Environmental Law Review Syndicate

The “War on E-Bikes” Rides On: Exploring the Hudson River Greenway E-Bike Ban

By William C. Rose, Managing Editor at N.Y.U. Environmental Law Journal

This post is part of the Environmental Law Review Syndicate


Introduction 

E-bikes[1] were legalized across New York State in April 2020 following a period of unintentional illegality that spawned punitive enforcement measures against the food delivery riders who rely on e-bikes in New York City. In the course of legalizing the bikes, however, the legislature created a special carve-out for the Hudson River Greenway (“the Greenway”)—a major bike path on the west side of Manhattan—banning e-bikes from what is likely the safest north-south route on the island. The ban raises serious equity issues, lacks any rationale beyond use preferences, and is poor public policy for a city attempting to move to a post-car future.

In its first Section, this Article provides an overview of the Greenway and its importance to cycling in New York City, a description of e-bikes and delivery riders, and summarizes the tumultuous history of e-bikes in the city. In Section II, this Article elaborates on the current e-bike ban on the Greenway, the threats posed by its enforcement, the lack of a public safety rationale for it, and the poor public policy it represents. Though enforcement has yet to begin in earnest, this Article concludes that the ban should have no place in the future of New York.

I. Background

A. The Hudson River Greenway in Manhattan

The Hudson River Greenway stretches along the west side of Manhattan, from Battery Park in the south to Fort Tryon park in the north, covering a distance of approximately thirteen miles and essentially the length of the island.[2] True to its name, the Greenway is on or very close to the Hudson River for the entirety of its run, and it enjoys a reputation as the busiest bike path in North America.[3] The path is mixed-use: designed for biking, in-line skating, running, and walking, though its busy southern stretch­—from roughly 59th Street to the Battery—sees pedestrians directed to fully-separated walking paths in adjacent Hudson River Park.

The Greenway’s management structure is complex. South of 59th Street, the path is owned by the state as part of Route 9-A, while to the north it is generally owned by New York City. The Greenway is maintained and regulated by New York City’s Department of Transportation or Department of Parks and Recreation, depending on location, with Hudson River Park (a state public benefit corporation) assisting with maintenance south of 59th Street.[4] The New York City Police Department is primarily responsible for law enforcement on the Greenway, though the city’s Parks Enforcement Patrol shares responsibility, particularly on sections north of 59th Street, where the Greenway is entirely within park lands.

To the cyclist, however, the Greenway is simple. It is an unbroken green line on the bike map[5]—a rarity in the city—providing safe, car-free north-south travel along the west side of Manhattan. It is the only such route in New York, with no other cycleway able to compare the Greenway’s length and safety. It is prized by recreational cyclists as a scenic ride, by commuters as a safe route, and by delivery riders as a crucial artery allowing fast and safe travel along the west side.[6] The Greenway is in many senses an ideal: a car-free route for a city designed around people, rather than a stretch of painted asphalt on the fringe of a vehicular thoroughfare.

Delivery riders describe the Greenway as “essential” for their work.[7] Workers’ advocates, similarly, describe the Greenway as a way “workers have been able to deliver food from one neighborhood to another one, travel safely and not go through high traffic or dangerous streets.”[8] With twenty-six cyclists having been killed on New York City streets in 2020,[9] and twenty-eight in 2019,[10] the Greenway is more than a mere convenience. It is a safe haven from the many threats cyclists in New York face—the car door that opens unexpectedly, the Uber driver swerving to drop off a fare, the box truck running a red—any one of which could bring a violent and painful death.

B. E-bikes and Delivery Riders

E-bikes have been hailed as a revolutionary development in low-carbon urban transportation, allowing riders to travel significant distances even if age, fitness level, or simple preference to avoid sweating would prevent them from doing so on a conventional bike.[11] New York State employs a tripartite classification scheme for e-bikes, ranging from Class One pedal-assist e-bikes, like those offered by Citi Bike (New York City’s bikeshare operator), to Class Three e-bikes with independent throttles and maximum speeds of twenty-five miles per hour.[12]

According to a 2012 estimate by the city Department of Transportation, there are over fifty thousand delivery cyclists in New York City,[13] and the ever-booming app-based takeout economy has likely led to a significant increase since that study.[14] The job is not an easy one, nor a prestigious one, as the former Village Voice’s Stephen Miller describes:

Delivering meals by bicycle is the type of work that constantly reminds the people who do it that they are squarely at the bottom of New York City’s food chain. Hustling for tips in heat, rain, snow and cold, looked down upon by doormen, despised by pedestrians, these workers, often undocumented immigrants from China or Latin America, are ubiquitous in New York’s streets yet all but voiceless in its power structure.[15]

Delivery riders now mostly work for app services that facilitate transactions between restaurants and consumers, chiefly Grubhub (also doing business as Seamless), which controls roughly 85 percent of the food delivery market in New York City.[16] These “gig economy” workers are treated as private contractors and paid per job, rather than given an hourly wage by the restaurant(s) for which they deliver.[17] Comprehensive data on delivery workers’ hours and wages is nonexistent, though Gothamist (a local news site and part of WNYC, New York’s public radio) reported one rider as having ridden, in ten hours on a single day, sixty miles over the course of thirty-four deliveries, earning “little more than $80” in the process.[18]

Figure 1: A row of Arrow e-bikes, impounded at an NYPD precinct. NYPD 72nd Precinct (@NYPD72ndPct), Twitter (Oct. 6, 2017), https://twitter.com/NYPD72Pct/status/916480629767917569?s=20.

 

Arrow e-bikes—a ubiquitous sight on New York City streets—are Class Three e-bikes under state law and are widely relied upon for the much-maligned job of food delivery.[19] Many delivery riders consider e-bikes like the Arrow essential to their job. For some, the bikes are a way to deliver food quickly, avoiding complaints and inviting tips while increasing the number of deliveries they can make—and get paid for—in a day.[20] For others, especially older workers for whom the bodily stress of long days on the road is a distinct struggle, the bikes are a lifeline that enables them to do their jobs.[21]

C. The History of E-bikes in New York City

 

Prior to April 2020, e-bikes were illegal in New York State due to a gap in the state’s laws. E-bikes were considered motor vehicles, but could not be registered with the Department of Motor Vehicles, and were thus treated as “unlicensed motorcycles.”[22] New York City formally—and redundantly—banned e-bikes in 2013 by act of the city council, responding to unfounded beliefs that the bikes posed a danger to pedestrians,[23] though enforcement was lax during the final days of the Bloomberg administration.[24] Council members representing wealthy neighborhoods—particularly the Upper East Side—drove continued efforts against e-bikes.[25]

Mayor de Blasio, beginning his first term in 2014, gradually escalated enforcement against e-bikers, with ticketing targeted at delivery riders. In 2017, responding to continued complaints from wealthy, white neighborhoods in Manhattan, Mayor de Blasio announced a large-scale crackdown on e-bike riders despite admitting that no accident, injury, or fatality data supported the proposition that e-bikes posed a danger to pedestrians.[26] Despite the mayor’s rhetoric fixing blame for the e-bike “problem” on restaurant owners, this “war on e-bikes” was targeted squarely at delivery riders and placed significant financial and legal burdens on a largely-immigrant population of workers.[27] In 2019, for example, the NYPD issued 1,052 summonses (each carrying a $500 fine) against e-bike riders and confiscated 1,575 e-bikes, while only seventy-one summonses were issued to businesses for the e-bike-related infractions of riders carrying their food.[28]

The city’s Department of Transportation legalized pedal-assist e-bikes via rule changes in 2018,[29] clearing the way for Citi Bike’s e-bikes, though doing nothing for delivery riders.[30] Advocates, led by State Senator Jessica Ramos of Queens, began pushing to legalize all e-bikes statewide during this time, passing a bill doing so in 2019 only for it to fall to Governor Andrew Cuomo’s veto.[31] Delivery riders would only receive relief from Mayor de Blasio’s crackdown after the COVID-19 pandemic had taken hold of the city, foregrounding the much-maligned riders as essential workers and prompting the mayor to suspend enforcement in March 2020.[32]

Finally, as part of the New York State Fiscal Year 2021 Budget Agreement, enacted in April 2020, e-bikes were legalized across the state.[33] These e-bike provisions were essentially identical to those of the 2019 bill,[34] and they created the tripartite classifications scheme discussed above.[35] In the same act, however, the legislature banned e-bikes from the Hudson River Greenway and reserved power to regulate e-bikes on the Greenway for itself, promising a continuation of Mayor de Blasio’s “war on e-bikes.”

II. A Problematic E-bike Ban on the Greenway

E-bikes are currently banned on the Hudson River Greenway, an anomalous and ill-publicized restriction on New York City’s bike paths, with significant penalties for violations despite the lack of any public safety rationale behind the ban. Even setting aside the racial and class inequities represented by the ban,  it represents poor public policy for a city attempting to decarbonize transportation and reduce reliance on cars.

A. The Ban

New York State law now allows e-bikes to use all public “highways,” broadly defined to include essentially all streets,[36] but prohibits them on “any greenway running adjacent to or connected with a highway,” specifically including the Hudson River Greenway.[37] This ban extends to all three classes of e-bikes, without distinction.[38] The law further allows state agencies and local governments to regulate e-bike use within their jurisdiction, but it exempts the Greenway from this delegation.[39] Shortly after the state legalized e-bikes, the city council legalized them across the five boroughs—categorizing e-bikes as bicycles, subject to the same rights and responsibilities as conventional bikes.[40] The end result of this legislative activity is that e-bikes are legal across New York State, on every public road, and are legal across New York City, free to be used wherever conventional bicycles are used, except on the city’s busiest bike path.

The Greenway e-bike ban is anomalous and almost entirely unpublicized. Nowhere else in the city are e-bikes banned from a path which conventional bikes may use. The city’s official bike map offers no warning of the ban, despite explaining other laws unique to e-bikes and confusingly asserting that e-bikes are permitted in “the bike lanes,” a term which in both common usage and in the parlance of the bike map includes the Greenway.[41] Neither the city’s “Official Cycling Guide” nor its compilation of cycling laws references e-bikes on the Greenway, though neither appears to have been updated since e-bikes were legalized.[42] Neither Citi Bike’s page advertising its e-bikes nor its page suggesting the Greenway as “one of the most popular places to ride” warns its customers that riding its e-bikes on the Greenway is a violation of state law,[43] though Citi Bike is aware of the illegality and advocated against the ban in 2019.[44] It is likely that the only way a cyclist could become aware of the ban, short of being stopped and ticketed, is through recently-erected signs along the Greenway indicating—in English only—“No Motor Vehicles/E-bikes/E-Scooters.”[45]

B. Threats of Enforcement

E-bikers face substantial fines and even imprisonment for riding on the Greenway. Though penalties for certain e-bike offenses, such as failure to yield to a pedestrian, were fixed at $50 fines in the legalizing statute,[46] riding on the Greenway is an infraction covered by the Vehicle and Traffic law’s general penalty provisions.[47] A first offense can carry a penalty of up to $150 and fifteen days in jail, with punishments escalating to a maximum of $450 and ninety days in jail for third and subsequent offenses within an eighteen month period.[48] Such penalties are significant for any cyclist, though for delivery riders they are potentially ruinous. Full-time riders have reported to the Times making roughly $100 on a good day of work, with others earning as little as $32 for six and a half hours’ work.[49] A fine for a first offense would more than wipe out a good day’s earnings, while the maximum of $450 could easily eliminate a full week’s wages.

These penalties have yet to be levied in any significant numbers, and no plan for enforcement has been publicly discussed, though there appears to be a slow progression towards active ticketing. Hudson River Park Trust’s Advisory Council began calling for enforcement only months after the law took effect, with members specifically calling for NYPD involvement.[50] The signage referenced above—reading “No Motor Vehicles/E-bikes/E-Scooters”—was installed in March 2021.[51]  City Hall, during both the de Blasio administration and the recently-inaugurated administration of Eric Adams, has remained silent on the issue.[52] Police enforcement of the ban began in a minor fashion in November 2021. For two days early in the month, and without any warning, an NYPD SUV parked blocking roughly half the Greenway at around 91st Street, and officers were seen stopping and ticketing delivery cyclists, but no other e-bikers.[53] Information on the number and character of the tickets issued is not available, and there have been no subsequent statements from NYPD or any other organ of government regarding the November campaign.[54]

The future for enforcement is unclear, but troubling. Mayor Adams has not taken a public stance on e-bikes or the Greenway, adding another element to the “mystery” of what his New York will look like.[55] The mayor is known to support cycling in general,[56] but the only policy his administration has announced (to date) touching on traffic safety relies on increased NYPD enforcement against cyclists.[57] This is especially concerning given the NYPD’s significant racial bias in cycling enforcement, annually issuing about 75% of bike-related infractions to Black and Latinx New Yorkers—who together comprise less than half the city’s population.[58] Moreover, the history of e-bike enforcement in New York suggests that any further enforcement of the Greenway ban will be squarely targeted at delivery riders.[59]

C. The Ban Lacks any Rationale Beyond Use Preferences

Neither the 2020 e-bike legalizing provisions of the budget agreement nor their near-identical 2019 forebears made any statement of purpose regarding the ban, though a public safety justification can be discerned from statements of the ban’s few public supporters.[60] There is no legitimate public safety rationale for banning e-bikes on the Hudson River Greenway, however, nor any discernible rationale beyond use preferences.

By Mayor de Blasio’s own admission in the midst of his “war on e-bikes,” there was no data to support the claim that e-bikes posed a danger to pedestrians,[61] a fact that remains true today. E-bike users do not collide with other road users in any significant numbers, with only thirty-one e-bike-related collisions reported to the NYPD in 2018, for example, out of a total of 45,775 collisions by all types of vehicles in the city.[62] Of those thirty-one collisions, only nine resulted in injuries to pedestrians, and none resulted in pedestrian fatalities.[63] Drivers, by contrast, were responsible for over 10,000 pedestrian injuries and 121 pedestrian fatalities in the same year.[64] In Hudson River Park specifically, officials testifying in favor of the ban in mid-2019 admitted that only two e-bike-related crashes had occurred along the Greenway that year,[65] a remarkably low figure given the Greenway’s heavy use. Even if there were a connection between e-bikes and injuries, the spacious Hudson River Greenway, with its clear separation of pedestrians and cyclists south of 59th Street, is one of the better-suited bike paths in Manhattan for fast moving traffic, especially compared to the East River Greenway, on which e-bikes are permitted and which, at points, forces cyclists and pedestrians into very narrow confines.

Figures 3 and 4: On left, the tightest point of the East River Greenway, through which pedestrians, conventional cyclists, and e-bikers, all must fit. On right, a typical stretch of the Hudson River Greenway adjacent to Hudson River Park; pedestrians make use of a dedicated path behind the greenery on the right side of the photo. E-bikes are permitted on the path pictured on the left, but banned from the path pictured on the right. Manhattan Waterfront Greenway, Wikipedia, https://en.wikipedia.org/wiki/Manhattan_Waterfront_Greenway (last edited May 4, 2021); John Wachunas, New Year’s Cycling: 17 Bike Rides You Need To Experience in 2017, Spinlister, https://www.spinlister.com/blog/new-years-cycling-17-bike-rides-need-experience-2017/ (last visited May 10, 2021).

Lacking a public safety rationale, one strains to think of a justification for the e-bike ban other than use preferences. The question of whether the Hudson River Greenway should be available to commercial cyclists is a legitimate one touching on larger questions of what the cityscape of a New York defined by multi-modal transportation should look like. Commercial vehicles are banned from parkways in New York without serious controversy, and so, setting aside the implicit race- and class-based objections of e-bike opponents in New York City, perhaps the e-bike ban on the Greenway is simply the first of its kind—an exclusively recreational bikeway. But, given the current state of cycling in New York City, the ban represents poor public policy.

D. The Ban is Poor Public Policy

The e-bike ban on the Hudson River Greenway is poor public policy. It forecloses on safe cycling for e-bikers on Manhattan’s west side and may stifle the growth of low-carbon personal transportation at a time when the city is actively seeking to de-carbonize and de-car its streets.

By banning e-bikes on the Greenway, the state legislature has essentially foreclosed on the possibility of a safe, off-street north-south cycling route on the west side of Manhattan. The principle alternative to the Greenway as it currently exists is to remove the westernmost lane of Route 9-A (the Westside Highway) and either use the space to dramatically widen the Greenway or as a separate thoroughfare for fast moving traffic, options long suggested by transit advocates.[66] North of 59th Street, where Route 9-A becomes an elevated expressway, similar proposals have been offered to convert part of Riverside Drive into a dedicated cycleway. The state Department of Transportation, however, has consistently rejected any lane reduction for the Westside Highway,[67] and its city counterpart has similarly declined to entertain calls for such changes to Riverside Drive. By banning e-bikes on the Greenway, the state legislature has thus removed the only safe, off-street route available or likely to become available in the near future.

Barring a coastal route, north-south bound cyclists on the west side of Manhattan can only be served by the city’s on-street “protected” bike lanes on Eighth and Ninth Avenues. These avenues suffer from overcrowding, with narrow and heavily trafficked sidewalks near Penn Station and the Port Authority Bus Terminal, in particular, forcing pedestrians into the bike lane, in turn forcing cyclists into vehicle lanes, effectively negating the safety promises of the bike lanes.[68] Even ignoring this issue, these on-street routes expose cyclists to turning traffic, dooring, and frequent use of the lanes for temporary parking by police and delivery vehicles. The promise of the Greenway is in its car-free nature; barring a significant reimagining of the west side’s avenues, they will never suffice as a replacement.

One might argue that e-bikes, more capable than conventional bikes at keeping up with car traffic, should simply use streets instead. But this argument ignores the facts that, first, all e-bikes are banned from the Greenway, not just Class Three bikes capable of reaching the city’s twenty-five mile per hour speed limit for cars, and second, even at equivalent speed to cars, e-bike riders are still placed at significant risk when mixing with traffic. Drivers may have “fender benders” in midtown traffic without serious consequence; cyclists—even e-bikers—risk death for similar collisions, lacking the protection of a steel cage that drivers enjoy.

