Author: ELJME

Transparency in Regulatory Science — for Whom?

Transparency in Regulatory Science — for Whom?

By Lilly Leibu, Digital Editor at N.Y.U. Environmental Law Journal.  This post is part of the Environmental Law Review Syndicate.  Introduction    Former Administrator of the Environmental Protection Agency (EPA) Andrew Wheeler purported to rid EPA of “secret science” and “[empower] the American people to demand…

The Winds of Change: Investing in Floating Offshore Wind Development

The Winds of Change: Investing in Floating Offshore Wind Development

By Cole Jermyn, Editor-in-Chief at Harvard Environmental Law Review.  This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.  Introduction The offshore wind power industry in the United States is at an inflection point. Only two projects…

The Origins of Federal Wildlife Regulation Under the Commerce Clause

The Origins of Federal Wildlife Regulation Under the Commerce Clause

By Kathryn E. Kovacs, Professor at Rutgers Law School, The State University of New Jersey.

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

June 8, 2020, marked the eightieth anniversary of the Bald Eagle Protection Act—the first federal statute to rely on the Commerce Clause for the authority to prohibit the taking of wildlife. Its enactment marked a turning point in federal wildlife law. The Eagle Act’s forgotten history supports the Ninth Circuit’s conclusion that the Eagle Act is within the scope of Congress’s Commerce Clause power,[1] as well as the many federal courts of appeals that have come to the same conclusion about the Endangered Species Act.[2] This history should leave no doubt that Congress may regulate the taking of wildlife.

I. The Migratory Bird Treaty Act

The “cautious first step in the field of federal wildlife regulation” was the Lacey Act of 1900.[3] Reflecting the narrow view of Congress’s power to regulate wildlife under the Commerce Clause that prevailed at the time,[4] the key provision of the Lacey Act merely prohibited the interstate transportation of wildlife killed in violation of state law.[5] The Act also empowered the Secretary of Agriculture to “adopt such measures as may be necessary” for “the preservation, distribution, introduction, and restoration of game and other wild birds,” but subjected that power to the laws of the states.[6]

Congress’s first attempt to prohibit the hunting of migratory birds directly under the Commerce Clause, the Migratory Bird Act of 1913, fell prey to two lower federal courts.[7] The government appealed in one of the cases and argued it twice in the Supreme Court.[8] “Apparently fearful of an adverse decision,”[9] the government entered into a treaty with Canada for the protection of migratory birds,[10] and Congress implemented the treaty in the Migratory Bird Treaty Act of 1918 (MBTA).[11] The Supreme Court then dismissed the challenge to the 1913 Act[12] and later upheld the MBTA as a valid exercise of the treaty power.[13] Neither the treaty with Canada, however, nor a subsequent treaty with Mexico, which followed in 1936,[14] included raptors. Thus, at the time, the MBTA did not protect raptors.[15]

II. Early Efforts to Protect Eagles

Congress first considered proposals to extend statutory protection to the bald eagle in the 1930s. The Senate passed an eagle protection bill on April 7, 1930, that echoed the terms of the MBTA in making it unlawful

for any person to take, kill, or capture, attempt to take, kill, or capture, possess, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry, or cause to be carried by any means whatever, receive for shipment, transportation, or carriage, or to export, at any time or in any manner, any bald eagle (the emblem of the United States and commonly known as the American eagle) or any part thereof, or the nest or egg of any such bird, except for scientific, propagating, or exhibition purposes, or in defense of wild life or agricultural or other interests, as permitted by regulations of the Secretary of Agriculture.[16]

The House Committee on Agriculture held a hearing on an identical bill.[17] At the hearing, committee members inquired about the bill’s constitutionality. Dr. T.S. Palmer, President of the Audubon Society of the District of Columbia, testified that Congress had the authority to “exercise [its] latent power . . . to protect an emblem of sovereignty of the United States.”[18] The bill died in committee.

The Senate passed another eagle-protection bill in 1935, which provided that

whoever . . . without being permitted to do so as hereinafter provided, shall take, possess, sell, purchase, offer to sell or purchase, transport, or export, at any time of in any manner, any bald eagle, commonly known as the “American eagle”, alive or dead, or any part, nest, or egg thereof, shall be fined not more than $100 or imprisoned not more than six months, or both.[19]

The bill would have allowed the Secretary of Agriculture to issue regulations to permit eagle takings with a determination

that it is compatible with the preservation of the bald eagle as a species. . . [and is] for the scientific or exhibition purposes of public museums, scientific societies, or zoological parks, or that it is necessary to permit the taking of such eagles for the protection of wildlife or agricultural or other interests.[20]

The House referred a similar bill to the Committee on Agriculture,[21] which in turn asked the Attorney General for an opinion on the bill’s constitutionality.[22] The Attorney General declined to issue a formal opinion, but pointed the Committee to two cases. In one, a district court held that the Migratory Bird Act exceeded Congress’s power under the Commerce Clause.[23] In the other, the Supreme Court held that the Migratory Bird Act did not conflict with and hence did not preempt a state duck hunting law.[24] The Committee determined that the bill would be unconstitutional and did not consider it further.[25]

III. Changing Views of the Commerce Clause

Soon thereafter, the federal courts’ view of the Commerce Clause power over wildlife began to change. In Cochrane v. United States[26] and Cerritos Gun Club v. Hall,[27] the courts of appeals upheld provisions of the MBTA that exceeded the terms of the migratory bird treaties as valid exercises of Congress’s Commerce Clause power.[28] Both courts relied on the Supreme Court’s 1926 decision in Thornton v. United States,[29] which upheld convictions for conspiracy to assault federal employees who were attempting to dip the defendants’ cattle (that is, submerge them in pesticide) to prevent the spread of splenetic fever.[30] Congress charged the Bureau of Animal Industry (BAI) with combating disease among domestic animals using what we would now call a “cooperative federalism” model.[31] The defendants argued that their convictions exceeded the scope of the Commerce Clause because the cattle at issue were not intended to be in interstate commerce, but merely wandered across the Florida-Georgia border on their own.[32] The Supreme Court rejected that argument, reasoning that the BAI employees’ actions were “were all part of the measure of quarantine reasonably adapted to prevent the spread of contagion in and by interstate commerce.”[33] Under existing precedent, preventing such a burden on commerce was within the Commerce Clause authority.[34] Whether the cattle had been transported across the border or wandered there on their own made no difference to the Court; the wandering was “made possible by the failure of the owners to restrict their ranging, and is due, therefore, to the will of their owners.”[35]

In Cochrane, the Seventh Circuit upheld federal regulations that limited duck hunting methods, specifically baiting.[36] The appellants argued that the regulations exceeded the terms of the migratory bird treaties and thus violated the Tenth Amendment.[37] The court rejected that argument, reasoning that “the authority to deprive the hunters of any open season [under the MBTA] carries with it the power to provide for a limited open season for limited purposes only. . . . [T]he greater power necessarily carries with it the lesser power.”[38] The court further held that the regulations were a proper exercise of the commerce power, finding the case “not readily distinguishable” from Thornton.[39] The court rejected the appellants’ assertion that the state’s property interest in migratory birds precluded federal regulation:

It is unbelievable that the framers of the Constitution intended to leave this form of valuable property, which did not vest in the individual and which could not be controlled by the state, unprotected and fated to total destruction. It is not a matter of sentiment but of common sense.[40]

The Ninth Circuit in Cerritos Gun Club followed Cochrane, but added a lengthy disquisition on migratory birds’ migration patterns, threats to survival, domestication, and ownership.[41] The court relied on Thornton directly, reasoning that, because ducks can be domesticated, the failure to domesticate them leaves them free to cross state lines, thus subjecting them to the Commerce Clause power.[42] In other words, the Ninth Circuit read Thornton not as upholding a statutory system designed to prevent disease from burdening interstate commerce in domestic animals, but as holding that “traveling of . . . animals following their instinct to range [across state lines] constitutes the interstate character of their movements.”[43] In any event, both Cochrane and Cerritos Gun Club upheld migratory bird regulations as proper exercises of the Commerce Clause power.

