post, Oct. 10, 2013, 12:58 PM, http://www.bangkokpost.
com/breakingnews/374005/asean-leaders-approve-joint-monitoring-system-toprevent-haze (recognizing that governments have agreed to share maps with one
another); Southeast Asia Agrees To Adopt Haze Monitoring System, Reuters,
Oct. 9, 2013, 3:29 AM, http://www.reuters.com/article/2013/10/09/us-asiasummit-haze-idUSBRE99807920131009. World Resources Institute, an NGO,
has what it claims are concession maps from 2010. Nigel Sizer et al., Peering
Through the Haze: What Data Can Tell Us about the Fires in Indonesia, World
Resources Institute (June 21, 2013), http://insights.wri.org/news/2013/06/
peering-through-haze-what-data-can-tell-us-about-fires-indonesia.
289 See Ministry of Forestry WebGIS, Ministry of Forestry: Directorate Gen.
of Forestry Planning, http://webgis.dephut.go.id (last visited Nov. 12, 2013).
290 Residents Blame Plantations for Haze, NEW STRAITS TIMES, Oct. 11,
2012, http://www.nst.com.my/nation/general/residents-blame-plantations-forhaze-1.155458 (discussing ASEAN meeting’s consensus on the necessity of hot
spot identification).
291 Peatlands in SEA, Sustainable Mgmt. of Peatland Forests in Se. Asia,
http://www.aseanpeat.net/index.cfm?&menuid=9 (last visited Nov. 12, 2013)
(explaining the prevalence of peatlands in Southeast Asia).
Sustainable Development Law & Policy
Article XX: Protector of Public Health, the Environment, and the New Provisions of European
Union's Fuel Quality Directive
Endnotes:
continued from page 46
1
David Vogel, The Environment and International Trade, 12.1 J. Pol’y
Hist. 72, 76.
2 Id.; General Agreement on Tariffs and Trade, Art. XX Apr. 15, 1994, 1867
U.N.T.S. 187, 33 I.L.M. 1153 (1994) [hereinafter GATT 1994].
3
GATT 1994, Art. XX.
4 Chronological List of Disputes, World Trade Org. (Dec. 3, 2013, 9:30
PM), http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm.
5
Margo McDiarmid, Joe Oliver Takes Oilsands Fight to Europe’s Financial Heart, CBC News (Nov. 19, 2013), http://www.cbc.ca/news/politics/
joe-oliver-takes-oilsands-fight-to-europe-s-financial-heart-1.2432413.
6 Id.
7
Charles T. Drevna et al., Multi-Association Letter Regarding EU Fuel
Quality Directive, Institute for 21st Energy (Dec. 3, 2013, 9:30 PM), http://
www.energyxxi.org/multi-association-letter-regarding-eu-fuel-quality-directive.
8
Barbara Lewis, Update 2-EU Vote on Tar Sands Oil Delayed Until
2013, Reuters (Apr. 20, 2012), http://www.reuters.com/article/2012/04/20/
energy-tar-idUSL6E8FK33620120420.
9
Directive 2009/30, 2009 O.J. (140) 1, 2 (EC).
10 Défense Terre, WTO Implications Of Reporting Measures for Tar Sands
under the Fuel Quality Directive 1 (2011), available at http://www.transportenvironment.org/sites/te/files/media/2011%2006%20WTO%20and%20Tar%20
Sands_FINAL.PDF.
11 Drevna, supra note 7.
12 Drevna, supra note 7.
13 Drevna, supra note 7.
14 GATT 1994, Art. I:1. In WTO cases, four criteria have been used to determine if a product constitutes a “like product:” the physical properties, the extent
to which it is capable of serving the same or similar end use, the extent to which
consumers perceive and treat the product as an alternative to perform specific
functions to satisfy a particular demand, and the international tariff classification of the product. WTO Rules and Environmental Policies: Key GATT
Disciplines, World Trade Org. (Dec. 3, 2013, 9:30 PM), http://www.wto.org/
english/tratop_e/dispu_e/dispu_status_e.htm.
15 GATT 1994, Art. III:4.
16 GATT 1994, Art. XX(g).
17 Increased GHG emissions increases average temperature, the frequency
of heat waves and extreme weather events, the severity of coastal storms, and
mortality. Endangerment and Cause or Contribute Findings for Greenhouse
Gases under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,49798 (Dec. 15, 2009).
Endnotes:
18
Panel Report, United States—Standards for Reformulated and Conventional Gasoline, 19, WT/DS2/9 (May 20, 1996), available at http://www.wto.
org/english/tratop_e/dispu_e/2-9.pdf.
19 See Endangerment and Cause or Contribute Findings for Greenhouse
Gases under Section 202(a) of the Clean Air Act, 74 Fed. Reg. at 66,523.