By banning e-bikes, the state legislature threatens to stifle the growth of low carbon personal transportation at a time when the city—and indeed much of the world—is seeking to promote exactly such technologies.[69] The ban only affects one route in the city, but it is, again, a crucial and visible route. Once enforcement begins, why would a would-be e-bike owner purchase a form of transport that has been uniquely singled out? Where else, a prospective owner might wonder, might one be ticketed for riding? The ban adds a level of uncertainty to a behavior the state should be encouraging, and distinctly marks a technology poised to make personal transit more accessible as officially undesirable. Similar uncertainty is introduced for the would-be Citi Biker, the “undock and go” convenience of the rental bikes undermined by an arbitrary ban on some of the bikes from the city’s busiest bike path.

Conclusion

The legalization of e-bikes in New York State represents a long-overdue legitimation of vital tools relied upon by low-income, immigrant delivery riders and a recognition of what may be the future of personal transportation. The concurrent ban on e-bikes on the Hudson River Greenway, however, threatens both to continue a “war on e-bikes” that imposes significant financial and legal burdens on a vulnerable population of New Yorkers and to stifle the growth of low-carbon personal transport in a city striving to meet the environmental challenges of the twenty-first century. Considerations of equity and the environment both weigh strongly against the e-bike ban, and the ban should be repealed, lest the Greenway stand in the way of a greener New York.


[1] This paper will use the term “e-bikes” to refer to all bicycles featuring both an electric motor and conventional human propulsion. Legal distinctions between e-bikes will be discussed as relevant.

[2] See, e.g., City of New York, Manhattan Waterfront Greenway Map (2003), http://www.nyc.gov/html/edc/pdf/greenway_mapside.pdf.

[3] E.g., Gersh Kuntzman, Public Nervous Announcement: Busiest Bike Path in North America to the Severed for Weeks, Streetsblog NYC (Sept. 22, 2020), https://nyc.streetsblog.org/2020/09/22/public-service-announcement-busiest-bike-path-in-north-america-to-be-severed-for-months/ (describing the Greenway as “the continent’s busiest bike path”). 

[4] E.g., Dave Colon, Stop Ruining the Hudson River Greenway in the Name of Security, Streetsblog NYC (Nov. 3, 2017), https://nyc.streetsblog.org/2017/11/03/stop-ruining-the-west-side-greenway-in-the-name-of-safety/ (“The segment of the greenway below 59th Street is owned by the state, but operated and maintained by the Hudson River Park Trust.”); Dave Colon, ‘Progressive’ Manhattanites Push For Cop Crackdown On E-Bike Riders (Again), Streetsblog NYC (Sept. 16, 2020), https://nyc.streetsblog.org/2020/09/16/progressive-manhattanites-push-for-cop-crackdown-on-e-bike-riders-again/ (describing the “confusing mishmash of bureaucracies” responsible for the Greenway).

[5] See City of New York, NYC Bike Map 2021 (2021), https://www1.nyc.gov/html/dot/downloads/pdf/nyc-bike-map-2021.pdf.

[6] See Dave Colon, City Hall Remains Silent As Hudson River Greenway E-Bike Ban Continues, Streetsblog NYC (Mar. 15, 2021), https://nyc.streetsblog.org/2021/03/15/city-hall-remains-silent-as-hudson-river-greenway-e-bike-ban-continues/.

[7] Colon, supra note 6.

[8] Id.

[9] See Julianne Cuba, POST-MORTEM: Cyclist Victims Killed In 2020 Were Low-Income, Essential Workers, Streetsblog NYC (Jan. 22, 2021), https://nyc.streetsblog.org/2021/01/22/post-mortem-cyclist-victims-killed-in-2020-were-low-income-essential-workers/.

[10] See Emma G. Fitzsimmons, More Pedestrians and Cyclists are Dying in N.Y.C. Drivers are Often to Blame, N.Y. Times (Mar. 10, 2020), https://www.nytimes.com/2020/03/10/nyregion/nyc-deaths-pedestrian-cycling.html.

[11] See, e.g., Lloyd Alter, 3 Things Are Needed for the E-Bike Revolution, Treehugger (Sept. 29, 2019), https://www.treehugger.com/things-are-needed-e-bike-revolution-4855098 (describing needed infrastructure changes to enable the “e-bike revolution”).

[12] N.Y. Veh. & Traf. Law § 102-c (Consol. 2021).

[13] See Stephen Miller, NYC Delivery Cyclists Speak Out About The Toughest Job On Two Wheels, Village Voice (Mar. 23, 2017), https://www.villagevoice.com/2017/03/23/nyc-delivery-cyclists-speak-out-about-the-toughest-job-on-two-wheels/.

[14] See, e.g., Levi Sumagaysay, The pandemic has more than doubled food-delivery apps’ business. Now what?, Market Watch (Nov. 27, 2020), https://www.marketwatch.com/story/the-pandemic-has-more-than-doubled-americans-use-of-food-delivery-apps-but-that-doesnt-mean-the-companies-are-making-money-11606340169 (describing the pandemic-related boom in the app-based food delivery market).

[15] Miller, supra note 13.

[16] See Christopher Robbins & Jeffrey E. Singer, NYC’s War On E-Bikes Takes Toll On Immigrant Delivery Workers, Gothamist (Apr. 26, 2018), https://gothamist.com/news/nycs-war-on-e-bikes-takes-toll-on-immigrant-delivery-workers.

[17] See, e.g., Tanay Warekar, NYC Food Delivery Worker’s Death Amplifies Concerns For Gig Employees, Eater (Apr. 2, 2021), https://ny.eater.com/2021/4/2/22364128/manhattan-delivery-worker-death-third-party-app-doordash.

[18] Robbins & Singer, supra note 16.

[19] See Dave Colon, Justice Delivered: E-Bikes Legalized Statewide In Budget Bill, Streetsblog NYC (Apr. 1, 2020), https://nyc.streetsblog.org/2020/04/01/justice-delivered-e-bikes-legalized-statewide-in-budget-bill/.

[20] See Robbins & Singer, supra note 16 (“In dozens of interviews, delivery cyclists told Gothamist that e-bikes were essential to their jobs….”).

[21] Miller, supra note 13 (“Older delivery cyclists, in particular, rely on e-bikes because they reduce stress on the body and help them reach the far corners of a restaurant’s delivery zone, making them more appealing to hire.”).

[22] E.g., Brad Aaron, Why Are Electric Bikes Illegal, Anyway?, Streetsblog NYC (Apr. 10, 2013), https://nyc.streetsblog.org/2013/04/10/why-are-electric-bikes-illegal-anyway/.  

[23] See discussion infra Section II.C.

[24] See Scott Heins, Is The E-Bike Ban Even Being Enforced?, Gothamist (Dec. 6, 2013), https://gothamist.com/news/is-the-e-bike-ban-even-being-enforced.

[25] See Colon, supra note 19.

[26] See, e.g., David Meyer, De Blasio and NYPD Should Talk to Delivery Workers About E-Bikes, Streetsblog NYC (Oct. 20, 2017), https://nyc.streetsblog.org/2017/10/20/de-blasio-and-nypd-should-talk-to-delivery-workers-about-e-bikes/.

[27] See Robbins & Singer, supra note 16.

[28] Christopher Robbins, De Blasio’s E-Bike Crackdown Mainly Hurts Delivery Workers, Not Employers, Gothamist (Jan. 24, 2020), https://gothamist.com/news/de-blasios-e-bike-crackdown-mainly-hurts-delivery-workers-not-employers.

[29] See, e.g., Press Release, Office of the Mayor, Mayor de Blasio Announces New Framework to Clarify Legality of Pedal-Assist Bicycles (Apr. 3, 2018), https://www1.nyc.gov/office-of-the-mayor/news/165-18/mayor-de-blasio-new-framework-clarify-legality-pedal-assist-bicycles.

[30] See, e.g., Robbins & Singer, supra note 16.

[31] See Senate Bill S5294A, N.Y. State Senate, https://www.nysenate.gov/legislation/bills/2019/s5294/amendment/a (last visited May 10, 2021); Bernadette Hogan, David Meyer, and Aaron Feis, E-bike, e-scooter bill stuck in Albany Cuomo’s spat with sponsor, N.Y. Post (Dec. 8, 2019), https://nypost.com/2019/12/08/e-bike-e-scooter-bill-stuck-in-albany-cuomos-spat-with-sponsor/.

[32] See Jake Offenhartz, De Blasio Pauses Crackdown On E-Bikes, As Delivery Cyclists Become ‘Frontline Workers’ In Coronavirus Crisis, Gothamist (Mar. 16, 2020), https://gothamist.com/news/de-blasio-pauses-crackdown-e-bikes-covid-19.

[33] S. 7508/A. 9508, Part XX, 2019–20 Reg. Sess. (N.Y. 2020).

[34] The major additions to the 2020 version were a helmet requirement for minors riding Class One and Class Two e-bikes, and for anyone riding a Class Three e-bike, as well as a specific criminalization of riding e-bikes when intoxicated. See Dave Colon, supra note 19.

[35] See N.Y. Veh. & Traf. Law § 1242 (Consol. 2021).

[36] See id. § 118.

[37] Id. § 1242(4)(a). This provision also extends the ban to the Niagara River Greenway, and may affect portions of the Hudson River Valley Greenway north of New York City. Id.

[38] See id.

[39] Id. § 1242(4)(b).

[40] See N.Y.C. Local Law No. 73 of 2020, § 2.

[41] See City of New York, supra note 5.

[42] See City of New York, Bike Smart: The Official Guide to Cycling in NYC, http://www.nyc.gov/html/dot/downloads/pdf/dot_bikesmart_brochure.pdf; N.Y.C. Dep’t of Transp., SUMMARY LISTING OF BICYCLE LAWS, RULES & REGULATIONS, https://www1.nyc.gov/html/dot/downloads/pdf/bicyclerules-english.pdf.

[43] See Meet the Citi Bike ebike, Citi Bike, https://www.citibikenyc.com/how-it-works/electric (last visited May 10, 2021); Hudson River Greenway, Citi Bike, https://www.citibikenyc.com/rides/hudson-river-greenway (last visited May 10, 2021), https://www.citibikenyc.com/rides/hudson-river-greenway.

[44] Gersh Kuntzman, Hey, West Side Greenway, Citi Bike Called and It Wants Its Bike Lane Back!, Streetsblog NYC (June 18, 2019), https://nyc.streetsblog.org/2019/06/18/hey-west-side-greenway-citi-bike-called-and-it-wants-its-bike-lane-back/.

[45] See Colon, supra note 6 (describing the signs and their having been installed in March 2021).

[46] N.Y. Veh. & Traf. Law § 1242(12) (Consol. 2021).

[47] See id. § 1800.

[48] Id.

[49] Kimiko de Freytas-Tamura, Food Delivery Apps Are Booming. Their Workers Are Often Struggling, N.Y. Times (Nov. 30, 2020), https://www.nytimes.com/2020/11/30/nyregion/bike-delivery-workers-covid-pandemic.html.

[50] See Colon, supra note 4.

[51] See Colon, supra note 6 (describing the signs and their having been installed in March 2021).

[52] See id.

[53] See Mark Gorton (@MarkGortonNYC), Twitter (Nov. 5, 2021), https://twitter.com/MarkGortonNYC/status/1456721613521629187?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1456721613521629187%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fnyc.streetsblog.org%2F2021%2F11%2F12%2Fthe-parks-departments-e-bike-policy-is-not-consistent-with-state-law%2F (describing and providing photos of NYPD ticketing activity on the Greenway); Mark Gorton (@MarkGortonNYC), Twitter (Nov. 6, 2021), https://twitter.com/MarkGortonNYC/status/1457080465375039502?s=20&t=K6IZNnlhinNM-c1HILC9-g (“The cops are back again today. Blocking the bike path with their SUV. Pedestrians forced into conflicts with bikes.”).

[54] The NYPD’s 24th Precinct did, however, tweet about its officers “providing bicycle safety tips and enforcing bicycle rules” along the Greenway on November 5; the precinct’s photos fail to show any cyclists being stopped, and the tweet makes no mention of ticketing (nor of the officers’ choice to block the Greenway with their SUV). NYPD 24th Precinct (@NYPD24Pct), Twitter (Nov. 5, 2021), https://twitter.com/NYPD24Pct/status/1456749458436366336.

[55] Matt Flegenheimer, Michael Rothfeld, & Jeffery C. Mays, What Kind of Mayor Might Eric Adams Be? No One Seems to Know, N.Y. Times (Oct. 23, 2021), https://www.nytimes.com/2021/10/23/nyregion/eric-adams-mayor-nyc.html.

[56] See, e.g., Sam Raskin, Eric Adams bikes to work on second day in office, N.Y. Post (Jan. 2, 2022), https://nypost.com/2022/01/02/nyc-mayor-eric-adams-bikes-to-work-on-second-day-in-office/.

[57] See Tirhakah Love, The Mayor Is… Mayoring!?!?, Intelligencer (Jan. 19, 2022), https://nymag.com/intelligencer/2022/01/eric-adams-confronts-new-york-city-pedestrian-deaths.html (discussing Mayor Adams’s plan to “double down on enforcement” of certain cycling violations).

[58] See Julianne Cuba, NYPD’s Racial Bias in Ticketing Cyclists Continued Last Year, Streetsblog NYC (Jan. 4, 2022), https://nyc.streetsblog.org/2022/01/04/nypds-racial-bias-in-ticketing-cyclists-continued-last-year/.

[59] See discussion supra Section I.C.

[60] See, e.g., Gersh Kuntzman, Virtually No One Can Understand ‘Fairest City’ Mayor de Blasio’s Crackdown on E-Bikes, Streetsblog NYC (June 7, 2019) (quoting Connie Fishman, executive director of Hudson River Park Friends, as arguing that e-bikes on the Greenway would be dangerous for park visitors).

[61] E.g., David Meyer & Julia Marsh, De Blasio says ‘common sense,’ not data, justifies e-bike crackdown, N.Y. Post (Jan. 6, 2020), https://nypost.com/2020/01/06/de-blasio-says-common-sense-not-data-justifies-e-bike-crackdown/.

[62] Julianne Cuba, Damn Lies and Statistics: The Numbers Don’t Back Up de Blasio’s Reason for E-Bike Crackdown, Streetsblog NYC (Apr. 18, 2019), https://nyc.streetsblog.org/2019/04/18/damn-lies-and-statistics-the-numbers-dont-back-up-de-blasios-reason-for-e-bike-crackdown/.

[63] Id.

[64] See id.

[65] Kuntzman, supra note 60.

[66] See, e.g., Dave Colon, West Village To Cuomo: Take a Lane Away from Drivers on the West Side Highway, Streetsblog NYC (May 27, 2020), https://nyc.streetsblog.org/2020/05/27/village-board-to-cuomo-take-a-lane-away-from-drivers-on-the-west-side-highway/ (discussing recent incarnation of the West Side Highway proposal); Kuntzman, supra note 3 (discussing recent incarnation of the Riverside Drive proposal).

[67] See Dave Colon, State DOT Throws Cold Water on West Side Highway Bike Lane, Streetsblog NYC (Sept. 10, 2020), https://nyc.streetsblog.org/2020/09/10/state-dot-throws-cold-water-on-west-side-highway-bike-lane/.

[68] See, e.g., Cody Lyon, The Chaos on the Eighth Ave. Bike Lane, HuffPost (Jan. 19, 2016), https://www.huffpost.com/entry/the-chaos-on-the-eighth-a_b_9012382.

[69] E.g., Emma G. Fitzsimmons & Winnie Hu, Car Lanes to Become Bike Lanes on 2 Major New York City Bridges, N.Y. Times (Jan. 28, 2021), https://www.nytimes.com/2021/01/28/nyregion/bike-brooklyn-bridge-de-blasio.html (quoting Mayor de Blasio as seeking to “embrace the vision of a future without cars with a radical new plan” for the Brooklyn and Queensboro Bridges and generally describing city transportation official’s desire to “encourage cycling as the city recovers from the pandemic”).

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 future transparency” with a regulation that stakeholders such as Big Tobacco and coal-funded groups have lobbied for since the mid-1990s.[1] Under his directive, EPA published a notice for the proposed rule “Strengthening Transparency in Regulatory Science” in 2018. The agency broadened its scope and published a Supplemental Notice of Proposed Rulemaking (SNPRM) two years later on March 18, 2020.[2] Between the first proposed rule and the second, EPA received pushback in the form of nearly 995,000 comments and garnered attention from scientists who have vocalized the need to dissolve it completely. Yet on January 6, 2021, the “Secret Science” rule was finalized.[3] The lifespan of this midnight regulation was cut short when a United States district court struck it down, but its haphazard construction and questionable purpose provide a host of other grounds on which to argue for its rejection. Without proactive measures, a future administration may attempt something similar—endangering public health and the environment in the process.   

I. Pushback in Court

Arguments made in court opposing this rule have been successful. In Environmental Defense Fund v. EPA, members of the scientific community proved standing by specifying the upstream repercussions of EPA’s new selection process under this Rule—highlighting difficulties in grant proposals, redesign of studies, and adjustments to cohort recruitment.[4] They are not the only ones to call into question the validity of the final rule, as several states, cities, and organizations brought claims almost immediately after its publication.[5] These coalitions challenged the Secret Science rule on the basis of its status as a “procedural rule” and the unlawful application of the Federal Housekeeping Act.[6] In January 2021, the U.S. District Court for the District of Montana agreed that the rule was misclassified as “procedural” and that the agency did not provide good cause to be exempt from the thirty day notice requirement under § 553(d)(3) of the APA.[7] While this is good news, the crux of the issue must be addressed more permanently.

II. Sources Informing EPA’s Use of Science

A. Statutory Basis

Statutory text informs EPA’s obligations to monitor and mitigate environmental and public health threats. The Clean Air Act (CAA), for example, requires EPA to set National Ambient Air Quality Standards (NAAQS) and to review those standards every five years in light of emerging scientific data.[8] EPA carries out its responsibility under the CAA through the use of “periodic review of the latest peer-reviewed studies of each pollutant’s health and environmental effects, with assistance from the Clean Air Scientific Advisory Committee (CASAC).”[9] EPA has received directives from the executive branch as well.   

