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, as well as the many federal courts of appeals that have come to the same conclusion about the Endangered Species Act. 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. Reflecting the narrow view of Congress’s power to regulate wildlife under the Commerce Clause that prevailed at the time, the key provision of the Lacey Act merely prohibited the interstate transportation of wildlife killed in violation of state law. 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.
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. The government appealed in one of the cases and argued it twice in the Supreme Court. “Apparently fearful of an adverse decision,” the government entered into a treaty with Canada for the protection of migratory birds, and Congress implemented the treaty in the Migratory Bird Treaty Act of 1918 (MBTA). The Supreme Court then dismissed the challenge to the 1913 Act and later upheld the MBTA as a valid exercise of the treaty power. Neither the treaty with Canada, however, nor a subsequent treaty with Mexico, which followed in 1936, included raptors. Thus, at the time, the MBTA did not protect raptors.
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.
The House Committee on Agriculture held a hearing on an identical bill. 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.” 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.
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.
The House referred a similar bill to the Committee on Agriculture, which in turn asked the Attorney General for an opinion on the bill’s constitutionality. 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. 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. The Committee determined that the bill would be unconstitutional and did not consider it further.
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 and Cerritos Gun Club v. Hall, 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. Both courts relied on the Supreme Court’s 1926 decision in Thornton v. United States, 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. Congress charged the Bureau of Animal Industry (BAI) with combating disease among domestic animals using what we would now call a “cooperative federalism” model. 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. 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.” Under existing precedent, preventing such a burden on commerce was within the Commerce Clause authority. 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.”
In Cochrane, the Seventh Circuit upheld federal regulations that limited duck hunting methods, specifically baiting. The appellants argued that the regulations exceeded the terms of the migratory bird treaties and thus violated the Tenth Amendment. 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.” The court further held that the regulations were a proper exercise of the commerce power, finding the case “not readily distinguishable” from Thornton. 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.
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. 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. 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.” 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, 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.” His bill to protect the bald eagle was referred to the Committee on Agriculture, which held a hearing on March 11, 1940. 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. 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.
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.” 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. Maud Phillips, President of Blue Cross Animal Relief, hit the same patriotic theme. She asserted that Americans were united around “individual liberty,” and as they became “more liberty conscious” they became “more eagle-minded.” 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.” Like the flag, Ms. Phillips believed that the bald eagle should be protected from “desecration.”
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.” He quoted from United States v. Gettysburg Electric Railway Co., 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.
In its report, the House Committee on Agriculture recommended passage of the Eagle Act. The report quoted from the same letter from the Secretary of Agriculture that Clason had read at the hearing. 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. He said that trophy hunting and egg poaching threatened bald eagle populations and that they would go extinct without further protection.
The Senate Committee on Agriculture recommended passage of the companion bill. 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.”
The bill passed the House on May 20, 1940, 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. On May 28, 1940, the Senate substituted the House bill for its identical bill and passed the measure without discussion. President Roosevelt signed the Act for the Protection of the Bald Eagle on June 8, 1940.
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.” 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. 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.” 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.”
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.” After eighty years, it is time to put Commerce Clause challenges to federal wildlife regulation to rest.
 United States v. Bramble, 103 F.3d 1475, 1480–82 (9th Cir. 1996).
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).
 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).
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).
 31 Stat. 187 § 3 (1900) (codified as amended at 16 U.S.C. § 3372(a)(2)(A)).
Id. § 1 (codified as amended at 16 U.S.C. § 701).
 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).
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).
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 find time for the Migratory Bird Treaty Act (“MBTA”). Passed in 1918 to curb exploding commercial trade in bird feathers, the MBTA’s strict liability regime makes it one of the nation’s strictest environmental laws. While the MBTA is the product of a bygone era of bipartisan cooperation to protect the environment, it is still on the books, serving a key role not only in the protection of birds but in the responsible development of land throughout the country. In late 2017, the Trump administration proposed a new interpretation of the MBTA that threatened to strip the law of its protective powers, by limiting prosecution under the Act to affirmative and intentional efforts to kill birds. Environmental groups sued, and recently won a powerful victory in the Southern District of New York vacating the administration’s interpretation. However, the threat of future appeal and efforts to undermine the Act still loom.
This Essay agrees with the recent SDNY opinion and provides further arguments that the Trump administration’s revised interpretation of the MBTA was illogical, illegal, and contrary to public policy. In Part I, I will provide a brief overview of how the MBTA works and its enforcement history. In Part II, I will summarize and refute the Trump administration’s arguments in favor of its new enforcement scheme. The administration claims that (1) the new scheme aligns better with the text of the statute, (2) the new reading is more consistent with the MBTA’s legislative history, and (3) the new interpretation is required by the Constitution and (4) by prior precedent. In Part III, I will conclude by offering recommendations about how the Biden administration could preserve the MBTA’s enforcement scheme, which has successfully protected birds while allowing responsible land use.