20 Panel Report, supra, note 18.
21 Panel Report, supra, note 18, at 1-4.
22 These standards created baselines “to permit scrutiny and monitoring
of the level of compliance of refiners, importers and blenders with the “nondegradation” requirements.” Panel Report, supra, note 18 at 4.
23 Panel Report, supra, note 18, at 19.
24 Panel Report, supra, note 18, at 5-6.
25 Panel Report, supra, note 18, at 29-30.
26 See GATT 1994, Art. XX (stating that measures should not be “applied in a
manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail.”).
27 More specifically, the DSB considered whether: (a) the application of the
measure necessarily results in discrimination, (b) the discrimination is arbitrary
or unjustifiable in both the actual provisions of the measure and how it is
applied in practice, and (c) discrimination occurs between countries where the
measures prevail. Appellate Body Report, United States—Import Prohibition
of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, ¶ 150-60, (Nov. 6,
1988).
28 In United States—Standards for Reformulated and Conventional Gasoline,
the DSB appellate body found that the United States “had not sufficiently
explored the possibility of entering into cooperative arrangements with
affected countries in order to mitigate the administrative problems raised by
the United States in their justification of the discriminatory treatment.” WTO
Rules and environmental policies: GATT exceptions, World Trade Org. (Dec.
20, 2013, 4:00 PM), http://www.wto.org/english/tratop_e/envir_e/envt_rules_
exceptions_e.htm.
29 The provision does not impose a different standard on tar sands oil than
other forms of crude oil within its boundaries. Therefore, there is no discrimination of like products. Défense Terre, supra note 10, at 8. See supra note 27
and accompanying text; Directive 2009/30, 2009 O.J. (140) art. 7a (EC); GATT
1994, Art. XX.
30 The EU and Canada participated in multi-year peer reviewed consultations,
which demonstrates the EU’s good faith effort in mitigating potential disputes.
Défense Terre, supra, note 10,at 8.
31 Directive 2009/30, 2009 O.J. (140) ¶ 2 (EC).
32 See GATT 1994, Art. XX(b), (g).
U.S. Food Aid Reform through Alternative Dispute Resolution
continued from page 58
40 World Food Programme, 2010 Food Aid Flows 7 (2011), available at
http://home.wfp.org/stellent/groups/public/documents/research/wfp238954.pdf.
41 7 U.S.C.A. § 8701.
42 Id.; “U.S. international food aid programs have traditionally been authorized in farm bills. The most recent of such bills, the Food, Conservation, and
Energy Act of 2008 (P.L. 110-246), authorized through FY2012 and amended
international food aid programs. . . . U.S. international food aid has been distributed mainly through five program authorities: the Food for Peace Act (P.L.
480); Section 416(b) of the Agricultural Act of 1949; the Food for Progress Act
of 1985; the McGovern-Dole International Food for Education and Child Nutrition Program; and the Local and Regional Procurement Pilot Project, a pilot
program in the 2008 farm bill which ended in FY 2012. In addition, the 2008
farm bill also reauthorized the Bill Emerson Humanitarian Trust (BEHT), a
reserve of commodities and cash for use in the Food for Peace program to meet
unanticipated food aid needs.” Hanrahan, supra note 19, at ii.
43 Clapp, supra note 14.
44 “By setting out food aid policies within specific pieces of legislation that
it must approve annually, Congress plays a strong role in determining the direction of these policies.” Clapp, supra note 14, at 72.
45 Agricultural Trade Development Assistance Act, 7 U.S.C. § 1721 (2006).
Winter 2014
46
Id.
See House Foreign Affairs Comm., Food Aid Reform, available at http://
foreignaffairs.house.gov/sites/republicans.foreignaffairs.house.gov/files/0611-13%20Food%20Aid%20Reform%20Fact%20Sheet%20PDF.pdf.
48 U.S. Gov’t Accountability Office, GAO-07-560, supra note 18, at 7.
49 Fiscal year 2014 request for U.S. food aid was $1.47 billion as compared to
the $1.15 billion the House Agricultural Appropriations introduced. House Foreign Affairs Comm., supra note 47; U.S. Agency for Int’l Dev. , U.S. International Food Assistance Report 2007, at 7 (2008), available at http://kenya.
usaid.gov/our_ work/humanitarian_assistance/frp/fy07_usifar_final.04.24.08.
pdf
50 7 U.S.C.A. § 1691.
51 U.S. Agency for Int’l Dev., supra note 39.
52 U.S. Agency for Int’l Dev., supra note 39 (following World War II, U.S.
agricultural policy funded an unprecedented and unmatched level of research,
credit, and production advice while also supporting farmers’ incomes, the
combination of which created a massive food commodity surplus by the end of
the Korean War.).
53 U.S. Agency for Int’l Dev., supra note 39.
54 Hanrahan, supra note 19, at 2.
47
75
55
Hanrahan, supra note 19, at 2.
U.S. Agency for Int’l Dev., supra note 39.