B. Executive Branch Directives

The Office of Management and Budget (OMB) has required all federal agencies to engage in a peer review process for “influential scientific information” since issuing its memorandum in 2004 (M-05-03), with the exception of urgent health and safety decisions.[10] Agency discretion is given in the formulation of a peer review mechanism; however, this broad leeway is narrowed for assessments considered highly influential.[11] Agencies may adopt or adapt the approach taken by National Academy of Sciences (NAS) when selecting a committee of peer reviewers not employed by the government.[12] OMB’s Final Information Bulletin for Peer Review further outlines general requirements for an agency’s peer review plan so as to provide the public with the transparency needed to gain confidence in the rigor of an agency’s reasoning.[13] Information such as the peer reviewers’ report(s), name(s), credentials, and conflicts of interest are included in these plans and are available for public comment regarding their adequacy.[14]

A 2009 memorandum from the Obama administration on scientific integrity also addresses public trust in the scientific bases for regulatory decision-making. Here, the President designated the Director of the Office of Science and Technology Policy (OSTP) as responsible for the scientific integrity of the executive branch. This includes coordinating with agency and department heads as well as OMB to ensure robust methodology, the selection and retention of highly qualified individuals, and the public availability of information unless otherwise non-disclosable.[15] Executive Order 13563 (EO 13563) expands on the expectations of public participation in the regulatory process and establishes a minimum comment period of sixty days for any proposed regulation.[16] Those who wish may comment on “relevant scientific and technical findings” provided “in an open format that can be easily searched and downloaded” on the internet.[17] Memorandum 13-13: Open Data Policy – Managing Information as an Asset (M-13-13), also a product of the Obama administration, reiterated this principle of transparency by creating a framework through which agencies will ensure that the data they use is available for processing and dissemination. The same year, OSTP directed EPA, among other agencies, to develop and submit a plan elucidating how to increase public access to peer-reviewed, scientific research funded by the agency.[18] The open access plan assures that public access does not infringe on proprietary interests, intellectual property, and personal privacy.[19] Proponents of the Secret Science rule seem less intent on preserving an individual’s confidentiality.

III. Transparency in Science as a Double-Edged Sword

A. A Crisis in the Scientific Community

The emphasis made on encouraging thorough, publicly-available data seemed to increasingly trend upwards; yet the scientific community has what many consider a “reproducibility crisis.”[20] Research practices have fallen prey to several biases, such as hindsight bias, confirmation bias, and they have struggled with high-dimensional dataset resulting in false-positive findings.[21] Clinical data sets are complex, and researchers may need to simplify, or reduce, the data such that the models they employ are not made inefficient by the extra “noise” of unnecessary variables.[22] Environmental health research, for example, must adapt “hundreds of terabytes of inputs” for air pollution predictions, and this “curse of dimensionality” may make it difficult for a researcher to reduce the data to the variables associated with both the exposure and outcome.[23] When used for regulatory policies, flawed data analysis would unavoidably lead to flawed and inefficient decision-making. Scientific publications have proposed collaborative, open science that would expose researchers to evaluations made by a more diverse and thus more meaningful and constructive review of methodology and analyses.[24] M-13-13 and its aforementioned contemporaries echoed this approach as a means of ameliorating the identified issues. However, some politicians have exploited this legitimate weakness in scientific publication to attack the scientific conclusions disadvantageous to their agenda without having to challenge the substance of those publications.[25] Their proposal to “construct explicit procedural hurdles” under the guise of “transparency”[26] would open the door for regulators to reject studies on the basis of their reliance on confidential health information.[27]      

B. The Origin of the Final Rule

Representative Lamar Smith (R-TX), the Science Committee chairman from 2012 to 2018, was one such politician. He attempted to exploit the concerns on the sufficiency of the peer review process and its capacity for identifying quality interpretations of data.[28] He issued a subpoena to EPA for the raw data used in a study considered foundational to CAA regulations.[29] The study in question, known as the Six Cities Study, is the product of Harvard researchers analyzing 8,000 participants for a timespan of 14 to 16 years.[30] After adjusting for cigarette smoking and other individual risk factors, the authors concluded that there was an association between particulate air pollution and daily mortality rates.[31] A 1995 American Cancer Society study comprised of data from 1.2 million people was also targeted by the Science Committee for access to its raw data.[32] By making this information publicly available, Rep. Smith argues that he would then have the capacity to democratize regulations by sharing raw data with the public and “independent scientists for review.”[33] Rep. Smith goes on to say that EPA does not “give the American people what they deserve—the truth about regulations.”[34] The authors of the Harvard study maintained that removing names and addresses from the data values does not eliminate the possibility of someone identifying a particular subject on the basis of their hometown or their date of death, for example.[35] Rep. Smith, however, continued his efforts by introducing a bill informally known as the “Secret Science Reform Act of 2015”[36] where he sought to restrict EPA from promulgating rules that are not transparent or reproducible. The 2015 bill did not reach the Senate.[37]

C. Proposed Rule of 2018

EPA’s 2018 proposed rule on transparency in regulatory science clearly echoes the language of Rep. Smith’s unsuccessful bill. Both documents mention making data publicly available such that an independent validation process may take place, and they reiterate the importance of “the best available science” as the framework for EPA’s decisions. However, where the bill is short and imprecise, the proposed rule elucidates with greater detail the desired “change[s to] agency culture and practices regarding data access.”[38] EPA categorizes the need for this proposed rule as double-pronged: increasing the transparency of the regulatory process and strengthening the scientific integrity of the agency’s regulatory decision-making. The background begins by claiming that the public itself would bear the burden of compliance costs and, as such, ensuring public availability of the data and models “pivotal to the regulatory action” is an appropriate measure to tackle the former prong.[39] The agency asserts that providing information such that “the public [may] understand, assess, and replicate findings” would better inform them and provide them with greater transparency.[40] Further, EPA erroneously quotes the “replication crisis” as a partial justification for taking this action.[41]

D. Supplemental Notice of Proposed Rulemaking of 2020

When the SNPRM was published, it addressed seven modifications to the original proposed rule. The most notable of these changes were the last three. The agency proposed using only pivotal regulatory or pivotal science if the data and models are publicly available for independent validation. Models or data that use confidential business information (CBI), proprietary data, or Personally Identifiable Information (PII) are considered “publicly available” only under the condition that they have tiered access “sufficient for independent validation.”[42] The agency, when “promulgating regulatory decisions or finalizing influential scientific information,” would grant greater weight to these studies.[43] EPA proposed this approach in order to “[increase] access to data and models [such that] stakeholders [may] reanalyze the data and models and explore the sensitivity of the conclusion to alternative assumptions while accessing only the data and aspects of the models that they need.” [44] In addition, the Administrator, who is politically appointed, would have the discretion to grant an exemption for this public availability requirement. The administrator may then exercise this discretion when, say, they find it “impracticable” to impose the public availability requirement on an industry’s study.[45] Lastly, EPA toyed with the idea of using the Federal Housekeeping Statute as its sole source of authority in promulgating the rule.[46]

E. Final Rule in 2021

EPA, despite heavy criticism, pushed forward in finalizing Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information. It acknowledged the dissenting comments but maintains that “transparency assumes no political ideology.”[47] In supporting this statement, EPA mischaracterizes the literature referenced discussing the importance of reproducibility and transparency in science for the sake of public trust and the quality of the scientific conclusions.[48] Scientists have responded to this strategy with continued disapproval as “the strength of . . . scientific evidence” is more appropriately ascertained from “data collection and analysis methods” as opposed to reproducibility.[49] The final rule instructs EPA to give “greater consideration to pivotal science whose underlying dose-response data are publicly available or available through restricted access.”[50] EPA removed the requirement that models be independently validated, acquiescing slightly to the concerned commenters and reducing the scope of the regulation back to the initial 2018 parameters.[51] The rule also finalized the use of the Federal Housekeeping Statute as its source of authority and was set to take effect immediately,[52] citing APA § 553(a)(2), (b)(A), and (d) to justify circumventing the 30-day notice requirement.[53] In doing so, the agency created its own weak spot when challenged in court.

The housekeeping statute reads as follows:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.[54]

Essentially, if EPA can establish the Secret Science rule as one of procedure and establish itself as an executive department, it can derive authority from the Federal Housekeeping Statute. Precedent suggests, however, that neither of those requirements are met.

IV. Federal Housekeeping Statute as a Source of Authority

In the 2018 proposal, EPA listed the provisions of eight separate statutes, such as the Clean Water Act, as the basis for providing general authority to take this action, an act akin to blindly throwing darts at a board and hoping at least one of them sticks. Past case law and direct statutory text from those same environmental statutes would seem to preclude EPA from utilizing this technique. In Global Van Lines, Inc. v. Interstate Commerce Commission, the Fifth Circuit held that “agencies may not rely on general statutory grants of rulemaking authority to promulgate regulations that are otherwise inconsistent with more specific statutory directives.”[55] 

A. EPA is Not an Executive Department for the Purposes of the Federal Housekeeping Statute

EPA is not considered an executive department or military department under the Federal Housekeeping Statute.[56] EPA anticipated this argument by citing a 1970 reorganization plan that created the agency and transferred various responsibilities from other agencies to EPA.[57] Functions of the Department of Agriculture and the Department of the Interior, both executive departments under 5 U.S.C 101, were absorbed by the new agency in Reorganization Plan No. 3.[58] Thus, EPA contends, it has “full section 301 or equivalent authority” and congressional intent supports this conclusion.[59] Notably, DHS was also the product of a transfer of authorities from other agencies like the Department of Agriculture and the Department of Energy and Congress, interestingly, formally established the Department of Homeland Security (DHS) as an executive department in 2002.[60] Congress likely would have made EPA an executive department by now if that were its intention.

B. The Secret Science Rule Does Not Qualify as a Procedure

Moreover, EPA’s shoehorning of this rule into the narrow interpretation of “procedure” does not follow precedent. EPA is adamant in characterizing the Secret Science rule as merely “modify[ing] the EPA’s internal procedures regarding the transparency of science underlying regulatory decisions” and, in doing so, attempts to insulate it from judicial review in subsequent agency actions.[61] Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council held that “absent extraordinary circumstances,” it is inappropriate for a reviewing court to “prescribe the procedural format an agency must follow.”[62] The Supreme Court also held in F.C.C. v. Schreiber that an agency’s “adoption of [a] procedural rule favoring public disclosure” may not necessarily be considered arbitrary or capricious.[63] These principles are generally sound in light of the specialization and control an agency would need over its own processes. EPA’s allegedly procedural rule, however, does not “provide guidelines or procedures for [implementation]” one would expect to see.[64] By insisting on its classification as such, the agency is carving an opening for the beneficiaries of lax regulations.

In reviewing the Secret Science rule, The U.S. District Court for the District of Montana found that the “critical factor” a court must use in distinguishing between a procedural and substantive rule is whether the rule allows the agency to freely exercise discretion on a case-by-case basis.[65] When a rule “narrowly limits” this discretion or “establishes a binding norm,” it is considered substantive.[66] Here, EPA, in attempting to convince the court of the rule’s nature, repeated the phrases “purely procedural” and “only applies internally” ad nauseam.[67] The court saw through this, however, and held that it does not distract from the “clear language of requirement” demonstrated by “shall” as opposed to “may.”[68] EPA did not have the authority it sought to vest under the Federal Housekeeping Statute and thus could not evade greater accountability for its actions.

V. The Rule Does Not Achieve the Purposes It Asserts

A. The Rule Does Not Serve the Public

The Secret Science rule acts as a Trojan horse for politicizing what should be an apolitical, open process.[69] The controversy surrounding the widely-used insecticide chlorpyrifos, for example, illustrates the vulnerabilities when selecting the “best available science.” Columbia University’s Center for Children’s Environmental Health (CCCEH) released a study in 2006 linking attention problems and developmental delays in children born to women exposed to the insecticide during their pregnancies.[70] Additional studies have also observed “structural abnormalities in children’s brains, diminished IQ scores and Parkinson’s disease in adults.”[71] EPA proposed a ban on chlorpyrifos under the Obama administration; however, in 2017, then-Administrator Scott Pruitt reversed the action.[72] The agency cites pushback from Columbia to release private information on the children and mothers of the study as a justification for reverting from their original stance.[73] It further stated that the quality of the university’s study “is hard to assess when raw analytical data have not been made available, and the study has not been reproduced.”[74] The agency admitted it “[did] not have a specific reason to believe that CCCEH have inappropriately handled the data or statistical analysis.”[75] Researchers at Columbia offered to explore the possibility of viewing the private datasets in a secured location; however, EPA was not interested.[76] Without being able to make sensitive information publicly available, EPA rejected moving forward with a chlorpyrifos ban. The Secret Science rule would effectively ban the use of these studies.[77] While the rule claims to “strengthen . . . [EPA’s] obligation to ensure the Agency is not arbitrary in its conclusions,”[78] it is unclear how, after the scant reasoning provided, the agency could confidently claim it upheld its obligations to protect public health. 

B. The Rule Does Not Demand Higher Quality Studies

If the final rule does not primarily serve the public, then would it at least satisfy the second prong of improving data analyses to counter the reproducibility crisis? According to the American Association for the Advancement of Science (AAAS) and other professionals, no.[79] Environmental epidemiological studies function differently than the clinical studies used in, for example, the Department of Health and Human Services.[80] Scientists monitor the participants because of where they are located and other identifying characteristics. Anonymizing this information—that is, detaching a name from the data—would not completely protect these individuals for the reasons offered by the Harvard scientists in the Six Cities Study.[81] More so, researchers warned that the rule would affect the consideration of past and future studies. Environmental epidemiology “often [looks] retrospectively at previous exposures based on residential location” and serves as a vital source in detecting a particular contaminant’s adverse effects.[82] In the future, individuals may not want to participate in such studies if their data will be non-anonymized, effectively restricting access to key information.[83] Scientific organizations have also wondered what may happen to “situationally unique research” where reproducibility is extraordinarily unethical and infeasible.[84] Observations made on the Deepwater Horizon oil spill, for instance, account for some of the Seattle Aquarium’s water quality and pollution research.[85] EPA, after publishing the SNPRM, addressed this particular concern rather vaguely in an email to the aquarium’s president and CEO, saying that they would not reject situational research on the basis of its non-replicability.[86] However, the agency spokesperson did not expand on how these studies would be incorporated. This emphasis on reanalysis of data could easily lend itself to becoming a means through which industry stakeholders assess data in a light favorable to their objectives.[87] This rule increasingly looks like a Trojan horse.

Limiting or “exclud[ing] inconvenient scientific evidence without acknowledging that it has been excluded” seems like a far cry from strengthening transparency and improving public confidence.[88] In fact, even former President Trump’s EPA Science Advisory Board (SAB) seemed shocked by the proposed rule when it was published in 2018.[89] The field, according to them, has already been moving towards greater transparency while maintaining the confidentiality required of public health studies.[90] SAB had also stated in their memo that the rule’s design received no input from scientists, and it did not seem to consider implementation costs.[91] According to the Congressional Budget Office, the 2018 proposed rule was estimated to cost $250 million initially and then around $1 million to $100 million per year.[92] This led to uncertainty regarding how EPA may conduct its benefit-cost analyses (BCA) and threatened to cut the number of studies relied on by EPA in half.[93] One can imagine that between the costs of having to redact data, make it publicly available, and the time it would take to do so, relevant or innovative studies would be tossed out early on in the data evaluation stage. This method would fail to “examine evidence in its totality” such that, in EPA’s determination of cost-effective regulatory policy, the “best available science” is conflated to mean whichever study is most convenient according to non-scientific parameters. When confronted with high quality studies, EPA will give greater attention to the study with publicly available data—that therefore can be independently verified—than those that include PII, CBI, or other non-anonymized confidential information that cannot be shared with the agency.[94] Scientists may then resort to “becoming politically entrenched dogmatic advocates” as they struggle with the upstream repercussions of the rule highlighted by members of the community in Environmental Defense Fund v. EPA.[95]

Conclusion

The New Administration and Beyond

The selection of quality scientific studies for informing regulations has been plaguing EPA for decades now. This narrowing and broadening and reinterpretation of “best available science” does a disservice to the purpose of the agency, scientific integrity, and, ultimately, the American people. Those who would benefit most from “Strengthening Transparency in Regulatory Science” would be those who want to be regulated the least. For all its emphasis on achieving transparency, the final rule is quite duplicitous in claiming a benevolent goal—wanting to improve the general public’s ability to comment on regulations and address issues in the scientific community—while on the other hand constraining the use of updated, relevant scientific data. It does not employ any of the open science or collaboration suggestions generously provided by many scientific journals, nor does it explicitly provide solutions to ameliorate the privacy concerns echoed in thousands of comments. It is fascinatingly hypocritical and ironically ambiguous.

On January 20, 2021, President Biden released an executive order reaffirming the administration’s position on science-based regulations and the prioritization of environmental and public health.[96] The new rule will undergo review in order to consider “suspending, revising, or rescinding the agency action” as soon as possible.[97] But this puts the verification of quality scientific studies in regulatory policies back where it started––as a pawn subject to political whims. Biden’s team could provide a solution through constructing its own regulation so as to “[overwrite] the Trump rule” and “formally wipe [it] out… for future administrations.”[98] The Congressional Review Act (CRA) could also serve as a more longstanding alternative.[99] A successful resolution under the CRA could eliminate the opportunity for any future president to limit EPA’s use of science in its regulations.[100]


[1] Augusta Wilson, Big Tobacco’s Smoke and Mirrors Revived by Pruitt’s Science Transparency Policy, The Hill (June 4, 2018, 5:00 PM), https://thehill.com/opinion/energy-environment/390638-big-tobaccos-smoke-and-mirrors-revived-by-pruitts-science?rl=1.

[2] Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 18,768 (Apr. 30, 2018).

[3] Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (Jan. 6, 2021).

[4] Envtl. Defense Fund v. EPA, No. 4:21-cv-00003, 2021 WL 270246 at *7 (D. Mont. Jan. 27, 2021).

[5] Stephen Lee, EPA’s ‘Secret Science’ Rule Taken to Court by States, Cities, Bloomberg Law (Jan. 19, 2021, 3:38 PM), https://news.bloomberglaw.com/environment-and-energy/epas-secret-science-rule-taken-to-court-by-states-cities.

[6] Id.

[7] Id.

[8] Shouse et al., Cong. Rsch. Serv., RL30853, Clean Air Act: A Summary of the Act and Its Major Requirements (2020).

[9] The Clean Air Act: Solving Air Pollution Problems with Science and Technology, Env’t Prot. Agency https://www.epa.gov/clean-air-act-overview/clean-air-act-solving-air-pollution-problems-science-and-technology (last visited Apr. 12, 2021).