IV. The Eagle Act

By the time Representative Charles Russell Clason introduced H.R. 4832 on March 7, 1939,[44] the Commerce Clause winds had shifted. Clason’s bill was designed to extend to the bald eagle “complete protection against being taken in any way,” except that the Secretary of Agriculture would be authorized to issue permits for museums and eagles that were causing “trouble.”[45] His bill to protect the bald eagle was referred to the Committee on Agriculture,[46] which held a hearing on March 11, 1940.[47] At the hearing, Clason quoted from a letter from the Department of Agriculture explaining that the bald eagle was threatened with extinction due to trophy hunting and egg poaching.[48] He opined that Congress had the authority to protect the bald eagle under the Commerce Clause, relying on the court of appeals’ decisions in Cochrane and Cerritos Gun Club.[49]

Not surprisingly, given the backdrop of fascist belligerence in Europe, patriotism permeated the hearings. The prior fall, Hitler had invaded Poland, and Great Britain and France had declared war on Germany. Clason asserted that the bald eagle needed protection “[f]or patriotic reasons, for humane reasons and in order that the greatest bird which has made its home widely throughout the United States may be preserved for posterity.”[50] Clason felt that the bald eagle’s status as “the Emblem of the United States” was “more than sufficient grounds for the enactment” of the bill.[51] Maud Phillips, President of Blue Cross Animal Relief, hit the same patriotic theme. She asserted that Americans were united around “individual liberty,”[52] and as they became “more liberty conscious” they became “more eagle-minded.”[53] She stated that the bald eagle’s “ruthless destruction is a violation of trust tending to weaken loyalty to those fundamental principles of constitutional freedom for which it stands.”[54] Like the flag, Ms. Phillips believed that the bald eagle should be protected from “desecration.”[55]

As he had in 1930, Dr. T.S. Palmer, President of the District of Columbia Audubon Society, testified that Congress has the power “to select an emblem[,] . . . to command respect for that emblem, and . . . to encourage patriotism among its citizens.”[56] He quoted from United States v. Gettysburg Electric Railway Co.,[57] in which the Supreme Court upheld the federal power of eminent domain:

Any act of congress which plainly and directly tends to enhance the respect and love of the citizen for the institutions of his country, and to quicken and strengthen his motives to defend them, and which is germane to, and intimately connected with, and appropriate to, the exercise of some one or all of the powers granted by congress, must be valid.[58]

In its report, the House Committee on Agriculture recommended passage of the Eagle Act.[59] The report quoted from the same letter from the Secretary of Agriculture that Clason had read at the hearing.[60] In the letter, the Secretary expressed his gratification at Congress’s renewed interest in protecting the bald eagle, a species worth protecting for both its aesthetic value and its status as the national symbol.[61] He said that trophy hunting and egg poaching threatened bald eagle populations and that they would go extinct without further protection.[62]

The Senate Committee on Agriculture recommended passage of the companion bill.[63] The Senate report quoted a similar letter from the Secretary of Agriculture explaining that

“[b]ecause of its conspicuousness and relatively large proportions, and doubtless also because of its rarity in certain sections, it is a fact that there are persons in almost every community where an eagle may appear who are eager to shoot it and to boldly advertise their assumed prowess in newspapers and other publications. There are also numerous collectors of birds’ eggs who persistently rob the nests of these eagles.”[64]

The bill passed the House on May 20, 1940,[65] just days after Hitler invaded Belgium, France, Luxembourg, and the Netherlands. On the House floor, Congress exempted Alaska from the bill and substituted references to the Department of Agriculture with the Department of the Interior, which had recently taken over wildlife management functions.[66] On May 28, 1940, the Senate substituted the House bill for its identical bill[67] and passed the measure without discussion.[68] President Roosevelt signed the Act for the Protection of the Bald Eagle on June 8, 1940.[69]

The preamble to the Act recited that the Continental Congress in 1782 had adopted the bald eagle as the national symbol, “the bald eagle is no longer a mere bird of biological interest but a symbol of the American ideals of freedom,” and it “is now threatened with extinction.”[70] The statute made it unlawful to “take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle, commonly known as the American eagle, alive or dead, or any part, nest, or egg thereof,” except as permitted by the Secretary of the Interior.[71] The term “take” included “pursue, shoot, shoot at, wound, kill, capture, trap, collect, or otherwise willfully molest or disturb,” and the term “transport” included “ship, convey, carry, or transport by any means whatever, and deliver or receive or cause to be delivered or received for such shipment, conveyance, carriage, or transportation.”[72] Section 2 of the Act authorized the Secretary of the Interior, if he determined it to be “compatible with the preservation of the bald eagle as a species,” to “permit the taking, possession, and transportation of [bald eagles] for the scientific or exhibition purposes of public museums, scientific societies, or zoological parks, or . . . for the protection of wildlife or of agricultural or other interests in any particular locality.”[73]

In 1940, Congress believed that the Commerce Clause gave it the authority to regulate the taking of a particular species. The Supreme Court endorsed that understanding when it cited the Eagle Act in support of the proposition that “[p]rohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.”[74] After eighty years, it is time to put Commerce Clause challenges to federal wildlife regulation to rest.

[1] United States v. Bramble, 103 F.3d 1475, 1480–82 (9th Cir. 1996).

[2] See People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990, 1007 (10th Cir. 2017) (discussing prior cases).

[3] Michael J. Bean & Melanie J. Rowland, The Evolution of National Wildlife Law 15 (3d ed. 1997); Lacey Act, ch. 553, 31 Stat. 187 (1900) (codified as amended at 16 U.S.C. §§ 3371–3378).

[4] See Bean & Rowland, supra note 4, at 14–15; Geer v. Connecticut, 161 U.S. 519 (1896) (holding a state statute prohibiting the transportation of game out of state did not violate Commerce Clause).

[5] 31 Stat. 187 § 3 (1900) (codified as amended at 16 U.S.C. § 3372(a)(2)(A)).

[6] Id. § 1 (codified as amended at 16 U.S.C. § 701).

[7] United States v. Shauver, 214 F. 154 (E.D. Ark. 1914), appeal dismissed 248 U.S. 594 (1919); United States v. McCullagh, 221 F. 288 (D. Kan. 1915).

[8] See Bean & Rowland, supra note 4, at 17.

[9] Id.

[10] Convention Between the United States and Great Britain for the Protection of Migratory Birds, Gr. Brit.-U.S., Aug. 16, 1916, 39 Stat. 1702.

[11] Migratory Bird Treaty Act, ch. 128, 40 Stat. 755 (1918) (codified as amended at 16 U.S.C. §§ 703–711).

[12] Shauver, 248 U.S. at 594 (1919).

[13] Missouri v. Holland, 252 U.S. 416 (1920).

[14] Convention Between the United States and Mexico for the Protection of Migratory Birds and Game Mammals, Mex.-U.S., Feb. 7, 1936, 50 Stat. 1311.

[15] Now it does. See Migratory Bird Treaty Act Protected Species, U.S. Fish & Wildlife Serv.,

[16] S. 2908, 71st Cong. (1930); see also 72 Cong. Rec. 6612 (1930).

[17] American Eagle Protection, Hearing on H.R. 7994 Before the H. Comm. on Agric., 71st Cong. (1930).

[18] Id. at 14.

[19] S. 2990, 74th Cong. § 1 (1935); see also 79 Cong. Rec. 10,061 (1935).

[20] See S. 2990 § 2.

[21] 79 Cong. Rec. 1456 (1935) (referring H.R. 5271, 74th Cong. (1935)).

[22] Miscellaneous Wildlife Conservation Legislation, Hearing on H.R. 4832 Before the H. Comm. on Agric., 76th Cong. 55 (1940) [hereinafter 1940 Hearing].

[23] United States v. McCullagh, 221 F. 288 (D. Kan. 1915).

[24] Carey v. South Dakota, 250 U.S. 118 (1919).

[25] 1940 Hearing, supra note 23, at 56, 63–65.

[26] 92 F.2d 623 (7th Cir. 1937).

[27] 96 F.2d 620 (9th Cir. 1938).

[28] 92 F.2d at 626–27; 96 F.2d at 627. The Supreme Court did not endorse that view until it decided Andrus v. Allard, 444 U.S. 51 (1979).

[29] 271 U.S. 414 (1926).

[30] Id. at 418. The defendants actually killed one federal employee and blew up facilities. Id. at 422.

[31] See Sam Kalen, Muddling Through Modern Energy Policy: The Dormant Commerce Clause and Unmasking the Illusion of an Attleboro Line, 24 N.Y.U. Env’t L.J. 283, 293 n.46 (2016).

[32] 271 U.S. at 425.

[33] Id. at 424.

[34] Id. at 425 (citing United States v. Ferger, 250 U.S. 199 (1919)).

[35] Id.

[36] Cochrane v. United States, 92 F.2d 623, 627 (7th Cir. 1937).

[37] Id. at 626.

[38] Id.

[39] Id. at 627. Unfortunately, the court provided no explanation for that conclusion.

[40] Id. at 627; see also id. (“Here a national interest of very nearly the first magnitude is involved.”) (quoting Missouri v. Holland, 252 U.S. 416, 435).

[41] Cerritos Gun Club v. Hall, 96 F.2d 620, 623–29 (9th Cir. 1938).

[42] Id. at 625–27.

[43] Id. at 626.

[44] H.R. 4832, 76th Cong. (1939).

[45] 1940 Hearing, supra note 23, at 69 (statement of Hon. Charles Russell Clason).