57 Hanrahan, supra note 19, at 2.
58 Paul L. Doughty, Peace, Food and Equity In Peru, 15 Urb. Anthropology
& Stud. Cultural Sys. & World Econ. Dev., 45-59 (1986).
59 Id.; Clapp, supra note 14, at 71(Although Title II is currently the most significant component of the Food for Peace program, prior to 1980, the majority
of aid was delivered under Title I, “sold on concessional terms to poor countries[,] and was in turn sold on local markets in an untargeted fashion” with the
chief purpose of creating export markets for U.S. grain. The food crisis in the
1970s initiated a decrease in Title I aid funding, and beginning in the 1980s the
United States distributed the bulk of its food aid under Title II.).
60 Doughty, supra note 58.
61 U.S. Agency for Int’l Dev., supra note 39.
62 Milwaukee v. Sec’y of Agric., 877 F.2d 540 (1989).
63 46 U.S.C. §§ 55305(b), 55314(a)(1) (2006); 46 U.S.C. § 55314(c)(3).
64 22 U.S.C. § 2354(c) (2006); 22 C.F.R. § 228.13(a) (2008).
65 U.S. Agency for Int’l Dev., supra note 39.
66 U.S. Agency for Int’l Dev., supra note 39.
67 Food for Peace Act (Agricultural Trade Development and Assistance Act of
1954) 7 U.S.C. §§ 1691-1738r.
68 Derek J. Hanson, Foreign Food Aid Procurement: Why Domestic Preferencing Requirements Must be Substantially Reduced to More Effectively and
Efficiently Alleviate Global Hunger 39 Pub. Cont. L.J. 51, 63 (Fall 2009) (citing
Agricultural Trade Development and Assistance Act of 1954, Pub. L. No.
83-480 § 201, 68 Stat. 454, 457 (1954).
69 Id.
70 Id.
71 Id.
72 See Erin C. Lentz, Simone Passarelli, & Christopher B. Barrett, The Timeliness and Cost-Effectiveness of the Local and Regional Procurement of Food
Aid, 49 World Dev. 9, 11 (2013).
73 46 U.S.C. §§ 55305(b), 55314(a)(1) (2006); 46 U.S.C. § 55314(c)(3);
Originally, P.L. 83-644 required U.S.-flag vessels to transport 50% of U.S. generated food aid waterborne cargos, but in 1985 the total was increased to 75%.
Hanrahan, supra note 19, at 15.
74 Hanrahan, supra note 19, at 15.
75 Murray A. Bloom, The Cargo Preference Act of 1954 and Related Legislation, 39 J. Mar. L. & Com. 289 (2008).
76 U.S. Gov’t Accountability Office, supra note 18, at 23; U.S. Gov’t
Accountability Office, International Food Assistance: Funding Development
Projects through the Purchase, Shipment, and Sale of U.S. Commodities Is
Inefficient and Can Cause Adverse Market Impacts 23 (2011), available at
http://www.gao.gov/assets/330/320013.pdf [hereinafter Int’l Food Assistance].
77 Int’l Food Assistance, supra note 76, at 26.
78 Int’l Food Assistance, supra note 76, at 23.
79 Int’l Food Assistance, supra note 76, at 24.
80 Int’l Food Assistance, supra note 76, at 24.
81 Int’l Food Assistance, supra note 76, at 24-25.
82 Int’l Food Assistance, supra note 76, at 25 (reflagging is a term used to
denote the transfer of a ships registration from one nationality to another; in
this instance, reflagging refers to foreign ships coming under the authority and
protection of the United States).
83 Int’l Food Assistance, supra note 76, at 26.
84 Int’l Food Assistance, supra note 76, at 26.
85 “Based on KCCO data, from fiscal year 2002 to 2010, the number of U.S.flag vessels awarded food aid contracts declined by 50 percent, from 134 to 67
vessels” Int'l Food Assistance, supra note 76, at 27.
86 Food Aid Reform, U.S. Agency for Int’l Dev., http://www.usaid.gov/
foodaidreform (last visited, Jul. 31, 2013).
87 Food Security Act of 1985, Pub. L. No. 99-198, § 1111, 99 Stat. 1354
(1985).
88 Int’l Food Assistance, supra note 76, at 5.
89 Int’l Food Assistance, supra note 76, at 1.
90 Int’l Food Assistance, supra note 76, at 1, 7.
91 Int’l Food Assistance, supra note 76, at 7.
92 Some implementing partners work with the recipient country’s government
to monetize the aid commodities—for example, in Bangladesh, the government
is the sole purchaser of USAID monetized aid. Int’l Food Assistance, supra
note 76, at 13–14. An additional common procedure is through the formation
of a consortium among several partners with one partner serving as the selling agent, or alternatively, a single partner might work independently to sell
56
76
the food aid commodity. U.S. Agency for Int’l Dev., Monetization Field
Manual (Oct. 2012), available at http://www.usaid.gov/sites/default/files/documents/1866/MonetizationManual12222012FINAL.pdf [hereinafter Monetization Manual].