The Migratory Bird Treaty Act Protects Birds Through a Strict Liability Regime
The MBTA prohibits “by any means or in any manner,” the hunting, taking, capturing, killing or otherwise harming of listed species, of which there are more than a thousand. Historically, the Fish & Wildlife Service (“FWS”) has applied the Act using strict liability, meaning parties can be held responsible for killing birds whether or not they intended to do so. With penalties of up to $15,000 per bird death, the law’s potential for preserving the environment and punishing those who harm it is almost unprecedented in the scope of American environmental regulation.
Applying the law as written would create an untenable situation where daily activities like driving or owning a house become criminalized in the event of an accidental bird death. To avoid this result, the FWS has typically only enforced the criminal provisions of the law during egregious violations like oil spills. In all other situations, the law has served both a deterring and mitigating function by encouraging developers to avoid actions that threaten birds and undertake remedial actions when deaths are inevitable. For example, when building a bridge, the state of Virginia sought to mitigate the destruction of seabird nesting grounds by building an artificial island where birds could return in the warmer months.
This reliance on prosecutorial discretion and voluntary mitigation has worked, creating a rare state of relative harmony for industry, environmental advocates and wildlife. The National Audubon Society’s (NAS) position on wind power effectively illustrates this equilibrium. NAS recognizes the threat that a proliferation of wind turbines poses to the nation’s birds but supports the transition to renewable energy. To that end, they advocate for “properly sited wind power” that minimizes harm to birds and other wildlife. In the past, NAS has had success working with developers, and has made clear that proper enforcement of the nation’s wildlife protection laws, including the MBTA, is essential to get companies to play ball with environmentalists, government regulators and other advocates of responsible development. Indeed, with the threat of enforcement and the increased cooperation of private actors on voluntary programs to save birds, NAS estimates the MBTA has saved millions of birds while creating the potential for wind power to “generate 20 percent of the nation’s electricity.” FWS’ administration of the MBTA then, has come to represent a success story of environmental law in the United .
The Trump Administration’s Proposed Reinterpretation of the MBTA
In late 2017, the Trump administration issued an opinion that reinterprets the MBTA, turning the law and its successful enforcement scheme on its head. The reinterpretation concludes that “the statute’s prohibitions . . . apply only to affirmative actions,” not incidental or accidental ones. This reinterpretation effectively ends the threat of prosecution for incidental bird deaths, removing any leverage the government had to work with private actors to mitigate deaths associated with development. The impact of this loss of leverage is substantial and illustrated by the outcome of the mitigation project in Virginia discussed above: following the administration’s opinion, the State halted work on the replacement habitat, depriving over twenty-five thousand birds of their summer home.
The Trump administration based its reinterpretation of the MBTA on three primary arguments: the MBTA’s language, its legislative history, and constitutional issues with its enforcement scheme. Seeking to stop the new interpretation, a coalition of states and advocacy groups filed suit, alleging that the administration’s new approach is arbitrary and capricious under the Administrative Procedure Act (APA). Undeterred, the administration proceeded and published a proposed rule to codify their new interpretation of the MBTA, which the states and advocacy groups again challenged via the notice and comment process. The following section will provide an overview of the administration’s proposed changes to the enforcement of the Act and refute them. Although the rule has already been struck down at the district court level as contrary to law, the following analysis provides alternative arguments against the rule that could become important in the event the case is appealed.
The Proposed Rule seizes on the MBTA’s language to argue that the enacting Congress never meant to criminalize incidental deaths. Citing the noscitur a sociis canon of construction, FWS claims that the inclusion of “deliberative action words” such as “pursue”, “hunt”, and “capture” mean that the other words in the MBTA’s preamble, including “kill” and “take” are meant only to apply to actions intended to achieve that result. This reading of course, ignores the broad language of the preceding clause—“It shall be unlawful at any time, by any means or in any manner.” The Proposed Rule dismisses this clause out of hand, arguing that it, “simply clarifies that activities directed at migratory birds, such as hunting and poaching, are prohibited whenever and wherever they occur and whatever manner is applied, be it a shotgun, a bow, or some other creative approach to deliberately taking birds.”
The administration ostensibly bases this improbable use of the noscitur canon on the fact that there are three deliberate words that can be construed as either deliberate or incidental versus two that cannot. But this interpretation selectively avoids using another common canon, ejusdem generis, which counsels that a catchall phrase should be applied to every word in an ensuing or preceding list. Here, the FWS should apply the broad language of the opening clause to the verbs in the second clause, which would result in an all-encompassing reading of how to apply the Act. From a rational point of view, this makes far more sense than changing an entire regulatory regime based on a sentence that has three deliberate sounding words as opposed to two incidental sounding words.