[46] H.R. 4832.

[47] 1940 Hearing, supra note 23.

[48] Id. at 51, 53 (statement of Hon. Charles Russell Clason).

[49] Id. at 56–57, 63–65.

[50] Id. at 49.

[51] Id.

[52] Id. at 79 (statement of Maud Phillips, President, Blue Cross Animal Relief).

[53] Id. at 76.

[54] Id. at 75.

[55] Id. at 76–77.

[56] Id. at 80 (statement of Dr. T.S. Palmer, President, Audubon Society, Washington, D.C.).

[57] 160 U.S. 668, 681 (1896).

[58] 1940 Hearing, supra note 23, at 80–81 (statement of Dr. T.S. Palmer).

[59] H.R. Rᴇᴘ. Nᴏ. 76-2104, at 1 (1940).

[60] Id. at 1–2.

[61] Id. at 1.

[62] Id.

[63] S. Rᴇᴘ. Nᴏ. 76-1589, at 1 (1940).

[64] Id. at 2.

[65] 86 Cᴏɴɢ. Rᴇᴄ. 6447 (1940).

[66] Id. The Bureau of Fisheries in the Department of Commerce and the Bureau of Biological Survey in the Department of Agriculture moved to the Department of the Interior effective July 1, 1939, Reorganization Plan No. II, 53 Stat. 1433, § 3(e)–(f) (1939) (“The functions of the Secretary of Agriculture relating to the conservation of wild life, game, and migratory birds are hereby transferred to, and shall be exercised by, the Secretary of the Interior.”), and combined to form the Fish and Wildlife Service in 1940, Reorganization Plan No. III, 54 Stat. 1232 § 3 (1940).

[67] 86 Cᴏɴɢ. Rᴇᴄ. 7006 (1940).

[68] 86 Cᴏɴɢ. Rᴇᴄ. 7007 (1940).

[69] An Act for the Protection of the Bald Eagle, Pub. L. No. 76-567, 54 Stat. 250–51 (1940).

[70] Id. at 250.

[71] Id. §§ 1–2 (codified at 16 U.S.C. §§ 668(a), 668a).

[72] Id. § 4.

[73] Id. § 2.

[74] Gonzales v. Raich, 545 U.S. 1, 26 & n.36 (2005).>

Flying the Coop: The Trump Administration’s (Mis)Interpretation of the Migratory Bird Treaty Act

Flying the Coop: The Trump Administration’s (Mis)Interpretation of the Migratory Bird Treaty Act

By Alexander Liguori, Managing Editor at N.Y.U. Environmental Law Journal. This post is part of the Environmental Law Review Syndicate. Introduction Any good survey of our nation’s bedrock environmental laws will likely cover the Clean Air Act and Clean Water Act, but hardly any would…

ELRS Post: Week of December 21, 2020

ELRS Post: Week of December 21, 2020

This week’s post, Introducing a Voluntary Extended Producer Responsibility Scheme for the New Plastics Economy, was written by Hannah Yang, a third-year student at New York University School of Law and an Articles Editor of the New York University Environmental Law Journal. Read the post here.

Introducing a Voluntary Extended Producer Responsibility Scheme for the New Plastics Economy

Introducing a Voluntary Extended Producer Responsibility Scheme for the New Plastics Economy

By Hannah Yang, Articles Editor at N.Y.U. Environmental Law Journal.

This post is part of the Environmental Law Review Syndicate.


Ocean plastic pollution is a large-scale problem that stems from multiple points of the plastics life cycle, ranging from design, production, use, disposal, and environmental leakage. Voluntary extended producer responsibility (EPR) is an important tool to address the plastics problem. EPR focuses resources directly on the disposal and pollution aspects of plastic waste, while still implicating the upstream production decisions. It provides a more immediate solution to addressing pollution, allows flexibility for innovation and efficiency, and allocates responsibility on those best equipped to address the problem. I propose that New Plastics Economy (NPE) is a non-profit organization that provides a workable platform for building out a voluntary EPR scheme, however, its success would depend on careful control mechanisms to ensure accountability of the participants and the organization itself. This proposed voluntary EPR scheme for NPE is just a starting point and a single piece of a much larger puzzle. It leaves open the door for international and local regulators to implement longer-term solutions.

The Plastics Problem

Plastics have many benefits; they are lightweight, provide sterile packaging, and help extend the shelf-life of products, among others.[1] Because they are cheap to manufacture, plastics are treated as disposable after just one short use.[2] However, society’s management of plastic waste is a growing problem and many are realizing that this momentary convenience comes at a cost.[3]

One major negative consequence is plastic pollution in oceans. It is estimated that between 4.8 million and 12.7 million metric tons entered the ocean in just 2010 alone.[4] Once in the ocean, the plastics do not biodegrade easily and continue to persist in the environment.[5] When these plastics do slowly break down, carbon is released into the water and atmosphere, which contributes to global warming.[6] Ocean plastics also pose serious harm to marine life, choking or starving marine wildlife.[7] Harms extend beyond the individual organisms that consume the plastics and bioaccumulate through the food chain.[8]

Sources of Ocean Plastics

Ocean plastics can originate from both land and ocean sources. It is estimated that about 20 percent of plastic waste enters the marine environment from ocean-based sources, such as fishing, cargo ships, and offshore platforms.[9] Land-based sources make up the remaining 80 percent, through spillage of pellets, littering, dumping, stormwater discharges, and general poor waste management.[10] As the two sources of plastics pose somewhat different issues, they also warrant somewhat different solutions. This discussion will largely focus on the land-based sources.

Within the category of land-based sources, there are a variety of factors that contribute to increased plastic waste in the oceans. For instance, producers of raw materials can reduce direct inputs of plastic by taking additional steps to prevent spillage of plastic pellets into the ocean.[11] These producers can also reduce the amount of problematic plastic that enters into circulation by choosing to source materials that contain post-consumer plastics, are biodegradable, or are more easily recycled. Packaged goods manufacturers can also help to reduce plastic waste, as these manufacturers can dictate both the amount and types of plastic used in products and package designs.[12] Consumers may also play a role by reducing demand for products with short lifespans[13] and conveniently packaged goods.[14] Under this presumption, greater consumer awareness could shift the market away from a dependance on single-use plastics.[15] Additionally, consumers can make sure to properly recycle and dispose of plastic waste to reduce the amount of plastic that ends up in the oceans.[16] From there, recycling facilities can improve technology to increase the amount of collected plastic that is actually being recycled. Currently, a significant volume of recyclable material is often sent to the landfill,[17] which increases the chances of plastics entering the ocean during transportation.[18]

Challenges to Solving the Ocean Plastics Problem
Spread in the Environment

Once the plastic enters the ocean, natural currents can transport plastics around the globe, meaning plastics from one country can pollute the waters of another. These plastics are found at a range of depths of the ocean, from the surface down to the ocean floor.[19] This dispersion of plastics makes cleanup and tracking more difficult.

Absence of Regulation

Ocean plastic management currently suffers from the tragedy of the commons. Most of the pollution is found in the high seas, which have minimal regulation and no private ownership.[20] Without regulation, individuals have minimal incentives to take on additional expenses to prevent plastics from entering the ocean. These challenges are only exacerbated by the international nature of the ocean plastics problem. The consequences of local sources of pollution span the entire globe. The harms are distributed across the general public, through the degradation of the oceans and marine life.


Furthermore, ocean cleanup is difficult and expensive. For example, The Ocean Cleanup designed a system to collect plastic waste from the ocean. Just one system cost about 21 million euros (or about $24.6 million).[21] The costs are high, in part because this is a new area of technology and research.[22] In addition, once the plastic has been collected, disposal of the plastic is also generally expensive, especially compared to other materials such as paper or glass.[23] The cost of managing plastic waste after recovery makes recovery itself less economically viable.

Assigning Responsibility

Finally, causation is also difficult to pinpoint. Just a single piece of ocean plastics traverses a long chain of control, from raw materials, to production, use, and disposal. Identifying causation can help identify which actors can and should bear responsibility for the plastic waste problems. With no single “wrongdoer,” assigning responsibility is more challenging.

EPR as a Solution to Plastic Waste

Extended producer responsibility (EPR) allocates responsibility for the management of post-consumer waste on the producers.[24] This can take multiple forms, including actual physical responsibility of taking the waste goods from the consumers at the point of disposal, administrative management of the disposal infrastructure, or financial responsibility. EPR is touted as a useful tool to address some of the negative externalities of production.[25]

Benefits of EPR

To start, EPR can be used to cover costs needed to manage existing pollution and to remedy harms stemming from that waste.[26] In the context of plastics, EPR could extend to ocean cleanup. EPR shifts the economic burden of plastic waste further upstream onto producers, away from those who directly suffer the harms of plastic waste.[27] Secondly, producers exercise at least some control over the degree and nature of plastic waste generation. As with general product liability theory, internalization of the downstream costs of plastic waste should incentivize upstream decisions to minimize these downstream harms, so long as the upstream solutions are less expensive than their downstream liability.[28] Furthermore, EPR leaves flexibility for industry actors to innovate and develop their own mechanisms to efficiently reduce harms.