93 Monetization Manual supra note 92, at 10.
94 Monetization Manual supra note 92, at 10.
95 Monetization Manual supra note 92, at 10.
96 Monetization Manual supra note 92, at 4.
97 Monetization Manual supra note 92, at 4.
98 Monetization Manual supra note 92, at 1.
99 Monetization Manual supra note 92, at 2.
100 Monetization Manual supra note 92, at 2.
101 Pub. L. No. 99-198, § 1111. The rationale behind this amendment was
twofold. First, there was a worry that the cost recovery formula was unfairly
inflexible, working to “punish participants where market forces were beyond
their control, or not reward situations where the market price was above the
formula value.” H.R. Rep. No. 107-424 (2002). Secondly, because only USAID
was required to meet cost recovery requirements, there was concern that this
difference in standard could result in inequitable inconsistencies in monetization, “potentially [penalizing] one agency or the other agency.” Int’l Food
Assistance, supra note 76, at 6.
102 Hanrahan, supra note 19, at 12. Less resolutely, both USAID and USDA
“must ensure that monetization transactions do not entail substantial disincentive to, or interfere with, domestic production or marketing in that country.” Id.
103 See H.R. REP. No. 107-424, at 236 (2002) (Conf. Rep.).
104 Id. at 69; Clapp, supra note 14, at 46-47, 69. International efforts to
untie and reform international food aid have been present since the 1970s and
became a prominent and widely accepted policy by the mid-1990s as notable
donor states such as the EU began to adopt policies that untied aid, spurring
likeminded efforts in other donor countries. Furthermore, international development organizations such as FAO, OECD, and WFP avidly support policies
providing flexible, untied food aid. Clapp, supra note 14, at 46-47, 69.
105 Clapp, supra note 14, at 74.
106 Clapp, supra note 14, at 73.
107 Sen, supra note 2; Pottier, supra note 3, at 142.
108 Sen’s theory of famine was not without critiques, the majority of which
“stressed that famines develop over time; [that] famine is a process, not an
event . . .” arguing that, “[a]s famine ethnographies now show, famines indeed
come mostly ‘at the tail end of a long-term process of increasing vulnerability
. . . to food supply shocks.’ The view that normal market processes were at the
root of famine, invaluable as a new insight, also overlooked the possibility that
well-functioning markets sabotaged in war can trigger famine.” Sen, supra note
2, at 143 (citing Stephen Deveroux, Theories of Famine 159 (1993)).
109 Stephen Deveroux, Theories of Famine 71 (1993).
110 Pottier, supra note 3, at 143.
111 The Heritage Foundation is a preeminent conservative think-tank dedicated
to advancing conservative public policy. See generally, The Heritage Foundation: Leadership for America, www.heritage.org (last visited Dec. 20, 2013).
112 Oxfam America is a decidedly liberal international aid organization with
companion interests in opposing the majority of conservative political and
economic agendas. See generally, Oxfam America: Working to End Poverty
and Injustice, www.oxfamamerica.org (last visited Dec. 20, 2013).
113 Hanrahan, supra note 19, at 8, 14.
114 Hanrahan, supra note 19, at 15.
115 Clapp, supra note 14, at 78.
116 Christopher Barrett, an agricultural economist, and Daniel Maxwell, then
international deputy regional director of CARE, published Food Aid after 50
Years: Recasting Its Role, which argued that the U.S. food aid system needed
to be more flexible by including cash for local and regional purchases, in 2005.
Around the same time, OECD published a report showing that in-kind food aid
was both more costly and more time-consuming to provide. In 2007, GAO published a report on the performance of U.S. food aid programs, which indicated
that, inter alia, rules on in-kind aid and transport were making the programs
ineffective and inefficient. Clapp, supra note 14, at 77, 80-81.
117 151 Cong. Rec. 24,197 (2005) (Remarks by Andrew S. Natsios, USAID
Administrator at the Kansas City Export Food Conference on the Local Purchase Initiative (May 3, 2005)); see also 7 U.S.C. § 1691 (2006) (stating that the
policy of the United States is the promotion of food security in the developing
world through the use of agricultural commodities and local currencies). But
see U.S. International Food Assistance Report 1 (2007), available at http://
www.usaid.gov/ our_work/humanitarian_assistance/ffp/fy07_usifar.pdf (listing
Sustainable Development Law & Policy
as important goals the need to combat hunger and to “develop and expand
export markets for U.S. agricultural commodities”).
118 Hanrahan,, supra note 19, at 15. Critiques of the cargo preferences are
largely about efficiency. Those supporting reform note the inefficiencies in both
time and cost that come with requiring aid to be shipped on U.S.-flagged vessels. Hanrahan,, supra note 19, at 15.