The administration dives deep into the legislative history of the Act to exclude incidental takings from its scope. Citing statements from legislators who supported the bill, FWS hones in on a single, narrow purpose of the MBTA: “to regulate the hunting of migratory birds in direct response to the extreme over-hunting . . . that had occurred over the years.” The agency reaches this conclusion even while acknowledging that Congress understood habitat destruction, which is largely perpetuated by incidental take, to also be within the purpose of the law. Instead, they claim that the passage of the Migratory Bird Conservation Act (MBCA) in 1929, which specifically allows the federal government to “purchase or rent land for migratory birds,” works in tandem with the MBTA. In other words, if the MBTA covered the incidental take associated with habitat destruction, passage of the MBCA would have been “largely superfluous.”
But might the acts have different means of achieving the same purpose? To that end, allowing the government to take preemptive action to conserve bird habitats reflects congressional intent to provide another, proactive way to prevent incidental bird deaths, which is hardly superfluous. Instead, both statutes reflect an overall congressional goal, which is echoed in the States’ comments on the proposed rule: “to protect migratory birds.”
To be sure, the legislative history of the Act cited in the Proposed Rule does reflect an initial focus on reducing bird deaths associated with hunting, but this also makes sense in light of an overall congressional purpose to protect birds. While hunting may have been the leading threat to migratory birds at the time of the MBTA’s passage, that threat has diminished as the country has transitioned to a more urban society. Now, incidental deaths that occur as a side-effect of development are the leading threat to birds in the U.S. In line with the Act’s purpose, then, it is unsurprising that enforcement of the MBTA looks different now than it did in 1918. By criminalizing the killing of birds “at any time, by any means or in any manner,” Congress made an unequivocal determination that the Act’s provisions would last the test of time, even if new threats beyond hunting emerged.
FWS further claims that its reinterpretation of the MBTA is necessary because the previous interpretation tramples on the constitutional rights of Americans. Specifically, the agency worries that relying on prosecutorial discretion does little to prevent criminalizing everyday activities like driving and home-owning, that kill birds incidentally. This does raise concerns of fair notice under the Fifth Amendment, but FWS’ argument completely ignores that the use of prosecutorial discretion in enforcement of the MBTA managed to both punish egregious incidental violations and deter unnecessary bird deaths, all while avoiding criminalizing Americans for living their everyday lives. FWS’ inability to show their new interpretation of the Act offers a more legally sound and practically better approach means the Proposed Rule is more indicative of shifting political preferences, rather than a vital remedy for the American people as they claim.
Finally, FWS props up its statutory language and legislative history arguments on the Fifth Circuit’s opinion in United States v. CITGO Petroleum Corp., which held that “the MBTA’s ban on ‘takings’ only prohibits intentional acts (not omissions) that directly kill migratory birds.” FWS argues that the only way to “reduce uncertainty and have a truly national standard,” is to follow this approach. But this ignores key opinions from the Second and Tenth Circuits. The Second Circuit affirmed a conviction under the MBTA for inadvertent bird deaths caused by accidental exposure to toxic wastewater, while the Tenth Circuit has upheld convictions for activities that directly and foreseeably lead to migratory bird deaths, such as leaving harmful oil field equipment exposed. It also ignores the fact that the Act has been consistently interpreted to cover incidental deaths for over forty years. The revised interpretation, then, attempts to resolve a circuit split in favor of one position based on language that has been interpreted to say the opposite of what FWS says it means. This dispute is beyond the scope of FWS’ responsibilities and should be left to the Supreme Court to resolve.
Conclusion and Recommendation
The real tragedy of the administration’s efforts is that their stated reasons for the reinterpretation—clarity, consistency, and adherence to congressional intent—could still be achieved while avoiding the needless killings of thousands of birds. In the Proposed Rule, FWS explains, “the MBTA does contemplate the issuance of permits authorizing the taking of wildlife.” Indeed, under the prior interpretation of the Act, FWS granted permits to developers as long as projects were sited and constructed in ways that minimized bird deaths. This solution simultaneously allowed for the growth of industry while protecting birds and simplifying the regulatory scheme: developers must get a permit or mitigate their impact on bird deaths or otherwise face potential prosecution.
A return to the permitting solution marks the best-case scenario for all parties, human and otherwise, and can be achieved at a low political cost. To entrench this enforcement scheme, the Biden administration should issue a regulation that codifies the previous permitting scheme. Such a move would likely find support from industry, which has asked for more clarity, as well as environmental advocates, who favor the old carrot-and-stick approach’s incentives for responsible development. In fact, some developers have continued to follow the previous scheme even as their regulatory responsibilities have been lifted. Instead of implementing a workable solution that satisfies all, FWS has gone overboard, angering stakeholders such as environmental advocates and the States, and confusing industry, which now fears a public relations backlash due to preventable bird deaths. In this area of environmental law, a return to the past makes the most sense for humans and the earth they have been charged with protecting.