Concerns with EPR

Critics are skeptical of the practical significance of design incentives. There are various forms of EPR, which each allocate financial liability somewhat differently. If responsibility is determined collectively based on industry or product type, rather than the specific producer’s actual contribution to the waste problem, then any upstream incentives may be significantly diluted. Producers that are grouped together may face collective action problems.[29] Alternatively, EPR responsibility could be determined based on each producer’s individual contribution to plastic waste. These EPR systems more directly internalize the downstream costs,[30] but can be difficult and costly to implement.[31]


Another critique is that EPR schemes place excessive burdens on upstream producers and manufacturers and too little on consumers and government entities. For one, consumers still retain control over waste disposal, after use.[32] There is a moral hazard that consumers have no incentives to dispose of plastics properly if producers are paying to manage the waste problem. Secondly, even if the consumer properly disposes of plastics, many countries currently lack plastic waste management capacity and instead export plastic waste to other countries in East Asia and Pacific.[33] Once exported, there is little oversight over how this plastic is subsequently managed.[34] As one producer notes, truly addressing the plastic waste problem would require the burdensome development of an entirely new industry around plastic waste management.[35]

Similarly, EPR also raises equity questions about the global allocation of responsibility. In 2014, China was the largest producer of plastics materials at 26 percent, followed by Europe and the NAFTA countries at around 20 percent each.[36] Yet, in 2016, it is estimated that the United States generated the most plastic waste in the entire world and contributed the most plastic waste to coastal environments.[37] The question of allocating responsibility between producer and consumer also implicates the allocation of responsibility between developed versus developing nations.

On the flipside, others may be concerned about consumers bearing the brunt of the costs under EPR. After all, even if producers are directly responsible, these increased costs can still be passed to the consumer through increased prices.[38]

Government Programs Utilizing EPR

A few limited jurisdictions have implemented plastic EPR schemes with varying degrees of success. Germany was one of the first countries to shift the costs of packaging waste (including plastics) to producers in 1991.[39] Additionally, Der Gruener Punkt (“Green Dot”) certified those companies that reduced plastic packaging and made the packaging easier to recycle.[40] Some have expressed concerns about the high price tag of the system.[41] Still, recycling rates increased for all materials, including plastics,[42] and the program has generally been considered successful in meeting targets.[43] Several other European countries have since followed suit, creating EPR schemes in connection with the EU Packaging and Packaging Waste Directive.[44]

More recently, in 2018, India developed a nascent EPR scheme to support its single-use plastic bans.[45] Implementation has been trickier, due to the large informal market for plastic recycling.[46] Additionally, EPR in India struggles from the lack of guidelines and targets.[47] However, India is committed to the EPR model and is developing a nationally unified working model and stricter EPR policies.[48]

Theory of Voluntary EPR

Because voluntary programs are not limited by state boundaries, they allow for cross-jurisdictional cooperation. A global solution helps address the global plastic supply chain. Voluntary programs also promote efficiency. They are quicker to set up than governmental instruments. Additionally, EPR uses financial incentives to drive industry innovation and development. Voluntary programs will adapt to a changing industry to maximize efficiency. At the same time, a voluntary EPR scheme may minimize direct government management, reducing administrative costs that would otherwise be covered by taxpayers.

However, there are certainly shortcomings to voluntary programs. To start, there is the baseline question of garnering support. It is not immediately clear why companies would voluntarily take on greater liability. Even with a few industry supporters, there remains the challenge of obtaining high levels of voluntary participation. Of the companies that do voluntarily commit, there needs to be some mechanism to motivate and ensure compliance. Finally, if the requirements are set too loosely or superficially, companies may abuse these voluntary programs for marketing or public relations benefits, without taking any real actions.[49] This concern of greenwashing creates a risk of voluntary EPR schemes doing more harm than good.

Applications of Voluntary EPR

Despite concerns, some private, voluntary EPR schemes have emerged in the plastic industry. Not surprisingly, a few non-profit and NGO driven initiatives have emerged. The World Wildlife Fund has introduced the Extended Producer Responsibility Project.[50] WWF’s efforts are focused on developing EPR legal regimes in target countries around the world, primarily in Asia and South America.[51] Additionally, Project STOP works together with local government, industry, and other partners to develop waste management systems in communities with “high levels of ocean plastic leakage and dedicated government support,”[52] leveraging funding from the plastic industry to address post-consumer waste.[53] Due to the community-tailored nature of this undertaking, it will be difficult to scale this program quickly. Another model is the Minderoo Foundation, which focuses on resin producers. Its goal is to use a voluntary EPR to push up the price of virgin plastics, helping to drive greater innovation and decrease the costs of recycled plastics.[54] As it is still in its early conception phase, it remains to be seen how industry will respond.

Other initiatives are supported by a combination of public and private funding. The Recycling Partnership works together with municipalities around the US to develop curbside recycling infrastructure. Supported by a combination of city funds with private sector donations,[55] it has helped to collect about 230 million pounds of recyclable plastics and other materials. Circulate Capital is an investment management fund. It formed Circulate Capital Ocean Fund (CCOF) which is dedicated to preventing ocean plastic, with a goal for plastic recycling to be a profitable investment.[56] Several private corporations are investors in CCOF, including the first investor, PepsiCo. [57] There is also a mix of public funding as the initiative is backed by USAID.[58] Although still relatively new, CCOF is working with over $100 million and has announced two investments in Asian plastic recycling companies.[59] These hybrid publicly-privately funded organizations may benefit from a financial advantage.

Finally, some initiatives are both funded and lead by industry. Terracycle, a private recycling company focused on hard-to-recycle plastics, runs a recycling program financed by product goods manufacturers and free to consumers.[60] In this voluntary, individual EPR program,[61] packaging for each brand family is collected separately, simplifying both the allocation of cost and the recycling processing. However, this system places considerable onus on the consumer to sort out all packaging and would likely be very difficult to scale. Several other industry-led initiatives have also emerged. The Kenya Association of Manufacturers has proposed a three-year plan for shifting responsibility to plastic producers.[62] Several companies have also formed a consortium to support innovation in chemical recycling.[63] This indicates a readiness for industry actors to join forces and collaborate on the plastic waste problem.

The proliferation of these voluntary EPR schemes highlights the potential of a well-developed initiative with the right participants.

Analysis of NPE, and how it might support a voluntary EPR scheme

The New Plastics Economy (NPE) is a non-profit charity of the Ellen MacArthur foundation. Its mission is to promote a circular economy for plastics.[64] Launched together with UN Environment in October 2018, one of the organization’s projects is the Global Commitment.[65] It invites a diverse set of signatories from both the public and private sectors[66] to work towards a set of circular plastics economy targets by 2025. These 2025 targets vary by signatory, but largely focus on increasing recycled content and using recyclable materials.[67] Industry signatories include major leaders in the “fast moving consumer goods” industry, “plastic packaging producers” and “global retailers”[68] and represent “20% of all plastic packaging produced globally.”[69]

Compatibility of EPR and NPE
Graph showing the cycle of streams of plastic production and use for the New Plastic Economy, highlighting the goal for the New Plastics Economy to "Drastically Reduce the Leakage of Plastics into Natural Systems and Other Negative Externalities"
Potential for EPR. Linked to original image.

Both EPR and NPE consider the entire lifecycle of the product, seeking to minimize waste in product design and promote recycling of any waste product.[70] The Global Commitment is focused primarily on forward-looking improvements, targeting design and production decisions to reduce plastic waste in the long run. However, these design changes will take time to implement, and plastic waste has already been accumulating in the environment for many years. A voluntary EPR scheme would place financial responsibility on the plastic industry for any existing and remaining waste, helping to complete the circular economy.

Additionally, NPE creates a solid working framework to introduce an EPR scheme for plastic waste. In fact, pairing EPR with a series of production-side targets addresses the concerns about the limited influence of a collective industry EPR scheme on upstream factors such as product design and production.[71] For example, the Global Commitment to “take action to” address single-use and unnecessary packaging[72] is also an upstream goal of EPR, since it would help to reduce the volume of plastic entering the oceans. Signatories also commit to set recycled content targets.[73] This supports EPR by driving up demand of recycled plastic materials. Importantly, signatories commit to “100% of plastic packaging to be reusable, recyclable, or compostable.”[74] This also complements EPR by reducing recycling costs and improving recycling rates.