119 The Editorial Board, supra note 17.
120 Hanrahan,, supra note 19, at 14.
121 Monetization is often blamed for causing commercial displacement of local
agricultural products, causing harm to traders and local farmers and undermining the development of local markets, which may act to reduce long term food
security. Clapp, supra note 14, at 78.
122 It is argued that buying locally or regionally could result in price spikes
that would make it difficult for poor people to buy the supplies they need on
local markets. Some also argue that the reliability and quality of food supplies
could not be guaranteed with local or regional procurement. Hanson, supra note
68, at 60.
123 Charles Abbott, Fierce Lobbying Counters White House Push for Food
Aid Reform, Reuters, May 1, 2013, http://www.reuters.com/article/2013/05/01/
usa-foodaid-lobbying-idUSL2N0D21F420130501.
124 Hanrahan, supra note 19, at 14.
125 Elijah E. Cummings, Duncan Hunter & Nick Rahall, Keeping the Food in Food for Peace, U.S. News & World Report, May
21, 2013, http://www.usnews.com/opinion/articles/2013/05/21/
keep-us-food-aid-programs-reliable-and-transparent.
126 ActionAid Int’l, Power Hungry: Six Reasons to Regulate Global Food
Corporations 12 (2005), available at http://www.actionaid.org.uk/_content/
documents/power_hungry.pdf.
127 Barrett & Maxwell, supra note 28, at 89.
128 Clapp, supra note 14, at 73.
129 “Just one of those firms, Cargill, is reported to have sold $1.09 billion
in grain to the U.S. government for food aid between 1995 and 2005.” Clapp,
supra note 14, at 73.
130 Barrett & Maxwell, supra note 28, at 91-92.
131 Barrett & Maxwell, supra note 28, at 91-92.
132 Clapp, supra note 14, at 74.
133 Liz Jayankura, U.S. food aid policies discussed at IFAC, Wheat Letter
(U.S. Wheat Associates), May 3, 2007, available at http://www.uswheat.org/
wheatLetter/doc/45C55CE3775E571285257C150061CD08?OpenDocument;
Polly Diven, The Domestic Determinants of U.S. Food Aid Policy, 26 Food
Pol’y 455 (2001) (discussing the historical significance of food aid to commodity producer groups).
134 Clapp, supra note 14, at 74.
135 Clapp, supra note 14, at 82.
136 Chris Gillies, U.S.-Flag Vessel Operators Torn by Market, American Shipper (May 2004), http://www.americanshipper.com/paid/MAY04/US_flag_frm.
asp.
137 Barrett & Maxwell, supra note 28, at 96; Samuel Loewenberg, Bush in
Food Aid Fight with Congress, Politico, Feb. 06, 2008, 6:17PM, http://www.
politico.com/news/stories/0208/8378.html.
138 Celia Dugger, CARE Turns Down Federal Funds for Food Aid, N.Y. Times,
Aug. 16, 2007, http://www.nytimes.com/2007/08/16/world/africa/16food.
html?pagewanted=all.
139 Clapp, supra note 14, at 74 (citing Interview with Marc Cohen, senior
research fellow, IFPRI).
140 Dugger, supra note 138, at 1-3.
141 U.S. Gov’t Accountability Office, supra note 18, at 108.
142 Barrett & Maxwell, supra note 28, at 94.
143 Clapp, supra note 14, at 74.
144 “Additionally, the supporters of these changes mischaracterize the importance of the U.S. merchant marine and the essential policy nexus between it
and food aid programs. Since 1936, U.S. law has held that the United States
shall have a merchant marine sufficient to carry . . . a substantial portion of the
water-borne export and import foreign commerce of the United States and . . .
capable of serving as a naval and military auxiliary in time of war or national
emergency.” Cummings et al., supra note 125.
145 Furthermore, critics note “[a] study issued by IHS Global Insight in 2009
found that barely 2[%] of U.S. foreign trade is now moving in U.S.-flagged vessels.” Cummings et al., supra note 125.
146 Cummings et al., supra note 125.
147 Cummings et al., supra note 125.
148 Hanrahan, supra note 19, at 20.
Winter 2014
149
“USA Maritime cites a report it commissioned on the economic impacts of
U.S. international food aid, which shows that the combination of handling, processing, and transporting U.S. commodities all the way from the farm to foreign
ports supported $2 billion of U.S. industry output, $523 million in household
earnings, and over 13,000 jobs in 2009.” Hanrahan, supra note 19, at 20 (citing
Promar International, Impacts on the U.S. Economy of Shipping International
Food Aid (2010), available at http://mebaunion.org/WHATS-NEW/Food_AidApril_2010.pdf.
150 “Barrett and Maxwell have shown, for example, that food aid delivered
by the top eight NGOs accounted for 30[%] of the weighted average of their
gross revenues for 2001; some relied on U.S. food aid for up to 50[%] of their
budget.” Clapp, supra note 14, at 75 (citing Barrett & Maxwell, supra note 28,
at 98).