See U.S. Dep’t of Interior, Office of the Solicitor, Opinion Letter M-37050 (Dec. 22, 2017).
See Nat. Res. Def. Council, Inc. v. U.S. Dep’t of Interior, 2020 WL 4605235 (S.D.N.Y. 2020).
 The cases are Nat’l Audubon Soc. v. U.S. Dep’t of Interior, No. 1:18-cv-04601-VEC (S.D.N.Y. May 24, 2018) and New York v. U.S. Dep’t of Interior, 1:18-cv-08084-VEC (S.D.N.Y Sep. 5, 2018).
See Regulations Governing Take of Migratory Birds, 85 Fed. Reg. 5915 (proposed Feb. 3, 2020) (to be codified at 50 C.F.R. pt. 10).
See New York et. al., Comments on Proposed Rule to Limit the Scope of the Migratory Bird Treaty Act’s Prohibitions to Actions Directed at Migratory Birds (Mar. 19, 2020), https://www.law.nyu.edu/sites/default/files/State-Comments.pdf.
SeeNat. Res. Def. Council, Inc., 2020 WL 4605235 at *8-*9.
 Regulations Governing Take of Migratory Birds, 85 Fed. Reg. at 5916.
 The last interpretive guidance document issued under the old scheme was suspended and withdrawn by the Trump administration’s new guidance discussed above. See U.S. Dep’t of Interior, Office of the Solicitor, Opinion Letter M-37041 (Jan. 10, 2017) (suspended and withdrawn by Opinion Letter M-37050 (Dec. 22, 2017)). For a brief history of the FWS’ interpretation of the MBTA and its enforcement of the Act, see Jesse Greenspan, The History and Evolution of the Migratory Bird Treaty Act, Nat’l Audubon Soc. (May 22, 2015), https://www.audubon.org/news/the-history-and-evolution-migratory-bird-treaty-act.
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.
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. Because they are cheap to manufacture, plastics are treated as disposable after just one short use. However, society’s management of plastic waste is a growing problem and many are realizing that this momentary convenience comes at a cost.
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. Once in the ocean, the plastics do not biodegrade easily and continue to persist in the environment. When these plastics do slowly break down, carbon is released into the water and atmosphere, which contributes to global warming. Ocean plastics also pose serious harm to marine life, choking or starving marine wildlife. Harms extend beyond the individual organisms that consume the plastics and bioaccumulate through the food chain.
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. Land-based sources make up the remaining 80 percent, through spillage of pellets, littering, dumping, stormwater discharges, and general poor waste management. 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. 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. Consumers may also play a role by reducing demand for products with short lifespans and conveniently packaged goods. Under this presumption, greater consumer awareness could shift the market away from a dependance on single-use plastics.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. 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, which increases the chances of plastics entering the ocean during transportation.
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. 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. 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). The costs are high, in part because this is a new area of technology and research. 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. The cost of managing plastic waste after recovery makes recovery itself less economically viable.
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. 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.
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. 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. 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. 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. 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, but can be difficult and costly to implement.
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. 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. Once exported, there is little oversight over how this plastic is subsequently managed. As one producer notes, truly addressing the plastic waste problem would require the burdensome development of an entirely new industry around plastic waste management.
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. 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. 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.
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. Additionally, Der Gruener Punkt (“Green Dot”) certified those companies that reduced plastic packaging and made the packaging easier to recycle. Some have expressed concerns about the high price tag of the system. Still, recycling rates increased for all materials, including plastics, and the program has generally been considered successful in meeting targets. Several other European countries have since followed suit, creating EPR schemes in connection with the EU Packaging and Packaging Waste Directive.
More recently, in 2018, India developed a nascent EPR scheme to support its single-use plastic bans. Implementation has been trickier, due to the large informal market for plastic recycling. Additionally, EPR in India struggles from the lack of guidelines and targets. However, India is committed to the EPR model and is developing a nationally unified working model and stricter EPR policies.
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. 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. WWF’s efforts are focused on developing EPR legal regimes in target countries around the world, primarily in Asia and South America. 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,” leveraging funding from the plastic industry to address post-consumer waste. 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. 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, 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. Several private corporations are investors in CCOF, including the first investor, PepsiCo. There is also a mix of public funding as the initiative is backed by USAID. Although still relatively new, CCOF is working with over $100 million and has announced two investments in Asian plastic recycling companies. 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. In this voluntary, individual EPR program, 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. Several companies have also formed a consortium to support innovation in chemical recycling. 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. Launched together with UN Environment in October 2018, one of the organization’s projects is the Global Commitment. It invites a diverse set of signatories from both the public and private sectors 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. Industry signatories include major leaders in the “fast moving consumer goods” industry, “plastic packaging producers” and “global retailers” and represent “20% of all plastic packaging produced globally.”