Together, NPE and EPR will further reinforce incentives to reduce and improve plastic packaging, and increase recycling, while providing funding to address existing plastic waste and environmental degradation.

Map showing the headquarters of the Global Commitment Signatories, showing the US with the most signatories per country.
Image generated by the Ellen MacArthur Foundation.[75]

EPR is also compatible with the structure of NPE. Due to the international scope of the problem of the plastics problem, it is valuable that NPE works across borders with minimal transaction costs. Because NPE is a private entity, there are no jurisdictional restrictions or need for international treaties as NPE continues to grow and expand its reach.[76] Under a global EPR scheme, companies operating in multiple countries can sign as a single entity encompassing all subsidiaries. Those companies can then more efficiently adopt uniform corporate policy and designs to meet EPR requirements, across the different countries in which they operate. Additionally, an international EPR scheme helps to address the global nature of the plastic supply chain. In contrast, government mandated EPR programs, such as Germany’s packaging waste program discussed above,[77] have been directed towards specific jurisdictions, resulting in fractured and inefficient treatment.

It is also valuable that the Global Commitment brings together actors from various aspects of the plastic industry. EPR is bolstered by the support from all parts of the supply chain. Optimal product design would incorporate environmental considerations from the choice of raw material through to the product distribution. This helps to address the causation problem, by including all industry actors that are in the chain responsibility. NPE helps to bring together each of these different parties under the shared goal of developing a circular economy to reduce plastic waste.

Governance of NPE

Compliance will be one of the most important hurdles for voluntary EPR. While there are many motivators to comply, which will be discussed below, they may not be sufficient to secure compliance if compliance costs outweigh the benefits and the environmental goals become unprofitable.[78]

Currently, NPE relies on public reporting to encourage compliance. NPE publishes a cumulative annual report compiling the progress of each signatory towards the 2025 targets.[79] Companies that fail to submit a report are explicitly identified, creating some public accountability.[80] NPE could also consider providing a certification system as a further compliance tool, not unlike Germany’s Green Dot program.[81] The fact that some of the signatories are dominant actors in their respective industries, may further increase the competitive value of such a certification and spur increased participation.


NPE Global Commitments currently take the form of rulemaking. NPE sets standards and signatories define targets consistent with these standards. If the NPE standards become more demanding, signatories will be interested in governance controls that promote the legitimacy of NPE.[82] A voluntary EPR program that collects fees would open additional questions of how the resources should be directed and utilized, which further drives the need for legitimacy.[83] This could be achieved through implementing global administrative law tools of transparency, participation, reason giving and review. In its current form, it is not clear which if any of these are present.

The annual reports provide detailed information on the performance of the signatories, which is an important achievement of transparency in the plastics industry.[84] However, there is minimal transparency from NPE itself. For example, little information is provided on the decision-making process for defining the Global Commitment general goals and individual targets. As such, it is also unknown to the general public how much participation signatories have in the NPE.[85] Participation is particularly relevant now, as the NPE was set to review and modify the Global Commitment by October 2020.[86] There is some degree of reason-giving in setting the Global Commitments, in the detailed Global Commitment Definitions.[87] Similar publications on the decision-making process would help support the implementation of an EPR scheme. Currently, NPE does not penalize individual signatories for failing to meet targets. However, if enforcement mechanisms are adopted to support a voluntary EPR scheme, a review process for its enforcement decisions will be more important for legitimacy. These governance mechanisms can increase administrative costs, but they would improve performance and legitimacy.

Motivating Factors for Signatories to Commit to an EPR Scheme within NPE
Pre-empt Regulation

Currently, only a few international instruments discuss ocean plastics, and they are generally of limited scope.[88] However, there is growing interest in regulation both at the national[89] and international[90] scale. The European Commission recently adopted a comprehensive Circular Economy Action Plan as one component of the European Green Deal.[91] The resolution committed to more specifically target policy at production and manufacturing to address packaging waste and plastics.[92] As the Commission develops specific directives and policy frameworks, and until the regulatory gap is filled globally, there is significant potential for the plastic industry to set their own international standards that lawmakers across different jurisdiction may follow and adopt legislation consistent with industry norms.[93] Signatories may benefit from voluntarily adopting an EPR scheme, as such a scheme could pre-empt pending and future government regulation.

As evidenced in other industries, early movers are sometimes able to shape the regulatory environment, at least on the national scale. PaintCare, formed by manufacturers, advocated and developed model legislation for a mandatory EPR scheme.[94] In British Columbia, the Pharmaceutical Manufacturing Industry voluntarily formed a product stewardship program to set standards in managing the proper disposal of leftover pharmaceuticals.[95] The manufacturers explicitly engaged in this voluntary program with the hope of spurring regulatory action, and “on the understanding that the provincial government would later bring in a ‘level playing field’ regulation to ensure that all manufacturers abide by the same rules.”[96] Government regulation followed just one year after in 1997,[97] and other provinces in Canada have adopted similar legislation.[98]

Moral Convictions

Some signatories support the NPE vision of a circular plastic economy for moral reasons. These likely include the signatories who have already met many of the NPE commitment targets even prior to joining as a signatory. For example, rPlanet Earth is a packaging company which was founded on sustainable principles,[99] so many of the virgin and difficult-to-recycle plastics were never even part of its portfolio.[100] Purpose-driven companies are increasing in popularity, both in and out of the environmental sphere.[101]  Good ethics boosts public trust, improving the longevity of the business.[102] The signatories who support NPE for moral reasons will likely feel similar obligations to address ocean plastic pollution, and thus may be willing to voluntarily adopt an EPR policy.

Economic Gain

Some of the benefits from EPR are more concrete, such as economic gain. Consumer demand is pushing industry to indicate their commitment to sustainable business practices. The choice to join the Global Commitment signals a commitment to sustainability and can provide good publicity. Additionally, a growing number of investors are interested in sustainable companies.[103] Joining the Global Commitment and taking real responsibility to make the company more sustainable could translate to greater access to capital, as more investors consider sustainability to be a core deciding factor. Many of these same benefits will exist in the context of EPR. The only question will be the level of responsibility and whether the cost exceeds the value of the economic benefit.

Furthermore, plastic waste management is becoming a part of the business model. Companies at various points in the plastic supply chain are vertically integrating by acquiring recycling facilities. As a result, plastic producers have a greater financial stake in the recycling business and are internalizing some of the costs of plastic waste management.[104] These acquisitions are driven in part by an increased demand for recycled plastics.[105] For example, DAK Americas cited “consumer interest in sustainable products” as a key factor for its acquisition of Perpetual Recycling Solutions.[106] Similarly, Imerys Performance Additives, which produces mineral-additives for plastics among other materials, fully acquired the plastic recycler Regain Polymers,[107] possibly due to increased demand for recycled plastics stemming from the EU Directive 94/62/EC.[108] Even larger companies, such as Ikea, are purchasing a stake in plastic recycling.[109] These new hybrid producer-recycler companies will benefit from an EPR requirement that helps to increase demand for recycling while decreasing the processing costs.

Increased Participation

More indirectly, many signatories will benefit from the participation of other signatories due to economies of scale. For each individual company to individually attempt to clean up ocean plastics, the startup costs may be too high[110] and the process too inefficient.[111] If more parties contribute to the costs of cleanup, they can collectively fund more expensive but more efficient ocean cleanup projects and research. In order to increase these benefits, some of the larger companies may be able to exert sufficient influence as a dominant actor in their industry, inducing both business partners and competitors to also join the NPE.[112] The benefit may be greatest to the smaller signatories who would not otherwise be able to fund any significant cleanup efforts on their own. These companies would contribute comparatively small financial amounts, while still being able to publicize the larger, collective initiative. Nonetheless, all signatories could benefit from the economies of scale that a collective EPR scheme could provide.

Additionally, the economies of scale can benefit signatories in their business operations, such as reducing the cost of waste management for recycling companies. Sorting out and sending non-recyclable materials to the landfill is an added cost that can be reduced if the other signatories, such as raw plastic manufacturers and packaging producers, increase recyclable content. Similarly, packaged goods companies seeking to use more post-consumer content in their packaging will benefit from expanded recycling capacity and increased production of recycled plastic. This incentive continues up the supply chain to packaging manufacturers and raw materials producers, who will also benefit from the increased supply, and consequently reduced price, of recycled plastics.

Pre-existing Voluntary Commitments

Many signatories already engage in some form of donations or investments for plastic recycling and ocean management. These voluntary contributions are, in some ways, a sort of voluntary EPR, and indicate a willingness to contribute to some of the downstream costs. Some are funding research and innovation to address ocean plastics.[113] Most resembling an EPR scheme, Coca-Cola pledged to recycle as many plastic bottles as it produces.[114]

Rather than building a new organization from scratch, NPE provides a foundation in circular economy goals and a working group of participants across the industry and world. While these motivations may not cover all actors in the plastics industry, they could be enough to gather a critical mass for a voluntary EPR scheme. Although imperfect, NPE provides a good starting point.