151 “Each has received tens of millions of dollars’ worth of in-kind food aid
through the Food for Peace program each year over the past decade.” Clapp,
supra note 14, at 75.
152 U.S. Agency for Int’l Dev., U.S. International Food Assistance Report
(2006), available at http://www.usaid.gov/ our_work/humanitarian_assistance/
ffp/fy06_usifar.pdf; U.S. Agency for Int’l Dev., U.S. International Food
Assistance Report (2007), available at http://www.usaid.gov/ our_work/
humanitarian_assistance/ffp/fy07_usifar.pdf; U.S. Agency for Int’l Dev.,
U.S. International Food Assistance Report (2008) available at http://www.
usaid.gov/ our_work/humanitarian_assistance/ffp/fy08_usifar_revised.pdf; U.S.
Agency for Int’l Dev., U.S. International Food Assistance Report (2009),
available at http://www.usaid.gov/ our_work/humanitarian_assistance/ffp/
fy09_usifar_revised.pdf.
153 Emmy Simmons, P’ship to Cut Hunger & Poverty in Afr., Reconsidering Food Aid: The Dialogue Continues 65 (2007), available at http://www.
partnership-africa.org/sites/default/files/ReconsideringFoodAidfinalfeb12.pdf;
see also, id.
154 Clapp, supra note 14, at 76.
155 Hanrahan, supra note 19, at 19.
156 Clapp, supra note 14, at 77.
157 See generally, Steve Inskeep, A Political War Brews Over ‘Food For
Peace’ Aid Program, Nat’l Pub. Radio (Apr. 04, 2013, 3:18 AM), http://www.
npr.org/templates/transcript/transcript.php?storyId=176154775 (concerning
opposition to Bush administration reform proposals); Abbott, supra note 123
(concerning opposition to the Obama administration reform proposal and the
Food Aid Reform Act proposal); Brad Plumer, Food Aid Reform is Running into
Trouble in Congress, Wash. Post, May 17, 2013, http://www.washingtonpost.
com/blogs/wonkblog/wp/2013/05/17/obamas-plan-to-overhaul-food-aid-isrunning-into-trouble-in-congress/; Charles Abbott, U.S. Senate Largely Rebuffs
Obama Plan for Food-Aid Reform, Reuters, Jun. 03, 2013, http://www.reuters.
com/article/2013/06/04/usa-agriculture-foodaid-idUSL1N0EF1TG20130604.
158 An example might be found in the governing structure of the WFP, where
developing countries have a majority presence on the governing executive
board. Incorporating key figures, representing the major recipients of P.L.
480 aid—which in 2010 included Niger, Djibouti, Zambia, Burma, and South
Sudan—in any preceding negotiations to food aid reform proposals would
greatly expand the dialogue and balance the weight of the conversation between
donor and recipient more equitably. Noting the largest recipients of aid are
largely centralized in Africa, making sure the representatives from that continent were present in the dialogue would be a substantial improvement. Notable
hunger relief organizations in the region include Action against Hunger and
Oxfam. Furthermore, the inclusion of hunger relief organizations should be
achieved with an aim of balancing representation on either side of the debate
about monetization. The insights of organizations like CARE, which once relied
upon monetization, but have since moved away from the practice for humanitarian and efficiency reasons, would be valuable and important voices in shaping
effective reform. Roberta van Haeften, Mary Ann Anderson, Herbet Caudill
& Eamonn Kilmartin, Second Food Aid and Food Security Assessment
(FAFSA-2) 3-8 (2013), available at http://www.usaid.gov/sites/default/files/
documents/1866/FAFSA-2%20Chapter3.pdf.
159 Edward Clay, Barry Riley, & Ian Urey, Org. for Econ. Co-operation
& Dev., The Development Effectiveness of Food Aid: Does Tying Matter?
3 (2006), available at http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/
publications-opinion-files/3043.pdf.
160 Food & Agric. Org., The State of Food and Agriculture 4 (2006).
161 Id.
162 Sen, supra note 2.
163 Pottier, supra note 3, at 166.
164 Alex de Waal, Famine That Kills 32 (1989).
77
165
Melling, supra note 13, at 1680 (concerning the definition of alternative
dispute resolution).
166 Furthermore, “Congress is the ‘anvil’ of democracy—the place where bargains are forged and policy is hammered out. This institutional structure affects
individual legislators’ incentives and creates unique barriers to the cooperative
resolution of conflict.” Melling, supra note 13, at 1682.
167 Melling, supra note 13, at 1679.
168 Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to
the Resolution of Conflict 8 Ohio St. J. Disp. Resol. 235, 238 (1993).