Compatibility of EPR and NPE
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. 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. For example, the Global Commitment to “take action to” address single-use and unnecessary packaging 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. 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.” 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.
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. 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, 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.
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. Companies that fail to submit a report are explicitly identified, creating some public accountability. NPE could also consider providing a certification system as a further compliance tool, not unlike Germany’s Green Dot program. 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. 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. 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. 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. Participation is particularly relevant now, as the NPE was set to review and modify the Global Commitment by October 2020. There is some degree of reason-giving in setting the Global Commitments, in the detailed Global Commitment Definitions. 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
Currently, only a few international instruments discuss ocean plastics, and they are generally of limited scope. However, there is growing interest in regulation both at the national and international scale. The European Commission recently adopted a comprehensive Circular Economy Action Plan as one component of the European Green Deal. The resolution committed to more specifically target policy at production and manufacturing to address packaging waste and plastics. 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. 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. In British Columbia, the Pharmaceutical Manufacturing Industry voluntarily formed a product stewardship program to set standards in managing the proper disposal of leftover pharmaceuticals. 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.” Government regulation followed just one year after in 1997, and other provinces in Canada have adopted similar legislation.
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, so many of the virgin and difficult-to-recycle plastics were never even part of its portfolio. Purpose-driven companies are increasing in popularity, both in and out of the environmental sphere.Good ethics boosts public trust, improving the longevity of the business. 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.
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. 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. These acquisitions are driven in part by an increased demand for recycled plastics. For example, DAK Americas cited “consumer interest in sustainable products” as a key factor for its acquisition of Perpetual Recycling Solutions. Similarly, Imerys Performance Additives, which produces mineral-additives for plastics among other materials, fully acquired the plastic recycler Regain Polymers, possibly due to increased demand for recycled plastics stemming from the EU Directive 94/62/EC. Even larger companies, such as Ikea, are purchasing a stake in plastic recycling. These new hybrid producer-recycler companies will benefit from an EPR requirement that helps to increase demand for recycling while decreasing the processing costs.
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 and the process too inefficient. 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. 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. Most resembling an EPR scheme, Coca-Cola pledged to recycle as many plastic bottles as it produces.
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, and the drop in oil prices pushes down the price of virgin plastics. 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. On the other hand, as the world seeks a pathway to recovery, it is an opportunity to build back better. 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. As the world recovers, a voluntary EPR may be one important mechanism to address our plastic waste problem.
See World Wildlife Fund, Plastics: Convenience Numbs Common Sense, Medium (Apr. 21, 2018), https://medium.com/wwftogetherpossible/plastics-convenience-numbs-common-sense-9dfc4a7b7991.
See Özgül Calicioglu, Drowning in Plastics: A Problem of Too Much Convenience?, World Bank: World Bank Blogs (Nov. 28, 2019) https://blogs.worldbank.org/eastasiapacific/drowning-plastics-problem-too-much-convenience.
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) http://www3.weforum.org/docs/WEF_The_New_Plastics_Economy.pdf (estimating in 2016 about 8M8 million tons each year, and expecting a doubling by 2030 if no action is taken).
 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), https://apps.npr.org/plastics-recycling/.
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).
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), https://www.theguardian.com/environment/2018/nov/13/the-plastic-backlash-whats-behind-our-sudden-rage-and-will-it-make-a-difference.
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, https://doi.org/10.1016/j.envpol.2020.113948.
See Brian Palmer, High Seas: Few Rules, Fewer Sheriffs, Nat’l Res. Def. Council (Jan. 16, 2019), https://www.nrdc.org/stories/high-seas-few-rules-fewer-sheriffs.
 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), https://www.forbes.com/sites/jeffkart/2018/08/28/the-ocean-cleanup-is-starting-aims-to-cut-garbage-patch-by-90-by-2040/#1cc3454b253e.
 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).
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).
See Sachs, supra note 13, at 81 (noting collection is typically performed by municipalities).
See Organisation for Economic Co-Operation and Development, The State of Play on Extended Producer Responsibility (EPR): Opportunities and Challenges, at 8–9 (2014), https://www.oecd.org/environment/waste/Global%20Forum%20Tokyo%20Issues%20Paper%2030-5-2014.pdf.
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.
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”).
See Sachs, supra note 13 (noting industry challenges that the consumer is the polluter and therefore is the one that should pay).