I propose that a voluntary EPR program is compatible with the New Plastics Economy’s existing Global Commitment and could be integrated into the program. However, this important step would not be a “silver bullet” solution to the global plastics pollution, merely a step in the right direction. Just as the plastics problem involves multiple actors around the globe, so too must the solution involve multiple parties addressing the problem from different approaches. This is one proposal to take advantage of the flexibility and global reach of a private institution and the compatibility of EPR with a circular economy.

There is still significant room for regulatory action. Governments can support EPR by requiring producer participation and supporting enforcement. Or, governments can take parallel action by banning single use plastics, subsidizing recycling, and defining material standards, among many others.

Unfortunately, the COVID-19 pandemic has disrupted many lives and caused businesses to rethink existing operations. On one hand, it might delay progress of plastic waste initiatives. Economic downturns place financial pressures on companies, which can lead to less voluntary spending,[115] and the drop in oil prices pushes down the price of virgin plastics.[116] At the same time, consumer demand for single-use plastics is rising, as consumers  place perceived public health benefits from single-use plastics, such as plastic grocery bags, over sustainability.[117] On the other hand, as the world seeks a pathway to recovery, it is an opportunity to build back better.[118] The increased plastic demand underscores the importance of an effective waste management system. Promisingly, many signatories have indicated continued if not increased commitments despite the current global pandemic.[119] As the world recovers, a voluntary EPR may be one important mechanism to address our plastic waste problem.

[1]See Plastics: Consumer Benefits, Am. Chemistry Council, (last visited Nov. 5, 2020).

[2]See World Wildlife Fund, Plastics: Convenience Numbs Common Sense, Medium (Apr. 21, 2018),

[3] See Özgül Calicioglu, Drowning in Plastics: A Problem of Too Much Convenience?, World Bank: World Bank Blogs (Nov. 28, 2019)

[4]See Jenna R. Jambeck et al., Plastic Waste Inputs from Land into the Ocean, Science, Feb. 13, 2015 at 768, DOI: 10.1126/science.1260352; see also World Economic Forum, The New Plastics Economy: Rethinking the Future of Plastics, ¶14 (Jan. 2016)  (estimating in 2016 about 8M8 million tons each year, and expecting a doubling by 2030 if no action is taken).

[5]See W.C. Li et al., Plastic Waste in the Marine Environment: A Review of Sources, Occurrence and Effects, Sci. of the Total Env’t, May 24, 2016 at 333,

[6]See Monica Isola, Plastic Contributes to Global Warming as It Breaks Down, Researchers Find, Yale Climate Connections (Nov. 7, 2018),

[7]See What Is the Great Pacific Garbage Patch?, Nat’l Ocean Serv. (Nov. 5, 2020),

[8]See W.C. Li et al, supra note 5.

[9]See id.; Marine Debris Program: Sources, Nat’l Ocean Serv. (Nov. 5, 2020),

[10]See Marine Debris Program: Sources, supra note 9.

[11]See Julissa Treviño and Undark, The Lost Nurdles Polluting Texas Beaches, The Atlantic (Jul. 5, 2019),

[12] For example, this includes the type of materials, the choice of color, or the use of mixed materials. See Rebecca Davis and Christopher Joyce et al., Plastics: What’s Recyclable, What Becomes Trash – and Why, NPR (Aug. 21, 2019),

[13]See Noah M. Sachs, Planning the Funeral at the Birth: Extended Producer Responsibility in the European Union and the United States, 30 Harv. Env’t. L. Rev. 51, 60 (2020).

[14]See Greg Kelly et al., The New Model for Consumer Goods, McKinsey & Co. (Apr. 2, 2018),

[15] Evidence of public awareness causing a shift in demand, and consequently some shifts in supply. See Stephen Buranyi, The Plastic Backlash: What’s Behind Our Sudden Rage – and Will It Make a Difference?, The Guardian (Nov. 13, 2018),

[16]But see, Matt Wilkins, More Recycling Won’t Solve Plastic Pollution, Sci. Am.: Observations (Jul. 6, 2018), (arguing that increased consumer recycling will never solve the problems of plastic pollution).

[17]See Livia Albeck-Ripka, Your Recycling Gets Recycled, Right? Maybe, or Maybe Not, The New York Times (May 29, 2018), (noting that Waste Management threw out about 25% of their recycling).

[18]See How Does Plastic End Up in the Ocean?, World Wildlife Fund, (last visited Nov. 6, 2020).

[19]See Dongdong Zhang et al., Microplastic Pollution in Deep Sea Sediments and Organisms of the Western Pacific Ocean, Env. Pollution, Jan. 10, 2020 at 1,

[20]See Brian Palmer, High Seas: Few Rules, Fewer Sheriffs, Nat’l Res. Def. Council (Jan. 16, 2019),

[21] This number includes design, development, production, and only 1 year of operating costs. See Jeff Kart, The Ocean Cleanup Is Starting, Aims to Cut Garbage Patch by 90% by 2040, Forbes (Aug. 28, 2018),

[22] The first successful deployment of The Ocean Cleanup’s system was only after several years of simply researching the scope of the problem, beginning with a feasibility study published in 2014. See Boyan Slat et al., How the Oceans Can Clean Themselves: A Feasibility Study (2014).

[23] per 2011; see European Environment Agency, Price Development of Plastic, Paper and Glass Waste (Nov. 29, 2012),

[24]See Extended Producer Responsibility, Organisation for Economic Co-Operation and Development, (last visited May 16, 2020).

[25]See Kleoniki Pouikli, Concretising the Role of Extended Producer Responsibility in European Waste Law and Policy Through the Lens of the Circular Economy, 20 ERA Forum 491, 493 (2020).

[26]See Sachs, supra note 13, at 81 (noting collection is typically performed by municipalities).

[27]See Organisation for Economic Co-Operation and Development, The State of Play on Extended Producer Responsibility (EPR): Opportunities and Challenges, at 8–9 (2014),

[28]See Sachs, supra note 13, at 53.

[29]For example, some producers can free ride on design improvements made by others within their fee group. See Atalay Atasu & Ravi Subramanian, Extended Producer Responsibility for E-Waste: Individual or Collective Producer Responsibility?, 21 Prod. & Operations Mgmt. 1042 (2012). The efficacy of collective EPR schemes will depend on the relationship between producers within the fee group and whether that relationship can control free riding.

[30]See Sachs, supra note 13, at 75.

[31]See Atasu & Subramanian, supra note 29; see also id. at 76–77 (expressing skepticism in applying true cost internalization for more complex e-waste products and identifying “many EU EPR programs have defaulted to collective responsibility as a matter of practical necessity”).

[32]See Sachs, supra note 13 (noting industry challenges that the consumer is the polluter and therefore is the one that should pay).

[33] U.S., Japan, and Germany were the top exporters to China. With the new import regulation in 2018, countries are shifting to other nearby countries. The new plastic importers may see an increase in mismanaged waste due to flooding their recycling supply chain. See Sara Kiley Watson, China Has Refused to Recycle the West’s Plastics. What Now??, NPR (June 28, 2018),

[34]See Roger Harrabin, Bill Proposes Ban on Plastic Waste Exports, BBC: Sci. (Jan. 30, 2020), and The Plastic Waste Trade in the Circular Economy, Eur. Env’t Agency (Jul. 23, 2020), China’s ban and the increased awareness of mismanaged plastic waste have pushed some governments to consider banning exports to certain countries. In 2010, 60% of the global mismanaged waste came from East Asia and Pacific. See Hannah Ritchie and Max Roser, Plastic Pollution, Our World in Data (Sep. 2018),

[35]See OECD Joint Workshop on Extended Producer Responsibility and Waste Minimisation Policy in Support of Environmental Sustainability ¶57-58 ENV/EPOC/PP(99)11/Final/Part1 (May 4–7, 1999) [hereinafter OECD Joint Workshop].

[36]See Plastics – the Facts 2015, PlasticsEurope, (2015),

[37] See Kara Lavender Law et al., The United States’ Contribution of Plastic Waste to Land and Ocean, 6 Sci. Advances, no. 44, 2020, at 2 (accounting for both direct and indirect pathways, such as the US exports to other countries which are subsequently mismanaged).

[38] See EPA, Guidelines for Preparing Economic Analysis, at 8-5, 8-9 (2010).

[39]See The Producer Pays, Knowledge@Wharton (April 4, 2017), This has been paired with more systematic improvements of lower recycling costs and improved packaging materials optimization. See Joachim Quoden, Effects of the Introduction of an EPR Management System on the Economy, in Organization for Economic Cooperation and Development, Economic Aspects of Extended Producer Responsibility 120, 127, 130 (2004).