[10]  Off. Mgmt. & Budget, Memorandum on Issuance of OMB’s “Final Information Quality Bulletin for Peer Review” M-05-03, (Dec. 16, 2004).

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 26.

[15] Exec. Off. of the President, Office of the Press Sec’y, Memorandum on Scientific Integrity (Mar. 9, 2009).

[16] Exec. Order No. 13,563, 76 Fed. Reg. 3,821 at 3,822 (Jan. 21, 2011).

[17] Id.

[18] Exec. Off. of the President, Office of Sci. & Tech. Policy, Memorandum on Increasing Access to the Results of Federally Funded Scientific Research (Feb. 22, 2013). 

[19] Id.

[20] Marcus R. Munafò et al., A Manifesto for Reproducible Science, Nature Human Behavior, Jan. 10 2017 at 1, https://www.nature.com/articles/s41562-016-0021

[21] Id. (Hindsight bias refers to one’s tendency “to see an event as having been predictable only after it has occurred” while confirmation bias references the tendency to direct one’s attention only to the evidence that supports one’s “expectations or favored explanation.”).

[22] Min Zhu, et al., Dimensionality Reduction in Complex Medical Data: Improved Self-Adaptive Niche Genetic Algorithm, Computational and Mathematical Methods in Medicine, Nov. 16, 2015 at 1, https://doi.org/10.1155/2015/794586.   

[23] Christine Choirat, et al., Data Science in Environmental Health Research, 6 Current Epidemiology Reports 291 (2019), https://doi.org/10.1007/s40471-019-00205-5.

[24] Wilson, supra note 1.

[25] Email from Christopher C. Horner, Counsel, Bracewell & Patterson LLP to Timothy N. Hyde, Senior Dir. of Pub. Issues, R.J. Reynolds Tobacco Co. and Randy Tompson, Dir. of Pub. Issues, R.J. Reynolds Tobacco Co. (Dec. 23, 1996, 1:56:01 PM) (proposing a strategy to counteract EPA’s re-examination of environmental tobacco smoke), https://www.industrydocuments.ucsf.edu/tobacco/docs/#id=jfww0019.

[26] Id.

[27] Wilson, supra note 1.

[28] Geoffrey Kabat, What Is Really at Stake in the House Committee on Science, Space, and Technology Subpoena of EPA Data, Forbes (Sep. 23, 2013, 8:00 AM), https://www.forbes.com/sites/geoffreykabat/2013/09/23/what-is-really-at-stake-in-the-republican-partys-subpoena-of-epa-data/?sh=16cd9c861ebc.

[29] Kelly Servick, House Panel Subpoenas EPA for Air Pollution Data, Sci. (Aug. 2, 2013, 6:15 PM), https://www.sciencemag.org/news/2013/08/house-panel-subpoenas-epa-air-pollution-data

[30] Id.

[31] Douglas W. Dockery et al., An Association Between Air Pollution and Mortality in Six U.S. Cities, 329 New Eng. J. Med 1753 (1993).

[32] Christopher Rowland, House GOP Demands Harvard Study Data, Boston Globe (Sept. 6, 2013, 8:57 PM), https://www.bostonglobe.com/news/nation/2013/09/06/landmark-harvard-study-health-effects-air-pollution-target-house-gop-subpoena/2K0jhfbJsZcfXqcQHc4jzL/story.html.

[33] Servick, supra note 29.

[34] Press Release, Comm. on Sci., Space, & Tech., Smith Subpoenas EPA’s Secret Science (Aug. 1, 2013), https://republicans-science.house.gov/news/press-releases/smith-subpoenas-epa-s-secret-science.

[35] Rowland, supra note 32. 

[36] H.R. 1030, 114th Cong. (2015).

[37] Id.

[38] Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 18,768 at 18,770.

[39] Id. at 18,772.

[40] Id. at 18,774.

[41] Id. at 18,770.

[42] Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 15,396 at 15,399.

[43] Id.

[44] Id.

[45] Id. at 15,403.

[46] Id. at 15,397. The significance of this will be discussed in the following sections.

[47] Strengthening Transparency in Pivotal Science, 86 Fed. Reg. 469, at 475.

[48] Id.; Memorandum from The Office of the Press on Scientific Integrity, supra note 15.

[49] Juliet Eilperin & Brady Dennis, EPA Finalizes Rule to Limit Science Behind Public Health Safeguards, Wash. Post (Jan. 5, 2021, 10:51 am), https://www.washingtonpost.com/climate-environment/2021/01/04/epa-scientific-transparency/.

[50] Strengthening Transparency in Pivotal Science, 86 Fed. Reg. 469, at 483.

[51] Models are of great importance in environmental health studies. See Marie-Abèle Bind, Causal Modeling in Environmental Health, 40 Annual Rev. of Pub. Health 23 (Jan. 11, 2019), https://doi.org/10.1146/annurev-publhealth-040218-044048.

[52] Strengthening Transparency in Pivotal Science, 86 Fed. Reg. 469.

[53] Id. at 472.

[54] 5 U.S.C. § 301 (2011).

[55] N.Y. Attorneys General et al., Comment Letter on Proposed Rule Strengthening Transparency in Regulatory Science, Supplemental Rule (Aug. 16, 2020) (citing Global Van Lines, Inc. v. Interstate Commerce Comm’n, 714 F.2d 1290, 1293-97 (5th Cir. 1983)), https://www.law.nyu.edu/sites/default/files/multistate_comments.pdf.

[56] 5 U.S.C. § 101 (2011) (listing all agencies considered as Executive or military departments).

[57] 83 Fed. Reg. 15,396 at 15,397.

[58] Id.

[59] Id at 15,398.

[60] James Goodwin, The EPA’s ‘Censored Science’ Rule Isn’t Just Bad Policy, It’s Also Illegal, Union of Concerned Scientists (Nov. 22, 2019), https://blog.ucsusa.org/guest-commentary/the-epas-censored-science-rule-isnt-just-bad-policy-its-also-illegal.

[61] 83 Fed. Reg. 15,396 at 15,397.

[62] 435 U.S. 519, 541 (1978).

[63] 381 U.S. 279, 294 (1965).

[64] Env’t. Defense Fund v. EPA, No. 4:21-cv-00003, 2021 WL 270246 (D. Mont. Jan. 27, 2021).

[65] Id. at *20.

[66] Id.

[67] Strengthening Transparency in Pivotal Science, 86 Fed. Reg. 469, at 472.

[68] John. P.A. Ioannidis, All Science Should Inform Policy and Regulation, Pub. Library of Sci. (May 13, 2018), https://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1002576.

[69] Union of Concerned Scientists, Comment Letter on Proposed Rule Strengthening Transparency in Regulatory Science, Supplemental Rule (May 15, 2020), https://ucs-documents.s3.amazonaws.com/science-and-democracy/ucs-csd-strengthening-transparency-in-regulatory-science-suppl-comment.pdf.

[70] Corin Hiar, In Battle over Pesticide Ban, Trump’s EPA Aims to Undermine the Science, Sci. (Aug. 23, 2018, 2:15P PM), https://www.sciencemag.org/news/2018/08/battle-over-pesticide-ban-trump-s-epa-aims-undermine-science.

[71] Id.

[72] Id.

[73] Id.

[74] Chlorpyrifos: EPA’s Request for Columbia’s Raw Data, EPA, (last accessed Dec. 9, 2020) (emphasis added), https://www.epa.gov/ingredients-used-pesticide-products/chlorpyrifos-epas-request-columbias-raw-data.

[75] Geena Reed, We Told OMB Why EPA’s So-Called Transparency Rule Is a Trap, Union of Concerned Scientists (Oct. 2, 2020), https://blog.ucsusa.org/genna-reed/we-told-omb-why-epas-so-called-transparency-rule-is-a-trap.

[76] Lisa Friedman, E.P.A Rejects Its Own Findings That a Pesticide Harms Children’s Brains, N.Y. Times (Sept. 23, 2020), https://www.nytimes.com/2020/09/23/climate/epa-pesticide-chlorpyrifos-children.html.

[77] Sharon Lerner, Republicans Are Using Big Tobacco’s Secret Science Playbook to Gut Health Rules, The Intercept (Feb. 5, 2017, 9:03 AM), https://theintercept.com/2017/02/05/republicans-want-to-make-the-epa-great-again-by-gutting-health-regulations/.

[78] 83 Fed. Reg. 18,768 at 18,769.

[79] Marianne Lavelle, EPA’s ‘Secret Science’ Rule Meets with an Outpouring of Protest on Last Day for Public Comment, Inside Climate News (May 19, 2020), https://insideclimatenews.org/news/19052020/secret-science-epa-transparency-rule-wheeler-pollution-environment/.

[80] Douglas W. Dockery & C. Arden Pope, The Threat to Air Pollution Health Studies Behind the Environmental Protection Agency’s Cloak of Science Transparency, 110 Am. J. Pub. Health 286 (Mar. 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7002955/.

[81] Id.

[82] Id.

[83] Id.

[84] Lavelle, supra note 82.

[85] Id.

[86] Id.

[87] Reed, supra note 78.

[88] Scott Waldman, Scientists Favor Transparency, but Say EPA Plan Will Limit It, Sci. Am. (Apr. 25, 2018), https://www.scientificamerican.com/article/scientists-favor-transparency-but-say-epa-plan-will-limit-it/.

[89] Scott Waldman, EPA’s Own Advisory Board Questions ‘Secret Science’ Plan, Sci. Am. (May 16, 2018), https://www.scientificamerican.com/article/epas-own-advisory-board-questions-secret-science-plan/.

[90] Id.

[91] Id.

[92] Juliet Eilperin & Brady Dennis, Pruitt Unveils Controversial ‘Transparency’ Rule Limiting What Research EPA Can Use, Wash. Post (Apr. 24, 2018), https://www.washingtonpost.com/news/energy-environment/wp/2018/04/24/pruitt-to-unveil-controversial-transparency-rule-limiting-what-research-epa-can-use/

[93] Id.

[94] 83 Fed. Reg. 15,396 at 15,399.

[95] Ioannidis, supra note 71; Lee, supra note 5.

[96] Exec. Order No. 13,990, 86 Fed. Reg. 7,037 (Jan. 25, 2021).

[97] Id.

[98] Stephen Lee & Jennifer Hijazi, Biden Team in a Bind over Reversing EPA’s ‘Secret Science’ Rule, Bloomberg Law (Jan. 6, 2021, 2:57 PM), https://news.bloomberglaw.com/environment-and-energy/biden-team-in-a-bind-over-reversing-epas-secret-science-rule.

[99] Id.

[100] Id.

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 have been constructed up to this point: the Block Island wind farm off Rhode Island, and the Coastal Virginia Offshore Wind pilot project off Virginia.[1] Together, these projects consist of seven turbines with a combined maximum capacity of only forty-two megawatts (“MW”) of electricity.[2] But all signs point to an explosion in the construction of offshore wind projects in the next few decades, with multiple states setting targets of gigawatts (“GW”) of offshore wind power, and projections showing that more than eighteen GW of offshore wind capacity could be built just in the next decade.[3]

The potential for offshore wind power in the United States is enormous. In 2016, the Department of Energy and Department of the Interior published a report entitled “National Offshore Wind Strategy.”[4] Updating a 2011 report on the same topic, the 2016 report was intended to highlight the potential of offshore wind development, and the largest hurdles that must be overcome to achieve that potential.[5] The report concluded that using only technology available at the time of publication, the total potential offshore wind power capacity in U.S. waters was roughly double the total electricity consumption of the country in 2015.[6] And, under a realistic development scenario, 86 GW of offshore wind turbines could be installed by 2050, producing 14% of projected electricity demand in the United States.[7] The value of offshore wind, and floating turbines in particular, is that the technology provides the carbon-free electricity that fossil fuel–fired electricity sources cannot, while providing more consistent electricity than other renewable sources such as utility-scale solar and land-based wind power.[8]

Significant offshore wind development, however, is not inevitable. Further technology and infrastructure development is essential, as the ability to efficiently produce and transport electricity from turbines to consumers will determine how far developers will stray beyond the optimal sites to install turbines. Competing interests—including fishermen who work in or transit the areas where wind farms are planned, environmental groups focused on protecting vulnerable species, and landowners seeking to avoid visual impacts—can use various methods to delay or block wind projects. Regulatory requirements at the federal, state, and local levels can increase costs, limit alternatives, and hamper any wind power development. This Article focuses on one area of offshore wind development that is still in the early stages of development globally but carries significant environmental and economic upsides: floating offshore wind. I begin by looking at the advantages of floating turbines over their fixed-bottom counterparts and the status of floating turbine installations today. I then discuss two areas in which federal policymakers should focus their attention to encourage the development and deployment of floating turbines. First, I recommend a significant increase in research, development, demonstration, and commercialization (“RDD&C”) funding, particularly for full-scale demonstration projects, an area where the United States lags far behind European nations. Second, I recommend the development of a federally managed floating turbine testbed that would facilitate the testing of floating turbines by private turbine developers. The combined goal of these proposals is to make the United States a global hub of floating turbine development, thereby lowering barriers to entry for competitors and sparking the development of supply chains that are prerequisites for commercial-scale deployment of floating turbines both in the United States and abroad.

I. Why Floating Turbines

Most offshore wind farms use fixed-bottom turbines, where the turbine is built on a foundation attached to the seabed.[9] Fixed-bottom turbines are challenging to build in water deeper than fifty meters, and the advanced designs and materials needed at these depths make most turbines prohibitively expensive outside of shallower waters.[10] Floating turbines, where the turbine sits atop a floating base anchored to the seabed by long cables, could make turbines economical in water deep as one thousand meters or more.[11] Accessing these deepwater areas is crucial because they contain approximately 58% of the offshore wind energy in U.S. waters that could be captured by turbines, and closer to 95% along the Pacific Coast.[12] Floating turbines, therefore, are a necessity for fully exploiting offshore wind power’s potential in areas like the Northeast and for having any commercial-scale offshore wind off California and Hawaii.

On top of increasing the total energy potential of offshore wind, floating turbines offer multiple potential benefits over fixed-bottom turbines. Because the winds further from land are often stronger and more consistent, floating turbines can provide more reliable energy production.[13] Floating turbines can also have lower construction costs, as some floating turbines can be fully built in port and towed to their final location, rather built on-site with specialized ships.[14] Floating turbines could have smaller environmental impacts at the installation site, since the cables used to hold the turbine in place spare nearby fish and marine mammals any harm from the pile driving that fixed-bottom turbines require.[15] Finally, there may be fewer conflicts with fishermen, who are less likely to fish in these deeper waters, as well as property owners on the coast, who are less likely to see the turbines from shore.[16] All of these potential benefits are contingent on policymakers and developers recognizing that floating turbines are a viable technology that deserves investment and regulatory focus.

The main goal of policymakers concerning floating turbines should be to quickly drive down their cost. A rapid decrease in the cost of fixed-bottom turbines has helped offshore wind development explode in Europe in the past few years. Estimates from the U.K. government of the expected levelized cost of electricity (“LCOE”)[17] for offshore wind in the country in 2025 have dropped from £140/MWh in 2013, to £107/MWh in 2016, to £57/MWh in 2020.[18] This major cost reduction allowed the U.K. to set the ambitious goal of 40 GW of offshore wind by 2030, a 300% increase over current levels and enough to power every home in the U.K.[19] Because it remains a nascent technology, however, the cost reductions seen for fixed-bottom turbines have not yet materialized for floating turbines. Of the 29.1 GW of offshore wind that have been installed globally through 2019, floating turbines contributed only 65.7 MW, or 0.2% of all offshore wind capacity.[20]

This lack of floating turbine development is beginning to change as private developers—with significant support from national governments and the EU—are continuing to scale up their floating turbine demonstration projects throughout Europe. One developer, Equinor, went from a single floating turbine deployed for testing in 2009, to a five-turbine pilot project in 2017, to beginning construction on an eleven-turbine project in the fall of 2020.[21] Another example is the WindFloat Atlantic project off the coast of Portugal, which began operating in 2020 and is made up of three floating turbines with a combined capacity of 25 MW.[22] These projects alone outmatch the entire U.S. offshore wind industry, fixed-bottom and floating, which today counts only seven turbines.[23] Nonetheless, the projects remain expensive, with WindFloat Atlantic having an estimated LCOE of €200/MWh.[24] The National Renewable Energy Lab (“NREL”) estimated in 2020 that the LCOE of the average commercial-scale floating offshore wind project was between $110 and $175/MWh, well above other energy sources such as onshore wind, utility-scale solar, and natural gas.[25]

Cost reductions could come quickly, however, if the right steps are taken. NREL estimates that the LCOE of commercial-scale floating offshore wind projects could fall to around $60/MWh by 2032,[26] and floating turbine projects could become cheaper than fixed-bottom projects before 2030.[27] The following two sections outline steps the U.S. government should take to make these cost reductions a reality.

II. Investing in Floating Turbine Development

Because floating turbine technology is still young, federal investment in RDD&C can yield high returns on investment. Congress, through the Department of Energy (“DOE”), should fund programs that invest in offshore wind technology development more, particularly demonstration and commercialization projects, to reflect offshore wind’s significant potential and to match European investments.