SeeOECD 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].
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).
See EPA, Guidelines for Preparing Economic Analysis, at 8-5, 8-9 (2010).
SeeThe Producer Pays, Knowledge@Wharton (April 4, 2017), https://knowledge.wharton.upenn.edu/article/the-producer-pays/. 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).
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.”).
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), https://www.downtoearth.org.in/news/waste/whose-waste-is-it–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.
See Zia Haq, New Guidelines to Put Recycling Onus on Plastic Manufacturers, HindustanTimes (Oct. 7, 2019), https://www.hindustantimes.com/india-news/new-guidelines-to-put-recycling-onus-on-plastic-manufacturers/story-kQ4n9pOTq6x605sAa24y5K.html.
See Newsfile Corp., Circulate Capital Closes US $106M Fund to Protect Asia’s Ocean from Plastic, Yahoo! Fin. (Dec. 4, 2019), https://finance.yahoo.com/news/circulate-capital-closes-us-106m-152600477.html.
 Several other major plastics companies joined soon after, including Coca-Cola, Danone, Dow, Procter & Gamble, Unilever, and Chevron Phillips Chemical. See id.
Specifically, recycling companies, raw materials producers, governments, NGOs, and investors.
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.
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.
 Currently, NPE signatories are based in 44 different countries, including the 20 different government entities. Seeid.
See discussion supra Section “Government Programs Utilizing EPR.”
 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).
See generally NPE Global Commitment 2019 Report, supra note 68; The Global Commitment: 2020 Progress Report, Ellen MacArthur Found. (Nov. 2019), https://www.ellenmacarthurfoundation.org/assets/downloads/Global-Commitment-2020-Progress-Report.pdf [hereinafter NPE Global Commitment 2020 Report].
See NPE Global Commitment 2020 Report, supra note 79, at 7 n. 2.
 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).
See, e.g., id. at 502 (discussing concerns of disregard).
See NPE Global Commitment 2020 Report, supra note 79, at 63–65.
 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.
See NPE Global Commitment, supra note 65, at 1.
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).
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, https://www.towardszerowaste.gov.sg/waste-streams/packaging-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).
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).
See Steven Sarno & Lauren Hopkins, The Rise of Mandatory Product Stewardship Programs, ABA (July 1, 2015), https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2014-2015/july-august-2015/the_rise_mandatory_product_stewardship_programs/.
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. SeeAbout HPSA, Health Prods. Stewardship Ass’n, http://healthsteward.ca/about/about-hpsa/ (last visited Nov. 7, 2020).
See NPE Global Commitment 2019 Report, supra note 68, at 300.
See generally Josh Bersin, The Rise of the Social Enterprise: A New Paradigm for Business, Forbes (Apr. 3, 2018), https://www.forbes.com/sites/joshbersin/2018/04/03/the-rise-of-the-social-enterprise-a-new-paradigm-for-business/?sh=3aa05d3671f0.
See Edelman, Edelman Trust Barometer 2020 Global Report, at 24 (2020).
See Kart, supra note 21 and accompanying text.
 For example, another method involves manually removing plastic, but it is slow and inefficient relative to the rate of input. CompareCleaning the Ocean, Rivers, and Coastlines, One Pound at a Time, https://4ocean.com/progress/ (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, https://advances.sciencemag.org/content/6/44/eabd0288 (estimating between 4.8–12.7 million MT of plastic entering the oceans each year).
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).
I. An algae bloom in the Gulf of Mexico is wreaking havoc on Florida’s economy and environment. An effective state and local response can help provide a solution.
Florida’s southwest coast, once a haven to wildlife and tourists alike, is experiencing one of the worst red tides in recent memory. Red tides, harmful algae blooms (“HABs”) which often have a red hue which affect both inland and coastal waterways, are common occurrences in Florida, but they have increased in both intensity and frequency in recent years. This blog post will discuss the problems that red tides pose to communities in Florida and the legal structures that could help provide a solution to this growing problem.
First, this blog post will discuss the background of red tides in Florida, including their historical occurrence, effect on local economies, and effect on wildlife and the environment. Second, the blog will review the natural and man-made factors that contribute to the development of red tides in Florida. Finally, I will discuss the potential legal responses to red tide. Although this blog post limits the discussion of red tides to Florida, it is important to note that red tides are not limited to Florida, and HABs occur around the world.
Red tides in Florida present a large-scale, fast-changing environmental problem. The red tide currently impacting the state is having a dramatic effect on both the state’s economy, plant life and wildlife. It is likely that, in the future, state and local governments across the country will have a larger role in finding solutions to environmental problems that are not contained to one community or state. By finding a solution to the problem of red tides in the legal system, it is possible that Floridians, and people watching in other states, can see how activism on the local level can bring about positive change that impacts individuals, businesses, and communities.