[40]See Our Goal: Closing Loops – Together for the Environment, DerGrünePunkt (last visited Nov. 6, 2020).

[41]See Sachs, supra note 13, at 72 (citing a cost of 1.8B8 billion euros a year, but failing to provide the comparable cost savings and benefits).

[42] See Clean Production Action, Extended Producer Responsibility, Clean Production Action, at 16 (2004),

[43]See Sachs, supra note 13, at 69.

[44] See Council Directive 94/62/EC, 1994 O.J. (L 365); see also, id. at 68 (“EPR legislation has been adopted, or is about to be adopted, in all twenty-five EU Member States, and for the most part, the objectives of European EPR programs to reduce landfill impacts and stimulate a closed-loop recycling system are being met.”).

[45]See Priyanka Pulla, Making India’s Polluters Pay, The Hindu (Dec. 15, 2018),

[46]See id. Several producer responsibility organizations (PROs) have formed, which allow companies to pool resources and take advantage of economies of scale. See Dinesh Raj Bandela & Richa Agarwal, Whose Waste Is It?, DownToEarth (Feb. 10, 2019),–63077.  However, rather than developing a larger collection infrastructure to help reduce mismanaged waste, many PROs are simply purchasing the plastic from the informal market. Id.

[47]See Pulla, supra note 45.

[48]See Zia Haq, New Guidelines to Put Recycling Onus on Plastic Manufacturers, HindustanTimes (Oct. 7, 2019),

[49] See Jane Hoffman and Michael Hoffman, What Is Greenwashing?, Sci. Am. (Apr. 1, 2009),

[50] See Extended Producer Responsibility Project, World Wildlife Fund (Oct. 28, 2020),

[51]See Xin Chen, WWF’s EPR Project at a Glance, World Wildlife Fund, (last visited Nov. 6, 2020).

[52]See Our Approach, Project Stop, (last visited Nov 6, 2020).

[53] See, e.g., Pasuruan, Project STOP, (Feb. 20, 2020). This project may have also sourced some funding from an external government.

[54]See Lisa Cox, Andrew Forrest Launches US$300m War on Plastic to Tackle Ocean Pollution, The Guardian (Sept. 25, 2019),

[55]See We’re All in This Together, The Recycling P’ship, (last visited Nov. 6, 2020) (noting funders ranging from ExxonMobil to Amazon, and the Plastics Industry Association).

[56]See Newsfile Corp., Circulate Capital Closes US $106M Fund to Protect Asia’s Ocean from Plastic, Yahoo! Fin. (Dec. 4, 2019),

[57] Several other major plastics companies joined soon after, including Coca-Cola, Danone, Dow, Procter & Gamble, Unilever, and Chevron Phillips Chemical. See id.

[58]See Our Story, Circulate Capital, (last visited Nov. 6, 2020).

[59]See Our Investment Portfolio, Circulate Capital, (last visited Nov. 7, 2020)

[60]See Free Recycling Programs, Terracycle, (last visited Nov. 7, 2020). Some companies include a fundraiser aspect to the collection drive.

[61] Collection and recycling are free for consumers, and the costs to the producers are directly connected to the costs of recycling the packaging waste.

[62]See Kenya Plastic Action Plan, Kenya Ass’n of Mfrs. (Nov. 2019),

[63]See Citeo, Total, Recycling Technologies, Mars and Nestlé Join Forces to Develop Chemical Recycling of Plastics in France, Total (Oct. 12, 2019),

[64]See The Initiative, Ellen MacArthur Found., (last visited Nov. 7, 2020).

[65]See New Plastics Economy Global Commitment, Ellen MacArthur Found., (last visited Nov. 7, 2020) [hereinafter NPE Global Commitment].

[66] Specifically, recycling companies, raw materials producers, governments, NGOs, and investors.

[67] For example, packaged goods companies’ targets are based on their plastic packaging, whereas recycling industry targets are focused on increasing capacity and quality. See NPE Global Commitment, supra note 65, at 2.

[68]See New Plastics Economy Global Commitment: June 2019 Report, Ellen MacArthur Found. (Jun. 17, 2019), [hereinafter NPE Global Commitment 2019 Report].

[69]See The Initiative, supra note 64.

[70] See Louis Dawson, ‘Our Waste, Our Resources; A Strategy for England’–Switching to a Circular Economy Through the Use of Extended Producer Responsibility, 21 Env’t. L. Rev. 210, 214 (2019); see also Pouikli, supra note 25, at 493.

[71] See discussion supra “Concerns with EPR.”

[72] NPE Global Commitment, supra note 65.

[73] See id.

[74] Id.

[75] See Signatories, Ellen MacArthur Found., (last visited Nov. 19, 2020).

[76] Currently, NPE signatories are based in 44 different countries, including the 20 different government entities. See id.

[77] See discussion supra Section “Government Programs Utilizing EPR.”

[78] In contrast to, for example, self-regulating standards in the tech industry, where the disadvantages of noncompliance are much greater. See Enforcement of Transnational Regulation, at 55 (Fabrizio Cafaggi ed. 2014).

[79] See generally NPE Global Commitment 2019 Report, supra note 68; The Global Commitment: 2020 Progress Report, Ellen MacArthur Found. (Nov. 2019), [hereinafter NPE Global Commitment 2020 Report].

[80] See NPE Global Commitment 2020 Report, supra note 79, at 7 n. 2.

[81] See supra subsection “Government Programs Utilizing EPR”; see also Singapore’s “Reduced Packaging” eco-label, Towards Zero Waste, (last visited Nov. 7, 2020).

[82] Legitimacy is important for attracting signatories and exerting influence. It can help to ensure efficiency, prevent arbitrary decisions, ensure that decisions still align with the intents and purposes of the NPE, and account for the will of the signatories. See generally Richard B. Stewart, The Normative Dimensions and Performance of Global Administrative Law, 13 I CON 499 (2015).

[83] See, e.g., id. at 502 (discussing concerns of disregard).

[84] See NPE Global Commitment 2020 Report, supra note 79, at 63–65.

[85] This is both on the individual level for setting targets, but also more generally for defining the underlying goals of the Global Commitment. Specifically, also, whether the “core partners” who formed the original signatory group have any special involvement.

[86] See NPE Global Commitment, supra note 65, at 1.

[87] See id.

[88] See, e.g., Sara Savarani & Bryce Rudyk, Ocean Plastic Pollution: A Survey of Existing Global Agreements and Proposals for Reform, Guarini Ctr. on Env’t, Energy & Land Use L. (2018); see generally Luisa Cortat Simonetti Goncalves & Michael Gerbert Faure, International Law Instruments to Address the Plastic Soup, 43 Wm. & Mary Env’t. L. & Pol’y Rev. 871, 881 (2019) (noting that the instruments do not directly address the issue of ocean plastic pollution).

[89] Individual countries may choose to adopt domestic EPR policies. Singapore is requiring companies to collect data on their plastic packaging and conducting a feasibility study on the implementation of an EPR scheme. Packaging Waste, Towards Zero Waste, (last visited Nov. 7, 2020). In the US, the bill “Break Free From Plastic Pollution Act of 2020” was introduced to the Senate in February 2020. It includes a specific provision for marine cleanup in the participation fees. Break Free From Plastic Pollution Act of 2020, S.B. 3263, 116th Cong. § 12102(b)(3)(B)(ii)(II) (2020).

[90] At the international level, there is push for a new UN treaty to address plastic waste. See, e.g., NGOs and Businesses Call for UN Treaty on Plastic Pollution, (Oct. 14, 2020),

[91] See EU Circular Economy Action Plan, Eur. Comm’n, (Oct. 11, 2020).

[92] See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, §§ 3.3–3.4, COM (2020) 98 final (Nov. 3, 2020).

[93] See Steven Sarno & Lauren Hopkins, The Rise of Mandatory Product Stewardship Programs, ABA (July 1, 2015),

[94] See id.

[95] See OECD Joint Workshop, supra note 35, at 67.

[96] Id.

[97] See Post-Consumer Residual Stewardship Program Regulation, B.C. Reg. 111/97 (Can.), repealed by Recycling Regulation, B.C. Reg. 449/2004 (Can.).

[98] See, e.g., Collection of Pharmaceuticals and Sharps – Responsibilities of Producers, O. Reg. 298/12 (Can.); Waste Reduction and Prevention Act, C.C.S.M. 16/2010 (Can.); Environmental Protection Act, R.S.P.E.I. 1988, cap. E-09. Furthermore, the original stewardship association has since grown to encompass much broader responsibility, and remains producer funded. See About HPSA, Health Prods. Stewardship Ass’n, (last visited Nov. 7, 2020).

[99] See generally rPlanet Earth, (last visited Nov. 7, 2020).