A. Jumpstarting Research and Development

Research and development funding for offshore wind technology in the United States typically comes from the DOE and the Advanced Research Projects Agency-Energy (“ARPA-E”). ARPA-E is a subagency of the DOE that funds research and development of energy projects deemed too experimental for private-sector investment.[28] ARPA-E funds in two ways: open funding, where researchers can submit proposals based on any energy technology; and specific programs, where the agency focuses funding around a specific energy source.[29] In 2019, ARPA-E funded twelve projects specifically focused on floating wind turbines with a total of around $28 million through its ATLANTIS program.[30] This grant funding, however, was a one-time award, and ARPA-E generally does not provide regular, annual funding for specific projects or research areas.[31] The agency’s open funding opportunities typically happen every three years, with the last one occurring in 2018.[32] Of the seventy-nine projects funded by the OPEN 2018 funding, only five were related to wind turbines and none focused on offshore wind.[33]

The solution is not for Congress to shift all of ARPA-E’s funding to offshore wind research, but to increase appropriations for this underfunded agency. The original proposal to create ARPA-E in 2005 suggested the agency should have a $1 billion annual budget,[34] but in reality the agency has never had more than $427 million in a single year.[35] The DOE spends nearly twice as much on research and development for fossil energy and thirty times as much on maintaining the U.S. nuclear weapons stockpile.[36] The Energy Act of 2020 authorized ARPA-E’s funding to increase from $435 million in  fiscal year 2021 to $761 million by fiscal year 2025.[37] Congress did appropriate $427 million for fiscal year 2021,[38] nearly the full authorized amount, but it remains to be seen whether Congress will continue to increase appropriations in line with the larger budget authorizations in upcoming years. Matching appropriations to what Congress authorized for ARPA-E would nearly double the funding the agency could distribute to renewable technology research such as floating wind turbines and is a realistic short-term goal. Long-term, Congress should go further and increase ARPA-E’s funding to at least $3 billion annually to approach that of the Defense Advanced Research Projects Agency (“DARPA”), the Defense Department’s equivalent of ARPA-E, as was recommended by the House Select Committee on the Climate Crisis.[39]

B. Using the DOE to Bridge the “Valley of Death”

While ARPA-E focuses on cutting-edge technologies, the DOE provides grants and loans to renewable energy projects from preliminary research all the way to the commercialization stage. This funding could be particularly useful in moving projects from laboratory-scale demonstrations to commercial viability, a gap that is often referred to as the “valley of death.”[40] The first full-scale projects for a technology like offshore wind turbines can be prohibitively expensive for all but the largest companies due to the high capital costs of turbines and the low expected returns from small-scale initial projects. Government funding can help demonstrate commercial viability, build and develop markets, and prove to investors that a technology is worth their capital.[41] The WindFloat project in Portugal demonstrates the necessity of government funding for the first full-scale projects using a particular technology. The project cost around €120 million, €90 million of which came in the form of grants and loans from the European Investment Bank, an agency of the European Union.[42] This funding is essential for building a bridge over the “valley of death” by supporting wind developers in solving the problems that inevitably come when building the first full-scale versions of a technology. The WindFloat turbines, for example, were delayed by challenges in fine-tuning the computer system that balances the turbine’s floating platform.[43] With that done, the next turbines will not face the same delays, and floating turbines can be installed faster and less expensively.

For comparison, the DOE’s funding for wind projects is far smaller than investment by the European Union and European countries. The DOE has allocated $200 million since 2011 for offshore wind project grants for a variety of projects, from research to demonstration projects.[44] Meanwhile, just since 2014 the EU has approved €314 million in grant funding for offshore wind demonstration and commercialization projects, including over €120 million for floating wind projects, through its NER300 program.[45] Two projects funded by the DOE’s Offshore Wind Advanced Technology Demonstration program, the Icebreaker Project in Lake Erie, and the Aqua Ventus project off Maine, have both received approximately $14 million in funding and are eligible for up to $37 million more if they achieve specific milestones as outlined by the DOE.[46] Compare this with the Veja Mate offshore wind project in Germany, which was awarded €112.6 million by the European Commission in 2015,[47] and the Hywind Tampen pilot project, the eleven-turbine floating wind farm discussed above,[48] which was awarded 2.3 billion Norwegian kroner (about $273 million) by the Norwegian government in 2019.[49] Overall, Europe is far outspending the United States for offshore wind projects.

C. The Opportunity of Renewable Energy Loans

The disparity between U.S. and EU green energy funding is even starker in renewable energy loans. The European Investment Bank (“EIB”) provided €53 billion in energy efficiency, renewable energy, and grid infrastructure loans between 2015 and 2019, including €4 billion in loans for innovative renewable energy projects in 2019 alone.[50] Under the EU’s InnovFin Energy loan program that WindFloat benefited from, up to 50% of a project’s costs can come from these loans, which can support experimental projects that would otherwise struggle to get funding.[51] And, these loans are not just for new renewable technologies; they also help expand renewable energy to new locations. The Lake Turkana wind farm in Kenya, for example, received €200 million in loans—30% of the total project cost—from the EIB.[52]

The DOE, meanwhile, has provided a total of $13.6 billion in loans and loan guarantees for low-carbon energy projects since 2010 through its Loan Programs Office.[53] The loan program was critical in launching utility-scale solar energy projects, with the DOE loan guarantees backing the first five such projects in the United States. But only one project, the Vogtle nuclear plant, has received a loan since 2011.[54] Only four wind projects, all funded in 2010 or 2011, have received any loans or loan guarantees from the agency, and these were all onshore wind farms.[55] The limited use of the DOE’s loan program can be attributed to the restrictive nature of its authorizing statute. The program was split between two main sections, section 1703[56] and section 1705.[57] Section 1703 is still operating,[58] and has $3 billion left for loan guarantees for clean energy projects,[59] but projects funded with this money must use “new or significantly improved technologies.”[60] Section 1705 was a temporary program created as part of the 2009 stimulus bill that allowed for loan guarantees for renewable energy projects and did not require the technology to be innovative.[61] Unlike most onshore and fixed-bottom offshore wind projects, the first handful of full-scale floating turbine projects may still be able to take advantage of the section 1703 loan guarantees due to their use of new-to-the–United States technology, but it is unlikely any floating turbine developers are close enough to full-scale turbine deployment in the United States to pursue this option.

In the long term, Congress should reauthorize the section 1705 program to support a broader array of offshore wind projects without the need to employ innovative technology and raise the current $3 billion limit on how much the DOE can provide in loan guarantees for renewable energy projects. As with ARPA-E, Congress should also increase the DOE’s funding for grants for wind energy research and demonstration projects, with a particular focus on technologies seeking to bridge the valley of death, such as floating turbines. Floating turbine technology continues to rapidly advance, but increased funding to jumpstart the industry is needed to help the United States catch up with Europe’s larger offshore wind sector and to achieve the cost reduction expectations discussed above.[62]

III. Floating Turbine Testbed

In addition to increased funding for experimental offshore wind projects, the DOE and Bureau of Ocean Energy Management (“BOEM”) could take more proactive steps with congressional support to advance technological developments in floating turbines. One such option would be to create a federally managed floating turbine testing site where universities, agencies like NREL, and private developers can all test new floating turbine technology without having to go through the hurdles of leasing and multi-year environmental review for each project.[63] This would create a form of a regulatory sandbox,[64] where developers can save money by being able to sell their electricity onshore without having to install the transmission infrastructure, all while testing innovative floating turbine designs for later use in commercial-scale wind farms.

Granting research leases is already within BOEM’s regulatory power. The agency can grant research leases and rights-of-way to federal agencies and states for projects that “support the future production, transportation, or transmission of renewable energy.”[65] In granting a research lease, BOEM must still consult states, tribes, and other agencies and find there is no competitive interest in the lease,[66] but the necessary environmental review under the National Environmental Policy Act (“NEPA”) can be much simpler and quicker than a commercial-scale offshore wind project. As a comparison, BOEM announced its intent to draft an environmental impact statement for the Vineyard Wind project—a 800MW offshore wind farm off Massachusetts—in March of 2018, and the process has yet to conclude three years later.[67] Meanwhile, the Coastal Virginia Offshore Wind (“CVOW”) project—a small two-turbine pilot project operating under BOEM’s research grant authority—only required an environmental assessment that took only fifteen months from announcement to completion and permit approval.[68]

In addition to the CVOW project, three projects that could inform the development of such a floating turbine testbed are NREL’s controllable grid interface (“CGI”), the PacWave project, and the University of Maine’s Deepwater Offshore Wind Test Site. The CGI is a microgrid at the National Wind Technology Center in Colorado that NREL uses to mimic real electric grid conditions and test commercial-scale renewable energy technology.[69] In addition to photovoltaic solar and battery storage systems, the CGI has five wind turbines from four different manufacturers connected to the system.[70] The CGI is unique in that it is directly managed by a federal agency, and it is valuable both for testing wind turbines and other renewable energy technologies independently and studying how these technologies would interact with each other and the larger grid.[71]

The PacWave project, developed by Oregon State University and permitted by BOEM and the Federal Energy Regulatory Commission (“FERC”), proposes to test wave energy technology in federal waters off the Oregon coast.[72] Operating under the same research lease authority as the CVOW project, the PacWave project will consist of four “berths” where different developers can install experimental wave energy generators.[73] Oregon State will install and manage a dedicated electrical transmission cable for each berth to allow developers to sell the power they generate and monitor their installations from shore.[74] The permitting process differs between wave energy projects like this and offshore wind.[75] But BOEM should replicate  this general structure of a testing site with permitting and infrastructure handled by one party (like the DOE or a university like Oregon State) that facilitates testing by other groups for floating turbines.

The Deepwater Offshore Wind Test Site, created through state legislation in 2009,[76] is in state waters near Monhegan Island, more than twelve miles off the coast of Maine.[77] The site is meant to be used for offshore wind demonstration projects pursued by private developers in association with the University of Maine,[78] and the state legislature appears to have designed it specifically for the Aqua Ventus project.[79] A joint venture with the University of Maine and multiple private offshore wind developers, the Aqua Ventus project began by deploying a sixty-five-foot tall floating turbine in 2013 nearer to the Maine coast for preliminary tests.[80] After receiving approval in 2019, the group is moving forward with plans to install one 10MW floating turbine at the Deepwater Offshore Wind Test Site by 2022.[81] The test site was selected based on its deep waters, strong winds, minimal conflicts with fishermen, and proximity to both the mainland and an island with high energy costs.[82] The developers have also signed a twenty-year power purchase agreement with the Maine Public Utilities Commission.[83] Aqua Ventus will be able to test its innovative floating turbine while also providing clean energy to Maine, helping offset the project’s cost.

Congress could learn from these four projects to create a unique, multi-turbine, floating offshore wind testbed. This would start with Congress directing the DOE and BOEM to identify an appropriate area in federal waters with strong, consistent winds, appropriate depths, and sufficient distance from shore to avoid complaints from coastal landowners.[84] Congress should also direct and fund the DOE to install electrical infrastructure to both monitor and test the turbines, as with the CGI facility, and to transmit generated electricity to shore for sale.[85] The majority of the NEPA review process could be completed upfront to include both the infrastructure built and managed by the DOE and expected turbines.[86] Once this preliminary review and infrastructure development is completed, individual turbines could likely be installed after just a categorical exclusion[87] is issued, or at most an environmental assessment is completed.

An accessible test site like this would be in high demand if set up right. Floating turbine technology, unlike fixed-bottom turbines, has yet to become commercially economical, but the existence of numerous pilot projects such as Aqua Ventus, WindFloat Atlantic, and Hywind Tampen demonstrates that developers are eager to test full-scale floating turbine designs. Developers would be attracted to using the testbed due to the low barriers to entry (i.e., not needing to obtain their own lease or install most of the transmission infrastructure and a simplified permitting process), and the ability to sell their electricity. Development of the testbed could also encourage existing turbine designers like Siemens Gamesa,[88] MHI Vestas,[89] and GE Renewable Energy,[90] who are all developing their own floating turbines, to increase their presence in the United States. It could also help new groups, such as the consortium developing the Aqua Ventus project, to become market competitors, accelerating turbine development and driving down costs. Technological developments supported by the testbed would help wind farm developers expand and improve their installations not just in the United States, but worldwide. Overall, it would be a cost-effective way to spur innovation in floating turbine technology, encourage offshore wind development in the United States, and drive down costs globally.

Conclusion

Floating wind turbines represent one part of the larger offshore wind industry. While fixed-bottom turbine technology—supported by European investment and installations—is already economically viable and supported by private development, floating turbines need investment, research, and testing. Although largely absent from participation in the development of the first generation of offshore wind turbines, the United States can still be a champion in the development and deployment of floating turbines. This would require increased investments in everything from preliminary research supported by ARPA-E, to loan guarantees from the DOE’s Loan Program Office. The federal government should also go beyond simply funding research by others to actively supporting testing through the creation of a floating turbine testbed in federal waters. Such a project could make the United States a hub for floating turbine development, allowing for wind farms in previously inaccessible waters and providing significant amounts of renewable energy in the United States and other nations.


[1] See Our Offshore Wind Projects in the U.S., Ørsted, https://perma.cc/D6BQ-KHS9.

[2] Id. For comparison, the average natural gas–powered electric generating unit installed in 2017 had a capacity of 820 MW. Power Blocks in Natural Gas–Fired Combined-Cycle Plants Are Getting Bigger, Energy Info. Admin. (Feb. 12, 2019), https://perma.cc/4XP6-UHLL.

[3] John Fialka, U.S. Has 7 Ocean Turbines. Companies See Hundreds Soon, Climatewire (July 30, 2020), https://perma.cc/BJS2-AUQV. One gigawatt equals one thousand megawatts.

[4] Patrick Gilman et al., U.S. Dep’t of Energy, & Fred Beck, U.S. Dep’t of the Interior, National Offshore Wind Strategy (2016) [hereinafter National Offshore Wind Strategy].

[5] Id. at vii.

[6] Id. at viii.

[7] Id.

[8] Compare Capacity Factors for Utility Scale Generators Primarily Using Non-Fossil Fuels, Energy Info. Admin., https://perma.cc/JY3B-RCPF (listing the average capacity factors for utility-scale solar and land-based wind in 2020 as 24.9% and 35.4%, respectively), with UK Offshore Wind Capacity Factors, Energy Nos., https://perma.cc/69FB-H8E6 (listing the lifetime capacity factor for the floating turbine Hywind Scotland project as 53.6%). Capacity factor is the percentage of total energy actually produced by a source as compared to the total energy that could be produced if the source operated continuously at full capacity.

[9] Walt Musial et al., Nat’l Offshore Wind Rsch. & Dev. Consortium, Research and Development Roadmap Version 2.0, at 8 (2019), https://perma.cc/VM8B-C64B.

[10] Garrett E. Barter et al., A Systems Engineering Vision for Floating Offshore Wind Cost Optimization, Renewable Energy Focus, Sept. 2020, at 1.

[11] Musial et al., supra note 9, at 8.

[12] Barter et al., supra note 10, at 1.

[13] See supra note 8 and accompanying text.

[14] See Barter et al., supra note 10, at 2.

[15] See Arthur N. Popper et al., Bureau of Ocean Energy Mgmt., Effects of Pile Driving Sounds on Nonauditory Tissues of Fish, at x–xi (2013), https://perma.cc/XKJ6-X3P2.

[16] Barter et al., supra note 10, at 7.

[17] Levelized cost of energy estimates the total cost of all aspects of an energy source spread over the lifespan of that source. A developer would need to charge the LCOE for all energy produced over the lifespan of the project to break even on that project. See Laura Malaguzzi Valeri, Not All Electricity Is Equal—Uses and Misuses of Levelized Cost of Electricity (LCOE), World Res. Inst. (Aug. 1, 2020), https://perma.cc/U2ZD-PQ4B.

[18] Simon Evans, Wind and Solar Are 30–50% Cheaper than Thought, Admits U.K. Government, CarbonBrief (Aug. 27, 2020), https://perma.cc/4YMB-QXR5. The report found that increased size of wind farms resulted in economies of scale savings, while higher than expected capacity factors resulted in higher energy production. Dep’t of Bus., Energy & Indus. Strategy, Electricity Generation Costs 2020, at 23 (2020), https://perma.cc/GL29-B42G. The report does not distinguish between fixed-bottom and floating turbines, but the one example project given is for a fixed-bottom turbine project. See id. At the time of publication, these costs are equivalent to approximately $192/MWh, $147/MWh, and $78/MWh, respectively.

[19] John Parnell, Already the World’s Leading Market, U.K. Doubles Support for Offshore Wind, Green Tech Media (Oct. 6, 2020), https://perma.cc/QK8X-4U4J.

[20] Joyce Lee et al., Glob. Wind Energy Council, Global Offshore Wind Report 2020, at 11–12 (2020), https://perma.cc/E5QV-Z6G3.

[21] The Future of Offshore Wind Is Afloat, Equinor, https://perma.cc/23YA-QGGW (follow three tabs under the heading, “Our Floating Offshore Wind Projects”). The turbine size also grew between each project, with the first turbine being 2.3MW, the pilot project using 6MW turbines, and the most recent project using 8MW turbines. Id.

[22] See Craig Richards, WindFloat Atlantic Fully Operational, Windpower Monthly (July 27, 2020), https://perma.cc/W85D-KUGQ (discussing the completion of the WindFloat Atlantic project).

[23] See Our Offshore Wind Projects in the U.S., supra note 1 (discussing the Block Island Wind Farm and Coastal Virginia Offshore Wind project); Fialka, supra note 3 (discussing the total number of offshore wind turbines operating in the United States).

[24] Stanley Reed, A New Weapon Against Climate Change May Float, N.Y. Times (June 10, 2020), https://perma.cc/2VWC-MVT6. At the time of publication, this is equivalent to approximately $237/MWh.

[25] Walter Musial et al., Nat’l Renewable Energy Lab’y, 2019 Offshore Wind Technology Data Update 68 (2020), https://perma.cc/2X4F-DUK4 (estimating the LCOE for offshore wind to be between $100 and $175/MWh); Int’l Energy Agency, Projected Costs of Generating Electricity 2020 (2020), https://perma.cc/7EJH-E9CL (estimating the average LCOE for onshore wind to be $50/MWh, for utility-scale solar to be $56/MWh, and for natural gas to be $71/MWh).

[26] Musial et al., supra note 25, at 68.

[27] Philipp Beiter et al., Nat’l Renewable Energy Lab’y, A Spatial-Economic Cost-Reduction Pathway Analysis for U.S. Offshore Wind Energy Development from 2015–2030, at xiii (2016), https://perma.cc/9VTV-U8QZ.

[28] See About, Advanced Rsch. Projects Agency-Energy, https://perma.cc/C37A-5MBA.

[29] See OPEN Programs, Advanced Rsch. Projects Agency-Energy, https://perma.cc/Q8WM-QGL3.

[30] See Atlantis, Advanced Rsch. Projects Agency-Energy, https://perma.cc/N8DQ-PCMZ. ATLANTIS stands for Aerodynamic Turbines Lighter and Afloat with Nautical Technologies and Integrated Servo-control. Id. Unless the DOE allocates additional money to the program, $28 million appears to be its full appropriation. See Department of Energy Announces $28 million for Offshore Wind Energy, U.S. Dep’t of Energy (Feb. 1, 2019), https://perma.cc/4MK9-K8GU.

[31] See U.S. Dep’t of Energy, Advanced Research Projects Agency-Energy Annual Report for FY2018, at 6 n.4 (2019), https://perma.cc/9UNL-K94V.