II. Red tides are a relatively common occurrence in Florida historically, and they have strong impacts on the state’s economy and environment.
Before discussing the presence of red tides in Florida, it is important to define what red tides are and how they affect the environments that they touch. “Red tide” is a term generally used “to describe many different kinds of harmful algal blooms” and can be a variety of colors, including “brown, blue, green, yellow, and more.”Algal blooms are “higher-than-normal concentrations of algae [which include] toxic or nuisance algal species that may pose a serious and recurrent threat to human health, wildlife, marine ecosystems, fisheries, coastal aesthetics, and economy.”
In Florida, red
tides typically involve one of the most harmful species of HABs, the karenia
brevis. Karenia brevis produces “neurotoxins that cause damage to
nerve cells or tissues [and] kill large numbers of fish, birds, and other
Shellfish that consume Karenia brevis become poisonous to human
consumers, and people can inhale toxins released into the air by seaspray,
which cause symptoms including “itchy and watery eyes, wheezing, shortness of
breath, coughing, and chest tightness.”
Red tides are a frequent occurrence in Florida and “appear off the state’s
coast almost every year.”
Red tides have been “documented…along Florida’s Gulf Coast since the 1840s.”
The ongoing red tide has been present for over 10 months, the longest duration
of a red tide since 2006.
Red tides in Florida have had strong social and cultural effects on local communities throughout the state. HABs, in general, can lead to “loss of recreational and commercial opportunities, disruption of…cultural practices, conflict among resource users, loss of community identity tied to using coastal resources, and social stress in affected families and communities.” In Florida, red tides can mean additional stress for communities that depend on the coast both for leisure and work, and individuals have fewer opportunities to meet with other people that share their interests, which builds community bonds. For example, recreational fishers lose the chance to fish together when beaches are closed.
Red tides also have deep impacts on the economies of localities across Florida. The presence of red tides can disrupt the ability of individuals to go to work and causes an increase in the use of medical resources, because “respiratory and gastrointestinal illnesses increase during red tides” and can cause up to a 54% increase in hospital admissions for coastal residents.Red tides have the unfortunate effect of depressing tourism, because beaches become “strewn…with the stinking carcasses of fish, eels, porpoises, turtles, manatees.”Nationwide, HABs cost “at least $82 million per year including lost income for fisheries, lost recreational opportunities, decreased business in tourism industries, public health costs of illness, and expenses for monitoring and management.”While it is difficult to estimate exactly how much of an impact red tides have on Florida’s economy every year, red tides have a significant impact on the livelihoods of individuals and communities across the state.
Finally, red tides can negatively impact the wildlife and environment across very large areas of the state. In the current red tide, “almost 300 sea turtles have been found dead since January ” in just four Florida counties south of Tampa, and a biologist at the Florida Fish and Wildlife Conservation Commission noted that “he believed that a majority of the turtle deaths were attributable to the red tide.”Additionally, the “number of manatee deaths…this year [as of August had] already exceeded the total for all of 2017” with 554 deaths in 2018 compared to 538 total in 2017.The pattern of rising death rates has been observed for other threatened species across the state, and while it is difficult to attribute the new deaths entirely to the presence of red tide, the two correlate.
III. Scientific research is split on the causes of red tides, but both natural and man-made factors can contribute to the development of red tides.
There are several natural factors that contribute to the growth of red tides. The FloridaDepartment of Health reports that red tides develop “when biology (the organisms), chemistry (natural or man-made nutrients for growth), and physics (concentrating and transport mechanisms) interact to produce the algal bloom.”Without all three factors present, a red tide will not develop. In addition, scientists have discovered that “oceanic and estuarine circulation and river flow greatly influence the…combined physical (e.g., currents, upwellings, etc.) – the chemical (e.g., salinity, nutrients, etc.) factors of the systems.”If the factors that contribute to red tide have the ability to travel and interact with each other, the change of a red tide developing rise much higher.
The organisms chemistry, and physics that can cause red tides existed before humans developed Florida, but man-made factors can also contribute to the development and growth of red tides. Humans contribute to red tides by increasing the amount of nutrients in the ecosystem, development, increasing the surface temperature of the Gulf of Mexico, and rolling back environmental protections. The “dumping of fertilizer and human waste” into Florida’s waters contributes to red tides, because the “excess nutrients” give the organisms even more energy to grow than what is naturally present in the ecosystem. Fertilizers, along with human and animal wastes, contain large amounts of nutrients that help the algae grow much faster than they otherwise would. As Florida continues to grow its population and its industrial base develops, the problem of excess man-made nutrients in the environment will likely only get worse. In the past few decades, Florida’s “landscape and the flow of water has been radically altered by agriculture, canals, ditches, dikes, levees, and the sprawling housing developments that have sprouted as the state’s population has boomed.”This development has contributed to the rise of red tides, because the wetlands that previously flowered runoff into aquifers or estuaries now “rushes rapidly, unfiltered, into rivers and bays and into the gulf, typically loaded with agricultural nutrients.”