169 “Some critics of mediation believe that the lack of procedural safeguards,
the absence of an authoritative third-party decision maker, and the neutrality of
the mediator, allow for instances in which a disputing party might use power
unfairly to impose a solution upon the other. However, this concern seems often
misplaced as mediation contains core features that act as safeguards to prevent
power abuses by a more powerful party.” Jordi Agustí-Panareda, Power Imbalances in Mediation: Questioning Some Common Assumptions, 59 Disp. Resol.
J. 24, 29 (May–July 2004).
170 Id. (citing Robert Bush, Efficiency and Protection, or Empowerment
and Recognition? 41 Fla. L. Rev. 253 (1989); L.A. Pinzón, The Production
of Power and Knowledge in Mediation,” 14 Med. Q. 5 (1996); Lon Fuller,
Mediation: Its Forms and Functions, 44 S. Cal. L. Rev. 325 (1971); G.A.
Chornenki, Mediating Commercial Disputes: Exchanging ‘Power Over’ for
‘Power With, in Rethinking Disputes: The Mediation Alternative 164 (J.
Macfarlane ed., Cavendish Publishing 1997)).
171 “In facilitative mediation, the mediator structures a process to assist the
parties in reaching a mutually agreeable resolution. The mediator asks questions; validates and normalizes parties’ points of view; searches for interests
underneath the positions taken by parties; and assists the parties in finding and
analyzing options for resolution.” Zena Zumeta, Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation (Sept. 2000), http://www.mediate.com/articles/zumeta.cfm.
172 Melling, supra note 13, at 1678.
173 The concept of “outside strategies” is taken from the political science
analysis of Timothy Cook, who uses the term to refer specifically to the use of
the media as a bargaining or position-promoting tool on the part of politicians.
Here, I use the term, not with regard to legislators or politicians exclusively, but
to all stakeholders involved in the food aid reform debate. Timothy E. Cook,
Making Laws and Making News: Media Strategies in the U.S. House of Representatives 154 (1991).
174 “The problem arises when a principal and an agent have different incentives. For example, lawyers, particularly those who bill by the hour, have an
incentive to avoid settling a case until the litigation reaches the courthouse
steps. Research suggests that it is difficult to align the interests of the principal
and agent, either by contract or by custom. Thus, agents can inflict unnecessary
losses on disputing parties or prevent them from discovering joint gains.” Melling, supra note 13, at 1681.
175 Reform proposals have been made primarily through reforms in annual
Presidential Fiscal Year budgets. The most recently proposed Food Aid Reform
Act was a hasty bill proposed with bipartisan support, but no preceding negotiations with potential opposition.
176 Cook, supra note 173, at 154 (In the realm of political science, the act of
bargaining through the mass media is commonly called an “outside strategy,”
establishing what is referred to as the “politicians’ dilemma.”); Melling, supra
note 13, at 1681 (concerning “principal agent barrier”).
177 Key examples include letters to the editor, press releases, and publications
on the websites of the Maritime Industry, Agricultural industry, and food aid
organizations.
178 Melling, supra note 13, at 1689.
179 Melling, supra note 13, at 1689.
180 Lawrence Susskind & Connie Ozowa, Mediating Public Disputes:
Obstacles and Possibilities, 41 J. Soc. Issues 145, 147-48, 157 (1985) (discussing problems of representation); Melling, supra note 13, at 1681.
181 Clapp, supra note 14, at 78.
182 Clapp, supra note 14, at 78.
183 Clapp, supra note 14, at 78.
184 Andrew Natsios Extended Interview, Religion & Ethics Newsweekly, Pub. Broad. Serv. (Feb. 19, 2010),
http://www.pbs.org/wnet/religionandethics/2010/02/19/
february-19-2010-andrew-natsios-extended-interview/5720/.
185 Clapp, supra note 14, at 78. Academic studies, including Amartya Sen’s
work were influential in shaping Natsios’ opinion; in a 2005 speech, Natsios
commented, “I’ve seen children starve to death when there was a surplus of
78
food in their local markets, but there was no one to buy the food because we
didn’t have the money to do that, so people died.” Pub. Broad. Serv., supra note
184.
186 Inskeep, supra note 157.
187 U.S. Dep’t of Agric., USDA’s 2007 Farm Bill Proposals, available at
http://www.usda.gov/documents/07final.fbp.pdf.
188 Clapp, supra note 14, at 80.
189 Clapp, supra note 14, at 82.
190 Clapp, supra note 14, at 69.
191 Specifically, the President’s agenda “called for the establishment of more
reliable levels of food aid, with the proportion of the U.S. programs that relied
on unpredictable surpluses not to exceed 10[%],” while also seeking “betterfocused programs, improved safeguards to avoid commercial displacement, and
overall improved transparency and efficiency.” Clapp, supra note 14, at 78.