[32] See OPEN 2021, Advanced Rsch. Projects Agency-Energy, https://perma.cc/G9AS-UHUA.

[33] See OPEN 2018 Projects, Advanced Rsch. Projects Agency-Energy, https://perma.cc/XCJ3-LAE2.

[34] Norman R. Augustine et al., Nat’l Acads. of Scis., Eng’g, & Med., Rising Above the Gathering Storm 154 (2007), https://perma.cc/FK53-N2XU.

[35] Budget Requests, Advanced Rsch. Projects Agency-Energy, https://perma.cc/97FM-AZQK.

[36] Advanced Rsch. Projects Agency-Energy, FY2020 Budget Request 1 (2019), https://perma.cc/G7US-GUN7; see also U.S. Dep’t of Energy, FY 2021 Congressional Budget Request 1 (2020), https://perma.cc/R3DL-8WX2.

[37] Consolidated Appropriations Act of 2021, Pub. L. No. 116-260, tit. X, § 10001(g) (2020), https://perma.cc/2DE6-TCPE.

[38] Id. tit. III, https://perma.cc/2DE6-TCPE.

[39] See House Select Committee on the Climate Crisis, Solving the Climate Crisis 220 (2020), https://perma.cc/V4N3-MJ42.

[40] See generally L.M. Murphy, Nat’l Renewable Energy Lab’y, & P.L. Edwards, Altria Group LLC, Bridging the Valley of Death: Transitioning from Public to Private Sector Financing (2003), https://perma.cc/3BFK-2NRZ.

[41] See id. at 32.

[42] €30 million came from a renewable energy development grant, and €60 million came from a loan for renewable technologies. EU Loan Helps Kick-Start Construction of Floating Wind Farm Off the Coast of Portugal, Eur. Comm’n (Oct. 19, 2018), https://perma.cc/2KF6-4JF6.

[43] See Reed, supra note 24.

[44] Offshore Wind Research and Development, U.S. Dep’t of Energy, https://perma.cc/Z8RJ-PA27.

[45] NER300 – Documentation, Eur. Comm’n, https://perma.cc/KR28-BD3W. The NER300 program’s funding comes from the money raised by the EU’s Emissions Trading System, NER 300 Programme, Eur. Comm’n, https://perma.cc/BQC6-GTQK, and the DOE has no comparable funding source.

[46] See Offshore Wind Advanced Technology Demonstration Projects, U.S. Dep’t of Energy, https://perma.cc/TT9T-QNQL. The Aqua Ventus project is the only floating turbine project of these two; the Icebreaker Project is focused on fixed-bottom turbine technology for the Great Lakes. Id.

[47] Veja Mate, Eur. Comm’n, https://perma.cc/PRT9-BQN8.

[48] See supra note 21 and accompanying text.

[49] Hywind Tampen Floating Offshore Wind Farm Secures £210m Funding from Enova, NS Energy (Aug. 23, 2019), https://perma.cc/4SAM-G2JC.

[50] Eur. Inv. Bank, Energy Overview 2020, at 2–3 (2020), https://perma.cc/H8EK-7HTA.

[51] Eur. Inv. Bank, InnovFin Energy Demo Projects 1 (2017), https://perma.cc/Y379-7RTQ.

[52] EIB and Lake Turkana Wind Power, Eur. Inv. Bank (Apr. 3, 2019), https://perma.cc/8AB8-YRC7.

[53] Portfolio Projects, U.S. Dep’t of Energy, https://perma.cc/6DPA-HNH5.

[54] Jacqueline Toth, DOE Program’s $3.7 Billion Loan Highlights Lack of Action on Other $40 Billion It Holds, Morning Consult (Apr. 8, 2019), https://perma.cc/N2G6-6PPV.

[55] Wind Energy Projects, U.S. Dep’t of Energy, https://perma.cc/P6CQ-KLCW.

[56] Energy Policy Act of 2005, Pub. L. 109–58, tit. XVII, § 1703, 119 Stat. 1120, 1453–55 (2005) (codified at 42 U.S.C. § 16513).

[57]  American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, tit. XVII, § 1705, 123 Stat. 115, 145–48 (2009) (codified at 42 U.S.C. § 16516); see also Phillip Brown et al., Cong. Rsch. Serv., IN11432, Department of Energy Loan Programs: Title XVII Innovative Technology Loan Guarantees 1 (2020).

[58] Brown et al., supra note 57, at 1.

[59] Loan Program Off., Annual Portfolio Status Report Fiscal Year 2019 3 (2019), https://perma.cc/4K3H-55UH.

[60] 42 U.S.C. § 16513(a)(2).

[61] Brown et al., supra note 57, at 2.

[62] The DOE would also benefit from a dedicated funding source for renewable energy grants, like the EU’s Emissions Trading System funding the NER 300 program, although the potential and characteristics of a carbon tax or cap-and-trade system in the United States are far outside the focus of this Article.

[63] The challenges and delays for commercial offshore wind leasing in the United States are outside the scope of this Article, but the disparity in offshore wind development between Europe and the United States suggests this is more than just a problem of technology development.

[64] A regulatory sandbox is a controlled environment where new ideas and technologies can be tested without having to go through what can often be long permitting processes. See Brien J. Sheahan & Jimmie Zhang, Experiment Without Penalty: Can Regulatory ‘Sandboxes’ Foster Utility Innovation?, UtilityDive (Mar. 21, 2019), https://perma.cc/TB84-3363.

[65] 30 C.F.R. § 585.238(a) (2019).

[66] Id. § 585.238(b), (c).

[67] See Vineyard Wind, Bureau of Ocean Energy Mgmt., https://perma.cc/5WDQ-R69U.

[68] See Coastal Virginia Offshore Wind Project (CVOW), Bureau of Ocean Energy Mgmt., https://perma.cc/THW3-G9YW. The lease is actually held by the Commonwealth of Virginia’s Department of Mines, Minerals and Energy, which then gave Dominion Energy, the state’s regulated utility, the authority to construct the project. Id.

[69] Grid Integration Facilities at the National Wind Technology Center, Nat’l Renewable Energy Lab’y, https://perma.cc/5DC6-VJWA.

[70] Id.

[71] Controllable Grid Interface, Nat’l Renewable Energy Lab’y, https://perma.cc/S2AL-9NQR.

[72] PacWave South Project, Bureau of Ocean Energy Mgmt., https://perma.cc/95ZL-2JES.

[73] South Test Site, PacWave, https://perma.cc/43NK-6ERL.

[74] Id.

[75] PacWave South Project, supra note 72 (discussing FERC’s authority to permit construction of wave energy projects).

[76] Me. Rev. Stat. Ann. tit. 38, § 480-HH (2021).

[77] UMaine Deepwater Offshore Wind Test Site at Monhegan Island, Univ. of Me., https://perma.cc/T7N4-2856.

[78] Using the Test Site, Univ. of Me. (Oct. 29, 2020), https://perma.cc/8HFM-CGGP.

[79] The Aqua Ventus project has been one of the largest recipients of DOE funding for offshore wind. See supra note 44.

[80] Kristoffer Tigue, Can America’s First Floating Wind Farm Help Open Deeper Water to Clean Energy?, Inside Climate News (Nov. 20, 2019), https://perma.cc/84TR-PEWB.

[81] Id.

[82] The Project, Aqua Ventus, https://perma.cc/964H-RYA9.

[83] Id.; see also Site Selection, Univ. of Me., https://perma.cc/KCE9-5JHV.

[84] Federal waters refers to the area of the ocean beyond state-controlled waters, typically three nautical miles from shore, out to twelve nautical miles. Outer Continental Shelf, Bureau of Ocean Energy Mgmt., https://perma.cc/B76J-KYJE.

[85] The Aqua Ventus project is currently demonstrating the challenges of this siting and permitting process, as it is considering multiple landfall sites for its cable after consulting with fishermen, and the group does not appear to have requested the federal right-of-way that will be needed from BOEM, as the cable crosses federal waters. Proposed Cable Landings in St. George and East Boothbay, Aqua Ventus, https://perma.cc/UL98-RDR4.

[86] Whether this would require an environmental assessment, like the CVOW project, or a full environmental impact statement, like Vineyard Wind, would likely depend on the number of turbines the site is planned for.

[87] A categorical exclusion is a predetermined type of action found by an agency to not have significant effects on the environment, which therefore does not require an environmental assessment or environmental impact statement under the National Environmental Policy Act. Categorical Exclusions, Council on Env’t Quality, https://perma.cc/WAY9-KJDT.

[88] Press Release, Siemens Gamesa, Giant Leap Forward in Floating Wind: Siemens Gamesa Lands the World’s Largest Project, the First to Power Oil and Gas Offshore (Oct. 31, 2019), https://perma.cc/YGP6-JMGS.

[89] First Ever V164-9.5 MW Turbine Installed on a Floating Wind Project, MHI Vestas Offshore Wind (Nov. 11, 2020), https://perma.cc/4T3A-PNWU.

[90] Ship Shape: This Floating Offshore Wind Farm Could Be the Future of Renewable Energy, Gen. Electric (Aug. 30, 2016), https://perma.cc/YJQ8-TYN3.

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., https://perma.cc/U5AW-DQVF.

[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

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 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.[1] Environmental groups sued, and recently won a powerful victory in the Southern District of New York vacating the administration’s interpretation.[2] 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.[3] 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.[4] 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.[5] 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.[6] 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.[7]

This reliance on prosecutorial discretion and voluntary mitigation has worked, creating a rare state of relative harmony for industry, environmental advocates and wildlife.[8] 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.[9] To that end, they advocate for “properly sited wind power” that minimizes harm to birds and other wildlife.[10] 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.[11] 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[12] while creating the potential for wind power to “generate 20 percent of the nation’s electricity.”[13] 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.[14] The reinterpretation concludes that “the statute’s prohibitions . . . apply only to affirmative actions,” not incidental or accidental ones.[15] 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.[16]

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).[17] Undeterred, the administration proceeded and published a proposed rule to codify their new interpretation of the MBTA,[18] which the states and advocacy groups again challenged via the notice and comment process.[19] 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,[20] the following analysis provides alternative arguments against the rule that could become important in the event the case is appealed.

Statutory Language

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.[21] 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.”[22] 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.”[23]

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. 

Legislative History

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.”[24] 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.[25] 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.[26] In other words, if the MBTA covered the incidental take associated with habitat destruction, passage of the MBCA would have been “largely superfluous.”[27]

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.”[28]

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,[29] 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.[30] 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.

Constitutional Issues

FWS further claims that its reinterpretation of the MBTA is necessary because the previous interpretation tramples on the constitutional rights of Americans.[31] 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.[32] 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.[34] 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.

Prior Precedent

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.”[35] FWS argues that the only way to “reduce uncertainty and have a truly national standard,” is to follow this approach.[36] 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,[37] 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.[38] It also ignores the fact that the Act has been consistently interpreted to cover incidental deaths for over forty years.[39] 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.”[40] 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.[41] 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.[42] 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.


[1] See U.S. Dep’t of Interior, Office of the Solicitor, Opinion Letter M-37050 (Dec. 22, 2017).

[2] See Nat. Res. Def. Council, Inc. v. U.S. Dep’t of Interior, 2020 WL 4605235 (S.D.N.Y. 2020).

[3] Migratory Bird Treaty Act, 16 U.S.C.A. § 703 (1918).

[4] See David J. Hayes & Lynn Scarlett, A Free Pass to Kill Migratory Birds, N.Y. Times (Jun. 7, 2018), https://www.nytimes.com/2018/06/07/opinion/a-free-pass-to-kill-migratory-birds.html.

[5]See id.

[6] See id.   

[7] See Lisa Friedman, A Trump Policy “Clarification” All but Ends Punishment for Bird Deaths, N.Y. Times (Dec. 24, 2019), https://www.nytimes.com/2019/12/24/climate/trump-bird-deaths.html.

[8] See Hayes & Scarlett, supra note 4.

[9] See Audubon’s Position on Wind Power, Nat’l Audubon Soc., https://www.audubon.org/conservation/audubons-position-wind-power.

[10] Id.

[11] See id.

[12] See The Migratory Bird Treaty Act, Explained, Nat’l Audubon Soc. (Jan. 16, 2018), https://www.audubon.org/news/the-migratory-bird-treaty-act-explained.

[13] Audubon’s Position on Wind Power, supra note 9.

[14] See U.S. Dep’t of Interior, Office of the Solicitor, Opinion Letter M-37050 (Dec. 22, 2017).

[15] Id. at 2.

[16] See Friedman, supra note 7.

[17] 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).

[18] 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).

[19] 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.

[20] See Nat. Res. Def. Council, Inc., 2020 WL 4605235 at *8-*9.

[21] Regulations Governing Take of Migratory Birds, 85 Fed. Reg. at 5916.

[22] Id. at 5917.

[23] Id.

[24] Id. at 5918.

[25] See id.

[26] Id.

[27] Id. at 5918-19.

[28] New York et. al. supra note 19 at 2.

[29] See Regulations Governing Take of Migratory Birds, 85 Fed. Reg. at 5918-19.

[30] See id.  at 5921.

[31] See id. at 5920.

[32] See id. at 5921.

[33] 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.

[34] See Friedman, supra note 7.

[35] 801 F.3d 477, 494 (5th Cir. 2015).

[36] Regulations Governing Take of Migratory Birds, 85 Fed. Reg. at 5923.

[37] See United States v. FMC Corp. 572 F.2d 902, 904 (2d Cir. 1978).

[38] See United States v. Apollo Energies, Inc., 611 F.3d 679, 684-90 (10th Cir. 2010).

[39] See New York et. al. supra note 19 at 1; Greenspan, supra note 33.

[40] Regulations Governing Take of Migratory Birds, 85 Fed. Reg. at 5922.

[41] See e.g. Pub. Emps. For Env’t Responsibility v. Hopper, 827 F.3d 1077, 1088 n. 11 (D.C. Cir. 2016) (declining to address claims under the MBTA because developers intended to apply for a permit).

[42] See Friedman, supra note 7.

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

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

This post is part of the Environmental Law Review Syndicate.


Introduction

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.

Cost

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
Effectiveness

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]

Fairness

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

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.

Decision-Making

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.

Conclusion

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, https://plastics.americanchemistry.com/Consumer-Benefits/ (last visited Nov. 5, 2020).

[2]See World Wildlife Fund, Plastics: Convenience Numbs Common Sense, Medium (Apr. 21, 2018), https://medium.com/wwftogetherpossible/plastics-convenience-numbs-common-sense-9dfc4a7b7991.

[3] 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.

[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) 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).

[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, https://doi.org/10.1016/j.scitotenv.2016.05.084.

[6]See Monica Isola, Plastic Contributes to Global Warming as It Breaks Down, Researchers Find, Yale Climate Connections (Nov. 7, 2018), https://www.yaleclimateconnections.org/2018/11/common-plastics-emit-global-warming-pollution/.

[7]See What Is the Great Pacific Garbage Patch?, Nat’l Ocean Serv. (Nov. 5, 2020), https://oceanservice.noaa.gov/facts/garbagepatch.html.

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

[9]See id.; Marine Debris Program: Sources, Nat’l Ocean Serv. (Nov. 5, 2020), https://marinedebris.noaa.gov/types-and-sources/sources.

[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), https://www.theatlantic.com/science/archive/2019/07/plastic-pellets-nurdles-pollute-oceans/593317/.

[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), https://apps.npr.org/plastics-recycling/.

[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), https://www.mckinsey.com/industries/consumer-packaged-goods/our-insights/the-new-model-for-consumer-goods.

[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), https://www.theguardian.com/environment/2018/nov/13/the-plastic-backlash-whats-behind-our-sudden-rage-and-will-it-make-a-difference.

[16]But see, Matt Wilkins, More Recycling Won’t Solve Plastic Pollution, Sci. Am.: Observations (Jul. 6, 2018), https://blogs.scientificamerican.com/observations/more-recycling-wont-solve-plastic-pollution/ (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), https://www.nytimes.com/2018/05/29/climate/recycling-landfills-plastic-papers.html (noting that Waste Management threw out about 25% of their recycling).

[18]See How Does Plastic End Up in the Ocean?, World Wildlife Fund, https://www.wwf.org.uk/updates/how-does-plastic-end-ocean (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, https://doi.org/10.1016/j.envpol.2020.113948.

[20]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.

[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), https://www.forbes.com/sites/jeffkart/2018/08/28/the-ocean-cleanup-is-starting-aims-to-cut-garbage-patch-by-90-by-2040/#1cc3454b253e.

[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), https://www.eea.europa.eu/data-and-maps/figures/price-developments-for-selected-waste-1.

[24]See Extended Producer Responsibility, Organisation for Economic Co-Operation and Development, https://www.oecd.org/env/tools-evaluation/extendedproducerresponsibility.htm (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), https://www.oecd.org/environment/waste/Global%20Forum%20Tokyo%20Issues%20Paper%2030-5-2014.pdf.

[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), https://www.npr.org/sections/goatsandsoda/2018/06/28/623972937/china-has-refused-to-recycle-the-wests-plastics-what-now.

[34]See Roger Harrabin, Bill Proposes Ban on Plastic Waste Exports, BBC: Sci. (Jan. 30, 2020), https://www.bbc.com/news/science-environment-51315458 and The Plastic Waste Trade in the Circular Economy, Eur. Env’t Agency (Jul. 23, 2020), https://www.eea.europa.eu/themes/waste/resource-efficiency/the-plastic-waste-trade-in. 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), https://ourworldindata.org/plastic-pollution#all-charts-preview.

[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), https://www.plasticseurope.org/application/files/3715/1689/8308/2015plastics_the_facts_14122015.pdf.

[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), 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).

[40]See Our Goal: Closing Loops – Together for the Environment, DerGrünePunkt https://www.gruener-punkt.de/ (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), https://www.cleanproduction.org/static/ee_images/uploads/resources/EPRtoolkitColourFinal.pdf.

[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), https://www.thehindu.com/sci-tech/energy-and-environment/making-indias-polluters-pay/article25753356.ece

[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), 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.

[47]See Pulla, supra note 45.

[48]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.

[49] See Jane Hoffman and Michael Hoffman, What Is Greenwashing?, Sci. Am. (Apr. 1, 2009), https://www.scientificamerican.com/article/greenwashing-green-energy-hoffman/.

[50] See Extended Producer Responsibility Project, World Wildlife Fund (Oct. 28, 2020), https://wwf.panda.org/?356332/Extended-Producer-Responsibility-Project.