[100] See NPE Global Commitment 2019 Report, supra note 68, at 300.

[101] See generally Josh Bersin, The Rise of the Social Enterprise: A New Paradigm for Business, Forbes (Apr. 3, 2018),

[102] See Edelman, Edelman Trust Barometer 2020 Global Report, at 24 (2020).

[103] See, e.g., Index Family Overview, SAM, (last visited Nov. 19, 2020); Sustainable Investing, BlackRock, (last visited Nov. 7, 2020).

[104] See Alan Barton, To Go Circular, First Go Vertical, U.S. Chamber of Commerce Found. (April 16, 2018),

[105]See, e.g., Jared Paben, Indorama Provides Details on Purchase of PET Recycling Firm, Plastics Recycling Update (Feb. 26, 2020), (acquisition of Green Fiber International by Indorama); Jared Paben, How Much Indorama Paid for a U.S. PET Processer, Plastics Recycling Update (June 5, 2019), (acquisition of Custom Polymers PET by Indorama); Megan Smalley, Taiwanese Company Acquires Phoenix Technologies International, Recycling Today (June 4, 2019), (acquisition of Phoenix Technologies by Far Eastern New Century).

[106] Colin Staub, Brand Owner Demand Leads to Perpetual Purchase, Plastics Recycling Update (Jan. 16, 2019),

[107] See Imerys Acquires UK Plastic Recycler, Recycling Today (Sept. 17, 2017)

[108] C.f. Bringing Plastics Full Circle, Imerys Performance Minerals, (last visited Nov. 7, 2020) (noting the need for an increase of local recycling in Western markets and attributing the EU directive as the reason for developing an improved recycled plastics technology).

[109] See Press Release, Morssinkhof Rymoplast, Morssinkhof Rymoplast builds a new plastics recycling plant in the Netherlands (Jan. 15, 2018), (noting the investment from Ikea is spurring the construction of a new recycling facility).

[110] See Kart, supra note 21 and accompanying text.

[111] For example, another method involves manually removing plastic, but it is slow and inefficient relative to the rate of input. Compare Cleaning the Ocean, Rivers, and Coastlines, One Pound at a Time, (updated Nov. 6, 2020) (highlighting 11,282,623 pounds of waste recovered from the ocean since 2017) with Jenna R. Jambeck et al., Plastic Waste Inputs from Land into the Ocean, 347 Science 768, at 770, (estimating between 4.8–12.7 million MT of plastic entering the oceans each year).

[112] See Richard B. Stewart, Michael Oppenheimer & Bryce Rudyk, Building Blocks for Global Climate Protection, 32 Stan. Env’t. L.J. 341, 358 (2013) (identifying the role of dominant market actors as a building block in the context of reducing greenhouse gas emissions).

[113]See, e.g., Press Release: The Partnership Announces First Investment in Pathway to Recyclability Initiative, Recycling P’ship (Nov. 6, 2019),; see also Cutting River Plastic Waste, Benioff Ocean Initiative, (last visited May 17, 2020).

[114]See Daniel Thomas, Davos 2020: People Still Want Plastic Bottles, Says Coca-Cola, BBC (Jan. 21, 2020),

[115] C.f. Bruno Berthon, Sustainability and the Great Recession, The Guardian (Sept. 24, 2013),, 2013).

[116] See Luke Denne, Coronavirus Pandemic Threatens to Undo Progress on Plastic Pollution, NBCNews (May 15, 2020),

[117] See Laura Tenenbaum, The Amount of Plastic Waste Is Surging Because of the Coronavirus Pandemic, Forbes (Apr. 25, 2020),

[118] See generally The Circular Economy: A Transformative Covid-19 Recovery Strategy, Ellen MacArthur Found. (Oct. 27 2020),

[119] See NPE Global Commitment 2020 Report, supra note 79.




“A Great Deal of Discretion”: <i>Bostock</i>, Plain Text, and the Future of Climate Jurisprudence

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By Grace Weatherall, Managing Editor at the Harvard Environmental Law Review. This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. Introduction Bostock v. Clayton County was marked for a place among landmark Supreme Court jurisprudence as…

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

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

By Sarah L. Fine

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

This post is part of the Environmental Law Review Syndicate.

As the old saying goes, whiskey is for drinking—water is for fighting over.

I. Introduction

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

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

II. Issues Sought to Be Addressed

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

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

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

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

A. Water Resources by Region

1. Hashemite Kingdom of Jordan

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

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

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

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

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

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

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

2. State of Israel

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

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

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

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

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

3. Palestinian Authority: West Bank & Gaza Strip

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

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

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

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

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

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

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

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

B. Lateral Water Agreements

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

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

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

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

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

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

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

III. The Water Conveyance

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

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

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

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

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

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

IV. Conclusion

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

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

[1] The surface area of the Dead Sea has shrunk by at least one-third since 1960; the water level falls at “an alarming pace of 0.8 to 1.2 meters per year.” World Bank Grp., Red Sea – Dead Sea Water Conveyance Study Program: Overview – Updated January 2013, at 1 (2013),

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

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

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

[5] Id.

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

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

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

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


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

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

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

[12] Pitock, supra note 8.

[13] Natan Odenheimer, Israel – A Regional Water Superpower, Jerusalem Post (May 13, 2017),

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

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

[16] Id.

[17] Id. at 35.

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

[19] Id. at 4–5.

[20] Id. at 14.

[21] Id.

[22] Id.

[23] Jordan’s Water Wise Women, Al Jazeera (May 17, 2017),

[24] Odette Chalaby, Jordan Is Solving Its Water Crisis by Training Women as Plumbers, Apolitical (Nov. 3, 2017),

[25] Id.

[26] Id.

[27] Jordan’s First Water Desalination Plant Opens in Aqaba, Jordan Times (Mar. 18, 2017),

[28] Diplomatic Drought: Jordan’s Water Crisis Is Made Worse by a Feud with Israel, Economist (Dec. 2, 2017),

[29] Ministry Launches Water Conservation Awareness Game, Jordan Times (Feb. 19, 2018),

[30] Id.

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

[32] Id.; Julia Pyper, Israel Is Creating a Water Surplus Using Desalination, E&E News: Climatewire (Feb. 7, 2014),

[33] See Odenheimer, supra note 13.

[34] See Jacobsen, supra note 31.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Brett Walton, Israel’s Mediterranean Desalination Plants Shift Regional Water Balance, Circle Blue (July 25, 2016),

[40] Zafrir Rinat, Desalination Problems Begin to Rise to the Surface in Israel, Haaretz (Feb. 6, 2017),

[41] Hagai Amit, Dry, Dry Again: After Several Wet Years, the Big Drought Is Back Again in Israel, Haaretz (Jan. 19, 2018),

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

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

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

[45] Summer 2016 – Israel Cut Back on the Already Inadequate Water Supply to Palestinians, B’TSELEM (Sept. 27, 2016),

[46] Id.

[47] Id.

[48] Id.

[49] Gaza Emergency Water Project, World Bank (Apr. 29, 2013),

[50] Id.

[51] Id.

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

[53] Id.

[54] Largest Seawater Desalination Plant Opened in Gaza, U.N. Off. Coordination Humanitarian Aff. (Mar. 11, 2017),

[55] Id.

[56] Press Release, White House, Donald J. Trump Administration Welcomes Israeli-Palestinian Deal to Implement the Red–Dead Water Agreement (July 1, 2017),

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

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

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

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

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

[62] Id.

[63] World Bank Grp., Red Sea – Dead Sea Water Conveyance Concept Feasibility Study and Environmental and Social Assessment: Information Note – July 2007, at 3 (2007),

[64] Id. at 5.

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

[66] World Bank Grp., Red Sea-Dead Sea Water Conveyance Study Program: Questions and Answer Sheet 1 (2011),

[67] Memorandum from Roberto Lenton, Chairperson, Inspection Panel, World Bank, to President of the International Bank for Reconstruction and Development and the International Development Association (Oct. 20, 2011),

[68] Id.

[69] Press Release, World Bank, Senior Israeli, Jordanian and Palestinian Representatives Sign Milestone Water Sharing Agreement (Dec. 9, 2013),

[70] Id.

[71] Sharon Udasin, Israeli, Jordanian Officials Signing Historic Agreement on Water Trade, Jerusalem Post (Feb. 26, 2015),

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

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

[74] See Press Release, White House, supra note 56; Dalia Hatuqa, Water Deal Tightens Israel’s Control Over Palestinians, Al Jazeera (Aug. 1, 2017),

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

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

[77] See Beyth, supra note 9.

[78] See Pitock, supra note 8.

[79] Id.

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

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

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

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

[84] Id. at 82–83.

[85] Id. at 83.

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

[87] Rinat, supra note 40.

[88] See supra note 76 and accompanying text.

[89] See supra note 49 and accompanying text.

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