While climate change’s effects on red tides and the rising of sea temperatures is still uncertain, it appears that “the incidences of red tides…have increased since the 1950s and1960s [and] climate change could be a factor [because] warmer waters…are congenial to growth.”As the effects of climate change become more pronounced in the decades to come, researchers will have more data to see if there is a connection between ride tides and rising water temperatures.
Politically, it appears that governments, at all levels, have been unable to respond effectively to the problem. Some political groups in Florida blame GovernorRick Scott “for weakening the state’s water quality requirements and monitoring Scott blames Sen. Bill Nelson…for not doing something before now to stop” red tides.At the very least, it looks like political actors in both parties have been unable or unwilling to cooperate across different levels of government or across the aisle to come up with a solution. The political gridlock does not appear to be coming to an end any time soon, but there are several potential solutions to the problem of red tide.
IV. There are several potential legal responses to red tide in Florida. State and local governments can and should take an active role in fighting the effects of red tide.
Lawmakers can take action to limit the growth of red tides by encouraging scientific breakthroughs, improving coordination among governments, researchers, and businesses, and tightening fertilizer ordinances. The responsibility for addressing the problems caused by red tides has fallen on the Florida’s state and local governments. The legal system could provide a solution to the red tide problem by supporting scientific solutions, encouraging coordination of mitigation activity across governments, and enacting stricter fertilizer ordinances. Finding scientific responses to red tides are complex because scientists are uncertain of “what effects [the methods] could have on the ecosystem,”and because the geographic extent of the red tides covers “hundreds to thousands of square kilometers of shelf waters and extending down to 50.” The state and local governments could support the effort that scientists are making by providing scientists researching the problem with additional funding, expertise, and data.
In general, coordination and information-sharing on red tides is improving among governments, private parties, and scientists, but there is still much work to be done. While “some of the [current] coordination is formal, most of it consists of informal regional partnerships with common interests.”Florida should formalize the coordination system among localities across the state. If each locality was able to look at the data available from other areas in the state and responses were coordinated across large regions, there would likely be an overall more effective response. Localities and the state as a whole only stand to gain from deeper coordination, but only the state legislature and governor can create the legal structures that are necessary. It was possible for Florida to respond to the threat of hurricanes by developing state-wide emergency response plans, and it should be no different for red tides and other environmental problems.
Finally, the legal system in Florida can respond to the threat of red tides by developing stricter fertilizer ordinances that would deprive the ecosystem of the man-made nutrients that contribute to the growth of red tides. While simply depriving waterways of man-made nutrients will not be enough to stop all red tides, researchers argue that it could help slow down the growth of red tide.However, current restrictions on fertilizers “differ as to type and extent” which limits their effectiveness and make it difficult for individuals and businesses to comply with the laws.By creating a uniform standard that applied throughout the state, lawmakers could “lower the costs of compliance” while ensuring that firms in the fertilizer industry are not “geographically disadvantaged.”While some argue that having a single, uniform standard would lead to an overall weaker set of ordinances, it is likely that having at least some standard statewide that all organizations comply with would have an impact on red tides.
V. Conclusion: The legal system can rise to meet the red tide threat.
Red tides are a problem that threatens the cultural life, economy, and environment of Florida. While red tides have impacted Florida’s coastlines since at least the mid-1800s, recent red tides have grown in strength, duration, and frequency, and as the climate changes, it is likely that red tides will change as well. Researchers have found that while both natural or man-made factors can create red tides, the legal system can respond to this growing problem. If the legal system supports the work of scientists, improves coordination amongst stakeholders, and creates stricter fertilizer ordinances, it is possible that communities throughout the state can respond in an effective way to red tides. Scientists and lawmakers certainly do not have all the answers to the problem of red tides, but by taking firm action today, Florida can become a more environmentally resilient state that leads the way as other states face their own environmental problems.
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Florida so far this year than in all of 2017. Here’s why, Tampa
Bay Times, Aug. 21, 2018, https://www.tampabay.com/news/environment/wildlife/Red-Tide-s-continuing-toll-The-554-dead-manatees-in-2018-already-surpasses-last-year-s-total-_171056483.
This week’s post, What the Supreme Court’s Stay of the Clean Power Plan Means for the EPA’s Greenhouse Gas Regulation Moving Forward, was written by Benjamin Harris of the UCLA Journal of Environmental Law & Policy.