[51]See Xin Chen, WWF’s EPR Project at a Glance, World Wildlife Fund, http://d2ouvy59p0dg6k.cloudfront.net/downloads/20190905_wwf_s_epr_project___external.pdf (last visited Nov. 6, 2020).

[52]See Our Approach, Project Stop, https://www.stopoceanplastics.com/our-approach/ (last visited Nov 6, 2020).

[53] See, e.g., Pasuruan, Project STOP, https://www.stopoceanplastics.com/en_gb/pasuruan/ (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), https://www.theguardian.com/australia-news/2019/sep/25/andrew-forrest-launches-us300m-war-on-plastic-to-tackle-ocean-pollution.

[55]See We’re All in This Together, The Recycling P’ship, https://recyclingpartnership.org/funding-partners/ (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), https://finance.yahoo.com/news/circulate-capital-closes-us-106m-152600477.html.

[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, https://www.circulatecapital.com/ (last visited Nov. 6, 2020).

[59]See Our Investment Portfolio, Circulate Capital, https://www.circulatecapital.com/investments (last visited Nov. 7, 2020)

[60]See Free Recycling Programs, Terracycle, https://www.terracycle.com/en-US/brigades (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), http://kam.co.ke/kam/wp-content/uploads/2019/12/KPAP_Document-pages.pdf.

[63]See Citeo, Total, Recycling Technologies, Mars and Nestlé Join Forces to Develop Chemical Recycling of Plastics in France, Total (Oct. 12, 2019), https://www.total.com/media/news/press-releases/citeo-total-recycling-technologies-mars-and-nestle-join-forces-develop-chemical-recycling-plastics.

[64]See The Initiative, Ellen MacArthur Found., https://www.newplasticseconomy.org/about/the-initiative (last visited Nov. 7, 2020).

[65]See New Plastics Economy Global Commitment, Ellen MacArthur Found., https://www.ellenmacarthurfoundation.org/assets/downloads/13319-Global-Commitment-Definitions.pdf (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), https://www.newplasticseconomy.org/assets/doc/GC-Report-June19.pdf [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., https://www.ellenmacarthurfoundation.org/resources/apply/global-commitment-progress-report/signatories (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), https://www.ellenmacarthurfoundation.org/assets/downloads/Global-Commitment-2020-Progress-Report.pdf [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,  https://www.towardszerowaste.gov.sg/waste-streams/packaging-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, 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).

[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), https://www.ellenmacarthurfoundation.org/news/ngos-and-businesses-call-for-un-treaty-on-plastic-pollution.

[91] See EU Circular Economy Action Plan, Eur. Comm’n, https://ec.europa.eu/environment/circular-economy/ (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), https://www.americanbar.org/groups/environment_energy_resources/publications/trends/2014-2015/july-august-2015/the_rise_mandatory_product_stewardship_programs/.

[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, http://healthsteward.ca/about/about-hpsa/ (last visited Nov. 7, 2020).

[99] See generally rPlanet Earth, https://www.rplanetearth.com/ (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), https://www.forbes.com/sites/joshbersin/2018/04/03/the-rise-of-the-social-enterprise-a-new-paradigm-for-business/?sh=3aa05d3671f0.

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

[103] See, e.g., Index Family Overview, SAM, https://www.spglobal.com/esg/csa/indices/index (last visited Nov. 19, 2020); Sustainable Investing, BlackRock, https://www.blackrock.com/us/individual/investment-ideas/sustainable-investing (last visited Nov. 7, 2020).

[104] See Alan Barton, To Go Circular, First Go Vertical, U.S. Chamber of Commerce Found. (April 16, 2018), https://www.uschamberfoundation.org/blog/post/go-circular-first-go-vertical.

[105]See, e.g., Jared Paben, Indorama Provides Details on Purchase of PET Recycling Firm, Plastics Recycling Update (Feb. 26, 2020), https://resource-recycling.com/plastics/2020/02/26/indorama-provides-details-on-purchase-of-pet-recycling-firm/ (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), https://resource-recycling.com/plastics/2019/06/05/how-much-indorama-paid-for-a-u-s-pet-processor/ (acquisition of Custom Polymers PET by Indorama); Megan Smalley, Taiwanese Company Acquires Phoenix Technologies International, Recycling Today (June 4, 2019), https://www.recyclingtoday.com/article/taiwan-far-eastern-new-century-acquires-phoenix-pet-recycler/ (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), https://resource-recycling.com/plastics/2019/01/16/brand-owner-demand-leads-to-perpetual-purchase/.

[107] See Imerys Acquires UK Plastic Recycler, Recycling Today (Sept. 17, 2017) https://www.recyclingtoday.com/article/imerys-acquires-uk-plastic-recycler/.

[108] C.f. Bringing Plastics Full Circle, Imerys Performance Minerals, https://www.imerys-performance-additives.com/your-market/recycled-plastics#environmental-benefits (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), https://www.morssinkhofplastics.nl/wp-content/uploads/2018/01/Press-Release-Morssinkhof-Rymoplast-Heerenveen.pdf (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, 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).

[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), https://recyclingpartnership.org/press-release-the-partnership-announces-first-investment-in-pathway-to-recyclability-initiative/; see also Cutting River Plastic Waste, Benioff Ocean Initiative, https://boi.ucsb.edu/active_projects/river-plastics-pollution (last visited May 17, 2020).

[114]See Daniel Thomas, Davos 2020: People Still Want Plastic Bottles, Says Coca-Cola, BBC (Jan. 21, 2020), https://www.bbc.com/news/business-51197463.

[115] C.f. Bruno Berthon, Sustainability and the Great Recession, The Guardian (Sept. 24, 2013), https://www.theguardian.com/sustainable-business/sustainability-great-recession.24, 2013).

[116] See Luke Denne, Coronavirus Pandemic Threatens to Undo Progress on Plastic Pollution, NBCNews (May 15, 2020), https://www.nbcnews.com/science/environment/coronavirus-pandemic-threatens-undo-progress-plastic-pollution-n1207231.

[117] See Laura Tenenbaum, The Amount of Plastic Waste Is Surging Because of the Coronavirus Pandemic, Forbes (Apr. 25, 2020), https://www.forbes.com/sites/lauratenenbaum/2020/04/25/plastic-waste-during-the-time-of-covid-19/#1efbe7547e48.

[118] See generally The Circular Economy: A Transformative Covid-19 Recovery Strategy, Ellen MacArthur Found. (Oct. 27 2020), https://www.ellenmacarthurfoundation.org/assets/downloads/The-circular-economy-a-transformative-Covid19-recovery-strategy.pdf.

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

 

 

 

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

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 soon as it arrived.1. The decision protected LGBTQ+ employees from discrimination based on their sexual orientation or gender identity,2 and LGBT activists and allies rightly celebrated it as an affirmation of basic human rights and dignity. But amidst this celebration, excitement arose from a different, surprising, quarter: climate change activists.

Before the ink had dried on Bostock—or, more accurately, before many readers had managed to battle through the download delay that Justice Alito’s unwieldy dissent caused the Court’s servers3—various climate scholars were already arguing that the language and reasoning that Justice Gorsuch employed in his majority decision could have major implications for climate regulation under the federal Clean Air Act (CAA).4 Specifically, scholars posited that Gorsuch’s use of progressive textualism, and his specific acknowledgment that old statutes may be used to address new problems,5 bodes well for the durability of future climate change policymaking under CAA authority.6 Following the Bostock framework, climate litigants could, in theory, argue that the text of the CAA must allow for broad regulation of greenhouse gas as a pollutant, despite Congress’s failure to address greenhouse gases or climate change directly.

Climate advocates and policymakers are certainly justified in searching for a silver bullet of legal theory to convince the Supreme Court to uphold a major CAA climate rulemaking. Climate scientists across the globe are warning policymakers that time is running out to save the world from climate disaster,7 and lacking climate-specific legislation, it seems more important than ever that the Environmental Protection Agency (EPA) undertake significant action under its existing authority. I have suggested elsewhere that EPA should institute National Ambient Air Quality Standards (NAAQS) for greenhouse gases (GHGs) under CAA sections 108–10, in order to activate broad federal power over state implementation plans (SIPs) for emissions reduction.8 Similarly, several scholars have argued stridently for the implementation of a GHG SIPs program under section 115.9 Either way, regulating GHGs through SIPs represents the broadest possible approach to GHG regulation under the existing CAA,10 but represents a difficult legal argument to make to the Supreme Court. Moreover, the Court has already demonstrated wariness of EPA attempts to address climate change under the CAA,11 and climate litigants can expect this wariness to increase as the conservative wing of the Court grows.12 Since a successful EPA climate rule must survive judicial review, in this article I examine whether Justice Gorsuch’s Bostock framework could indeed aid EPA in future climate rulemaking and advocacy before the Court.

Ultimately, I conclude that Bostock is not the legal silver bullet that climate activists seek.13 As attractive as the Bostock framework is, it cannot save climate change policymaking under the CAA from a textualist standpoint because interpretation of the word “pollutant” in the  CAA, unlike “sex” in the Civil Rights Act, involves deference to an agency head. Thus, the battle for CAA GHG regulation must be fought on the fields of reasonability analysis, not textualism. And this raises a second problem for EPA. In a future climate case, the Court may reject Chevron deference entirely and instead utilize either the deregulatory “major questions” doctrine, or the Schechter-era nondelegation doctrine—and in either case, Bostock offers no useful tool to climate litigants. I do not argue that EPA has no chance of enacting climate policy under the CAA, nor that the agency should not attempt to do so. On the contrary, I feel strongly that EPA is morally obligated to make every effort possible to enact significant GHG regulation. I conclude, however, that future climate jurisprudence will be governed not by precise textualism, but by broad judicial and political philosophy—and that realistically, climate advocates’ best bet is to pursue the appointment of as many liberal justices to the Supreme Court as possible.

DISCUSSION

I. Overview of Bostock v. Clayton County and Its Potential Relevance to Climate Litigation
A. Bostock v. Clayton County

Bostock v. Clayton County began in its life in Clayton County, Georgia, when Gerald Bostock, a county employee with an excellent work performance record,14 joined a gay softball league and was promptly fired for “conduct unbecoming a county employee.”15 Bostock sued, alleging that the county had violated Title VII of the Civil Rights Act of 1964.16 The district court ruled against Bostock,17 and the Eleventh Circuit agreed, holding that Title VII’s prohibition of discrimination “on the basis of sex” did not apply to sexual orientation.18 The Supreme Court reversed.19

Justice Gorsuch, writing for a six-three majority, announced in the first paragraph of his seventeen-page opinion that the phrase “discrimination . . . on the basis of . . . sex” included discrimination on the basis of sexual orientation because sexual orientation itself depends on sex.20 “An employer who fires an individual for being homosexual or transgender,” Justice Gorsuch explained, “fires that person for traits or actions it would not have questioned in members of a different sex,”21 and thus “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”22 In the following pages, Justice Gorsuch also rejected protests that Title VII cannot be used to protect LGBT employees because such a result is at odds with the “expected applications” of the law.23 Such an application of purposivism, Gorsuch insisted, has no place in Supreme Court jurisprudence today.24 Instead, he reasoned, the ordinary public meaning of the word “sex,” and its use in the statute,25 requires the Court to recognize protections for gay and transgender individuals—and it has always done so.26 Ultimately, Gorsuch declared, the fact that the framers of the statute may not have realized that such protections existed was no reason to deny these protections now, because “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”27

Moreover, Justice Gorsuch specifically forestalled potential objections on “elephants in mouseholes” grounds.28 While Gorsuch acknowledged the late Justice Scalia’s adage that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,”29 Gorsuch insisted that this canon “ha[d] no relevance” in the Bostock case, because while the policy implications of Gorsuch’s interpretation are sweeping—an indisputable “elephant”—Title VII’s prohibition against sex discrimination is hardly a “mousehole.”30 Instead, Gorsuch wrote, the prohibition is “written in starkly broad terms,” which necessarily, according to the ordinary public meaning of the word “sex,” include sexual orientation discrimination.31

B. Parallels to Climate Rulemaking and Litigation

The implications of Bostock to future climate litigation and jurisprudence are complex, but a series of parallels can be identified as follows. First, it can be argued that a prohibition against “discrimination on the basis of sex” is to LGBT employee protections under the Civil Rights Act—a statute that never mentions sexual orientation—as “air pollutant” is to GHGs under the Clean Air Act—a statute that never mentions climate change, but which empowers EPA to broadly regulate “air pollutants”32 for the protection of the “public health and welfare.”33 In other words, both phrases explicitly identify a general issue that their statute is designed to address, and thus both should implicitly include specific aspects of that broader issue in the same way: sexual orientation discrimination is a type of sex-based discrimination (and civil rights violation), as climate change-causing GHG is a type of air pollutant (and a threat to public health and welfare). Second, climate change and sexual orientation discrimination are both issues that have been neglected by most national politicians until relatively recently,34 despite decades of advocates’ efforts, and both seem ripe for regulation under an old statute that was designed to address a general issue but that did not directly acknowledge this specific problem. Third, Gorsuch’s choice in Bostock to brush aside “elephants in mouseholes” concerns, despite the broad policy implications of his holding, is encouraging to climate activists because the Supreme Court has made clear in past climate cases that it considers broad GHG regulation programs to constitute an elephantine effect on national industry.35

C. Overview of Relevant Climate Jurisprudence

For those hoping for a friendly judicial reception to climate change regulation, Justice Gorsuch’s Bostock arguments are tantalizing. I am convinced, however, that the series of parallels outlined above will not, alone, be enough to ensure the protection of an ambitious Clean Air Act GHG regulation scheme. In order to understand why not, we must first understand the history of the three Supreme Court cases that have addressed GHG regulation under the CAA thus far: Massachusetts v. EPA (Mass. v. EPA),36 American Electric Power Co. v. Connecticut (AEP v. Connecticut),37 and Utility Air Regulatory Group v. EPA (UARG v. EPA).38

1. Massachusetts v. EPA and the Origins of Greenhouse Gas Regulation Under the Clean Air Act

 The Supreme Court first addressed GHG regulation under the CAA in 2007, in Mass. v. EPA. Today, this case represents the basis for EPA regulation of GHGs as pollutants. Mass. v. EPA began in 2003 when EPA made an official determination declaring that it lacked authority under the CAA to regulate GHGs as pollutants in the context of climate change.39 A coalition of states, cities, and environmental organizations brought suit, arguing that section 202 of the CAA—requiring EPA to set emissions standards for “any air pollutant” produced by vehicles—included GHGs.40 The Supreme Court agreed, finding that GHGs “fit well within the Clean Air Act’s capacious definition of ‘air pollutant.’”41 Accordingly, in 2009, EPA under the newly-elected President Obama made an “endangerment finding” officially establishing that the six primary “well-mixed” greenhouse gases together constituted a singular “air pollutant” under section 202.42

2. AEP v. Connecticut, Stationary Source Regulation, and the Potential for Future Rulemaking

 AEP v. Connecticut, decided in 2011, subsequently expanded EPA’s ability to regulate GHGs as an air pollutant beyond section 202 (vehicle regulation) to include subsections 111(b) and (d) (stationary source regulation). AEP v. Connecticut began when an alliance of states and environmental interests sued a group of energy companies, attempting to use federal common law authority to force the companies to reduce GHG emissions from their power plants.43 The Supreme Court dismissed the case.44 Writing for a 6-0 majority,45 Justice Ginsburg held that the CAA had foreclosed common law litigation on matters of interstate air pollution, because the Act “speaks directly” on this issue46—and after Mass. v. EPA, it was “plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act.”47 Significantly, in addition to confirming EPA GHG regulatory authority under sections 202 and 111, Justice Ginsburg also left the door open for GHG rulemaking under other sections of the CAA, including the NAAQS program.48 “The Act,” she wrote, “provides multiple avenues for enforcement, [and i]f EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter.”49

3. UARG v. EPA and the GHG Regulation – Textualism Mismatch

 Mass. v. EPA and AEP together constitute an essential foundation to federal GHG regulation, but UARG v. EPA, decided in 2014, provides the most relevant precedent for future attempts at ambitious GHG regulatory policy. UARG began in 2010, when EPA, reacting to Mass. v. EPA, determined that it must regulate GHG emissions under the “prevention of significant deterioration”50 (PSD) and Title V programs, which require emissions permits for “major sources.”51 Per the statute, a “major source” is any source emitting 250 tons of “any air pollutant” each year52––but many sources emit GHGs in such vast amounts that millions of nontraditional sources, including residences, would count as “major sources” if GHGs were considered “air pollutants” under these programs.53 Seeking to avoid unmanageable permitting responsibilities, EPA designed the “Tailoring Rule,” which specified that sources would be considered “major” due to their GHG emissions alone only if they emitted at least 100,000 tons of GHGs each year.54

Energy interests challenged the Tailoring Rule in the D.C. Circuit, and the Supreme Court struck it down.55 Writing for a deeply divided plurality which only Chief Justice Roberts and Justice Kennedy joined in full,56 Justice Scalia held that EPA had been wrong to “tailor” a statutory provision this way.57 In writing a rule that purported to recognize GHG sources as “major” for purposes of regulation only if they emitted at least 100,000 tons per year, Scalia wrote, EPA had illegally “revise[d] statutory terms.”58 The only solution to the legal and practical problem at hand, Scalia held, was to read an implicit exemption into the phrase “any air pollutant” in the context of the PSD and Title V programs.59 Thus, according to Justice Scalia, GHGs are officially not “air pollutants” under sections 165, 169, or 171–73 of the CAA.60

Justice Breyer, meanwhile, argued in a partial concurrence that the Court had misplaced its implicit exemption. While Scalia had decided that the term “any air pollutant” must be read to exclude “non-traditional” pollutants like GHGs, Breyer argued that it would instead be possible to read the term “any major source” to exclude those sources, like private residences, which are unsuited to Title V permitting.61

Finally, Justice Alito argued in a separate partial concurrence that EPA should not be allowed to regulate GHGs under the CAA at all.62 Alito argued that GHGs are fundamentally unsuited to regulation under the CAA and that while EPA had attempted to gloss over the problems of GHG regulation under the CAA by arguing that the Act grants the agency “a great deal of discretion,” ultimately “[t]hat is not what the Clean Air Act contemplates.”63

This, then, is the state of Supreme Court climate jurisprudence after ten years of EPA GHG regulation and climate cases before the Court. After UARG, the Court’s conservative wing has made its suspicion of ambitious GHG regulation clear––but the door is not closed to climate rulemaking entirely. Would-be climate policymakers and litigants, anticipating a possible Biden presidency, will keep all this in mind as they seek a successful legal framework for ambitious policy.