192 Clapp, supra note 14, at 78.
193 Clapp, supra note 14, at 69.
194 Clapp, supra note 14, at 69.
195 Clapp, supra note 14, at 82.
196 Clapp, supra note 14, at 82.
197 However, the administration did manage to negotiate the establishment of
two pilot programs in untied, locally and regionally procured aid, which now
account for a quarter of U.S. food aid; “[a]nd according to independent reviews
they’re working pretty well.” Inskeep, supra note 157.
198 Abbott, supra note 123.
199 Abbott, supra note 123.
200 Abbott, supra note 123.
201 Abbott, supra note 123.
202 Abbott, supra note 123.
203 Abbott, supra note 123.
204 Abbott, supra note 123.
205 Abbott, supra note 123.
206 The remaining portion allotted to the standard in-kind and tied aid
programs was 55%, equal to roughly $800 million of the $1.4 billion total, as
remaining earmarked for U.S. produced and shipped food aid.
207 Food Aid Reform Act, H.R. 1983, 113th Cong. (1st Sess. 2013).
208 Press Release, Chairman Royce, House Comm. on Foreign Affairs, Subcommittee Ranking Member Bass Move to Reform U.S. Food Aid Delivery to
Help More at Less Expense (May 15, 2013) available at http://foreignaffairs.
house.gov/press-release/chairman-royce-subcommittee-ranking-member-bassmove-reform-us-food-aid-delivery-help [hereinafter Press Release, House
Comm. on Foreign Affairs].
209 Id.
210 Id.
211 House Committee on Foreign Affairs, Royce-Bass Food Aid Reform Act:
Section-by-Section 1, available at http://foreignaffairs.house.gov/sites/republicans.foreignaffairs.house.gov/files/Food%20Aid%20Reform%20Act%20
Section-by-Section.pdf.
212 Id.
213 Sen, supra note 2.
214 Press Release, House Comm. on Foreign Affairs, supra note 208.
215 Arguably, the urgency with which the bill was introduced eliminated the
logistical possibility for complex negotiations to take place. Furthermore, coming on the tails of controversy over the FY2014 budgetary reforms to food aid,
the atmosphere for cooperative dialog was even further reduced.
216 See Cydney Hargis, Reforming U.S. Food Aid Would Eliminate 7,000-Mile
Food Chain (Jun. 12, 2013), http://www.ipsnews.net/2013/06/reforming-us-food-aid-would-eliminate-7000-mile-food-chain/ (noting the likelihood of
passage to be about 7%).
217 “[T]he President’s budget: Shifts $1.1 billion to International Disaster
Assistance (IDA) for emergency food response. This shift would augment
IDA’s Emergency Food Security Program, previously described, which provides
up the $300 million for cash-based food security assistance (e.g., local and
regional procurement, vouchers, or cash transfers). The total available for IDA
emergency food security assistance would be $1.4 billion. Shifts $250 million
to Development Assistance (DA) for a Community Development and Resilience Fund (CDRF). The CDRF would address chronic food insecurity in area
of recurrent crises such as the Horn of Africa or the West African Sahel. The
CDRF also would receive $80 million of DA from USAID’s Bureau of Food
Security, which administers the Feed the Future program. Total funding for
this program would be $330 million. Shifts $75 million to a new Emergency
Food Assistance Contingency Fund (EFAC). EFAC would serve as a fund
Sustainable Development Law & Policy
to provide emergency food assistance for unexpected and urgent food needs.”
Hanrahan, supra note 19, at 17-18 (emphasis in original).
218 Hanrahan, supra note 19, at 17-18.
219 Hanrahan, supra note 19, at 18.
220 Hanrahan, supra note 19, at 18.
221 Food for Peace by the Numbers. U.S. Agency for Int’l Dev. (Nov. 01,
2013), http://www.usaid.gov/foodaidreform/ffp-by-the-numbers; Food Aid
Reform, U.S. Agency for Int’l Dev. (Nov. 01, 2013), http://www.usaid.gov/
foodaidreform.
222 Food Aid Reform, U.S. Agency for Int’l Dev., supra note 221.
223 Dispute resolution scholars have recognized that regardless of the ultimate
outcome, if a significant stakeholder is absent from a final decision affecting
their interests, they will likely oppose the decision. Melling, supra note 13, at
1677.
224 The 9 Billion-People Question, Economist, Feb. 24, 2011, http://www.
economist.com/node/18200618.
225 Press Release, House Comm. on Foreign Affairs, supra note 208.
226 Press Release, House Comm. on Foreign Affairs, supra note 208.
227 Agustí-Panareda, supra note 169, at 24, 29-30.
228 Agustí-Panareda, supra note 169, at 29.
229 Agustí-Panareda, supra note 169, at 29-30.
230 Agustí-Panareda, supra note 169, at 29-30.
231 Inskeep, supra note 157 (concerning opposition to Bush’s proposals);
Abbott, supra note 123(concerning opposition to Obama’s proposals).
232 Conway, supra note 8.
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