II. Textualism, Deference, and the Nondelegation Doctrine: What Bostock Does and Does Not Mean for the Future of Climate Jurisprudence

Based on the precedent outlined above, it appears that the Bostock textualist approach cannot be used as a template for climate litigation. This is true both because the Court has already held that “any air pollutant” does not actually mean “any,” and because interpretation of the term “pollutant” in the context of the CAA fundamentally involves relative deference to the EPA administrator. In theory, litigants could argue that the plain text of the CAA mandates full deference to the EPA Administrator in identifying those pollutants that endanger public health or welfare and are thus subject to CAA regulation. Realistically, however, the battle for climate regulation will depend not on textualism, but on the broader questions of reasonability and deference. And unfortunately for EPA, this Court is likely to forego Chevron altogether and dismiss a climate rule either on major questions grounds, or, in a worst-case-scenario situation, through the revival of the nondelegation doctrine. This unfortunate possibility is now more likely than ever in light of Justice Ginsburg’s death and likely replacement with conservative judge Amy Coney Barrett.64

A. The Textualist Mismatch Between Title VII’s “on the Basis of Sex” and the Clean Air Act’s “Any Air Pollutant”

Despite Bostock’s progressive textualist appeal, it is unlikely that the Bostock framework will aid a future EPA in establishing GHGs as “any air pollutant” throughout the Clean Air Act. As noted above, Justice Gorsuch in Bostock put forth a compelling argument for the inclusion of an implicit, specific issue within an explicit, general statutory term and mandate. The Civil Rights Act’s prohibition against “discrimination on the basis of sex”, Gorsuch insisted, must include a prohibition against sexual orientation discrimination.65 It is tempting to conclude by the same logic that the CAA’s reference to “any air pollutant” must include GHGs––but this does not necessarily follow from likely Supreme Court reasoning, for two reasons.

First, it is important to note that Bostock itself overturned no Supreme Court precedent—instead, it announced the existence of a previously unrecognized inherent meaning in the phrase “discrimination…on the basis of sex.”66 By contrast, the Supreme Court has already addressed the question of whether the term “air pollutant” could include GHGs, and purports to have settled the matter under more than one section of the CAA. According to Mass. v. EPA and AEP v. Connecticut, GHGs are air pollutants under sections 202 and 111.67 But according to UARG, GHGs are not air pollutants under section 169.68 It is already clear, then, that the Court does not believe that the phrase “any air pollutant” must always include GHGs.

Second, both sides of the ideological spectrum have already exhibited an aversion to a plain text approach in the context of climate change. In UARG, Justice Scalia and Justice Breyer’s majority and dissenting opinions are opposite in function but identical in form: both engage in a textualist approach of a sort, yet explicitly reject the bounds of plain meaning. Each Justice notes that the term “any” need not mean “any in the universe,”69 and each acknowledges the need to read an implicit exemption into the text—accordingly, Scalia proposes to read the relevant line as “any air pollutant except greenhouse gases,”70 and Breyer proposes “any major source except non-traditional sources.”71 In advancing a plain text approach to support GHG regulation throughout the CAA, litigants would need to convince the Supreme Court to both overturn decided precedent and abandon longstanding methods of interpretation. Neither proposition is likely to succeed.

B. A Textualist Obligation to Afford Deference?

Certainly, the status of greenhouse gases as air pollutants remains unsettled under several thus-far unlitigated sections of the Clean Air Act—including, notably, the NAAQS program. The NAAQS program empowers the EPA Administrator to identify a list of ambient air pollutants which she feels may “endanger public health or welfare”72 and develop national standards for these pollutants, and it provides an excellent example of why the Supreme Court has good reason to eschew a plain text approach in interpreting “any air pollutant” under the CAA. Despite Justice Alito’s protestations, the CAA does indeed grant EPA “a great deal of discretion”73—in particular, regarding which substances to regulate as pollutants. The Administrator’s choice of pollutant under the NAAQS program is of course reviewable in theory, but thus far the Court has essentially granted EPA free reign in identifying criteria pollutants74—cabined by the traditional “reasonableness” metric for evaluating agency discretion.75

Arguably, this means that despite the clear failure of a plain text approach to defining the term “any air pollutant,” there may still be hope for a plain text argument in support of deference to the EPA Administrator. The NAAQS program demands that the Administrator be allowed to exercise her “judgment” in identifying and listing criteria pollutants.76 Thus climate advocates could adopt a sort of Bostock framework and argue that the CAA has always given EPA the ability to regulate any substance which can reasonably be said to endanger health or welfare, regardless of cost or regulatory reach.77 I have argued elsewhere that under the NAAQS program at least, EPA is clearly authorized to regulate GHGs as an air pollutant, in part because of the broad discretion granted to the Administrator in the stark language of the CAA.78 Under this theory, the Court would be required to accept EPA’s identification of GHGs as a pollutant, and subsequently engage in the traditional reasonability and arbitrary and capriciousness analysis of whatever the resulting rule may be.

C. Major Questions, New Tricks, and the Court’s Evolution Away from Deference

As noted above, while an intellectually honest textualist approach may in theory require the Court to grant EPA the discretion to regulate GHGs as a pollutant throughout the CAA, in practice it is unlikely that defending a massive GHG regulatory program will be as simple as a text-based argument for EPA discretion. Furthermore, this Court is likely to forego a Chevron reasonability analysis altogether, and instead either invoke its “major questions” doctrine to bar EPA’s regulatory authority over GHGs for lack of a “clear statement,”79 or use a major climate rule as a vehicle to revisit the Schechter-era nondelegation doctrine.80

First, the Supreme Court could invoke its “major questions” jurisprudence, used to great effect in UARG,81 and declare that EPA cannot, for example, regulate GHGs as a pollutant under the NAAQS program without a “clear statement” from Congress authorizing it to do so—because GHGs are not “conventional” pollutants,82 and because any major climate rule would surely have a transformative effect on industry. Justice Scalia, of course, is no longer on the Court, but other justices seem eager to pick up his mantle on this point.83 Justice Kavanaugh, for instance, has already demonstrated his fondness for the major questions principle on environmental and administrative law issues in particular.84 In oral argument for West Virginia v. EPA, the 2016 D.C. Circuit case regarding the legality of the Obama EPA’s ambitious Clean Power Plan, then-Judge Kavanaugh pressed government counsel on major questions grounds.85 It is not difficult to imagine that Kavanaugh and like-minded justices would be swift to invoke the “major questions” rule in a major climate case to bar EPA from regulating GHGs as a pollutant under major sections of the CAA.

More troubling still, the Court’s conservative wing has recently been sending signals that it is eager to move away from the Chevron tradition altogether in favor of the nondelegation doctrine of the Schechter era, which could require Congress to outline a highly specific “intelligible principle” before agencies may develop regulatory schemes.86 This shift was most recently demonstrated in Gundy v. United States,87 a case addressing whether the Sex Offender Registration and Notification Act, in stating that the Attorney General has “the authority to specify the applicability of the requirements of [the Act] to sex offenders convicted before [its] enactment,” fails to establish an intelligible principle cabining the Attorney General’s authority and thus violates the nondelegation doctrine.88 Although Justice Kagan’s plurality opinion did not alter Supreme Court precedent on the matter, the conservatives in dissent made their displeasure with this result clear.89 Indeed, those heralding the Bostock decision as a harbinger of friendly climate jurisprudence may find reason to be concerned with the fact that Justice Gorsuch himself wrote a dissenting Gundy opinion, joined by the Chief Justice, Justice Kavanaugh, and Justice Thomas. Specifically, Gorsuch argued that Gundy would have been an opportunity to revisit the nondelegation doctrine because the statute in question inappropriately “hand[ed] off to the nation’s chief prosecutor the power to write his own criminal code.”90 It is not difficult to imagine that Justice Gorsuch might feel the same way about the argument that the CAA grants EPA the power to identify and regulate any pollutants that endanger health or welfare in any way. And Justice Gorsuch would likely find particular reason to be concerned if EPA applied this reasoning to the regulation of GHGs because GHGs are well-mixed, globally dispersed, dangerous only on an international scale, and impossible to effectively control without a significant shift in the American energy industry.91

In response to this concern, climate advocates may cite the second significant Bostock finding: the idea that old statutes can perform new tricks, regardless of their framers’ intent.92 Certainly, this holding may help to defeat an “elephants in mouseholes” challenge, following Justice Gorsuch’s Bostock reasoning, because while deference to EPA in regulating GHGs as pollutants is certainly an elephant, the text of the Clean Air Act grants EPA the authority to identify and regulate pollutants that endanger public health and welfare—and thus no “mousehole” exists.93 Ultimately, however, I fear that in light of the Court’s shift toward the major questions and nondelegation doctrines,94 this is but a hollow victory.

CONCLUSION

Having considered the future of climate jurisprudence in light of Bostock, relevant climate cases, and the Court’s current trend toward nondelegation, I conclude that the problem with climate advocates’ search for a silver bullet may not be that no such bullet exists, but rather that the Court is unlikely to acknowledge one. It may be true, in theory, that the text of the Clean Air Act demands deference to the EPA Administrator in identifying pollutants for regulation, but the Court may refuse to acknowledge this, either by citing major questions or by announcing a revival of the intelligible principle requirement. Ultimately, I do not suggest that climate advocates and a theoretical Biden EPA should cease regulatory attempts under the Clean Air Act. For one thing, I believe that the Act provides a clear mandate for EPA action in identifying pollutants that endanger public health or welfare and regulating emissions of those pollutants. And despite the challenges, I do not think it is impossible that Justice Roberts or Gorsuch could be persuaded to support a new significant climate rulemaking. In the end, however, it is clear that climate advocates’ best bet is not to craft a brilliantly reasoned rulemaking to impress this Court, but instead to elect a President who will appoint one or two climate-friendly justices—and perhaps, given recent events on the Court, even to initiate a Court-packing plan. Time, after all, is running out.


 

A Blooming Problem: How Florida Could Address the Causes and Effects of Red Tide

By John Niedzwiecki, Senior Editor, Georgetown Environmental Law Review

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

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.”[1]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.”[2]

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 marine mammals.”[3] 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.”[4] Red tides are a frequent occurrence in Florida and “appear off the state’s coast almost every year.”[5] Red tides have been “documented…along Florida’s Gulf Coast since the 1840s.”[6] The ongoing red tide has been present for over 10 months, the longest duration of a red tide since 2006.[7]

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.”[8] 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.[9]Red tides have the unfortunate effect of depressing tourism, because beaches become “strewn…with the stinking carcasses of fish, eels, porpoises, turtles, manatees.”[10]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.”[11]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 [2018]” 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.”[12]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.[13]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.”[14]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.”[15]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.[16] 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.”[17]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.”[18]

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.”[19]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.[20]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,”[21]and because the geographic extent of the red tides covers “hundreds to thousands of square kilometers of shelf waters and extending down to 50.”[22] 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.”[23]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.[24]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.[25]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.”[26]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.[27]

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.


[1] The Red Tide Control & Mitigation Program, Report to Stakeholders 4 (2010).

[2] Id. at 4.

[3] Id. at 5.

[4] Id.

[5] Tryggvi Adalbjornsson and Melissa Gomez, A Toxic Tide is Killing Florida Wildlife, N.Y. Times, July 30, 2018, https://www.nytimes.com/2018/07/30/climate/florida-red-tide-algae.html.

[6] Florida Dept. of Health, Frequently Asked Questions: Red Tide 1 (2014).

[7]Adalbjornsson, supra note 5.

[8] Lorraine Backer, Impacts of Florida red tides on coastal communities, 8 Harmful Algae 618, 620-21 (2009).

[9] Michael Nedelman, Florida’s Toxic Algae Problem: ‘Red tide’ and ‘green slime’, CNN (Aug. 18, 2018), https://www.cnn.com/2018/08/16/health/toxic-algae-bloom-health/index.html.

[10] Joel Achenbach, Kate Furby, and Alex Horton, Florida declares a state of emergency as red tide kills animals and disrupts tourism, The Wash. Post, Aug. 14, 2018, https://www.washingtonpost.com/news/speaking-of-science/wp/2018/08/14/red-tide-algaes-deadly-trail-of-marine-animals-has-triggered-a-state-of-emergency-in-florida/?noredirect=on.

[11] E.B. Jewett, et al., Interagency Working Group on Harmful Algal Blooms, Hypoxia, and Human Health of the Joint Subcommittee on Ocean Science and Technology, Harmful Algal Bloom Management and Response: Assessment and Plan 1 (2008).

[12] Adalbjornsson, supra note 5.

[13] Craig Pittman, More manatees have died in 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.

[14] Florida Dept. of Health, supra note 6, at 1.

[15] Kevin Sellner, et al., Harmful Algal Blooms: Causes, Impacts and Detection, 30 J. of Industrial Microbiology & Biotechnology 383, 386 (2003).

[16] Nedelman, supra note 9.

[17] Achenbach, supra note 10.

[18] Id.

[19] Id.

[20] Pittman, supra note 13.

[21] Achenbach, supra note 10.

[22] Karen Steidinger, Historical perspective on Karenia brevis red tide research in the Gulf of Mexico, 8 Harmful Algae 549, 556 (2009).

[23] Jewett, supra note 11, at 3.

[24] Barbara Kirkpatrick, et al., Human responses to Florida red tides: Policy awareness and adherence to local fertilizer ordinances, 493 Science of the Total Environment 898, 898-909.

[25] Kirkpatrick, supra note 24, at 903.

[26] Id.

[27] Id.

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), http://siteresources.worldbank.org/EXTREDSEADEADSEA/Resources/Overview_RDS_Jan_2013.pdf?resourceurlname=Overview_RDS_Jan_2013.pdf%26.

[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), https://www.nrdc.org/onearth/could-water-red-sea-help-revive-dead-sea. 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.

Id.

[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), http://siteresources.worldbank.org/INTREDSEADEADSEA/Resources/Background_Note_October_2010.pdf; 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), http://www.jpost.com/printarticle.aspx?id=484996.

[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), http://www.aljazeera.com/programmes/earthrise/2017/05/jordan-water-wise-women-170516110004513.html.

[24] Odette Chalaby, Jordan Is Solving Its Water Crisis by Training Women as Plumbers, Apolitical (Nov. 3, 2017), https://apolitical.co/solution_article/jordan-solving-water-crisis-training-women-plumbers/.

[25] Id.

[26] Id.

[27] Jordan’s First Water Desalination Plant Opens in Aqaba, Jordan Times (Mar. 18, 2017), http://www.jordantimes.com/news/local/jordan%E2%80%99s-first-water-desalination-plant-opens-aqaba.

[28] Diplomatic Drought: Jordan’s Water Crisis Is Made Worse by a Feud with Israel, Economist (Dec. 2, 2017), https://www.economist.com/news/middle-east-and-africa/21731844-thirsty-kingdom-can-ill-afford-fall-out-its-neighbour-jordans-water.

[29] Ministry Launches Water Conservation Awareness Game, Jordan Times (Feb. 19, 2018), http://www.jordantimes.com/news/local/ministry-launches-water-conservation-awareness-game.

[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), https://ensia.com/features/water-desalination-middle-east/.

[32] Id.; Julia Pyper, Israel Is Creating a Water Surplus Using Desalination, E&E News: Climatewire (Feb. 7, 2014), https://www.eenews.net/stories/1059994202.

[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), http://www.circleofblue.org/2016/middle-east/israels-mediterranean-desalination-plants-shift-regional-water-balance/.

[40] Zafrir Rinat, Desalination Problems Begin to Rise to the Surface in Israel, Haaretz (Feb. 6, 2017), https://www.haaretz.com/israel-news/.premium-desalination-problems-begin-to-rise-to-the-surface-in-israel-1.5494726.

[41] Hagai Amit, Dry, Dry Again: After Several Wet Years, the Big Drought Is Back Again in Israel, Haaretz (Jan. 19, 2018), https://www.haaretz.com/israel-news/.premium-after-several-wet-years-the-big-drought-is-back-in-israel-1.5746445.

[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), https://www.btselem.org/video/201609_water_salem#full.

[46] Id.

[47] Id.

[48] Id.

[49] Gaza Emergency Water Project, World Bank (Apr. 29, 2013), http://www.worldbank.org/en/results/2013/04/29/gaza-emergency-water-project.

[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), https://www.ochaopt.org/content/largest-seawater-desalination-plant-opened-gaza.

[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), https://www.whitehouse.gov/briefings-statements/donald-j-trump-administration-welcomes-israeli-palestinian-deal-implement-red-dead-water-agreement/.

[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), http://siteresources.worldbank.org/MENAEXT/Resources/RDS_Background_Note_V050707.pdf?resourceurlname=RDS_Background_Note_V050707.pdf.

[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), http://siteresources.worldbank.org/INTREDSEADEADSEA/Resources/RDSQ&A13Dec2011_final.pdf.

[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), http://documents.worldbank.org/curated/en/510341468184139751/pdf/651110IPNR0Box000INSP0SECM201100008.pdf.

[68] Id.

[69] Press Release, World Bank, Senior Israeli, Jordanian and Palestinian Representatives Sign Milestone Water Sharing Agreement (Dec. 9, 2013), http://www.worldbank.org/en/news/press-release/2013/12/09/senior-israel-jordanian-palestinian-representatives-water-sharing-agreement.

[70] Id.

[71] Sharon Udasin, Israeli, Jordanian Officials Signing Historic Agreement on Water Trade, Jerusalem Post (Feb. 26, 2015), http://www.jpost.com/Israel-News/New-Tech/Israeli-Jordanian-officials-signing-historic-agreement-on-water-trade-392312.

[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), http://www.aljazeera.com/indepth/features/2017/07/water-deal-tightens-israel-control-palestinians-170730144424989.html.

[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), http://www.jpost.com/Arab-Israeli-Conflict/Jordan-to-go-ahead-with-Red-Sea-Dead-Sea-project-542417. 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), http://www.jordantimes.com/news/local/jordan-says-not-officially-notified%E2%80%99-new-israeli-ambassador.

[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.